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Merrick Garland’s Moderation to Excess

Merrick Garland speaking in the Rose Garden

Yuri Gripas/Abaca/Bloomberg via Getty Images

Attorney General Merrick Garland speaking in the Rose Garden of the White House, Washington, D.C., April 8, 2021

When prosecutors in the Manhattan District Attorney’s office indicted the Trump Organization and its chief financial officer, Allen Weisselberg, there was an unusual wrinkle. Most of the allegations in the indictment concerned a federal tax fraud scheme. That, in turn, raised a question: Nearly half a year into Joe Biden’s term and some four months into Merrick Garland’s stewardship of the Department of Justice as attorney general, where are the federal prosecutors?  

There are, after all, good reasons to conduct a federal criminal investigation into Donald Trump’s finances, as well as his efforts to overturn the presidential election results. But there is no public indication that this is happening under Attorney General Garland. President Biden laid the groundwork for this conflict-averse posture last year, and Garland established at his confirmation hearing that, like Biden himself, he wanted to be a conciliatory, perhaps historic figure, and that this meant avoiding political controversy.

To many, upsetting Republicans might be the necessary cost of legal accountability for the disastrous consequences and corruption of the Trump administration. And Garland likes to talk about his concern for the rule of law, a value whose corollary is accountability. The rhetoric has rung increasingly hollow, however, to some vocal critics of several controversial decisions by the Justice Department, particularly given its apparent unwillingness to pursue Trump.

After four months in his post, Garland remains a somewhat inscrutable figure—a person whose values and priorities remain unclear but who has the politically cautious, status quo–oriented instincts of someone who is, as a recent profile correctly described him, “an insider—a Washington lifer with deep connections to the Democratic Establishment.” He has overseen some significant changes while also demonstrating, indeed articulating, a cramped view of his job that obscures how federal law enforcement should work, what its purpose should be in maintaining public confidence in our democracy, and how it can be used to promote our country’s long-term political stability.

A great deal turns on whether the man who was, until recently, a long-serving federal judge can fulfill what the nation requires of him as its top law enforcement official at this crucial moment in history.

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Merrick Garland with Barack Obama

Joshua Roberts/Bloomberg via Getty Images

Garland on the occasion of his nomination by President Barack Obama to the Supreme Court, Washington, D.C., March 16, 2016

On the positive side of the ledger, the Justice Department has instituted an array of notable policy changes since Biden’s inauguration. Among other things, the DOJ has made prominent moves on police reform, is working to expedite illegal immigration cases, has made it easier for refugees to seek asylum, and has created a task force to address threats against election officials. Garland also directed that there be an internal review to expand access to legal representation and resources for low-income communities and communities of color. Recently, he imposed a moratorium on federal executions, which had restarted under William Barr’s tenure.

The potential significance of these changes should not be understated, but it is very likely that all of it would have happened under any other attorney general whom Biden might have nominated. Biden campaigned on many of these issues, and they reflect priorities of the progressive legal community—a group that counts among its number Vanita Gupta and Kristen Clarke, both subsequently confirmed as the president’s picks for associate attorney general and head of the department’s civil rights division, respectively.

Garland himself in fact lacked any discernible interest or jurisprudential record in these areas. A review of his opinions prior to 2016 concluded that his views on constitutional civil rights issues were “generally unknown” and, like the rest of the federal judiciary, that he “tend[ed] to vote in favor of the government” on issues of criminal law and procedure.

Garland is notable for the minimalism of his jurisprudential footprint, thanks to a cautious approach to judging that was a leading reason why Barack Obama chose to put him forward for the Supreme Court in 2016. The thinking—obviously misguided, as it turned out—was that it would be difficult for Senate Republicans to oppose a figure so far from anyone’s idea of a “judicial activist.” 

On the debit side of the ledger, though, are some worrying signs of hesitancy, even equivocation, at Garland’s Justice Department. The investigation following the January 6 insurrection at the Capitol has resulted in more than five hundred arrests, but the department has been opaque on a host of issues of legitimate public concern—including whether the department is examining the conduct of White House officials or of Trump himself, Republican officials’ possible connections to rioters, and the FBI’s failure to prepare for the day.

