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Is Merrick Garland Really the Right Man for the Job?

He’s certainly qualified to be Biden’s attorney general—but that doesn’t mean he’ll do what’s necessary to prosecute Trump-era abuses and reform the Justice Department.

Merrick Garland at his confirmation hearing for attorney general

When Merrick Garland testified last week before the Senate Judiciary Committee to be confirmed as attorney general, he offered, among other things, that he was committed to showing “respect” for “the professionalism of [the Justice Department]’s career employees,” and that one of his principal priorities would be to protect these employees from partisan interference. This was not surprising. As a class, career officials have been simultaneously lionized and infantilized over the last four years. It is by now conventional wisdom that the department was hijacked by partisan and corrupt attorneys general who, with the help of disreputable, politically appointed cronies, ran roughshod over helpless and honorable career lawyers who, in turn stood up to the Trumpists as best they could—as if these lawyers were not grown-ups who could refuse to do improper things (and, in fact, were ethically and legally required to do so).

Other events last week further belied the prevailing narrative. On the same day as Garland’s hearing, a federal judge in Manhattan concluded—for a second time—that prosecutors in a case before her had fallen “far short of their constitutional and ethical obligations” and attributed this to both “individual lapses” and a “broader institutional failure.” Several days earlier, a judge in the United Kingdom issued a remarkable opinion that suggested that senior DOJ officials had defamed a U.K. prosecutor during the Trump administration in order to win a pointless competition over which government would prosecute a British citizen at the center of an international bribery scheme. Everyone involved in these incidents was a career official, including some who had been promoted to more senior positions during the Trump administration and one who, as of last year, is the acting head of the office that I used to work in.

In my experience, career DOJ officials are, in fact, largely hard-working and interested in doing the right thing, but the incidents in Manhattan and the U.K. made clear that career employees are not a monolith of competence and integrity. This is partly why the valorization of this group—as a class—by liberal critics of the Trump DOJ was always peculiar. Like any large organization—the department has over 10,000 lawyers and over 100,000 employees—the DOJ employs some people whose principal allegiance is to their own professional advancement, whose morality and professional integrity are dubious, and who are not particularly good at their jobs.

This is the messy reality of the department that Garland is all but certain to take over—a reality that was predictably, but still unfortunately, obscured over the course of his confirmation hearing. Democrats on the Judiciary Committee—eager to have someone lead the department who is not a shameless and dishonest partisan like William Barr—largely avoided posing difficult questions to Garland. Republicans moved seamlessly back to partisan attacks on Barack Obama with little basis in reality—an adventure in time-traveling that assumed that everyone had forgotten about the intervening four years, and which, in turn, led to a bunch of nonsensical grandstanding. The media coverage had its own problems: Journalists are still in nonconfrontational beat-sweetener mode, while some liberal legal commentators praised Garland’s performance in the most overwrought and effusive terms possible and turned out pointless drivel in its wake.

In fact, many important and difficult questions were barely explored—or not explored at all—over the course of the hearing. How does Garland, beyond the clichés he has offered, plan to reinvigorate the department’s commitment to the rule of law? What will the DOJ’s role be in providing accountability for the Trump era, including for Trump himself? What about areas of federal law enforcement that withered under Trump, such as white-collar crime, public corruption, and environmental crime? And will there be any internal reform at the department given the misconduct by Trump DOJ officials on family separation and other issues?

After years of waiting to hear Garland publicly speak in a long and unscripted format, the results were somehow both reassuring and distinctly anti-climactic. In this way, the hearing was not unlike the early days of the Biden administration: It made clear precisely why Garland appeals to the president, while also raising the question of whether he’s prepared to meet this crucial moment in American history.

The thematic centerpiece of the pitch for Garland’s nomination is the idea that he is singularly well-positioned, after nearly 25 years as an appellate judge, to restore the department’s commitment to the rule of law. The premise is politically and rhetorically deft, but in American political discourse, the rule of law, as an ideal, is both indisputable and commonplace—an easily abused cliché that can mean almost anything depending on who is using it. The actual merits and strength of one’s commitment to the concept are highly context-specific, and, in Garland’s case, it will come down to the department’s handling of particular investigations, cases, and initiatives that we heard little to nothing about.

