Since Garland was appointed by a Democratic president, his burden of proof is probably higher than the law requires. Any prosecution of a former president would have to be bulletproof and seen to be so.
Biden is reportedly frustrated with the DoJ’s inaction. But in declining to pressure Garland, Biden is doing the opposite of what Trump would.
Democrats, and constitutional Republicans, should beware of investing Garland with superhuman powers. They made that mistake with Robert Mueller, the special counsel whose damning 2019 report into Trump’s Russia collusion – and obstruction of attempts to investigate it – was neutralised by a more cynical Washington operator.
Garland could be Mueller’s heir. He is a public servant who goes by the book in an America that has given up reading. Washington’s savviest are still betting that Trump will escape prosecution.
Yet the savvy should also evaluate the cost of letting Trump get away with it. Roughly 40 per cent of America believes that the 2020 election was stolen. It is a small step from spurning concrete evidence to swallowing even darker myths.
If that many Americans can deny what happened 18 months ago, how easy would it be to convince them that slavery, for example, was a lie? The risk of doing nothing is great. The law cannot be indifferent to the impact of its restraint.
The conventional wisdom was to judge the Jan 6 hearings on whether they would sway public opinion. But it is increasingly clear that their primary audience is America’s prosecutors. History keenly awaits Garland’s decision.