When Merrick Garland accepted President Joe Biden’s nomination to serve as attorney general, the federal appeals court judge said he looked forward to a Justice Department “homecoming” where he first began in the Carter administration.
Yet any celebration marking his return to Main Justice – 24 years after departing for the federal bench – could be short-lived.
Not since Watergate has any attorney general nominee faced the kinds of questions awaiting Garland as he prepares to take his seat Monday for a confirmation hearing before the Senate Judiciary Committee.
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The rolling crisis that defined the Justice Department and its relationship with former President Donald Trump, who repeatedly sought to bend the agency to serve his political interests, is now just one of many challenges facing the nominee.
Last month, a resurgent domestic extremist movement was thrust into public view during the deadly Capitol siege. The stunning assault has launched federal law enforcement authorities on one of the most far-reaching investigations in history while raising deeper concerns about the government’s capacity to contain the threat.
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As senators weigh confirmation, Garland is certain to be confronted with pointed inquiries about whether Justice should investigate, and potentially prosecute Trump, for inciting the Jan. 6 riots that left five dead, including a Capitol police officer.
Senate Minority Leader Mitch McConnell, R-Ky., all but threw Trump’s fate to the Justice Department last week when the former president was acquitted by the Senate at his impeachment trial.
“There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day,” McConnell said following the Senate trial. “No question about it … He didn’t get away with anything, yet. We still have a criminal justice system in this country. We still have civil litigation and former presidents are not immune from being held accountable by either one.”
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While there is little open opposition to Garland’s nomination, a striking departure from 2016 when President Barack Obama’s pick for the Supreme Court was blocked by a Republican-controlled Senate, the contentious nature of the challenges before him now make Monday’s hearing perhaps the most anticipated of any Biden Cabinet nominee.
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Should DOJ pick up where Trump’s Senate impeachment left off?
At virtually every opportunity since the close of Trump’s impeachment trial in the Senate, the Biden administration has deflected questions about the former president’s potential criminal vulnerability for inciting the Jan. 6 riots.
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“We’re doing something new here,” White House press secretary Jen Psaki said last week, adding that an “independent Justice Department (would) determine what any path forward and any investigation would look like.”
Aside from the not-so-subtle dig at the Trump White House, which routinely intervened in some of the most politically sensitive matters at Justice, Psaki effectively put the department — and Garland — in the hot seat.
Pending confirmation, it now will be largely Garland’s call on a criminal investigation and the resulting shadow Trump may cast on the new administration.
As much as Biden has sought to rid Justice of the kind of politicization that marked the Trump Justice Department — from the dismissal of FBI Director James Comey for his management of the Russia investigation to dropping the prosecution of former national security adviser Michael Flynn — any decision involving Trump is fraught with political implications.
William Yeomans, a former Justice official whose service spanned the administrations of Jimmy Carter and George W. Bush, said that if the facts ultimately lead to Trump, the former president “must be held accountable.”
“It has been and must remain a fundamental tenet of our adherence to the rule of law that we do not tolerate the use of the prosecution power to target individuals simply because they are political opponents,” Yeomans said. “That generally means we must proceed with care in prosecuting a former president, particularly one of a different political party. But, it does not mean that a former president whose crimes are uncovered by a fair and full investigation should escape accountability.”
Alberto Gonzales, who served as attorney general in the George W. Bush administration and faced difficult questions about the administration’s torture policies during his Senate confirmation hearing, said Garland should not commit “one way or the other” on the possible legal jeopardy facing Trump.
“Given the political nature of the case and the public interest, he may commit or at least say he would consider appointing a career prosecutor to make an initial assessment (on) whether a formal investigation should be commenced,” said Gonzales, one of two Republican attorneys general who have announced their support for Garland.
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At the same time, Gonzales said Garland “may be pressured by Republicans to formally recuse himself from the final decision whether to prosecute.”
“I am not aware of any legitimate reason he would be required to do so under DOJ regulations if he wants to make this decision,” Gonzales said. “There is no financial, political or personal reason I know of to recuse. But he will be pressed about this.”
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On the campaign trail, Biden said the Justice Department had been transformed into the “president’s private law firm” under Trump, who casually penetrated the institutional firewall with a well aimed tweet.
“I want to be clear to those who lead this department (about) who you will serve,” Biden said when introducing Garland as his nominee Jan. 7. “You won’t work for me. You are not the president or the vice president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation, to guarantee justice.”
Garland has taken his lead from Biden, drawing stark parallels to the post-Watergate era when Justice faced a similar challenge to separate itself from the raw political interests of a president.
While accepting the nomination, he invoked the name of Edward Levi, the revered former attorney general nominated by President Gerald Ford to restore the department’s credibility following the Watergate scandal that led to the resignation of President Richard Nixon.
“As Ed Levi said at his own swearing in, ‘Nothing can more weaken the quality of life, or more imperil the realization of the goals we all hold dear, than our failure to make clear by words and deed that our law is not the instrument of partisan purpose,'” Garland said, quoting the former attorney general.
If confirmed, Garland said it would be “my mission … to reaffirm those policies as the principles upon which the department operates.”
Hunter Biden and Durham probes continue
A test of that commitment looms with the continuing federal tax investigation involving the president’s son, Hunter Biden, and the pending inquiry into the origins of the Russian investigation led by Connecticut federal prosecutor John Durham, appointed by former Trump Attorney General William Barr.
Before departing in December, Barr resisted Trump’s calls to appoint a special prosecutor in the Biden case.
At the time, Barr said the investigation was being handled “responsibly and professionally” by federal prosecutors in Delaware.
Although all presidentially appointed federal prosecutors are expected to submit their resignations during transitions to new administrations, the Biden administration said the Trump-appointed U.S. attorney leading the Hunter Biden inquiry and Durham would remain to complete their work.
