By ALANNA DURKIN RICHER, ERIC TUCKER and COLLEEN LONG
WASHINGTON (AP) — During hearings on Merrick Garland’s nomination to be President Joe Biden’s attorney general, the longtime federal appeals court judge told senators in 2021 that he hoped to “turn down the volume” on the public discourse about the Justice Department and return to the days when the agency was not the “center of partisan disagreement.”
It didn’t go as planned.
Garland came in with a mission to calm the waters and restore the department’s reputation for independence after four turbulent years under Republican President Donald Trump, who fired one attorney general and feuded with another. Now the soft-spoken Garland, who was denied a seat on the Supreme Court by the Republican-led Senate before Trump’s 2016 election, is leaving with the department under siege on all sides and his own legacy in question.
Those on the right are incensed over the department’s effort to hold Trump criminally responsible for his failed effort to overturn his 2020 election loss, and have accused prosecutors of going too easy on Biden’s son Hunter. Democrats have claimed Garland failed to pursue Trump aggressively enough immediately after the Capitol riot on Jan. 6, 2021, and have criticized Garland’s reliance on a special counsel, who, they thought, took gratuitous swipes at Biden.
Some senior Biden aides have said privately that Garland was the wrong choice for the job and they believe he bent too far backward to show he wasn’t protecting the Democratic president.
Garland must now hand the department back to Trump, who has suggested he’ll try to use the executive agency to exact revenge against his perceived enemies. Trump has nominated his personal lawyers and loyalists to run the Cabinet department, and they have promised to clean house of officials they consider part of the “deep state” working against Trump.
People close to Garland say he was dealt a monumentally difficult hand, taking over at a deeply divisive political time after the riot and inheriting a department shaken to its core during Trump’s first term. Garland faced one politically sensitive matter after another.
“What Merrick Garland had to deal with: confronting Jan. 6 and its aftermath, the investigations into the president’s son … it’s just a series of almost impossible decisions that were going to have huge ramifications for the country and the body politic,” said Vanita Gupta, the third-highest ranking Justice Department official under Garland until leaving government last year. “I just don’t think any AG in recent time has had to confront that constellation of really, really difficult questions.”
The Justice Department declined to make Garland available for an interview with The Associated Press.
His defenders say that despite the political pressures, he stood firm in his commitment to independence and impartiality.
“What the AG brought is energetic and compassionate leadership — leadership that was about reinvigorating the institution as an institution,” said Marshall Miller, principal associate deputy attorney general before recently leaving the department. “I think that’s critically important to the longevity of the institution — to have attorneys general who understand its history and its norms and buttress those.”
Yet in a hyperpartisan era, Garland’s approach managed to anger just about everyone outside the department. Garland pushed back forcefully at times, such as when he told lawmakers during a congressional hearing, “I will not be intimidated.”
“The story that has been told by some outside of this building about what has happened inside of it is wrong,” he told employees Thursday during an emotional farewell address inside the Justice Department’s Great Hall. “You have worked to pursue justice — not politics. That is the truth and nothing can change it.”
But Garland never seemed fully comfortable in the media spotlight, and some wonder whether he should have made clearer to the country why the department did what it did. There were not only attacks from Republicans alleging “weaponization” of the department for political purposes and but also claims by the president who had picked him about a politicized justice system.
“Merrick Garland has not, I think, been a very effective public defender of the integrity and impartiality of the Department of Justice,” Andrew Kent, a Fordham University law school professor, said in an email. Given the issues the department faced, Garland needed “to explain to the public more frequently and more specifically how the Department’s actions are consistent with a commitment to nonpartisan and impartial justice.”
From judge to the Justice Department
Garland was the chief judge on the U.S. Court of Appeals for the District of Columbia Circuit, where presidents have often searched for Supreme Court justices, when he was nominated by President Barack Obama in March 2016. But in a stunning display of partisanship, Republican senators led by Majority Leader Mitch McConnell of Kentucky refused to vote on the nomination, saying it had come too close to the November election and the next president should make the choice.
Garland told CBS’ “60 Minutes” years later that it was an “enormous honor” to be chosen. “So I was of course, a human being, very disappointed,” he said. But, quoting Taylor Swift, he said, “As you know my favorite poet says — you got to shake it off.”
Garland remained on the appeals court until he was nominated by Biden as attorney general.
A detail-oriented leader known for asking probing questions in meetings, Garland spent much of his career as a Justice Department lawyer and worked under five attorneys general. He burnished his reputation as a hard-charging prosecutor supervising the case against Timothy McVeigh for the 1995 Oklahoma City bombing that killed 168 people. Garland has called his work on the investigation “the most important thing” he has ever done. On the wall in his Justice Department office is a framed photo of the destroyed Alfred P. Murrah Federal Building.
Those close to Garland say he has been a fierce defender of the department and has not been afraid to take arrows, such as when he announced — amid heavy criticism of the FBI — that he had personally approved the decision to seek a warrant to search Trump’s Mar-a-Lago estate in Florida in 2022 for classified documents. Inside the department, Garland’s allies say, he succeeded in restoring calm and strengthening morale after years of firings and other scandals under Trump.
While Garland’s predecessor, William Barr, publicly criticized career prosecutors, Garland praised department lawyers as the “heart and soul” of the workforce. A steadfast institutionalist, Garland would often get emotional when talking publicly about the department’s work and its staff.
“He did so much to restore the morale of career folks in the department, to restore normal order of decision making,” said Gupta, the former associate attorney general.
On civil rights matters, the Justice Department under Garland undertook a dozen investigations into law enforcement agencies, uncovering widespread abuse and misconduct — work that had been curtailed under Trump’s first term. The department was also aggressive in its antitrust enforcement, bringing cases against Google, Apple and others.
