I. Merrick Garland and the Rule of Law
If you missed Merrick Garland’s speech, you can read it here. If you missed the speech, and you’ve listened to people on TV discussing the speech, I strongly recommend that you read the actual speech. You may have heard this kind of argument for why Garland is not actually conducting a criminal investigation into the high-level conspirators who planned and incited the January 6 insurrection:
Honig is making a few assumptions, including:
- The DOJ is waiting for a referral
- The DOJ is not working in coordination with the select committee
- The DOJ is doing nothing
I mean, other than that . . . 🤷♀️
While the select committee has said it will make referrals where it deems them appropriate, I haven’t heard anything about the DOJ “waiting” for a referral.
What the select committee has said is that it is working in coordination with other agencies to avoid duplication of effort.
We know that the Georgia DA is coordinating with the select committee. Why not the DOJ also?
We also know that the DOJ lawyers represented the National Archives in Trump’s executive privilege lawsuit. It was clear that the DOJ lawyer representing the National Archives against Trump was familiar with the evidence at issue, which I took as a sign that they’re coordinating.
As far as the DOJ doing “nothing,” maybe I read Merrick Garland’s speech differently from other people: I took him literally. I took him at his word because I have no reason to believe that he is lying, or even fudging the truth.
He referred to the attack as an “unprecedented attack on our democracy”:
He said that the investigation has “become one of the largest, most complex, and most resource-intensive investigations in our history.” Doesn’t that suggest that he’s taking it seriously?
Read this part:
I see the words “all” and “at any level” whether they were at the Capitol on January 6 or not.
Do people think Merrick Garland is lying? Is he deceiving us? Is this a head fake?
Why would he do that?
This is where he addresses the complaint that it’s been a full year (since the attack, not since his appointment) and where is the full accounting:
That all makes sense to me.
Here he explains why he can’t say anymore:
He can’t say more because saying more jeopardizes the investigation. Remember what Comey did in 2016? Merrick Garland doesn’t want to be like that.
He talked a lot about rule of law and why procedures must be followed:
He says we follow the same procedures when democracy is under attack that we follow any other time. This makes sense to me because if you abandon rule of law, what replaces it? There are not many alternatives.
To be clear, I don’t know what is happening inside the DOJ. I don’t know who will be charged. I also don’t know the future. I am not promising any particular results.
I’m just pointing out that there is a lot of speculation going on, and I have no reason to think Merrick Garland is lying.
I’m seeing a lot of this on social media:
This is the kind of thing that scares me about the future of our democracy. People actually disparage an ethical DOJ and want an Attorney General to commit to particular results before the investigation is completed. What do you call a criminal investigation in which the result is predetermined?
The people who mock Merrick Garland for not committing to “anything except ethical behavior” — Do they understand a prosecutor’s ethical obligations (which actually, Garland explained in his speech)?
Do they want an unethical DOJ?
Do they even understand what they are wishing for?
Precisely. The argument seems to be: “The crimes were really really bad and in fact, struck at democracy itself, therefore, we need to set aside norms and procedures to deal with it.”
Merrick Garland argues the opposite in his speech. He says adhering to norms is essential when defending democracy. You strengthen rule of law with more rule of law, not less. If the defenders of democracy abandon rule of law, norms, and procedures this ensures that rule of law will die.
Once both sides abandon rule of law, it’s over. Do we want to be a rule of law nation, or not?
II. Hannity’s Dilemma
On Monday, the select committee investigating the January 6th insurrection released a letter to Sean Hannity inviting him to cooperate with the committee. The letter described some of the messages Hannity exchanged with members of Trump’s inner circle before, during, and after the insurrection.
The text messages indicate, among other things, that Hannity was playing two roles at once: Openly, he was a member of the news media, or, to use the phrase of select committee member Longren, his role at Fox is as a “press person.” Behind closed doors, however, he was functioning as a close advisor to former President Trump and member of Trump’s inner circle.
For example, Hannity wrote this message to former chief of staff White House Mark Meadows:
We can’t lose the entire WH counsels office. I do NOT see January 6 happening the way he is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity. Go to Fl and watch Joe mess up daily. Stay engaged. When he speaks people will listen.