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In addition, after a series of revelations about how the Trump Justice Department obtained phone records and e-mail metadata for several high-profile reporters, Garland eventually said that the department would no longer use such subpoenas for members of the press—though only after President Biden had issued a public direction for Justice to change its policies, and after two meetings had taken place between Garland and major media outlets. When The New York Times reported that the Trump Justice Department had obtained the e-mail metadata of two Democratic members of Congress, aides, and family members, Garland’s officials were so slow to provide answers about what had happened that Democrats in Congress began openly pressing the attorney general to act more quickly. In both cases, Garland seemed to need prodding and prompting to respond on behalf of his department to what appeared to have been intrusive and overzealous investigations carried out at the behest of the Trump White House.

In another instance, in March, the Department of Justice released a lengthy, self-congratulatory press release quoting Garland about the “historic enforcement initiative to detect and disrupt Covid-19 related fraud schemes” that had supposedly taken place under Trump. This was a strangely credulous and bureaucratically naive endorsement from the department’s new leaders considering that the department’s handling of the pandemic has been a historic (if underrecognized) mess, which involved largely ignoring a consumer fraud crime spree that was obvious from the outset. It has done little to investigate tens of billions of dollars in possible losses to state unemployment systems, about which members of Congress and observers had been raising concerns since the early months of the pandemic. Only in May did Garland belatedly appear to recognize this deficit when he announced the creation of a task force to address pandemic-related fraud.

Meanwhile, the pace of the staffing transition from the Trump administration has been surprisingly slow—a delay that Politico has attributed to “stand-offs over senior positions” between Garland and the White House because Garland has been “pushing to install many of his own former clerks.” Biden’s nominees to lead the criminal, civil, and national security divisions remain pending. There are no nominees for solicitor general (where a former Garland clerk already holds the position in an acting capacity) or for the head of the antitrust division—which, in the latter case, marks the longest lag for a nominee to lead the office in modern history. This is not entirely unprecedented, but it is hard to square with years of criticism by Democrats about the corrosion of the department under Trump, as well as the urgency of issues that would fall under these officials’ purview—ranging from antitrust enforcement to white-collar crime.

This strange hiatus extends far beyond D.C.: no one has been nominated for any of the ninety-three US attorney positions throughout the country. The result appears to be that the country’s federal law enforcement apparatus is largely in the hands of holdover, acting, and career officials whom no one nominated, much less confirmed, to lead these offices.

As troubling as some of these issues may be, none of them have drawn as much attention as two cases in which the Justice Department’s decisions have caused justifiable outrage. In June the department confirmed that it will continue to defend the former president in a defamation suit brought by E. Jean Carroll in 2019, after Trump denied Carroll’s allegation that he had sexually assaulted her in the mid-1990s. Last year, under then attorney general William Barr, the Justice Department began a legal maneuver that would, if successful, likely result in the dismissal of the case on the theory that Trump’s comments were made in “the scope of his employment” as a federal official. This procedurally unusual intervention came only after Trump’s other legal options had been exhausted. A federal judge rejected the department’s arguments last October, but the government appealed. Many observers had assumed that the new administration’s Justice Department would take a different view of the law, and drop the appeal.

A similarly controversial episode occurred in May, when lawyers for the department continued an effort to maintain the secrecy of a memo from the department’s Office of Legal Counsel (OLC) that Barr had purportedly relied on when he decided not to pursue President Trump for obstruction of Robert Mueller’s investigation. A federal judge overseeing a lawsuit filed by a watchdog group seeking disclosure of the full text of the memo under the Freedom of Information Act had already ordered its release. In a brutal opinion, Judge Amy Berman Jackson concluded that Barr had already decided that Trump would not be prosecuted before receiving the OLC’s advice and that the Justice Department lawyers’ representations to her in the case had been “disingenuous.” Nonetheless, Garland has resisted releasing the full memo, and the department appealed the ruling.

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It would have been a simple matter to withdraw the Carroll appeal and to decline to appeal the decision on the OLC memo. In both cases, the department can claim sound legal arguments—it might even win, depending on the appellate panels—but these were not by any stretch positions that the government was obliged to maintain on grounds the judges had reached erroneous conclusions.

