Jurisprudence

The Democrats’ Loss in Virginia Is Merrick Garland’s Fault, Too

Merrick Garland frowning
Merrick Garland. Pool/Getty Images

There is plenty of blame to go around for Terry McAuliffe’s loss to Glenn Youngkin on Tuesday night in the race for governor of Virginia—structural electoral factors, the seemingly endless legislative debacle that passes for the White House’s effort to enact its domestic agenda, and McAuliffe’s aimless and generally baffling campaign. Thus far, one person who deserves his fair share of blame has managed to avoid any of the recriminations—Attorney General Merrick Garland.

On key issues that appear to have been central to the result on Tuesday, the Department of Justice in recent months has been tone-deaf or listless. The result has been that Garland has significantly depleted whatever cross-party political capital he once had and that the department has looked both too political and not political enough, managing to frustrate pretty much anyone paying close attention.

Advertisement
Advertisement
Advertisement
Advertisement

The most notable misstep was Garland’s memo to other department officials last month containing the evidence-free assertion that there had been “a disturbing spike in harassment, intimidation, and threats of violence against” school officials, which drove many conservatives crazy—and not entirely unreasonably. The memo conceded that the Constitution protects “spirited debate” but went on to vaguely assert that the department would work with federal and local law enforcement officials—and also “announce a series of measures”—in order to prevent “violence, threats of violence, and other forms of intimidation and harassment.” At best, the memo was sloppy and poorly written, but the department has thus far refused to give any ground.

The department appears to have thought that few would notice or care that Garland’s memo was issued within days of a letter to the White House from the National School Boards Association that requested that the department “deal with the growing number of threats of violence and acts of intimidation occurring across the nation,” but that turned out to be an extreme miscalculation. For an attorney general who has staked his public persona on the proposition that politics and law enforcement are somehow neatly divisible, the timing of Garland’s memo looked suspiciously like a politically motivated effort to tamp down whatever it is that public school officials believe constitutes improper “intimidation and harassment,” as opposed to vocal but nonviolent protests from school parents about what is happening in their children’s schools—however outraged, misguided, or racially inflected those protests may ultimately be.

Advertisement
Advertisement
Advertisement

To be sure, Republican politicians blew this way out of proportion. During a pair of congressional hearings last month and elsewhere, they theatrically milked it for all it was worth—capitalizing on the fact that conservative media figures and political operatives have managed to fully nationalize and confuse debates about how to teach issues of race and discrimination in public schools. Garland seemed incapable of defending the memo when he recently appeared before the Senate Judiciary Committee. At one point, he invoked in his defense—and seemed to misdescribe—a statute about threats among domestic partners, which would seem to have little, if any, relevance to the matter at hand. (Even more remarkably, he was reading from prepared materials when he made this apparent error.)

Advertisement
Advertisement
Advertisement

The dispute ended up converging with the Youngkin campaign’s effortdeeply unfair but ultimately successful—to portray McAuliffe and the Democratic Party as intolerant of parental input on controversial issues. Meanwhile, a recent poll suggests that Garland has managed the impressive feat of generating an approval rating that is about as bad as Joe Biden’s.

Another key plank of Youngkin’s campaign was indulging the election denialism and fearmongering over election fraud among many Trump supporters, but here too, the department’s output has been deeply confused. The best evidence that anyone committed serious fraud during the 2020 election remains Trump’s call with Georgia Secretary of State Brad Raffensperger, but the department under Garland does not seem to care, so why should the public think that Trump did anything wrong?

Advertisement
Advertisement
Advertisement
Advertisement

The department is also treating the criminal defendants in the Jan. 6 cases better than most defendants, but at the same time, prosecutors are using dramatic rhetoric about the dangers of that day in court filings—all without any effort on the part of Garland or the department to publicly make sense of these seemingly contradictory messages. Last week, the chief judge in D.C. openly complained about the department’s erratic approach—inscrutable at best and “schizophrenic” at worst. “No wonder parts of the public in the U.S. are confused about whether what happened on Jan. 6 at the Capitol was simply a petty offense of trespassing with some disorderliness or shocking criminal conduct that represented a grave threat to our democratic norms,” Judge Beryl A. Howell said in court.

Advertisement

Of course, the most pressing threat to election integrity is the slew of Republican efforts to make it harder for people to vote and easier for elected officials to overturn their will. The department sued Georgia over its recently enacted voter suppression law, but otherwise the department, like the White House itself, has been apathetic as a practical matter about the broader, systemic problems that have been growing this year. Garland’s most notable contribution to the public discourse was a meandering op-ed in August in which he argued that it was “not right to erect barriers that make it harder for millions of eligible Americans to vote” and that it was “time for Congress to act,” but he conspicuously had nothing to say about what that law should actually do.

Advertisement
Advertisement
Advertisement

Garland’s contentless offering was promptly and justifiably forgotten, but the result, on top of all the rest, has been that the department has managed to contribute to the partisan neutralization of this topic—with Republican voters somehow convincing themselves that they are being disenfranchised just as much, if not more, than Democrats. On some level, you can understand their confusion. After all, the most noteworthy prosecution that the Garland DOJ has brought concerning attempted election tampering is a case about Hillary Clinton’s 2016 campaign.

The department also bears a non-negligible amount of responsibility for the broader frustration with the economy that Youngkin capitalized on. The Garland DOJ has taken laudable first steps in the areas of policing and civil rights, but for most of the year, the department has displayed almost no interest in the seemingly unprecedented level of financial crime throughout the country, including huge problems with coronavirus-related fraud that have affected many regular Americans at a time when one-third of the country can barely manage their monthly expenses.

Advertisement

In recent weeks, the department finally began to outline what senior officials claim will be their effort to more forcefully combat white-collar crime, but it is remarkably thin. One of the marquee initiatives is to embed FBI agents with other white-collar prosecutors in Washington—in the building where I used to work—which sounds impressive unless you know that prosecutors in the office are often traveling and barely ever in the building to begin with. Department officials have also suggested that they will increase financial penalties in corporate criminal resolutions, but there is no good reason to believe that the sort of incremental increases in fine levels that they are contemplating will accomplish much of anything.

Advertisement
Advertisement

As if to underscore the disconnect between the department’s supposed white-collar priorities and the real world, on Election Day in Virginia the big news out of the department was an antitrust lawsuit that seeks to block a merger between two publishing companies. The lawsuit is based on the theory—relatively novel but fashionable in progressive legal circles—that the department’s antitrust enforcement efforts should not focus merely on preventing adverse impacts to consumers in the form of higher prices. In this case, the department says that it is worried about the possible suppression of advances to book writers, which is great for people in the media who want to write books and pretty much no one else.

Advertisement
Advertisement
Advertisement

Needless to say, exactly how much a role any of this played in the result on Tuesday is unknowable and debatable, but it is hard to deny that the Garland DOJ’s work has itself reflected broader criticisms of the Biden administration that appear to be resonating with many voters. From the beginning of his return to the national stage, Garland has been enamored with the laudable notion that he can restore broad bipartisan confidence in the department—that he can somehow be a truly apolitical figure—even though federal law enforcement is, in fact, an undeniably political project, one that requires difficult but very real choices about how to balance competing values and priorities in pursuit of some conception of the public good.

The Garland DOJ is doing legitimately impressive work in many respects. But it is long past time for Garland to recognize that he is a political actor too, whether he likes it or not, and that unless something changes, he is on track to remain one of the most unpopular Democratic figures in American politics.

Advertisement