President 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 next 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 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 doubtless 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.
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 sugget 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 Saturday: 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…
Read More: Biden chose well with Merrick Garland, but Garland could cause him a few headaches