One cannot help think that his message was directed at the wider audience of Americans, some of whom think defeated former president Donald Trump is a “victim” because he is being investigated for squirreling away top-secret documents at his Mar-a-Lago club.
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Garland’s remarks came just hours after the Justice Department appealed the atrocious ruling of U.S. District Court Judge Aileen M. Cannon, which made hash out of executive privilege and expressly declared that Trump’s status as a former president merited special consideration.
The court’s attempt to give deference to the former president flew in the face of the rule of law and the court’s own constrained power. As the government argued to the U.S. Court of Appeals, “Neither Plaintiff nor the court has cited any authority suggesting that a former president could successfully invoke executive privilege to prevent the executive branch from reviewing its own records. Any possible assertion of executive privilege over these records would be especially untenable and would be overcome by the government’s ‘demonstrated, specific need’ for them … because they are central to its ongoing investigation.”
Even more pointedly, an amicus brief filed on behalf of former Republican officials, including those who held high-ranking Justice Department posts, argues: “The district court’s analysis, which gave greater weight to the reputation of a former president than to the reputation of any other citizen, and greater weight to that personal reputation than to national security concerns, is fundamentally inconsistent with the basic tenets of U.S. law.” The brief added, “Under the court’s reasoning, its analysis would be different if the plaintiff were not the former president but a school teacher, police officer, or veteran who had taken classified information from a U.S. government facility and stored it in their home.”
In short, the court cannot come up with a rule simply for Trump. That is what the rule of law is meant to prevent. As former federal prosecutor Andrew Weissmann remarked, “I think what [Cannon’s] doing is affording [Trump] more than any of us would get in court. I think that was the most outrageous statement, it is a violation of a judge’s oath of office to treat every individual the same.”
Garland’s speech on Saturday echoed the government’s appeal to the 11th Circuit. He declared, “The rule of law means that the law treats each of us alike: there is not one rule for friends, another for foes; one rule for the powerful, another for the powerless; a rule for the rich, another for the poor; or different rules, depending upon one’s race or ethnicity or country of origin.” He added, “The rule of law means that we are all protected in the exercise of our civil rights; in our freedom to worship and think as we please; and in the peaceful expression of our opinions, our beliefs, and our ideas.”
Given these and other recent statements, it seems increasingly unlikely Garland would allow a former president to avoid prosecution simply because he is a former president. If, as Garland said, “the responsibility to ensure the rule of law is and has been the duty of every generation in our country’s history,” then it falls not only on the newest immigrants but on the 11th Circuit and the Justice Department to protect it. Hopefully, the 11th Circuit is listening.