In his timidity and determination to be “apolitical,” the attorney general has failed to do the very thing he was appointed to do—pursue justice and accountability.
US Attorney General Merrick Garland(Win McNamee / Getty Images)
As we wait to see if the Supreme Court will grant Donald Trump another delay in his criminal trial for obstruction of Congress, it is important to remember that Trump may succeed in pushing off proceedings until he can be reelected because of the slow-moving failure of a prosecutor who is otherwise known as Merrick Garland. As we digest the likely Supreme Court ruling that Trump is eligible to stay on the ballot in Colorado and other states—despite the 14th Amendment’s prohibition against insurrectionists holding office—it’s important to remember that Garland never charged Trump with “sedition” or “treason” or any offense that would have made the court’s protection of Trump a little harder to square with the Constitution.
And as we are buffeted by another round of “but her e-mails”–style articles about President Joe Biden’s age by the corporate media, it’s important to remember that Robert Hur, the prosecutor who turned an oversight investigation into a “gotcha” interview about dates and the president’s dead son, was appointed by Garland—and that Hur’s report, which took potshots at a man the DOJ decided not to charge, because he committed no crime, was signed off on by Garland, and released to the public at his discretion.
Merrick Garland is not the worst attorney general in recent memory, because Bill Barr exists, and because people forget that Trump literally appointed a man who sat on the board of a company that patented toilet bowls for people with large penises, Matthew Whitaker, as acting attorney general for a little while. But Garland has been the biggest failure when it comes to doing what he was appointed to do. Garland was supposed to restore the zealous pursuit of justice and apolitical prosecutorial decision making to the Department of Justice. Instead, Garland has been more concerned with institutional ass-covering than stopping the bad guys. It’s probably too late for Biden to fire him now, but should Biden somehow win a second-term despite all Garland has done to help his opponents, he must not be allowed to return to his cabinet position. It would be better for everybody if Garland announced his intention to retire after his term, just as soon as he can be bothered to crawl out from under his desk long enough for people to ask him to account for his decisions.
There are three principal problems with Garland as AG that I hope even people who defend his individual decisions can now recognize as obvious. First: He has a judicial temperament, not a prosecutorial one. He acts like a judge, not an advocate for the people or the issues, as lawyers do. When he was appointed, his supporters touted him as the US Attorney who brought Timothy McVeigh, the Oklahoma City bomber, to justice. But by the time Biden named him as AG, he wasn’t that guy anymore. Instead, he was the guy who spent 13 years as judge on the D.C. Circuit Court of Appeals. And so we have an AG who always seems afraid of being “overturned” by a higher court. We can see this in his approach to Texas’s “Operation Lone Star,” where instead of desperately trying to stop Texas Governor Greg Abbott from breaking the law and hurting people, Garland cautiously avoids a showdown at the Supreme Court over whether murder-barriers are constitutional. We see this in the post-Dobbs abortion environment, where Garland meekly accepts that states can criminalize women and pregnant people seeking healthcare and control over their own bodies, instead of making each red state fight for every single inch they take away in lawsuit after lawsuit after lawsuit.
The second problem is that Garland is an institutionalist, more committed to the reputation of the DOJ (and to his own reputation) than the pursuit of justice itself. Garland acts like the DOJ and “justice” are the same thing, when they’re clearly not. He’s simply unwilling to get his hands, or the DOJ’s hands, dirty, even when justice requires it. We see that in his general approach to the January 6 attack on the Capitol, which was to go after the idiots and white supremacists who carried out the attack instead of the Republicans in political office who organized the attack and tried to overthrow the government. And we see it in his over-reliance on appointing “special prosecutors” to do his job for him. Garland is so desperate to keep the DOJ above the political fray that having an “R” next to your name might as well be a cloak of invisibility.
And that leads to Garland’s last and most critical flaw: He’s so desperate to appear “apolitical” that he makes disgustingly political decisions every time it looks like Fox News might become angry with him. We saw this most acutely with the Hunter Biden “investigation.” Republicans have conducted a years-long harassment campaign against Hunter, a private citizen who has never held a government position, to take a pound of political flesh out of his dad. Instead of putting an end to it, as he should have, Garland allowed the investigation to continue, so it didn’t look like he was playing favorites with his boss’s son. But Garland didn’t even have the decency to “both sides” the problem and start an investigation into Jared Kushner or Ivanka Trump—two presidential family members who did in fact hold government positions– over their possible violations of the Hatch Act. Why? Because that would also look “political.” Under Garland, Biden’s children can be investigated, so as not to appear political, but Trump’s children can’t be investigated, so as not to appear political. It is maddening.
All of Garland’s faults contributed to the appointment of special counsel Robert Hur and Garland’s disastrous approach to the investigation into Biden’s handling of classified documents. Remember, we’re only investigating Biden’s documents because Trump absconded with classified documents, stored them in his bathroom, and wouldn’t give them back when asked. Garland initially pleaded with Trump to give the documents back, but finally authorized a raid into Mar-a-Lago to retrieve them.
