August 16, 2022

RICH LOWRY: Merrick Garland looks set to indict Trump — despite his glaring conflict of interest.

It’d be one thing if Trump had shot someone on Fifth Avenue — a clean, no-doubt crime that wouldn’t require any novel theories or difficult-to-probe contentions about his state of mind to prosecute.

In contrast, Trump’s Jan. 6 offenses involve alleged crimes like obstructing Congress or defrauding the United States that are going to involve tricky questions about his motives and where the legitimate exercise of his powers ends and the supposed criminality begins.

Needless to say, the country is not prepared to adjudicate such questions in a calm, high-minded manner. It will be the O.J. Simpson trial meets the Hiss-Chambers case, with a presidential race not in the background but very much in the foreground.

The fact of the matter is that while Trump’s moral blameworthiness for Jan. 6 is not in doubt, his legal culpability is. It’s easy to write an op-ed or say on cable TV that Trump incited an insurrection. As a legal matter, though, Trump didn’t come close to crossing the line to incitement, which has very specific and high standards under law.

Even his infamous Georgia phone call looks different on the close reading it would get as part of any court case — by the end of the call, his lawyers were only asking that the secretary of state’s office tell them why their count of suspected fraudulent votes was off.

In an environment of ever-spiraling political conflict, it’s difficult for anyone to exercise forbearance — to realize the most emotionally satisfying course isn’t necessarily the correct one and to be constrained by the public interest, even if that enrages his or her own side.

Merrick Garland can still err on the side of statesmanship. He looks set, though, to choose the abyss.

Related: Trump deserves the Hillary treatment. The FBI has once again put the country in a no-win situation.

More: The Payback for Mar-a-Lago Will Be Brutal. What went around [last] Monday will come around hard for the Democrats when Republicans control the Justice Department and FBI.

UPDATE (FROM GLENN): Contrary to Rich Lowry, I don’t think that Trump is even morally responsible for January 6, which I also think has been wildly overblown, especially against the 2020 background of government-sanctioned riots in cities across the country.

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