Robert H. Jackson was the last Supreme Court justice who never earned a law degree. After one year at Albany Law School, he became a lawyer by the age-old practice of "reading the law" in Jamestown, New York. He attached himself to the star of then-Gov. Franklin D. Roosevelt, and when the latter became president, Jackson joined the administration and served in a number of jobs, beginning as an assistant general counsel in the Bureau of Internal Revenue, in which capacity Jackson became a particular bête noire of Andrew Mellon and his business interests. By 1938, he was named solicitor general and, in 1940, attorney general. He spent a year in that job until FDR nominated him to the Supreme Court. His nomination was confirmed on July 7, 1941, just in time for Jackson to serve on the court throughout World War II and until his death in 1954. While hospitalized with the first of the heart attacks that would later kill him, Jackson left his bed and went down to the court so that there would be a full complement of justices when it delivered its unanimous decision in the case of Brown v. Board of Education on May 17, 1954. He would be dead by October.
However, Jackson came back on my radar recently because I decided to look back to the Nuremberg Trials of 1945. Jackson took a leave of absence from the Supreme Court to serve as the lead U.S. prosecutor at those proceedings. The Nuremberg Trials were an attempt by the victorious Allied powers to bring justice to the victims of Nazi atrocities through due process and the rule of law. This was largely unprecedented, and Jackson was the mainspring behind the idea that the trials should be public and scrupulously fair. The accused, monsters though they might be, were afforded the right to counsel and to cross-examine the prosecution's witnesses. Jackson insisted on this procedure to demonstrate to the world the effectiveness of all the Western institutions the Nazis had sought to crush. He wanted to demonstrate that those concepts were stronger and more durable than the authoritarian brutality that had abandoned them in blood and rage. Jackson made that point abundantly clear when he first rose to address the proceedings.
They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.
I went down this particular rabbit hole because my patience with Attorney General Merrick Garland and his dilatory pursuit of the former president* and the various thieves and yahoos under his employ is now exhausted. I admire Garland's judiciousness and his scrupulous regard for legal proprieties. I did before and I still do. But that is only half of what Jackson asked of the tribunal in 1945. He wanted the rule of law to do more than simply demonstrate its strength. He wanted that strength used, firmly and relentlessly, in the pursuit of justice. Garland may be doing the same thing, but there's damn little evidence of it, and this week, everything seemed to be running in the opposite direction.
Robert H. Jackson at Nuremberg, Germany.
The discovery of two different batches of classified documents apparently held under the auspices of the current president has changed the public calculus that had piled up so heavily against the former president* during the summer and fall. Garland waited so long that political circumstance has caught up with him. For the past week, despite dozens of "explainers" on TV and in the written press about how the two situations are completely different, an equivalence has been advanced in the public mind that can do nothing but obstruct the DOJ's pursuit of the previous administration’s crimes. Worse, acting on the judiciousness that was supposed to be his strength, Garland has proceeded to name a special counsel in the Biden matter, one Robert Hur, a Trump-appointed former U.S. attorney with connections to the Federalist Society. From The New York Times:
In selecting Mr. Hur, Attorney General Merrick B. Garland is continuing a pattern of asking current and former Trump-appointed U.S. attorneys to handle politically sensitive investigations — like the inquiry into the president’s son, Hunter Biden — to allay any concerns about political bias[...]In November, Mr. Garland offered much the same explanation for picking Jack Smith, a veteran war crimes prosecutor, to oversee concurrent investigations into Mr. Trump’s mishandling of classified documents and his actions surrounding the Jan. 6, 2021, attack on the Capitol. "This appointment underscores for the public the department’s commitment to both independence and accountability in particularly sensitive matters, and to making decisions indisputably guided only by the facts and the law,” Mr. Garland told reporters during a brief appearance on Thursday.
The law (as Aristotle instructs us) is reason, free from passion. But it also is reason with a purpose and a direction. Reason with a sense of momentum to it. It is not reason bound by endless contemplation and analysis. And it is certainly not reason bound by political calculation and legal timidity. And I have come to conclude that both of these have contributed to Garland's having let the investigation into the crimes of Donald Trump go on long enough that the forces of public reaction could gather sufficient strength to muddy the evidence and deaden the outrage.
Now there is a monomaniacal Republican majority in the House of Representatives that has no interest in anything but shielding the former president and his enablers among its own membership from the consequences of their four years of political vandalism and pillage that ended with actual vandalism and pillage of the Capitol.
This was a distressing week, a week in which it seemed that a lot of criminal consequence was slipping away. Again. That's probably unfair, considering Jack Smith, the special counsel Garland put in charge of the investigations into the previous administration*, unloaded a blast of canister fire, dropping subpoenas on people associated with almost every dubious enterprise conducted between 2017 and 2020, even the post-election grift in which the former president* fleeced the rubes for his purported probe into “voting irregularities,” an enterprise with the credibility of OJ Simpson's search for the real killers. That's genuine momentum—except that the announcement was lost in the hurly-burly of the Biden documents.
I'm afraid that, like much of official Washington and like too many of our fellow citizens, Garland cannot comprehend the dimensions of the threat posed to the republic by the modern Republican Party, the curdled movement conservatism that is its primary fuel, and the power of the previous president* as its engine.
This, of course, was one of the challenges facing Robert Jackson at Nuremberg. Much of the world didn't want to know about, or refused to believe, the magnitude of the crimes Jackson was prosecuting. He needed to use the law—and reason, free from passion—to make the world see and understand what had happened in Europe. He had to make them believe the unbelievable, think the unthinkable, and he had to do it by leaving them with nothing else to believe and nothing else to think.
On July 26, 1946, Robert Jackson rose again, this time to present his closing argument. He told the tribunal and, through it, the world, what it had to believe and had to think—because the law and the evidence left them no choice.
When for years they have deceived the world, and masked falsehood with plausibilities, can anyone be surprised that they continue their habits of a lifetime in this dock? Credibility is one of the main issues of this trial. Only those who have failed to learn the bitter lessons of the last decade can doubt that men who have always played on the unsuspecting credulity of generous opponents would not hesitate to do the same, now.
"Masking falsehood with plausibilities" is the crux of the case that Merrick Garland may now have waited too long to pursue.
Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976. He lives near Boston and has three children.
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