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Where Oh Where is Merrick Garland?
This is a time when America needs a strong Attorney General who grasps the danger facing our democracy, not an institutionalist
The promise of Merrick Garland started like this: He called January 6 “the most heinous attack on the democratic process that I’ve ever seen” and insisted that he would follow all leads “wherever they take us.” That wasn’t hard to decode: Here was the lead prosecutor of the horrific 1995 bomb attack in Oklahoma City who wanted us to know that he would address the deadly attack against the US Capitol and our democracy with maximum purpose.
This was one of the nation’s most admired federal judges, who represented the opportunity as US Attorney General to set things right after four years of criminality, corruption and denied justice that culminated in the deadly exclamation point of January 6. I was among the hopeful in an early March post before Garland’s March 11 confirmation, entitled “Yearning for Justice.” The new AG gave us a chance “to set things right. To repair and improve our democracy.”
But by June there was already reason for doubt. “Where is Merrick Garland?” I asked. “It is a reality that the public has been provided with almost no public expressions by relevant authorities—via press conference or written statements—that would increase confidence that the full array of insurrectionists will be held accountable.”
And here we are, 242 days since Garland was confirmed; his work as AG has been a time of increasing frustration, worry and doubt for all of us who expect that the previous White House occupant will be held accountable for at least some—how about any?—of his criminal activities. As national Republicans continue to perpetuate the Big Lie of election fraud, state Republicans passed new laws to restrict voter access, and Trump sycophants lie about the deadly gravity of January 6, the need for action by the Department of Justice and its leader has become increasingly urgent.
This is about standing up for the rule of law and rebuilding public trust in both Justice and our system of justice—no one is above the law—but also recognizing that holding the inciters, organizers and funders of the insurrection and coup attempt is crucial to providing deterrence from the next batch of radical extremists empowered by inaction. If Trump and his acolytes got away with it, why can’t we? Merrick Garland, a smart man, certainly recognizes the risk of doing nothing.
And yet, 10 months after the Capitol attack and 18 days after the House Select committee asked the DOJ to criminally prosecute Steve Bannon, Merrick Garland has yet to act. It’s enough to make small-d democrats ponder whether Garland genuinely grasps the dark reality facing American democracy.
When asked whether he believes those who resist the select committee’s subpoenas should be prosecuted, President Biden said he did. Garland’s DOJ understandably pushed back, affronted by even the appearance that the department is responding to the president’s demands. The DOJ statement bristled: Justice makes “its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop.”
Yes, principle asserted. But how about Bannon’s affront to Congress and the rule of law?
Among legal experts—including Laurence Tribe, the Harvard Law professor who is a former teacher of Garland—the current moment is looking particularly bleak. Tribe’s frustration is obvious: “Where oh where is Merrick Garland?” he tweeted on Saturday. “The DOJ seems strangely AWOL.”
Elie Honig, CNN senior legal analyst, proffered his one-two punch: “1) Garland is taking his sweet time deciding on Bannon. 2) Even if he does charge Bannon, he needs to do more. He'll likely have to decide on other contempt charges, eventually. And zero indication of criminal investigation above ground-level Jan. 6 or for election interference.”
So what’s going on? Why is Garland dragging his feet or, worse, refusing to enter the fray? Surely, he comprehends the risk of inaction. Consider how Professor Tribe explained it several months ago in an interview with Chauncey Devega in Salon:
“Why is it taking so long? One possible answer is that it's not easy to get a conviction of a president. What appears compelling to a layperson is going to be difficult in practice. It will also be difficult to put down the riots that the very announcement of an indictment may bring. There may be a great deal of worry about fomenting civil war to no good end, because we will not succeed in holding the president accountable.
“In the end, all I can do is make the counter-argument that if you're worried about the consequences of going ahead with this evidence against Trump and perhaps not convicting him, then you had better start worrying about the consequences of not going ahead with this evidence—and telling presidents in the future, including this president, who undoubtedly is going to try to seize power again one way or another, that they can get away with this. If that is the message, then the rule of law has basically been thrown out the window.”
The idea that Garland is resisting action because he fears the fallout from the radicalized minority is bad enough. But the problem may be Garland’s inherent conservatism—his belief that his primary responsibility is to the institution that he’s now serving and the need to depoliticize it after four years of disturbing obeisance to an out-of-control president. As Washington Post writer David Montgomery put it, Garland “stands as a kind of radical institutionalist, a stickler for regular order, a true believer in the norms and processes put in place after Watergate that weathered nearly every storm until Trump.”
Garland may have called January 6 “the most heinous attack” on democracy he’s ever seen, but he also said this at his confirmation hearing: “I would like…to turn down the volume on the way in which people view the department.”
Recall what Garland said in his first speech as AG: “The only way we can succeed and retain the trust of the American people is to adhere to the norms that have become part of the DNA of every Justice Department employee. Those norms require that like cases be treated alike—that there not be one rule for Democrats and another for Republicans, one rule for friends and another for foes, one rule for the powerful and another for the powerless.”
Sounds good. No one is above the law. We cannot have two systems of justice. The Department of Justice cannot be the political arm of the occupant of the Oval Office.
But the idea that simply adhering to the norms is the way to “retain the trust of the American people” sorely misses the reality—the gravity, the urgency—of these times. Not after the bulldozing of norms during the Trump years and the determination of extremist Republicans to get and keep power by any means necessary.
We need an Attorney General of high purpose, which includes upholding the norms and values that have sustained the nation and secured the US constitution. It includes making prosecutorial decisions based on facts and the application of the law.
But we cannot endlessly tolerate the collection of thugs who thumb their nose at Congress, run roughshod over the rule of law, and continue to incite a violent minority without consequence. This is how democracy dies. I admit my impatience for action, in part because I worry the slow pace puts the country in increasing danger. If Merrick Garland can’t step up—to seize this moment—then President Biden should find an Attorney General who can.
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