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Merrick Garland at his confirmation hearing

Al Drago/Bloomberg via Getty Images

Garland attending a Senate Judiciary Committee confirmation hearing, Washington, D.C., February 22, 2021

Not surprisingly, Garland invoked the rule of law in his public defense of these two decisions. When he was nominated, he described the rule of law as “the very foundation of our democracy,” whose essence requires “that like cases are treated alike—that there is not one rule for Democrats and another for Republicans, one rule for friends and another for foes,” and so on. On his first day on the job, he told department employees the same thing, and when he was asked by Senator Patrick Leahy about the DOJ’s decisions in the Carroll and OLC cases, he came back to it again. The department’s job was, he said, to “ensure adherence to the rule of law,” and that “in every case, the job of the Justice Department is to make the best judgment it can as to what the law requires.”

So far as these things go, this is a serviceable, if superficial account of the concept. Academic disputes over the rule of law aside, lawyers tend to associate it with the idea that laws should be general, forward-looking, publicly accessible, and intelligible, and that those rules should be consistently and impartially applied. (Garland’s account of the rule of law is also not that different from Barr’s—demonstrating, emphatically, that rhetoric and reality are two very different things.)

The rule of law is a crucial value to pursue in a liberal democracy, but it is not the only one. As the legal philosopher Jeremy Waldron has explained, “the rule of law is one ideal in an array of values that dominates liberal political morality: others include democracy, human rights, social justice, and economic freedom.” The aspiration to a singular, totalizing ideal for a democratic society is an old and persistent one, but one that largely fell out of favor when the political philosopher Isaiah Berlin dismantled it more than fifty years ago, warning us that “not all good things are compatible, still less all the ideals of mankind,” and that “conflicts of values may be an intrinsic, irremovable element in human life.”

Garland’s implicit account of legal decision-making—as an application of rules that we can look up in statutes and casebooks and mechanically apply to the facts at hand—is also dubious. Ronald Dworkin famously complicated it when he argued that judges often use principles and policies as well to reach their decisions. He described a “policy” as “an improvement in some economic, political, or social feature of the community” (for instance: “automobile accidents are to be decreased”) and a “principle” as “a requirement of justice or fairness or some other dimension of morality” (for instance: “no man may profit by his own wrong”). In practice, policies and principles are sometimes disputable, often in conflict, and usually deployed in implicit rather than explicit ways, but good lawyering involves taking into account all of these factors—rules, facts, principles, and policies.

Political and legal theory aside, it is not hard to see why Garland’s decisions in the Carroll and OLC cases rankled so many people. Despite what his defenders have claimed, the decision in the Carroll case was not required by the current state of the law. The trial judge who rejected the Justice Department’s position is long-serving and well-regarded, and he wrote a nearly sixty-page opinion that included detailed rejoinders to all of the government’s arguments—making it clear that the question of whether Trump should be immunized for allegedly defaming a rape victims is, at the bare minimum, debatable as a strictly legal matter. The principles, policies, and political values one could easily have invoked in favor of withdrawing from Trump’s defense include the axiom that no one is above the law, that the legal system generally favors resolutions of disputes on the merits, and that a credible claim of sexual assault should be treated with the utmost seriousness and care by our legal system, without putting a thumb on the scale through bespoke legal doctrines (in this case, by invoking a rule that applies only to federal employees).

As for the defense in the OLC litigation, that rests on a dubious equivalence between the memo at issue and other such advice government lawyers routinely produce. The trial judge, who reviewed the document in its entirety, concluded that the memo’s purpose was not to provide actual legal advice, as Barr and Justice lawyers had claimed, but instead to “get a jump on public relations” in order “to neutralize the impact of the [Mueller] Report in the court of public opinion.” Under Garland, the department is appealing the decision, yet the assumption of good faith among the relevant players within the Barr-era institution is shaky at best: Barr was notoriously dishonest, and the head of the OLC under Trump often produced memos that had more to do with partisan politics than the law.

Moreover, this memo is one that department lawyers managed to complete, in only eight pages, just two days after receiving a four-hundred-page report from Mueller’s team on the Trump-Russia investigation. Even setting all that aside, this was advice about how the department should handle a credible allegation—following a years-long, independent investigation—that the then-sitting president had committed a potential crime by obstructing justice. In such circumstances, there is an obvious value of transparency in ensuring that the American public can have a more complete understanding of how this highly unusual situation was handled by senior department officials.

