Washington Whispers: Time to Toughen Up, Merrick!
Updated: Jun 23, 2021
By Jessie Seigel / Washington, D.C.
Attorney General Merrick Garland has his work cut out for him. The powerful agency he heads, the Department of Justice (DOJ), must reestablish the rule of law after Donald Trump’s massive corruption of our governmental institutions at the highest levels—including at the Justice Department itself. Moreover, the DOJ needs to challenge the incursions by numerous states on the right of citizens to vote and have their votes counted. And it urgently needs to combat domestic terrorism of the type the nation saw on display on January 6.
Is Attorney General Merrick Garland up to these tasks? His initial tentative style does not inspire great confidence. Garland’s public statements have been more professorial than prosecutorial.
Garland has a resume and a reputation that are beyond reproach. He has served both as a judge and as chief judge on the prestigious U.S. Court of Appeals for the District of Columbia. He appears to be respected by those have worked with him regardless of their political persuasion. In 2010, Tom Goldstein, publisher of the influential SCOTUS blog, wrote that Judge Garland’s record demonstrated he was “essentially the model, neutral judge.”
In 2016, the year of his ill-fated nomination to the Supreme Court, the White House issued a statement that Garland was a “meticulous judge with a knack for building consensus, playing it straight, and deciding every case based on what the law requires.” By all accounts, that appears to be a very accurate description.
The White House quoted Garland as saying, “The role of the court is to apply the law to the facts of the case before it—not to legislate, not to arrogate to itself the executive power, not to hand down advisory opinions on the issues of the day.”
Garland’s development of this judicial philosophy may have made him an excellent judge. But it has been over 25 years since he has been a prosecutor. The two jobs require different skill sets. It may be that the same disposition and philosophical outlook that has molded Garland into “essentially the model, neutral judge,” have left him lacking the aggressive nature a prosecutor must have to doggedly pursue wrongdoing.
This month, Garland has given two very fine speeches setting out broad policies and plans related to voting rights and domestic terrorism. But his actions—other than beefing up the agency’s staff to conduct future investigations—have been fainthearted thus far.
In response to Arizona’s recent bogus 2020 election audit, which included many reports of compromised ballots and voting machines, as well as inappropriate postelection visits to voters, the DOJ timidly sent a letter of concern to the Arizona Senate, asking what steps they “will take” to ensure violations of federal law don’t occur. The letter did not demand the ongoing operations stop or even ask for proof that no violations of federal law had taken place.
Adding insult to suppressed voters’ injuries, the DOJ has published guidance explaining postelection audit statutes—as if Arizona and the other Republican-controlled legislatures following its lead are merely ignorant of federal laws rather than engaged in a deliberate effort to subvert them. The DOJ should be challenging those subversive state laws now—before they can be applied to the 2022 elections.
Garland heralded the DOJ’s arrest of more than 480 individuals who attacked the Capitol on January 6 and the hundreds of charges brought against them. But he lumped that assault with all the other acts of domestic terrorism we’ve had in recent years. That ignores that the attack on Congress was not domestic terrorism alone but something larger—an attempt to violently overthrow our duly-elected government. While those who attacked the Capitol need to be prosecuted, they were in some respects merely the foot soldiers of Trump and his cronies. Unless the DOJ investigates and prosecutes those who fomented or aided and abetted that insurrection—with financial backing, planning and/or incitement—they and their political successors will not be deterred from trying again.
Garland has not as yet indicated that the Justice Department will pursue Trump, or any senators or representatives who may have been involved in promoting the insurrection. Nor has he indicated that the DOJ is or will be investigating the interference by federal government officials in the 2020 presidential election or their continuing machinations to invalidate it even now.
It is possible that Garland is being excessively prudent in order to avoid creating any perception of political bias. Or perhaps, he only wants to move on—as did President Gerald Ford when he pardoned Richard Nixon for his crimes against democracy. But our government’s propensity to move on and not make those who have tried to steal or destroy our democracy pay a price for it has encouraged the anti-democratic demagogues who followed to become even more brazen in their efforts.
Corruption within the Justice Department is crying out for correction. To root out sources behind news leaks in the media about contacts between Trump associates and Russia, Trump’s DOJ secretly seized phone and email records of reporters at the New York Times, The Washington Post, and CNN, as well as those of House Democrats. It also obtained gag orders to prevent the targets or the public from hearing of the seizures. Considering that California Rep. Adam Schiff, Chairman of the House Intelligence Committee—who was investigating Trump’s Russia and Ukraine connections—was one of the targets, it is virtually certain that the purpose of the seizures was political.
Garland has indicated that, under his watch, such political considerations will not play a role in investigative or prosecutorial decisions, that the DOJ will tighten its rules on seizing information about members of Congress, and will no longer secretly seize reporters phone records. Garland handed the investigation of the actions of Trump’s Justice Department to the independent Inspector General’s office, thus preempting any accusations that he is involving DOJ in political retribution.
However, none of this is sufficient. If and when another administration like Trump’s comes to power, it will reverse Garland’s policy—or step right over it as if the policy did not exist. If history is not to repeat, those who have already violated the Department’s policies or the law must suffer consequences.
As for the Inspector General’s investigation—it could take months or years. Meanwhile, any DOJ employees who were involved in the alleged Trump malfeasance could continue to corrupt or sabotage the work of the Department.
Garland needs to clean house, and he needs to do it now. At a minimum, any DOJ employees who were involved in this or other politically questionable decisions need to be placed in positions where they can do no harm until the Inspector General completes his investigation. And if there was criminal behavior, charges need to be brought regardless of how high or low the position the accused may have held.
Under the rule of law, every citizen, whether a garbage man or a president, is equally answerable to the law for his or her actions—or should be. That has not been the case for the last four years. If we are to reestablish the rule of law that Trump and his cohorts trampled, we cannot simply move forward and apply it in the future. Attorney General Garland must take action that holds Trump and anyone in his Administration who committed a crime accountable for it.
Granted, Garland has been in his position for just three months, so it is only fair to wait a little to see what action he takes based on his broad policy statements—but we cannot wait long. And if he does not have the temperament for this task, perhaps we need a different attorney general.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.