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Garland took too long to get justice against Trump underway

Attorney General Merrick Garland in 2023.Bill O’Leary/The Washington Post

Kimberly Atkins Stohr’s column “Don’t Blame Garland and Smith for Trump’s Failed Prosecution” misses the mark (Opinion, Nov. 28). She says it’s unlikely “we would be in a different place” if Attorney General Merrick Garland had appointed special counsel Jack Smith well before November 2022. I disagree. In February 2021, after Republican Senator Mitch McConnell declined to vote for impeachment because Donald Trump was no longer president, he effectively called for a criminal investigation into Trump. The minority leader said: “We have a criminal justice system in this country. We litigate civil suits. And former presidents are not immune from being held accountable by either.”

If Smith had been appointed then, several things would be likely. First, the prosecution would have appeared more legitimate because of the events of January 6, 2021. It would have been the prosecution of a widely condemned former president, not an up-and-coming candidate. Second, if the investigation had begun, it could well have been completed long before Trump became a candidate.

Atkins Stohr suggests that the election interference case required “the diligent investigative work of both the special committee and federal investigators,” without which a grand jury may not have brought an indictment. This is not about completing an investigation; it’s about starting one.

The Supreme Court’s immunity decision caused a stir; Nothing seems to have changed. But at least some of the justices’ questions during the hearing concerned whether a presidential successor could use his powers to take action against a political rival; They clearly had Trump in mind as president, not Biden. In February 2021, this prospect was unimaginable.

There are others who are responsible for the fate of the Trump prosecution. But Garland is up there.

Nancy Gertner

Brookline

The author is a retired U.S. district judge and lecturer at Harvard Law School.

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