Remember...to drink...your...Ovaltine

...and...go to...federal...prison

What follows is your decoder ring, the translation tool that reveals the practical meaning of Merrick Garland’s stupid memo to FBI and DOJ officials about the supposed harassment and intimidation of local school boards.

Most prosecutions start with cops. They pull someone over and find some drugs, they get a tip from Mike’s jealous ex-girlfriend that Mike stole a car and then they go find the thing in his garage, a DEA agent sits on the toilet with a copy of Leaves of Grass and realizes who his brother-in-law really is. They catch someone first, and then they take the case to the lawyers.

But some prosecutions start in the opposite direction: the lawyers hold up a model and say to the cops, bring us one of these. A recent novel, Wyoming — written by a retired lawyer with long experience in federal court — fictionalized the dynamic perfectly:

Looking for improvements in tax revenue, a bunch of senior officials in the the IRS and the DOJ sit down together to hunt for coins in the nation’s couch cushions. They decide that one possible avenue of improved collections is to reach into the world of bartering, which is taxed by law but mostly not taxed in reality, and they send a memo to regional offices telling IRS special agents to bring them a tax evasion case with a defendant who engages in barter without paying taxes on it — so they can score TV news coverage as they slam him into the prosecutorial wall, scaring other people into sending in some payments.

Soon after, an IRS special agent is having dinner at a small town bar during a personal trip, and he overhears a local taking a free beer and a burger in exchange for playing live music — bartering, ladies and gentlemen, trading a service for a product in the absence of a cash exchange. Yeah, the bartender tells IRS dude, he does that every week. The shithead from the IRS sees a chance to please the bosses by giving them one of the kinds of cases they’ve asked for, so he makes up a fake name and occupation and strikes up a conversation with the musician about how cool it is that he gets beer and stuff without paying for it, and, uh, anyway, you do that kind of thing a lot? You can guess the rest.

A lawyer with long experience in federal court thinks of a story about federal agents and assistant US attorneys bringing the bosses the kinds of cases they’ve asked for because, wait for it, federal agents and assistant US attorneys bring the bosses the kinds of cases they’ve asked for. The declared intent from above to seek out and prosecute more of a type of case drives the discovery of more of those cases. They go looking.

In September of 2015, Deputy Attorney General Sally Yates – more recently of let’s neutralize Michael Flynn fame — directed a memorandum to every US attorney, the FBI director, and a long list of subordinates at Main Justice. Like Merrick Garland’s memo, the message was about a category; while Garland directed federal law enforcement to start focusing on the harassment of school boards by irate locals of the type who are inclined to encourage Brandon with the exhortation “let’s go,” Yates pointed the same list of officials toward CEOs and other top corporate executives. In cases of corporate wrongdoing, Yates warned, investigators and prosecutors needed to target individuals for civil and criminal action, not just the corporations:

“…criminal and civil corporate investigations should focus on individuals from the inception of the investigation… absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation.”

The Yates memorandum was a political statement, a declaration that the DOJ was by God gonna go find some rich bastards in nice suits and nail ‘em to the wall; it represents the same spirit as, say for example, Senator Elizabeth Warren promising to put more corporate executives in prison. It produced a cottage industry in white collar criminal defense, and was much-discussed on the websites of big law firms.

And it worked. The deputy attorney general told federal prosecutors that she wanted to nail some suits to the wall, so the assistant US attorneys in the trenches brought her some suits and a hammer; subordinates chose targets that looked like what their boss told them to target, as when federal prosecutors sent pharmaceutical executives to prison for bribing doctors to boost the sale of opioids.¹ (And the boss made speeches about it, displaying a policy that was intended for display purposes.)

Controversy and unintended consequences have caused the DOJ to revise the Yates memorandum, but the principle of individual responsibility lives on in federal prosecutions of corporations; in 2019, the DOJ charged another pharmaceutical CEO as, I shit you not, a drug dealer. The counterfactuals are debatable — I can’t prove what would have happened if — but acts that would likely have led only to charges against corporations instead led to personal charges against corporate CEOs, and it happened in the context of a memo in which the deputy attorney general ordered federal prosecutors to focus on bringing criminal charges against corporate executives. When the people who lead the Department of Justice say, bring us more of X, they get more of X.

Outside the single example of the Yates memorandum, the politicization of law enforcement targets has spawned its own subgenre of angry literature: Joel Engel’s Scorched Worth, Howard Root’s Cardiac Arrest, Sidney Powell’s Licensed to Lie, and so on. The Department of Justice is, prepare to be shocked, political — and so, to varying degrees, are state and local prosecutors. The lawyers in the local federal buildings feel pressure from above, they know what’s expected of them, and they deliver it.

So Merrick Garland has been playing the “who, me?” game in response to questions about the purpose of his recent memo: Surely you don’t think I would ever mean to chill speech in front of local school boards! If you’ve never seen a grizzly bear maul a defenseless hiker for nine straight minutes, here’s the act live and in person, and note that the hiker professes to have no idea what the bear is so angry about:

But we know what happens when people at the top of the Department of Justice food chain tell people in the local federal buildings to start working on X: they start working on X. Local FBI offices and federal prosecutors know that the Garland memo doesn’t mean “don’t do anything about this, but here’s something you could think about it if you feel like it.” When you tell this machine to make some cases, it makes some cases. Parents, it’s coming.

1. This was before the federal government became the marketing arm of the industry, mandating the lucrative consumption of its products. Really swung the hell out of that pendulum.