Republicans tried and largely failed to secure commitments from Garland to maintain—ideally in perpetuity, so far as I could tell—the already protracted probe into the origins of the Trump-Russia investigation by U.S. Attorney John Durham and the ongoing investigation into Hunter Biden’s finances. Still, Garland appears inclined to let these probes play out with limited oversight or intervention on his part. (On Friday, Durham resigned his position as U.S. attorney, but he will remain with the department as a special counsel to continue the inquiry into the Trump-Russia investigation.)

More importantly, we still do not know Garland’s views—in the particulars—about the propriety of the department’s interventions in the cases of Michael Flynn, Roger Stone, or E. Jean Carroll. It seems safe to assume that he would disapprove, but the cases raise questions of prosecutorial discretion and executive authority that transcend the specifics of each proceeding, and without a concerted course correction within the department, the precedents can easily be abused in a future administration. Nor did we find out whether Garland will direct much-needed internal inquiries into exactly how those interventions came about—or the suggestion by the presiding judge in the Flynn prosecution that the political appointees and career prosecutors who were involved had lied to the court about the department’s motives.

The department will also have a unique role in providing (or not providing) accountability for the Trump era, but there were no questions for Garland on this front at the hearing. It was inconceivable that Garland would speak with great specificity about the prospect of opening a federal criminal investigation into the conduct of Trump—one that would be justified in several different areas—but it would have been useful to hear how Garland might approach this question even as a matter of broad principles. There are real questions, for instance, about how to weigh the significance of ongoing local investigations into areas where the federal government has overlapping jurisdiction, the relevance of Trump’s constitutional powers in cases concerning his actions while in office, the results of the impeachments concerning conduct where Trump has meaningful criminal exposure, and other countries’ experiences—which have been largely positive—with conducting orderly criminal investigations of their chief executives.

Some people read far too much into Garland’s statement that the department’s investigation into the Capitol siege would include people “upstream” of the rioters—such as “funders, organizers, ringleaders, or aiders and abettors who were not present”—and that the department would “pursue these leads wherever they take us.” These statements tracked standard language that prosecutors use in all complex investigations, and they tell us little about whether Garland believes the department has the resources, competence, and political capital to pursue an investigation into Trump and others at the White House who may bear responsibility for the events of that day—to say nothing of Trump’s extra-legal campaign to pressure state officials to falsely change vote tallies in his favor in order to steal the election.

An investigation will not naturally and incrementally lead to Trump or his inner circle by itself. At some point a concerted decision would need to be made by Garland to push back on this country’s de facto presumption of legal immunity for our political leaders—to start gathering documents and interviewing current and former senior government officials and White House aides. For an investigation like that, time is of the essence. Inertia generally favors the wrongdoers.

When it comes to the enforcement priorities of Garland’s DOJ, some things seem clear. We can expect a formal policy on communications between department officials and the White House in order to minimize the risk of interference in ongoing investigations and prosecutions. We are also likely to see efforts to reduce racial inequities in the criminal justice system, to reform local policing practices, and to expand access to the ballot—all worthy undertakings.

But there is much more to do. The Trump Justice Department presided over a historically unprecedented epidemic of financial and white-collar crime—a subject that no one brought up at the hearing—and reversing this trend will require more resources, aggressive action, and creative thinking. Indeed, there are complex structural features of this problem that did not exist when Garland worked at the department in the early 1990s—including a nearly inscrutable system of international finance, the centrality of the internet in mass fraud schemes, and the rise of corporate white-collar defense practices that have far outpaced and frequently outmaneuvered the government.

At the same time, prosecutions for environmental crimes have plummeted. Antitrust enforcement has not kept up with the outsize growth and power of Big Tech. The department has done virtually nothing about widespread, pandemic-related consumer fraud that has resulted in over $350 million in reported losses—or about the many billions of dollars in losses to state unemployment agencies thanks in significant part to foreign criminals. At this point, the department’s efforts to combat public corruption are barely functional.