But then Garland lost his nerve. Instead of prosecuting Trump for mishandling the documents, he brought in a special prosecutor to do that work for him. Again, Garland has no stomach to put his own name on the line when it comes to stopping politically powerful Republicans. So Garland appointed Jack Smith. That has been a lucky call. Smith, unlike Garland, has not shied away from the pursuit of justice, and Garland eventually let Smith take over the January 6 investigation that Garland slow-walked for two years. But don’t let Smith’s competence distract from the fact that the attorney general and the Department of Justice should be able to prosecute a guy who stole documents from the United States without appointing a special prosecutor. (And don’t forget that if Garland had started an investigation of Trump over January 6 at roughly the same time the January 6 Select Committee in Congress did, instead of bringing on Smith years later to do it, Trump wouldn’t be so close to running out the clock.)
As Trump flopped about, claiming he was allowed to steal documents and could declassify them with a thought, all while claiming others had done the same as him, it came out that Vice President Mike Pence also had some classified documents in his house. When alerted to the fact, Pence gave them back, like a normal person who is not a thief, and no charges were warranted. Then we found out that Joe Biden also had documents in his house from when he was vice president. When alerted to this fact, Biden gave them back, like a normal person who is not a thief, and no charges were warranted.
But Republicans were not satisfied that Biden had been treated the exact same way as Pence, since both men returned the documents when asked. They wanted more scandal. Instead of just telling them “no,” like a person with the skeletal strength to walk upright, Garland caved and appointed another “special prosecutor” to investigate Biden, just as he had to investigate Trump. Garland is proof that once a person decides to live on their knees, they get used to it.
I guess Pence is just lucky that nobody took his presidential campaign seriously, or else Fox News would have ordered Garland to appoint a special prosecutor to investigate Pence as well.
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It almost goes without saying that once he made the cowardly decision to appoint a special prosecutor, Garland went out and found a Republican special prosecutor like Hur, a literal Trump appointee, to do the work. When you’re more concerned with “not appearing political” than “doing the right thing,” of course you find a Republican to placate Republicans.
Hur investigated Biden for around a year, but couldn’t charge him with a crime (because no crime had been committed). Normally, that would have been the end of it: Prosecutors generally don’t release reports about people they investigate but don’t charge. That’s because it’s unfair. If you charge somebody, they have a chance to confront the charges in a court of law. If you don’t charge somebody, writing a report about how you really wanted to is essentially slander in the court of public opinion. But Hur did write a report, and instead of sticking to the facts and evidence that Biden did nothing wrong, Hur used his total lack of a medical degree to conduct an armchair diagnosis of Biden’s mental acuity.
Hur’s report is a gross smear job that never should have seen the light of day, but Garland saw it, read it, and released it. In the long list of Garland’s displays of political cowardice and poor judgment, the decision to release that report is easily his worst.
Garland’s greatest character flaw might be that he lacks the decency to tender his resignation after embarrassing himself and his administration by creating the conditions where Hur and his report can exist. The honorable thing for Garland to do right now would be to fall on his sword. But he apparently lacks the courage to do even that. Say what you will about former attorney general and Confederate mouth-breather Jeff Sessions, he at least quit and got out the way when it became clear that he was not doing what the administration needed him to do.
Biden won’t fire him. I’d have fired Garland on the spot and ordered security to monitor him as he packed up his office. But Biden is also worried about appearing “political” (even though he is literally a politician) when it comes to the DOJ. Even when Garland basically used the DOJ’s vaunted independence to release a report that would have gotten any other prosecutor drummed out of office.
Biden has allowed it to leak out that he is growing “frustrated” with Garland’s approach. As John McClane might say, “Welcome to the party, pal.” I’d like to be sympathetic to the president, but I’m not, because as regular readers know, there’s nothing I’ve said about Garland today that I haven’t been saying from almost the moment he was nominated to the job. All you had to do was read Garland’s judicial opinions to know that he was going to be like this. Garland was always a pro-cop moderate institutionalist nominated by Barack Obama to replace Antonin Scalia in a bid to appease Mitch McConnell and get Republican votes. The fact that he failed to do that did not transform him into a fighter. He was never for a second the kind of no-nonsense prosecutor needed to hold Republicans accountable and defend democracy.
The best hope now is that America survives having this gelatinous failure as an AG long enough to see him replaced in the next Democratic administration. It’s unusual for modern AGs to serve more than four years anyway, even with presidents who win two terms. One way or another, Garland is just eight months away from starting to write his best-selling self-help book: Under the Desk: How to Get Others to Do Your Job.
His damage, however, has already been done. Bill Barr tried to do Trump and MAGA’s bidding, Garland has been too timid to take Trump and MAGA on. The end results have largely been the same: a DOJ debased by political considerations instead of the dedicated to the pursuit of justice and accountability. We cannot be rid of him soon enough.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.