Merrick Garland Should Treat Donald Trump Like Everyone Else

“Equal Justice Under Law” is carved on the face of the building where the US Supreme Court sits, and is embraced as the standard by which the government should treat everyone.

But can the Department of Justice attain that goal when focusing on a former president of the US? That task is made more difficult because that former president is a declared candidate to replace the current president—who has the authority to remove the DOJ’s head at will, and who has all but declared himself a candidate for re-election.

Attorney General Merrick Garland already acknowledged the salience of the 2024 election when he cited former President Donald Trump’s announcement of his third presidential run as a reason to appoint a special counsel to investigate the allegation against him.

Garland’s appointment of a special counsel arose out of the events of January 6 and the discovery and failure to return a large number of presidential records, including many that were highly classified.

But this does not relieve him of the decision on whether to charge Trump. And nor did the appointment of Robert Mueller replace then-Attorney General Bill Barr as the politically accountable officer with final word for matters under his jurisdiction.

If, as expected, President Joe Biden also announces his candidacy, the political aspects of the decision whether to indict Trump for any of the pending matters he’s facing will become even more prominent in the eyes of the public.

In one respect, Trump cannot be treated like everyone else because both sets of potential charges arguably relate to his duties while he was president.

His apparent defense of his conduct on January 6 is that he was responding to the public’s demand that he speak out about the flaws in the election, and that he was only urging others to encourage Vice President Mike Pence to carry out his constitutional authority.

For the classified documents found at Mar-a-Lago, Trump has taken the position that he was entitled to keep them even after he left office. If he is indicted for those offenses, he will be treated equally, because it will be the government’s position that no president could lawfully do what he did.

Trump can defend himself by arguing that he only did what every other holder of that office could do—which may be a defense on the merits, but is not a claim of unequal treatment.

However, if Trump is charged, he is almost certain to argue that he was singled out when others who were alleged to have committed similar offenses would go free. The relevant facts support the opposite conclusion: failure to charge him would be treating him better than others in similar situations.

Take the more than 900 individuals who have been convicted or pled guilty to January 6 offenses. They would justifiably demand that equal treatment requires that Trump defend himself in court, especially because many of them told the judge who sentenced them that they stormed the Capitol because their leader urged them to do so.

As for the mishandling of highly classified documents, equal treatment there would mandate that the DOJ follow its past practice of prosecuting cases like this, even without the blatant refusal to comply with a court order to return them, which readily differentiates the Trump case from those of Biden and Pence.

For proponents of equal justice under the law, the greater danger is that the attorney general will decline to seek an indictment of Trump because of a fear of backlash from Trump’s supporters and perhaps some independents, especially as the 2024 election draws closer.

It is impossible to know what impact such an indictment would have on the election, but whether it would help or hurt Biden should be irrelevant to the decision.

Perhaps it is unnecessary, but the president should publicly announce that the final decision whether to charge Trump is Garland’s alone as the attorney general—to be made solely based on whether the facts and the law warrant prosecution.

Although Trump’s supporters wouldn’t believe that Biden isn’t directing Garland to file charges, it would send a clear message to the public generally that the attorney general should not consider any political considerations in making his decision to indict Trump or not: he should just treat him like everyone else.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Alan B. Morrison is an associate dean at George Washington University Law School where he is teaching a course on the special problems in regulating the conduct of the president.