Jurisprudence

Merrick Garland’s Arrival at DOJ Cannot Come Soon Enough

Garland speaks at a podium labeled Office of the President Elect, with the words Attorney General on a backdrop partially cut off behind him
Judge Merrick Garland in Wilmington, Delaware, on Thursday. Chip Somodevilla/Getty Images

On Wednesday, the federal law enforcement apparatus in Washington utterly failed the American people, as right-wing fanatics stormed the U.S. Capitol to interrupt the peaceful transition of power. What happened was a terrible disgrace, but our country is extremely lucky. There could have been a massacre of elected officials if there had been more heavily armed people in the mob.

At the moment, we have no idea what the nation’s top law enforcement official, acting Attorney General Jeffrey Rosen, did to prepare for the chaos and what he did as it unfolded. Downtown Washington is a notorious patchwork of land over which multiple law enforcement agencies have jurisdiction—from D.C.’s Metropolitan Police Department to the U.S. Park Police to the U.S. Secret Service and, yes, the Capitol Police. But when the attorney general wants to step up and coordinate efforts, he can do that by convening various law enforcement agencies—which is exactly what former Attorney General William Barr did in anticipation of the protests last year in Lafayette Park that resulted in the tear-gassing of peaceful protesters.

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The DOJ itself has so far issued two largely uninformative press releases about Wednesday’s frightening display at the Capitol. One of them claimed that the department “sent hundreds of federal law enforcement officers and agents from the FBI, ATF, and the U.S. Marshals Service to assist the Capitol Police” but made no mention of exactly how many were sent, when any of that happened, or what (if anything) the department had done to prepare for a protest that had been weeks in the making and promoted by Trump himself. Wednesday night, the Wall Street Journal reported that “federal authorities had planned to deal with protests this week with a relatively small, minimally visible presence … hoping to avoid inflaming tensions.” That idea should have been ridiculous to anyone who had been watching Trump’s supporters in recent weeks and following his rallies for the last five years, particularly after the white supremacist mob that attacked Charlottesville, Virginia, four years ago. The public deserves a detailed account of what the DOJ had been doing in the weeks leading up to the siege and what Rosen and other senior officials at the department were doing all day Wednesday.

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As for what the DOJ intends to do in the wake of the riot—one that many of the criminal participants gleefully documented on social media—there remain scant details. The department announced this afternoon that “some participants in yesterday’s violence will be charged today” and assured us that it is working hard to do more, but this disclosure is scandalously insufficient. Who is leading this effort, how many people are working on it, and how is that work being organized? The U.S. Attorney’s Office in the District of Columbia has hundreds of prosecutors, but cleaning up this mess is not their only responsibility. The DOJ’s Criminal Division in D.C. has 600 more prosecutors, and although those prosecutors are specialized in particular fields, some of them can and should be diverted in order to ensure that people who committed crimes are apprehended and charged as quickly as possible, wherever they have since dispersed to.

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It’s worth noting that incoming Attorney General Merrick Garland led the Justice Department’s prosecution of Timothy McVeigh—the right-wing radical who killed hundreds of people by bombing the Alfred P. Murrah Federal Building in Oklahoma City in 1995. Garland faces a daunting challenge in the wake of Wednesday’s events. Right-wing extremism has been on the rise in this country for years, and the threat of domestic right-wing violence and terrorism must be one of this country’s top law enforcement priorities. That is a long-term challenge that he and Lisa Monaco—Biden’s nominee for deputy attorney general, who was a senior Homeland Security official and counterterrorism adviser in the Obama administration—should be far more willing and equipped to handle than Trump’s officials have been. They seemed to understand the importance of this subject during a press conference announcing their nominations on Thursday. “As everyone who watched yesterday’s events in Washington now understands, if they did not understand before, the rule of law is not just some lawyer’s turn of phrase,” Garland said. “It is the very foundation of our democracy.”

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Some of the serious problems of the current DOJ point the way toward concrete steps that Garland can take in order to address Wednesday’s chaos, in addition to necessary efforts to ensure that protesters receive the same treatment by federal law enforcement agents irrespective of their race—a disparity that once again became undeniable as a mob of violent white people waltzed into and out of the Capitol on Wednesday while lawmakers huddled in fear. President-elect Joe Biden himself acknowledged this need during Thursday’s announcement of Garland’s nomination, saying: “No one can tell me that if it had been a group of Black Lives Matters protesters, they wouldn’t have been treated very, very differently than the mob of thugs that stormed the Capitol. We all know that’s true. And that is unacceptable. Totally unacceptable.”

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Garland will need to work with Biden to make sure that the next U.S. attorney in Washington is quickly installed, actually qualified, and committed to an orderly but robust effort to arrest anyone who broke the law at the Capitol. It could take months, but there is a huge trail of documentation online. Right now, the U.S. attorney is a prosecutor from Miami who was installed in an acting capacity last year by Barr to shepherd through the political work of dismissing the prosecution of Michael Flynn and suing John Bolton to stop his book from being published. He was last seen publicly whining after some mild criticism from D.C.’s mayor, and at the moment there is no indication that he did anything of consequence to prepare for Wednesday’s unrest.

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The department also needs actual qualified adults to be in senior positions, even the ones that are not in the marquee positions that are frequently in the news. Until about a week ago, the head of the department’s Criminal Division in Washington was a thirtysomething conservative lawyer who came to the department in early 2019 after working at the White House. One of the office’s senior deputies is a prosecutor I had the misfortune to work with; the nicest thing I can say about him in a public venue is that he does not have the intellectual capacity for his job.

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The department’s inspector general, Michael Horowitz, and head of the Office of Professional Responsibility, Jeffrey Ragsdale, should resign as soon as it is convenient for Biden’s new leadership at the department so that they can be replaced by people who have Biden and Garland’s full confidence. A distinct culture of impunity and all-around hackishness has been tolerated under this administration, but the department needs to restore its commitment to the highest standard of professionalism as quickly as possible.

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The Office of Professional Responsibility is supposed to oversee the ethical conduct of the department’s lawyers, and while it has been scandalously ineffectual for years, it has declined under the Trump administration to the point at which there are no consequences if people are terrible at their jobs—no matter whose lives are affected. As it happens, a couple of weeks ago I asked Ragsdale whether the office had begun an inquiry into the conduct of the attorneys who were involved in the motion to dismiss the Flynn prosecution—since that is what the office is supposed to do when a judge accuses department lawyers of lying to him—but he told me he could not address this publicly. This despite the fact that it was not that long ago that his office tried to publicly humiliate a department whistleblower who had alleged misconduct on the part of Barr.

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In theory, it is ultimately Rosen who owes the public a comprehensive explanation of what happened on Wednesday, but whether we get it from him remains to be seen. The man was never professionally equipped to hold this job, and never should have been in a position to take over after Barr left, even for a month. Rosen had never even worked at the department before he became deputy attorney general in mid-2019, and his specialty before that was administrative law, so it was ridiculous that he could ever become the nation’s top law enforcement official during this tumultuous time in the country. He had kept a relatively low profile until becoming the acting attorney general, unless you count the time he told prosecutors to consider sedition charges during last year’s protests over racial injustice—a marked contrast to the hands-off approach we saw when a bunch of white people terrorized the Capitol on Wednesday.

It was inevitable that Rosen would screw something up; the only question was how big it would be. In any sane administration, Rosen would already have resigned, but it is doubtful that the Trump administration can get its act together to find someone who is qualified to immediately replace him. Meanwhile, we are all stuck hoping for the best as this miserable administration comes to an end.

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