Opinion | Judiciary

Press: No excuse for Garland to not prosecute Bannon

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No Democratic member of the House or Senate is saying it publicly yet, but more and more are saying it privately: "Joe Biden made a big mistake in appointing Merrick Garland attorney general. He should have gone for Doug Jones. Garland's too timid."

Frustration with Garland has been building for some time among congressional Democrats over his failure to pursue criminal charges against former President Trump. By itself, they believe, Trump's call to Georgia Secretary of State Brad Raffensperger, urging him to "just find 11,780 votes," is sufficient evidence of a federal crime to merit appointment of a special prosecutor. "I think a criminal investigation here is absolutely warranted," former U.S. Solicitor General Neal Katyal told MSNBC.

The problem, one former top White House official told me, is that Garland has a bad case of "Obama syndrome." Meaning two things. One, he thinks his job is to look forward, not backward. Which, on the face of it, is absurd. All criminal prosecution deals with crimes committed in the past, not in the future. Two, Garland's afraid of appearing to use his power to punish his political opponents. Which is equally absurd. Republicans have no blank check to break the law just because a Democrat happens to be attorney general.

Still, to be fair to Garland, one could argue that, for many reasons it's tough to go after a former president of the United States. So maybe Garland can make a case for not indicting Trump. But he has no excuse for not indicting former chief White House strategist Stephen Bannon for refusing to testify before the House Special Committee on Jan. 6.

Indeed, it wouldn't be hard for Garland to make the case against Bannon. Because by his own statements and actions, Bannon's made the case for himself of deep involvement in the insurrection of Jan. 6. 

As reported by the Daily Mail this week, in the days leading up to Jan. 6, Trump loyalists set up "war rooms" at the Willard Hotel to map out strategies to reinstate Trump for a second term, including a rally on the morning of Jan. 6 and a later show of force at the U.S. Capitol. Under Rudy Giuliani, the Trump team included former New York Police Commissioner Bernard Kerik and Bannon - who, according to the select committee, allegedly spoke to Trump on Dec. 30 and urged him to focus on Jan. 6. 

There's no doubt Bannon knew that Jan. 6 was going to be more than a "tourist visit" to the Capitol. On the morning of Jan. 5, he told listeners to his radio show: "All hell is going to break loose tomorrow. Just understand this, all hell is going to break loose tomorrow...We're coming in right over the target, OK? Exactly, this is the point of attack we always wanted."

And now Bannon's openly defying the law by refusing to comply with a congressional subpoena and hiding behind the fig leaf of "executive privilege," even though he was no longer a White House staffer in January, having been fired by Trump in 2017.

There's no way Garland can look at the facts and refuse to file criminal charges against Bannon. By his own admission, Bannon was a major player in the worst assault against the United States since the Civil War. This cannot go unpunished.

If Merrick Garland does not immediately indict Stephen Bannon, President Biden should fire him. Not for playing politics with the Justice Department. But for refusing to do his job. 

Press is host of "The Bill Press Pod." He is author of "From the Left: A Life in the Crossfire."

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