President Joe Biden is determined to rehabilitate the Department of Justice, which the Trump years left ravaged and demoralized. And he’s taken the most important first step in the process by nominating Merrick Garland for attorney general. Garland is expected to win quick confirmation. The Senate hearings begin Monday; he may be at the helm of the department as soon as the end of the week.
Garland’s integrity, sound judgment and dedication to the rule of law make him the perfect tonic for the DOJ’s battered reputation, but ironically, his strengths may prove to be a mixed blessing for the president who nominated him.
With Garland, Biden has drawn a pointed contrast with former President Donald Trump, whose model of a perfect attorney general was captured in his question “Where’s my Roy Cohn?”, referring to the infamously corrupt fixer known for his vicious advocacy on behalf of Sen. Joseph McCarthy.
When Biden announced his pick during the transition — on the day after Jan. 6 — he pointedly addressed Garland: “You are not the president’s or the vice president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation.”
And so it doubtlessly will be with Garland. Now a judge on the U.S. Court of Appeals for the District of Columbia Circuit, he served as an assistant United States attorney and as a senior official in the Justice Department from 1993 to 1997 when, among other things, he oversaw the successful prosecution of the Oklahoma City bombing suspects.
I worked with Garland during those years and can attest that all the superlatives used to describe him are completely merited. He is a person of colossal ability and fierce dedication to the law. Apply those qualities, however, to what will greet him at the department — the sprawling investigation into the Jan. 6 insurrection — and you begin to see what might give Biden a headache.
The storming of the Capitol struck at the heart of the most fundamental of federal interests. An attempted insurrection dictates an aggressive, comprehensive Justice Department response. (Some suggest a special prosecutor, but there’s no inherent conflict in investigating a previous administration.) U.S. attorneys have already begun to outline conspiracy charges against Proud Boys and others, but Garland will also have to aim beyond boots-in-the-Capitol actors.
As much as the Biden administration needs and wants to move past the Trump era, there’s no way around the former president’s starring role in the events of Jan. 6. For all the reasons laid out in vivid detail by the House managers at the impeachment trial, a comprehensive investigation will have to include close scrutiny of Trump’s conduct. Rep. Joe Neguse, D-Colo., summed it up on Feb. 13: Did the former president stand on a powder keg of his own devising and light a match?
Trump won’t be the only high-level subject of DOJ scrutiny, either. Rudolph W. Giuliani, who rallied the day’s protesters-cum-terrorists to engage in “trial by combat,” and Donald Trump Jr., who joined in post-storming revelry and warned Republican lawmakers at the rally that “You can be a hero, or you can be a zero,” will also be investigated.
It’s a fair and interesting question whether any attorney general — who after all is a political appointee and serves at the president’s pleasure — may properly consider the political cost to his boss of applying the law.
Before Jan. 6, the smart money was on Biden’s Department of Justice taking a pass on the various crimes that Trump might have committed as president, including obstruction of justice, as laid out by Robert S. Mueller III’s Russia probe. Even as strict a straight shooter as Garland could make a case for “moving forward.”
But now, moving forward requires looking back. Garland will fulfill Biden’s “your loyalty is to the nation” charge. Should the facts lead to the conclusion that the former president broke the law, I am certain Garland will not flinch. And that can only mean, in political terms, an unholy mess distracting the nation and Biden from his ambitious agenda.
And Jan. 6 isn’t the only Justice Department issue that may cause the president some pain.
Law enforcement is an inherently conservative enterprise. Garland may endorse some progressive justice reforms — for example, promoting stricter use of force rules in police practice or offering alternatives to prison for certain low-level offenses. But the bread and butter of what U.S. attorneys do is not in line with “defunding the police.” Members of the progressive wing of the Democratic Party who expect the Department of Justice to fundamentally revise its law-and-order mission are going to be disappointed, and they are likely to make their chagrin felt at the White House.
What they should expect instead, and what the nation needs, is for Merrick Garland to be an attorney general in the tradition of the illustrious Edward Levi, who took the reins of the department following the chaos and executive branch corruption of Watergate. Levi righted the institution and with it, the credibility of the federal justice system.
Garland’s confirmation will be great news for the department, the country and the rule of law. For President Biden, however, it may be a little more complicated.
Harry Litman is a former U.S. attorney and the host of the podcast “Talking Feds.” Twitter: @HarryLitman