While Donald Trump’s terrorist-supporters were rioting on the steps of the Capitol, President-elect Joe Biden took a huge step to restore the rule of law.
His choice for attorney general, Chief Judge Merrick Garland of the D.C. Circuit Court of Appeals, faces the daunting challenges of responding to the shocking, yet predictable, Trumpist mob, and rehabilitating a Justice Department degraded by four years of Trumpist abuse.
Fortunately, his resume and character (I clerked for Judge Garland eons ago, in 1998-99) suggest that he might be the perfect person for the job, having prosecuted right-wing terrorist Timothy McVeigh and having built a solid reputation for fairness and thoroughness in the decades since.
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That’s especially true since Garland will be joined by two solid progressives (and women of color)—Vanita Gupta, currently chair of the Leadership Conference on Civil and Human Rights and the head of the Justice Department’s Civil Rights Division under President Obama, and Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law—as well as Lisa Monaco, homeland security adviser to Obama.
To be sure, the challenges Garland will face are tremendous, and predate yesterday’s unprecedented insurrection.
First, the department itself is in shambles. Career employees have headed for the exits, worn down by constant politicization, especially under former Attorney General William Barr, who treated any check on executive power as akin to treason.
Barr flouted congressional subpoenas, defended Trump’s corruption and possible crimes, and acted, at times, like Trump’s personal lawyer—even if he finally cut him loose at the very end. And his department has failed to police the police (more on that below), abandoned voting rights, retreated from LGBTQ equality, discriminated against transgender people, disregarded immigrants’ humanity, and now, at the eleventh hour, attempted to gut the way that civil rights protections are enforced throughout the country. Barr has tarnished the reputation of his office.
Garland is tarnish remover. Prior to a distinguished 23-year career on the D.C. Circuit, he was a well-respected official at DOJ, known as a tough prosecutor and fair player. True, Garland is not the “attack dog” some on the left might have liked. But following one attack dog with another would not restore credibility to the Department of Justice. And Gupta and Clarke are two of the top critics of the current administration’s miscarriages of justice.
Second, the next attorney general must reckon with the legacy of Trump.
Yes, in part that includes Trump himself, most recently his incitement of an armed mob and his warm comments about them after they literally stormed and invaded the U.S. Capitol. Trump may not be convicted of a crime for these odious words; as always, he managed to thread the needle between inciting a mob to riot and evading the strict requirements of laws that must also respect freedom of speech. But the mob itself violated numerous federal laws, and as chief law enforcement officer of the country, Attorney General Garland must hold them to account.
And then there’s Trump’s “find me 11,000 votes” call with Georgia election officials, which may violate federal election law, not to mention numerous cases of corruption and the allegations of impropriety outlined in the Mueller Report.
As we saw this week, however, Trump is merely the flesh wound atop a very deep rot within the American body politic, which manifests in right-wing terrorism, right-wing disinformation, right-wing media incitement, dangerous conspiracy theories, the unprecedented amassing of weaponry, and the rumblings of widespread civil unrest, if not civil war.
For the last four years, federal law enforcement has let conditions ferment for domestic terrorism, responding only when outbursts occur. And, of course, the outgoing president has fermented them himself. The terrorist attack on the Capitol was unprecedented, but also entirely predictable, with the exception of the abject failure of law enforcement to prevent what we all knew was coming.
Addressing these profound challenges is not exclusively a law enforcement issue, but it is largely one, and the next attorney general must take domestic terrorism at least as seriously as foreign terrorism, cracking down not just on the supposedly lone gunmen who murder worshipers in churches and synagogues, but on the sinister networks that support them. These terrorists are anything but “lone.”
Garland has been here before. He supervised the investigation and prosecution of McVeigh, who killed 168 people in the bombing of a federal building in Oklahoma City. He meticulously built the case against McVeigh, just as he would later meticulously write and edit his judicial opinions (believe me—it was very meticulous).
Finally, perhaps the greatest challenge faced by the Department of Justice is the justice system itself, whose systemic biases against Black people were on shocking display this week, as the meager police presence greeting armed white mobs contrasted mightily with the militarized phalanxes that faced unarmed Black Lives Matter protesters.
Here, Garland will face an impossible balancing act. On the one hand, he will be the nation’s top cop. On the other, he will be, in part, charged with reforming, regulating, and changing the way American policing works. Moreover, since much of that work happens on state and local levels, the Department of Justice’s actual impact may be less than public perceptions and demands of it.
Again, however, Garland’s resume and character might offer some hope. He has the potential to be a bridge-builder between those in law enforcement who acknowledge the need for reform, and those in the civil rights community pushing for it. No, Garland will not fully satisfy those pushing to “defund the police.” Neither will Biden. Nor will Garland please those who think that cops are just getting a bad rap; one can expect police departments to be dragged kicking and screaming to the negotiating table.
But could Garland lead investigations of abuses—almost entirely squashed by former AGs Barr and Jeff Sessions—in a way that has the trust of both law enforcement and criminal justice reform activists? Could he play a role in demilitarizing the police by removing federal incentives for them to arm themselves to the teeth? Could he bring the two camps a little closer together?
Maybe. His blend of law-enforcement background and two decades of generally liberal rulings on civil rights issues might be just the right combination. So could his character, which, as all of us who have known Judge Garland over the years know, is nothing if not solid, steady, and decent.
Moreover, Vanita Gupta helped negotiate a critical agreement to reform policing in Baltimore, before Sessions abandoned it. She has exactly the experience, credibility, and trust of the civil rights community that is necessary to heal the profound wounds which, while not at all new, are at last being more widely seen.
Admittedly, there’s a sweet scent of karma hovering around Garland’s nomination. The man who was denied a Supreme Court seat by Republican chicanery will now be in charge of prosecuting Republican chicanery, while Mitch McConnell watches from the sidelines.
But if the sense of payback provides a short-term thrill, Garland’s boring qualities will offer far more lasting benefits. He is exactly what our country so desperately needs.