“These were decisions that were made in order to fulfill (Biden’s) promise of maintaining independence and ensuring that he sent that message and every action that was taken,” Psaki said earlier this month.
The enemy within: Is domestic terror law now necessary?
The Capitol assault was still fresh when a long-simmering debate began anew: Is federal law enforcement adequately equipped to confront the resurgent domestic terror threat.
The question, which has prompted new calls for equal penalties for both domestic and international terror offenses, is certain to spill into the Senate hearing for Garland, who during his previous Justice tenure, oversaw the investigation of the Oklahoma City bombing — the most deadly domestic terror attack in U.S. history.
In remarks prepared for delivery at Monday’s Senate hearing, Garland cast the fight against extremism as “central” to the department’s mission.
“We have to do something,” House Homeland Security Committee Chairman Bennie Thompson, D-Miss., said this month during the first congressional examination of the domestic threat following the Jan. 6 attack. Thompson has since sued Trump and Giuliani.
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For some, including Rep. Michael McCaul, R-Texas, a former chairman of the Homeland panel, the remedies should include legislation that treats domestic terrorists no differently than their international counter-parts.
During the Homeland panel hearing, McCaul said the Capitol attack “cries out” for such action.
“I think it sends a strong message about where Congress is that we treat domestic terrorism on an equal plane as international terrorism,” McCaul said.
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While domestic terror is codified in federal law as an effort to “intimidate or coerce” a civilian population or government, there are no corresponding criminal penalties to back it. That has forced law enforcement to head off potential threats with the tools at their disposal, including leaning on the public to provide tips and charging suspects with violating weapons laws, hate crimes or illegal threats in the absence of a domestic terrorism charge.
The government has moved to thwart right-wing extremism when it appeared to be on the precipice of violence, though authorities face significant limits in the form of free speech rights.
And some fear that a revamped domestic terrorism law raises the prospect of formally designating groups as domestic terror organizations, similar to ISIS or al-Qaeda, merely because their messages may be repulsive.
Brian Jenkins, a longtime terror analyst and senior adviser at the Rand Corp., said any effort to single out specific domestic groups may only deepen the country’s partisan divide.
“While (a domestic terror law) looks like an attractive option now, it may not be easily applied,” Jenkins said.
Jenkins said Garland, whose prosecutorial experience is steeped in domestic terrorism, may be uniquely suited to confront the current threat environment.
“This is someone who oversaw the investigation of Timothy McVeigh who was charged, convicted and ultimately executed for carrying out the worst domestic attack in U.S. history,” Jenkins said, referring to the Oklahoma City bomber. “And Garland did that without a domestic terrorism law.”
Are troubled police agencies back in DOJ’s crosshairs?
Garland’s nomination follows a summer of racial justice protests, prompted by deaths and injuries of Black men and women during police encounters.
While the incidents highlighted troubling law enforcement tactics, they also called attention to the Trump Justice Department’s departure from enforcement strategies that had sought to hold police agencies accountable for misconduct.
The Trump administration launched one investigation into a law enforcement agency during its four years, compared to 25 inquiries into “patterns and practices” of conduct in police agencies during eight years of the Obama administration.
Civil rights advocates have argued that Trump’s deference to law enforcement has seriously undercut confidence in policing in Black communities, and Biden has vowed new scrutiny of police tactics led by a re-invigorated Justice Department Civil Rights Division.
If confirmed, it would be up to Garland, however, to set the tone on how aggressively to pursue those priorities.
“That mission remains urgent because we do not yet have equal justice,” Garland’s prepared remarks state. “Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system; and bear the brunt of the harm caused by pandemic, pollution, and climate change.”
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Paul Butler, a Georgetown University law professor who prosecuted public corruption at the Justice Department, said Biden recognizes that policing problems are worse than “a few bad apples.”
“I think that will be a new and unique opportunity for the attorney general because no president has described bias in the terms that Biden has used, including frequently referencing white supremacy and systemic racism,” Butler said. “The reason that that’s a challenge is that systemic racism is built into operations and policies and even law. It’s daunting.”
In December, Biden joined an online meeting with seven civil rights group leaders to hash out the path forward.
During that meeting, Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law, told Biden the administration needed to undo “extensive damage” in enforcing federal civil rights laws.
“We need this administration to make fighting white supremacy, confronting racial violence, addressing police violence and tackling rampant voter suppression topline priorities,” Clarke said at the time.
More than a month after that meeting, Biden nominated Clarke to serve as an assistant attorney general in charge of Justice’s Civil Rights Division. Biden also nominated another leader on that call, Vanita Gupta, CEO of the Leadership Conference on Civil and Human Rights, to become associate attorney general.
Since then, Gupta, the acting Civil Rights chief in the Obama administration, has become a target of the conservative Judicial Crisis Network, which has sought to brand her as a proponent for defunding police.
But Michael Waldman, president of the Brennan Center for Justice, called Gupta a “gifted leader” for her service in the Obama administration, when she pioneered accountability for abusive police departments.
She also fought to protect voting rights at the leadership conference, for “elections that are free, fair, secure and safe,” Waldman said.
Biden, meanwhile, has made no secret of his regard for Justice’s civil rights mission.
“The Civil Rights Division represents the moral center of the Department of Justice and the heart of that fundamental American ideal that we’re all created equal and deserve to be treated equally,” Biden said when introducing his team of Justice nominees last month.
In preparing for the hearing, Garland noted in his written remarks that Senators had asked why he would agree to leave a lifetime judicial appointment to return to Justice.
“I have told you that I love being a judge. I have also told you that this is an important time for me to step forward because of my deep respect for the Department of Justice and its critical role in ensuring the Rule of Law.”
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