Magical Thinking is Risky Business
We learned with the Mueller investigation not to count on guardian angels to swoop in and take care of things, especially when they have split priorities
I’ve been reflecting these days on Joan Didion’s book, The Year of Magical Thinking, a true story about the death of her husband, and the many months of despondency and doubt about what to do—what she could do—next. She doesn’t touch his clothes or his shoes, not because she’s too stricken, but because there’s a part of her that believes he’ll be back and he’ll need them.
It’s normal in times of grief—when the world feels like it’s fallen to pieces and can’t be reassembled, when what seemed true and enduring has been taken away—to be pulled in by the magical promise of someone who can make things better.
I suspect Robert Mueller was that person for many Americans, stunned by the ascendancy of Donald Trump and sickened by the daily abuses against human decency, attacks against norms and values that had been assumed were shared, and the abject dismembering of the rule of law and the principle that no one is above it.
The arrival of the special counsel in 2017 after the firing of James Comey represented an opportunity to set things right. The stalwart Robert Mueller—a Vietnam vet who received a Bronze Star and a Purple Heart, the former head of the criminal division of the Department of Justice, the longest-serving director of the FBI since J. Edgar Hoover—was surely the man needed to confront the danger in our midst and lessen our grief. Of course!
Until he wasn’t. Until his report came out and newly installed Attorney General Bill Barr lied about its contents. Until Mueller, with an over-abundance of caution, refused to bring criminal charges, bending to the opinion of the DOJ’s Office of Legal Counsel that a sitting president could not be indicted.
Recall the confounding paragraph in the Mueller Report detailing his reasons for not serving up a verdict. Was this the conclusion of a man determined to extract justice or the work of a too-careful institutionalist?
“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct…At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
I’ve been thinking about Didion and Mueller, grief and magical thinking in the context of the deadly January 6 attack on our Capitol and the brutal determination of Trump and his allies to steal the election, reject the peaceful transfer of power, embrace the use of political violence and kill democracy.
While I never envisioned Merrick Garland as a righteous guardian angel, certain to provide a reliable buffer of sanity and legality amid the storm, I was hopeful that his commitment to justice was sufficient to prioritize the prosecution of January 6—and that would include confronting the Trump-allied zealots who thumb their nose at Congress, the rule of law and all of us who still cling to the belief in democracy. That includes Steve Bannon and anyone else subpoenaed by the House Select Committee that will take his sneering lead.
It might seem unfair to reflect on Garland in light of Mueller, but there’s the increasingly disturbing probability that Garland like Mueller is an institutionalist first, even if it means justice is delayed or ultimately denied. In this picture, the Department of Justice takes precedence over justice itself.
I’d like to be wrong. I’d like to learn that I misjudged Merrick Garland and he and his DOJ prosecutors really are aggressively probing the full array of January 6 attackers, including the inciters, funders and organizers, and particularly the Inciter-in-Chief. I’d like to find out that he hasn’t just outsourced that responsibility to the House or passionate prosecutors around the country contending with other Trump crimes. Yes, I’d like to wake up one day to images of a criminal sociopath cuffed and taken into custody because no one is above the law and crime really doesn’t pay.
But in times like these, magical thinking is risky business. Hoping that the AG really is methodically pursuing the case at every level is not good enough. Wishing upon a star that the coup plotters and predators ended their operation on January 6 only strengthens the probability that they’ll eventually succeed. Believing in democracy as a shared value of all Americans has lost credibility. Magical thinking becomes tragically comical in the face of opponents who lie about January 6 as peaceful, extol a murderous teenager roaming the streets with an AR-15 assault rifle, and take pleasure in a congressman posting a video visualizing the assassination of a congresswoman.
"It is not enough just to right the ship," House Judiciary chair Jerrold Nadler rightly said at a recent DOJ oversight hearing with the AG. "As the chief law enforcement officer of our nation, it is also your responsibility to help the country understand and reckon with the violence and the lawlessness of the last administration."
That’s the thing: Garland has an enormous, almost unfathomable task to turn things around. But that has to include recognizing his role in publicly addressing the traumatic events of the Trump years, especially the trauma of January 6 that I think millions of Americans are still struggling to process. This can’t wait.
This week the Washington Post published a column questioning criticisms of Merrick Garland and the need for greater urgency, including mine. I could not agree more with the writer Randall Eliason that “massive investigations like this take a long time,” that prosecuting Trump or other organizers entails “complex legal issues involving the First Amendment, executive privilege and the potentially novel applications of various criminal statutes.” I also concur that “the absence of public action does not mean the absence of any action at all.”
But then his argument drifts into the institutional mindset that’s better suited to a time when urgency was not part of the mix. “After all, what’s the rush?” he asks. “The potential defendants aren’t going anywhere. The Justice Department should take the time to do it right.”
Sounds good in that other world, the one where there are two governing parties, where democracy and the rule of law are shared commitments, where one party isn’t aggressively pursuing power by any means necessary and will shut down any Congressional investigation if they succeed at taking back the House and Senate next year. We all want the DOJ to do it right—to secure an air-tight case, not a shoddy one.
But what’s the rush? I think the answer is obvious.
We cannot afford magical thinking or cling to the vaguely communicated promise that justice will be served, not when those who’ve chosen the violence-filled authoritarian future are determined to make a mockery of law and order. We should expect that our Democratic leaders recognize this hard reality and act with the necessary speed that these times demand.
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You wrote "Garland has an enormous, almost unfathomable task to turn things around. But that has to include recognizing his role in publicly addressing the traumatic events of the Trump years, especially the trauma of January 6 that I think millions of Americans are still struggling to process. This can’t wait."
This is true. And the magical thinking that we would be rescued by Mueller was, in the end, just that: magical, wishful thinking. We know this now.
We live in a time of persistent media. We have come to expect timely accurate information. This isn't 1850, it 2021. A part of Garland's job, whether he likes it or not, is to effectively demonstrate to the citizens of the US that he is addressing these matters. We can't hope, we can't take his word for it. We can't pretend it's not important. We need to know, to see evidence of, to be assured of - demonstrably- that he is actively pursuing justice. We can't pretend to not need this, nor can he, nor can the Biden administration. Honestly if Garland is not able to communicate effectively (and the evidence is piling up that he cannot) then he's not doing his job and someone else who can both administer justice AND communicate effectively should be appointed. It's not realistic in this day and age to pretend that things will automatically be OK. THAT's magical thinking. We need proof. We need to know. He needs to tell us, to assure us, to show us. It's professional malpractice to not manage constituents and expectations more effectively.
Whatever Garland may be doing beneath his green eyeshade, it's not enough. He needs to step up and to acknowledge his pubic-facing information responsibilities or be replaced. It's a new world.
Thank you for what having sent what may well be the most important writing I'll read today. My sense is a lot of citizens have shaken off the magical thinking, fairly clearly see reality, and are in a demoralized state. We thought we beat the forces of autocracy in the last election; we won, didn't we? No. The demoralization needs to be shaken off. As always, citizens will need to take things into our own hands. Our institutions clearly will not do the job for us now. At the very least, the facts in the Bannon case are self-evident. There is no need to take the time to "build a case on complex legal matters," and still, no charges. Garland is failing. The system is failing, may have already failed.
Once again it will be up to citizens to take matters into our own hands. The forces of autocracy certainly have been and are. We do have to hope it's not too late while keeping in mind it might well be. So..."Whatcha gonna do when they come for you?"