Hannity’s use of the word “we” indicates that he is an unofficial member of the White House staff. While the message is cryptic, the advice Hannity is giving is apparently intended to calm the situation and divert violence.
Hannity also texted Meadows: “Pence pressure. WH counsel will leave.” This message is also cryptic but indicates Hannity’s concern that the White House counsel will resign if Trump keeps up his pressure on Pence.
These emails position Hannity as a witness to the crime the committee is investigating. What emerges from the select committee’s letter to Hannity is that playing these dual roles has created ethical, legal, and professional issues for Hannity, and it isn’t clear how he will resolve them.
The ethical issue has to do with the role of government and the media. The news media is supposed to report on the government and offer analysis and commentary about the government. A democratic government, in fact, relies on this separation. For this reason, a free press has been called the Fourth Estate—an institution whose job it has been to keep “its eyes on the government” and to “serve as the voice of the people, speaking truth to power.” In contrast, in a totalitarian or authoritarian state, the press is a part of the government, serving as the government’s propaganda wing while posing as independent media.
At times, Hannity has claimed to be a member of the press. At other times, when it suited him, he said he’s a talk show host and entertainer. In a now-deleted tweet, he said that his show “breaks news daily.” In another now-deleted tweet, he said that he provides “REAL NEWS!” On another occasion, he tweeted, “I am not a journalist. I am a talk host.”
Hannity’s audience, though, didn’t know he was operating behind the scenes as a political advisor to the president and de facto member of the White House inner circle. Hannity told his audience that, “We’ve been telling you that [the select committee] is a waste of your time and money. They have a predetermined outcome” without indicating that he was a fact witness to the crime and thus had a personal stake in the work of the committee.
Even if Hannity is a broadcaster or an opinion journalist, he has an ethical obligation to disclose the fact that his involvement with the person or entity he is covering.
Hannity’s role is further complicated by the fact that he is being represented in his dealings with the select committee by Jay Sekulow, one of Trump’s personal lawyers.
However, when the select committee asked Hannity to cooperate, he evidently decided that on this occasion, he was a member of the press. His lawyer told the committee that Hannity “remains very concerned about the constitutional implications especially as it relates to the 1st amendment.” The implication here is that a journalist could avoid testifying by invoking the First Amendment. In fact, there is no such First Amendment shield that would prevent a journalist from answering questions about emails written as political advice to an elected official, particularly if those emails situate the journalist as a fact witness to a crime.
The committee is putting subtle pressure on Hannity to get him to cooperate fully: They dropped hints in their letter and in public statements by committee members that they have “dozens” of emails on multiple subjects, and the evidence, in the form of documents, is on file with the committee. In other words, the committee already has all the information and is simply inviting Hannity to come in and explain more fully the emails he wrote.
The select committee’s request that Hannity cooperate creates a legal problem that should be easily resolved. The texts and statements from committee members indicate that Hannity is a fact witness and not a suspect or target of the investigation. In fact, the text messages released indicate that Hannity was imploring Trump to call off the insurrection and “not mention the election again.” The messages also indicate that, 24 hours before the insurrection, Hannity was worried about what might happen over the next 48 hours. Hannity was worried. He didn’t want a violent insurrection.
When a person is a fact witness and not an accomplice or co-conspirator—and the only legal liability might arise would be from obstruction or contempt—the way to stay out of legal trouble is obvious: Cooperate with the investigating authorities. Tell them everything you know about the crime.
However, telling the truth creates a professional issue for Hannity: His audience is unlikely to tolerate negative coverage of Trump. In fact, his audience might never forgive him if he goes to the committee and gives testimony against Trump. The dual role he has been playing ironically makes it impossible for him to tell the truth. By outwardly playing the role of “press person” while privately acting as part of the government, he has made his job literally that of a propagandist. A propagandist who tells the truth is out of a job.
In other words, if he tells the truth to avoid legal liability, he will endanger his professional role as a pro-Trump talk show host and expose his dual agency.
What’s a propagandist to do?
