How Merrick Garland Has Neutered the DOJ!
For anyone with a functioning brain, Merrick Garland may well have turned out to be the new administration’s very first quisling. More Neville Chamberlain than Aaron Burr, Garland’s net effect at the DOJ has nonetheless been insidiously carcinogenic. It gets worse almost on a daily basis. And it places a stain upon this still very nascent Biden presidency that quickly brings into question the POTUS’s ability to govern.
It also demands the (rhetorical) question: Uncle Joe, hiring this castoff Supreme Court nominee was a lovely gesture, but did you really bother to vet this guy?
Of all the cabinet positions in the Biden/Harris Administration we needed a meat-eater at Justice. Instead we got a vegan. We needed a roll-up-your-sleeves prowling tiger to come in, kick-ass, take names, break some furniture, fire some people and overhaul this utterly corrupted engine room of American democracy. Instead we got a door-mouse in an echo chamber…as well as a surprising continuation of the Trump-Barr legacy of legal and moral depredations at every level. All of it done with an impassive laissez-faire approach to the diseases and distortions of the previous administration that have been passive to the point of enablement. (In fact, there are a number of hand-selected Trump operatives still working in the justice department, carrying out pieces of the former POTUS’s mad, morally bankrupt agenda with virtual impunity.)
In truth, you could already go down a laundry list of initiatives where Merrick Garland, in senate hearings, vowed to clean house and restore integrity to the Department of Justice. Instead, there is instance after instance in which he has been an utter cipher, MIA and worse: more of the same.
The current argument being made for Garland (and it is a weak one) is that he is a judicial purist: that he is following the traditions of the Department of Justice, which maintain that law at the mainspring of our Government should be scrupulously impartial, especially in view of the hyper-partisan cold war going on between Democrats and Republicans in this country.
There is a game-plan at work here that, though it may serve well in normal times, will not—in the wake of a failed insurrection—have any hope of finding a cure for the cancer that has taken root at every level of our government, especially when one party is sodomizing our Constitution, virtually on a daily basis, because there is nothing set forth in our justice system to stop them. On the contrary, Merrick Garland has cloaked himself in a kind of impartial judicial piety that—though it might be laudable in the robes of a Supreme Court Justice—is proving disastrous for the kind of overhaul that the DOJ currently requires.
Just a few examples of Garland’s astonishing perpetuation of the Trump/Barr DOJ agenda that is being permitted to follow its perverse intention to the end of its course:
Civil rights abuses and investigations into racism: All through his confirmation process, Garland was emphatic about the fact that he would prioritize rooting out white supremacy and institutionalized racism. And yet almost six months into the Biden administration, neither the DOJ nor any other branch of government has instituted a plan for rooting out white supremacists who serve in federal law enforcement roles. What’s more, late in April the DOJ urged a federal court to drop its lawsuits against Trump and Barr for tear-gassing peaceful BLM protestors “blocking” the POTUS’s path for his ad hoc, unannounced photo op with an upside-down Bible. Despite an announced pro-forma investigation of The Minneapolis Police Department, Garland’s investigations into institutionalized racism in law enforcement has been token at best. And his Civil Rights Division remains notoriously understaffed to the point of anemia.
Immigration reform: Even at this moment, the Merrick Garland DOJ has codified Trump-era rules severely restricting the options of immigrants to prevent their own deportations. It has kept thousands of immigrants from obtaining green cards, even as it still floods the immigration system with Trump-selected judges already predisposed to draconian rejections of applicants. It has slow-walked statutes that prevent the very parent/child separation tactics that characterized those same scandalous initiatives set up by Trump’s original AG, Jeff Sessions. And it had to be force-fed a judicial ruling that allowed undocumented immigrants asylum in certain cases, including access to SNAPS programs just so they could eat.
Environmental reforms under the Garland DOJ are, at this point, nonexistent. Quite the contrary, they are openly permissive of Trump’s ongoing evisceration of the EPA. These include massive new oil drilling rights in Alaska that were cleared only after a sham series of tests concluding it would have no negative impact on hundreds of thousands of acres of wilderness, and included 30 years of permits allowing drilling with impunity. Garland is also maintaining support for a new oil pipeline in New Jersey and isn’t rescinding briefs that made it harder for states to sue Big Oil over for drilling without any plans for reclamation.
