Washington’s most impossible job gets harder by the day.
Attorney General Merrick Garland was already facing the grave responsibility of whether to indict a former president and current 2024 candidate depending on the results of a special counsel investigation into Donald Trump. He’s now grappling with another growing political nightmare – this time courtesy of President Joe Biden’s lax handling of classified documents from his time as vice president. It remains to be seen whether the attorney general can convince the public – especially conservative voters – of the fairness of the justice system with investigations targeting two presidents, especially if they reach different outcomes.
Garland has spent the last two years trying to drag the Department of Justice out of the politicized quagmire into which it’s been slipping ever deeper since many Democrats blamed the FBI for costing Hillary Clinton the 2016 election.
He’s made some progress – two separate special counsels now investigating the previous and current presidents hint at even-handedness at least. A steady procession of convictions of January 6, 2021, rioters – including against some of the highest-profile defendants Monday, such as Richard Barnett, who was famously pictured with his feet up on a desk in then-House Speaker Nancy Pelosi’s office – shows justice being done.
But this has not stopped a moderate and temperate former judge from becoming a political lightning rod.
The extreme pressure Trump imposed on the DOJ as he sought to use the department as a political weapon while in office has never been erased. Out of office, the former president has continued to paint any attempt to tame his excess as political bias, which has contributed to some conservatives’ skepticism of the justice system.
A new Republican House majority packed with Trump allies is standing up an extraordinary committee intended to find proof to back up often wild claims by Trump and conservative media that the DOJ and the FBI are little more than a huge conspiracy to bring him down. That comes as Garland confronts the most serious question facing any attorney general of the modern era: Whether to indict Trump over his hauls of classified documents and his inciting of the US Capitol insurrection. This decision could hardly be more politically dicey given the electoral context and Trump’s record of moving some of his aggrieved supporters toward violence.
And now, after the discovery of more classified documents at Biden’s house last week in an FBI search, Garland faces another treacherous task of balancing simultaneous special counsel probes into two presidents. Even though the cases are distinct and Trump’s scandal seems to include evidence of obstruction, they will eventually pose yet another fateful question for Garland and his department about the perceptions of equal justice.
Garland weighed in on the question in one of his rare appearances before reporters on Monday. (Calling such a session a news conference would be a stretch since Garland frequently warns journalists in advance he’s scrupulously trying to not make any comment on ongoing cases that could be considered news.)
“We do not have different rules for Democrats or Republicans, different rules for the powerful or powerless, different rules for the rich or for the poor. We apply the facts and the law in each case in a neutral, nonpartisan manner,” Garland said.
Apart from Trump and Biden’s classified documents cases, the attorney general is also likely to eventually have to consider conclusions from another area probed by special counsel Jack Smith – Trump’s role in attempting to steal the 2020 election and incitement of the Capitol riot, after the House January 6 committee last year recommended he be charged.
But there other matters that touch Biden too. The Justice Department is overseeing an investigation into another intensely politicized figure – the president’s son, Hunter Biden, who is the central target in a GOP effort to paint their entire family as corrupt. Federal prosecutors in Delaware are weighing whether to charge the younger Biden with tax crimes and a false statement. President Biden, consistent with his vow to rebuild the invisible wall between the White House and the DOJ after the serial meddling of the Trump years, has pledged not to interfere in the case. Hunter Biden has so far not been charged with any crime.
The attorney general’s mantra of nonpartisan justice is consistent with the broader goal of his tenure – lifting the DOJ clear of the political mire in which it’s wallowed for years and restoring its reputation for independence and nonpartisanship.
But after a period in which, at various times, partisans from both sides have convinced themselves that the department and the FBI intervened in elections to harm their candidates, it also feels like a statement dating from a less turbulent age. It raises the question of how the DOJ will defend itself in a coming showdown with the new GOP House majority, which has already decided the department was “weaponized” against Trump and his allies by the current and past Democratic administrations.
The FBI and DOJ have always occupied an exposed and often politicized space in Washington. The idea that justice is blind, is not prey to partisan influences and that there is a cone of silence between the department and the White House is noble but not always observed.
Unscrupulous presidents have long sought to put heavy fingers on the scale. Powerful heads of the DOJ and the FBI – most notoriously former bureau Director J. Edgar Hoover – often struck fear in the hearts of presidents.
Recent years have, however, been deeply damaging for the FBI and the Justice Department. The fury of Democrats when then-FBI Director James Comey reopened the Clinton email probe days before the 2016 election still fixates liberals. Months later, President Trump was whispering in Comey’s ear at a White House event and inviting him to a private dinner in an attempt to enlist his loyalty. The FBI chief sidestepped the request and was fired shortly afterward. Strong suspicions of political interference hung over the DOJ for Trump’s entire tenure. When special counsel Robert Mueller delivered a report into links between Trump’s 2016 campaign and Russia, the president’s handpicked attorney general, William Barr, appeared to discredit multiple possible instances of obstruction of justice. As the House January 6 committee showed, Trump sought to drag the Justice Department into his 2020 election stealing scheme, although Barr publicly infuriated him by debunking his false claims of widespread voter fraud.
Any hope that Garland could quickly cleanse the political aftertaste around the department was dashed by the ever more damaging revelations about Trump’s behavior on January 6, and his showdown with the National Archives over classified documents he claimed were his property at his Mar-a-Lago resort. That struggle erupted into public view – and a poisoned political arena – after an unprecedented search of an ex-president’s home by the FBI. Trump accused the bureau of planting evidence and claimed he was the victim of a politicized effort to destroy his hopes of a return to the White House. Thus, he ensured that the DOJ and the FBI, like it or not, will be central players in a third straight US presidential election, likely in a way that ends up damaging their image again.
One of the most detrimental aspects of Trump’s legacy has been the way in which he has claimed any legal ruling or judge that goes against him is incontrovertible proof of bias. In office, his claims that judges who ruled against him on his norm breaking immigration or census policies because they were appointed by Democratic presidents drew an extraordinary rebuke from Supreme Court Chief Justice John Roberts. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in a 2018 statement. Trump’s frequent attacks on the judiciary since have come from a similar mindset.
The question of whether justice is being fairly administered by Garland’s department – as the DOJ brings up multiple cases and wins successive convictions at trials in Washington – was also brought up by William Shipley, one of the attorneys for Roberto Minuta, an Oath Keepers member among four men found guilty Monday of seditious conspiracy for their role in the insurrection. Shipley raised the question of whether justice could ever be fairly handed down in the city where the crimes took place.
“We got a trial by residents of a small judicial district who in one way or another were almost all impacted by the events of January 6, and I think that raises some real troubling issues,” Shipley said.
Such issues are likely to be among the many raised by the House Judiciary Committee under new hardline Republican chairman Jim Jordan. The partisan nature of the body – and the panel probing political “weaponization” in the US government and intelligence agencies – will make Garland’s life even more testing in the coming two years.
Ironically, for a judge who was highly regarded by all his peers during years on the bench, including on the US Court of Appeals for the DC Circuit, Garland has become a hugely political figure later in his career. That was baked into his legacy ever since he was the victim of the then-GOP-controlled Senate’s controversial refusal to confirm him as President Barack Obama’s third Supreme Court pick in 2016.
But any hopes Garland harbored when he was sworn in as attorney general of steering his department away from the partisan storm have long since been dashed. That says more about Washington and modern politics than it does about him.