But it always came back to political investigations.
Garland was hardly the first attorney general to find himself mired in politically sensitive investigations. Prosecutors in the Obama era investigated both the Democratic presidential nominee, Hillary Clinton, and the Trump campaign in 2016. Trump’s Justice Department, through a special counsel, investigated him.
But the confluence of investigations on his desk at once presented arguably the biggest test in the Justice Department’s 150-year history.
Political investigations swirled, especially around the Capitol riot
The department, at one point, was investigating Joe Biden for his handling of classified documents, Hunter Biden for tax and gun offenses, and Trump — the president’s chief political rival. To do this, Garland appointed special counsels in an effort to remove any whiff of political bias.
Yet no event shaped Garland’s tenure more than the Capitol riot, which unfolded on live TV on the same day news broke that Biden had picked Garland for the job.
By the time Garland was sworn in as attorney general in March 2021, the Justice Department had begun charging rioters, building what would become the largest investigation in its history.
Garland would not say publicly whether the department was investigating Trump, but insisted investigators were pursuing Jan. 6 perpetrators “at any level.” In November 2022 — days after Trump formally launched his 2024 candidacy — Garland announced he had appointed special counsel Jack Smith to lead the investigation and a separate inquiry into Trump’s retention of classified documents.
The classified documents investigation was seen as more straightforward, given the breadth of evidence that prosecutors said they had accumulated. Yet that case, too, stalled amid a series of rulings from the trial judge that delayed its progression before its ultimate dismissal last July.
Critics, meanwhile, fretted about the pace.
“What should have happened in real time was a special counsel should have been appointed to investigate January 6th with more urgency than we now know happened,” said Jed Shugerman, a Boston University law professor.
Garland’s defenders reject any suggestion the attorney general dragged his feet. Long before Smith was appointed, the department in 2021 launched an investigative unit looking at Trump allies who were at Washington’s Willard Hotel around Jan. 6, 2021. Investigators searched for financial ties between Trump allies and the rioters — which, if found, officials believed could have allowed them to bring a more straightforward case. But that hit a dead end.
The investigation got bogged down in court fights around executive privilege and other matters. The Supreme Court tied up Smith’s case for months before granting former presidents broad immunity from prosecution and sending the case back to the trial court. It likely would have gone back to the high court at least once or twice before it could reach trial, making a trial before November’s election unlikely, even if the charges had come months earlier.
“Jan. 6 was one of the most polarizing events in our nation’s history,” said Jamie Gorelick, a close friend of Garland’s who was deputy attorney general in the Justice Department under former President Bill Clinton. “I think he did as well as he could, but institutionally, it has been a tremendously challenging matter to deal with … and it has been a tremendously challenging fact of life in our society.”
But while the cases against Trump moved through the courts, Trump was surging back to political prominence. He had been convicted in New York City in a state hush-money trial and still would go on to seize the nomination, casting himself as the victim of a politically motivated justice system and pledging to seek revenge on his enemies.
“For too long, the partisan Department of Justice has been weaponized against me and other Republicans — Not anymore,” Trump said when announcing that he would nominate former Florida Attorney General Pam Bondi to lead the department.
Some in the White House sour on the attorney general
Inside the White House, frustration mounted over Garland. Biden felt hemmed in by his choice, particularly as the Justice Department investigated both him and Hunter.
White House officials were particularly dismayed at special counsel Robert Hur’s report on his investigation into Biden’s handling of classified documents. That report portrayed the president as a “well-meaning elderly man with a poor memory,” and White House officials said it was inappropriate to include such “prejudicial” language in a report explaining why no criminal charges were warranted.
The report was released just as Biden’s age (he turned 82 in November) and mental acuity were becoming major political liabilities that would eventually, following his disastrous debate performance in June, sink his reelection effort.
Garland said the idea that he would edit or censor Hur’s report was “absurd.” That may have frustrated the White House but it also spared Garland the groundswell of criticism he would have encountered from the right had he stepped in to shade the special counsel’s findings.
By releasing the entire document in unedited form, Garland reflected his determination not only to avoid the appearance of being the president’s protector but also to turn the page from his predecessor. Barr was castigated by the left after he issued his own four-page summary of special counsel Robert Mueller’s report on Russian election interference that was seen as glossing over some of the document’s more damning assessments.
Republicans in the House, angry over what they viewed as the Biden Justice Department’s unfair treatment of Trump, later voted to hold Garland in contempt of Congress for refusing to turn over audio of Biden’s interview with Hur.
The unraveling of years of work
Garland is about to see years of work dismantled when the new administration takes over.
The cases against Trump have unraveled. The Justice Department has decided to withhold from the public for now the section of Smith’s final report on Trump’s classified documents case because an appeal involving Trump’s co-defendants is pending. It’s possible that will never be seen by the public because Trump’s Justice Department almost certainly will not release it.
The future of the Jan. 6 investigation, which has resulted in more than 1,200 convictions against rioters, is in peril. Trump has said he plans to pardon many of them.
Biden, too, pardoned his son after Hunter’s trial conviction and guilty plea. Justice Department officials were surprised and frustrated by Biden’s statement claiming the case against his son had been politicized, especially after the president’s repeated vows to respect the rule of law.
Justice Department staff lined up Friday to cheer for Garland as he left the building. Several employees wiped tears and hugged as the SUV he climbed into drove off.
In his final speech to the workforce, Garland made no overt mention of Trump or the president-elect’s suggestions that he might use the agency’s powers to go after his foes. But Garland warned that “the same powers that enable the federal prosecutor to pursue justice also create the potential for grave injustice.”
“We must understand that there is a difference between what we can do — and what we should do,” Garland said.
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