The hope that a future Republican-led Justice Department will somehow credit the Garland iteration for these positions and treat Biden officials in a similarly charitable manner in some future high-profile matter is also highly questionable; more likely, the next Barr-like operatives will do whatever they want. Even as a practical matter, the claim by Garland’s defenders that the department’s positions in these cases will serve the interests of federal officials is far from certain. The facts are so unique and publicly controversial in each case—and the law sufficiently debatable—that the reverse could easily occur: the department could lose on appeal and, in the process, generate appellate opinions that undermine those interests.

It has become common to explain Garland’s decisions by describing him as an “institutionalist,” but the label obscures as much as it illuminates (and in the run-up to Barr’s confirmation, the word was also commonly applied to him). The term is used indiscriminately to describe a variety of goals—such as bolstering executive power, protecting career employees from legal liability or public embarrassment, ensuring that the department is apolitical (in fact or appearance), taking consistent positions over time, following internal procedures, and adopting conservative positions on the law. But these are not objectives that will always point in the same direction—let alone ones that will necessarily serve the rule of law, even on Garland’s terms.

In other cases, the Department of Justice has been willing to relax its ostensibly institutionalist concerns in light of countervailing interests. The department changed its position in the recent Obamacare case before the Supreme Court. The department does not usually prosecute people in the federal system if a state has already successfully prosecuted them, but that is what it did when it charged Derek Chauvin with civil rights violations in George Floyd’s murder. The department is exploring a settlement in a lawsuit brought by former FBI deputy director Andrew McCabe based on his firing, which was a case it vigorously defended under the last administration. The department has also dropped both a civil suit and a criminal investigation arising out of the publication of Trump adviser John Bolton’s book. There is even a good chance that the Justice Department will lose its recent lawsuit challenging Georgia’s new restrictive voting law, but it went forward anyway—in full knowledge that the Supreme Court would rule just days later on an Arizona case whose outcome could make the federal suit even harder to win.

Where Garland has stuck to a certain definition of “institutionalism,” however, it has not served public accountability, transparency, or, arguably, the rule of law. The attorney general recently ruled out the idea of a broad effort to uncover misconduct within the department during the Trump administration, saying that he did not “want the department’s career people to think that a new group comes in and immediately applies a political lens” and that it was “not fair to the current employees.” He said this even after he learned—only through the press—that prosecutors had subpoenaed the phone records of two sitting congressmen, and in spite of evidence that career prosecutors were involved in the prior administration’s worst legal initiatives. The implicit dichotomy between doing nothing and launching a sweeping inquiry is a false one: there are plenty of intermediate options that Garland could pursue—such as calling on whistleblowers or former employees with information to come forward, which he has not done.

There is no way to square this decision with the rule-of-law ethos that Garland claims to want to promote. Plenty of people, myself included, incurred serious long-term risks to their careers by speaking up about improprieties during the prior administration—including the alleged politicization of enforcement efforts, the interventions in cases to help Trump personally, and the use of the department’s lawyers to provide legal cover for shameful political decisions. Others reaped the benefits of promotions that they obtained by subordinating moral and ethical imperatives to their career interests, and they have a vested interest in ensuring that no broader effort to uncover misconduct is undertaken. The lesson for current, former, and future career employees seems clear: their long-term professional and personal interests are best served by doing whatever they are told by the people in charge at any given moment.

Garland’s evident wariness of pursuing allegations of misconduct from the last administration—including those against Trump—for fear of the political disruption could have grave consequences for the future. Its premise is a pragmatic and political calculation, not a principle. And it is an easier position to adopt if you have membership in the political class, which does not incur the consequences of its worst decisions.

More importantly, many people, myself included, believe that the Obama administration’s light touch in this area—most notably, on the subject of torture and the “torture memos”—facilitated the mayhem and vindictiveness of the Trump administration. The next Trump-like figure, or Trump himself again, could act in even more destructive ways if Biden’s administration cements a de facto policy of immunity for executive branch officials. Already, many suspect that there are serious limits to his statecraft and political strategy in the face of a disloyal opposition that has a scorched-earth approach to political power and democracy. The Justice Department ought to be a bulwark against that threat, but it won’t be if Garlandism proves to be a watered-down version of Bidenism.

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