If Garland has strong views about any of this, the senators’ questioning did not elicit them. It also remains to be seen whether Garland is interested in internal reform and accountability at the department.

The DOJ is in historically unprecedented disrepair, with an organizational culture that, like much of the federal government under Trump, has devolved along dimensions of both ethical comportment and competence. The only senator who appeared seriously concerned about this problem was Democrat Sheldon Whitehouse, who politely suggested on both days that there needed to be a systematic attempt to identify and investigate misconduct within the department under Trump.

After all, with few exceptions, career lawyers participated in virtually all of the actions that legal commentators decried as egregious abuses of power—like defending preposterous and politically motivated positions in the courts, attempting to dismiss the case against Flynn, intervening in the case against Trump by E. Jean Carroll, pursuing former FBI Deputy Director Andrew McCabe, literally trying to stop a book from being sold, and shutting down a possible criminal investigation into Trump’s shakedown of the Ukrainian president. Onetime career lawyers also ascended to senior political positions in the Trump administration in which—among other things—they retaliated against whistleblowers and helped to design the family separation policy before leaving for the private sector to cash in on this shameful work. Indeed, perhaps the most shocking and dispiriting feature of the DOJ inspector general’s report on the family separation policy—itself a ridiculous and morally obtuse document—is that it does not identify a single instance in which anyone involved, at any level in the department, objected to the policy on the ground that it was obviously inhumane and illegal.

When Whitehouse asked Garland how we would go about resuscitating the department after the last four years, Garland said that he believed that the department’s internal watchdogs—the inspector general and Office of Professional Responsibility—could identify and address any possible misconduct that occurred during the Trump administration. But as Whitehouse implied, it is not likely that they are up to the task. In fact, the offices performed extremely poorly during the Trump years, and the heads of both offices—if they truly care about the department’s long-term well-being—could do the country a favor by resigning. That is not likely to happen, so Garland would do well to take up Whitehouse’s suggestion.

Perhaps the most telling exchange during Garland’s hearing came near the end, when Republican Senator Josh Hawley asked him whether he believed that “illegal entry at America’s border should remain a crime.” In response, Garland said that he had never “thought about that question.”

That was strange. After all, Garland had harshly criticized the family separation policy earlier in the day, and the criminal prohibition against illegal entry was a necessary predicate for that policy. The question of whether illegal immigration should remain a crime had also drawn a flurry of attention and debate during the Democratic presidential primary campaign. This is not to say that the question is an easily resolvable one, but was it possible that Garland had never once even thought about it?

Garland’s greatest political asset is his nearly quarter-century-long service as a judge. In the vastly simplified terms of public debate on our constitutional structure, judges are supposed to interpret and apply laws—not make them or to question Congress’s wisdom—and by this standard, Garland has excelled. The Supreme Court has never issued a formal ruling on any of his opinions, and a report from the Congressional Research Service—published when Garland was nominated for the Supreme Court in 2016—explained that his jurisprudence has been “minimalist” and “cautious.”

More than anything, Garland’s confirmation hearing made clear why Biden nominated Garland. Like the president, Garland appears to be center-left, consensus-oriented, and trusting of prevailing institutional arrangements. He seems inclined to maintain the status quo and disinclined to court political controversy—even if it is justified, and perhaps even if it is necessary. By pretty much all accounts, he was a particularly fine judge.

Still, a well-developed vision of how the law should operate—and a sincere commitment to the rule of law—is not the same thing as a vision of justice. Garland is about to take one of the most powerful jobs in the country at one of the nation’s most challenging moments—a job in which his authority and discretion will be greater than ever, in which his ability to change people’s lives (for better and worse) will be vast, and in which a conception of the country’s well-being is crucial to wielding the power effectively and humanely. The fate of countless Americans, and those who aspire to be American, depends on how he will meet the task.