Jurisprudence

Merrick Garland’s House Testimony Demonstrated the Failure of His Hyper-Cautious Approach to His Job

Garland seated before a mic gesturing with one hand as he speaks
Attorney General Merrick Garland testifies before the House Judiciary Committee on Thursday during an oversight hearing on the Department of Justice. Michael Reynolds/Pool/Getty Images

On Thursday, while the House of Representatives voted to refer Steve Bannon to the Department of Justice for a criminal contempt of Congress charge, Attorney General Merrick Garland appeared before the House Judiciary Committee for a general oversight hearing.

Bannon’s contempt referral is the greatest test of Garland’s DOJ tenure thus far, with the rule of law demanding that he prosecute the Trump ally for his blatant defiance of a lawful subpoena to assess his role in the Capitol riot and insurrection. The hearing itself, though, showed why Garland’s hyper-cautious approach to his job is already a failure that will turn into a complete disaster if he declines to prosecute Bannon.

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The baseline problem is this: Trying to remove all appearance of politics from the work of the DOJ, given the right’s continued assault on democracy, is like bringing a spoon to a knife fight. Garland is so committed to being apolitical that he is even willing to put this position ahead of defending democracy against attacks from people like Bannon and others who organized the insurrection and are continuing to plan further assaults on our elections. And no matter how far he bends over backward to appear not to target possible criminals who also happen to be Republicans, those same Republicans will target him as a corrupt Communist who is vengefully going after his personal political enemies, as they did during Thursday’s hearing. Not only will he not get credit for protecting the institution of the DOJ, but he will also enable attacks on democracy.

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The GOP’s strikes against Garland’s impartiality started almost immediately, when ranking member Jim Jordan targeted Biden’s attorney general in his opening statement. Jordan suggested Garland had politicized the DOJ by issuing a memo earlier this month seeking law enforcement to protect local school board members after the National School Boards Association issued a request following a spate of violence and threats against local board members across the country. Despite all of Garland’s efforts to appear nonpartisan, Jordan portrayed the attorney general’s memo as an attack on free speech that will lead down the road to “communism.” Others painted the memo as a corrupt effort by Garland to benefit his son-in-law who has an education company.

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First, Jordan claimed that Garland had set up “a snitch line on parents … five days after a left-wing political organization asked for it” and insisted that “if that’s not political, I don’t know what is.”

“I think your memo, Mr. Attorney General, was the last straw,” Jordan continued with typical bombast. “When the attorney general of the United States sets up a snitch line on parents, Americans aren’t going to tolerate it. I think they’re going to stand up to this accelerated march to communism we now see.”

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Next, Rep. Mike Johnson alleged that Garland’s actions were “motivated by his family’s financial stake in this issue.” Johnson claimed that because Garland’s son-in-law co-founded an education company that “publishes and sells critical race theory and so-called anti-racism materials,” Garland’s “impartiality is being questioned” and he was “not following” ethics requirements. According to Johnson, Garland’s efforts to “chill” free speech around school curricula has resulted in people losing their “faith in the idea that justice is blind, that there’s not two standards, that there’s one standard of the law.”

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So, despite Garland’s many efforts to not appear political by declining to investigate Trump and his cronies for possible crimes and by using DOJ resources to actively protect Trump from civil liability, Republicans are still portraying him as the most political attorney general in history.

The other weakness of Garland’s timid approach was on full view during his opening statement and responses to Democratic members of Congress. “The essence of the rule of law is that like cases are treated alike. That there not be one rule for Democrats and another for Republicans; one rule for friends, another for foes,” Garland stated grandly. But by declining to investigate Trump and his associates, Garland is enabling further attacks on our democracy.

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Crucially, the two parties are not the same. Garland’s standard sets up a false equivalency between the Democratic Party and a political party whose national leader, Donald Trump, incited and celebrated a violent assault on our nation’s Capitol to overthrow the results of a free and fair election and who continues to portray the insurrection as a glorious “protest.” To that end, in the middle of the attorney general’s testimony, Trump issued a statement highlighting Garland’s feebleness at failing to even investigate the organizers and leaders of the Jan. 6 events, declaring “the insurrection took place on November 3, Election Day. January 6 was the Protest!”

Trump is widely expected to be the party’s nominee in 2024. And he remains a threat to democracy. Trump has instructed loyalists like Bannon to block all congressional efforts to investigate the crimes that he incited that day. In seeking to protect Bannon, Republicans on Thursday parroted Trump’s line that the select committee is illegally persecuting a peaceful protest. “Here in the land of the free, [Bannon and other witnesses] are under congressional investigation for the sole crime of planning a legal political protest,” Rep. Jim Banks said in his opening of the debate for the Republican side. “Why are they seeking information about a permitted political rally? What legislative purpose does that serve? Is the committee considering laws to limit Americans’ right to political protest?” Jordan then went to the floor to repeat his allegations against Garland as part of his defense of Bannon. Garland saying that there can’t be one rule for Republicans and another for Democrats is absurd in this context.

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Moreover, Garland’s efforts to depoliticize the DOJ have proved to be an abdication of his responsibility to protect the rule of law. Take just a few examples: Garland’s failure to reconsider the obstruction of justice case against the former president, his deferral of an investigation of possible financial crimes by Trump and his organization to local prosecutors in New York City and Westchester, his use of the DOJ to protect Trump from defamation allegations, and his deferral of a soliciting of voter fraud felony probe in Georgia to local prosecutors there. By abdicating his responsibility, Garland is also opening the door for Trump to commit these possibly criminal abuses all over again, this time with the full support of the Republican Party, and maybe ultimately return to power.

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The last and perhaps most damning piece of evidence of Garland’s failed approach came when his testimony was interrupted by the House vote to open debate on whether to hold Bannon in contempt. With this vote, the GOP confirmed its position as the insurrectionist party when only two Republican members of the House of Representatives voted to debate the referral. Ultimately, just nine voted to hold Bannon in contempt. The actions of the GOP make the stakes of Garland’s decisions painfully clear. He is now responsible for determining if we will continue to have a rule of law in this country, or if our democracy will be abandoned while the officials in charge of protecting it cling to their illusory ideals of political independence.

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