Prosecutions of Obstruction of Justice or Other Trump/Barr violations of the Constitution: On May 24, Garland committed the Department of Justice to keep most of the so-called “Barr memo” intact. This was the absurdly redacted memo through which William Barr unilaterally decided that “no part of the Mueller probe would result in criminal charges against Donald J. Trump,” and for which he was denounced by Federal Judge Amy Berman as being “disingenuous” in the extreme about his conclusions. (In other words, he lied.) Barr also lied when being slowly roasted on a spit by the Senate Judicial Committee, especially Kamala Harris, and would have been indicted for perjury had anyone been paying attention. Even if they had, Mueller’s language in the full document was apparently so equivocal as to become a living legal loophole. Still, we’ll never know for sure, because the Garland justice department has successfully petitioned to block publication of the entire Report for another year.
Garland has also purposely avoided reopening investigations into Trump’s alleged participation in 2016 Campaign Finance Fraud, even though his private counsel Michael Cohen has publicly announced that he not only has chapter and verse on DJT’s serial complicity…but has also declared his willingness to give testimony. The Garland justice department also continues to withhold Trump’s Tax records from Congress and seems perfectly content to let Bill Barr’s egregious “cased closed” shutdown of any investigations stay in place until Trump can run out the clock on the statute of limitations in November of 2021. (However specious, Barr had a reason for closing the investigation in 2019, because you can’t indict a sitting president. Now that former President Trump is now citizen Trump, Garland has nothing holding him back except his own political pusillanimity. And that—across the board—seems to be enough.)
This complete evacuation of consequence has done nothing but embolden Donald Trump, who needs little encouragement, and who is now prancing about declaring that he has, “been exonerated,” while continuing to assault the Constitution with seditious rhetoric that has already gotten him banned from social media…but has done nothing to stop him from letting loose his operatives from the new Republican Reich to press on with “The Big Lie” as if it were holy writ.
All this is being done because the public at large seldom pays heed to thunder in the mountains, and those inside the Beltway remain slack-jawed that—after six months—the DOJ has proven itself impotent to do anything about it.
That recently came to a halt when Merrick Garland’s hand was forced over the fact that his Justice Department had sat on House Intelligence Committee information that it had been illegally targeted by the Trump Administration. And that the DOJ, under Jeff Sessions had secretly slapped demands on Apple that it be allowed to seize secured the metadata of 2 key Democrats on the committee—Chairman Adam Schiff and Representative Eric Swalwell—their staffs and their families (including 73 phone numbers and 36 email addresses). What made matters worse was the fact that Justice had been in the possession of this information for weeks and had done nothing until the entire breach was exposed by a New York Times article on June 10th. Outraged by the release, Senate Majority Leader Chuck Schumer and Judicial Chairman Dick Durban both ordered the Department of Justice to issue subpoenas to both Barr and Jeff Sessions and launch an investigation of the Trump/Barr/Apple/ incident, “Or we will.”
This sent Garland and his deputies scrambling to put the right kind of face on this fiasco. And Deputy AG Lisa Monaco took to the airwaves to announce that its Inspector General would initiate proceedings to unlock this incident with “complete congressional oversight.”
This is all being done reluctantly because up to now everyone has bent over backward to give the new AG time to rechunk his focus, to clean out the detritus of corruption left by the Trump/Barr/Sessions legacy and bring it back to respectability again. Sadly, thus far, Garland has proven to be ineffective to the point of enablement. Without doubt Merrick Garland is a decent, highly respected man; and very well liked. And therein may lie the problem. Because popularity is not a job requirement at the DOJ.
Attorney General is arguably the most difficult cabinet position in any administration. Historically it has had more than its fair share of both villains and marginal players. And it is not for the faint of heart. There have been a few good AGs, but surprisingly few. Bobby Kennedy, JFK’s AG and personal consigliore, was a tiger when came to investigating organized crime and forcing integration on a very reluctant South. His successor, Ramsey Clark (under LBJ) was the Nemesis of the segregated South, the Klu Klux Klan and all suppressors of civil rights. And Warren Christopher (under Reagan) oversaw the advancement of women in the justice department, including the appointment of Sandra Day O’Connor as the first female Supreme Court Justice.
On the dark side, Woodrow Wilson’s AG, A. Mitchell Palmer, was such a racist and xenophobe, he set up “Palmer Raids” on Eastern Europeans, Blacks and German Americans by the tens of thousands, seized their holdings, jailed them for months without habeas corpus and (whether or not they had a green card) threw them out of the country. Warren Harding’s AG Henry Daugherty survived two hung juries for his role in Teapot Dome. Attorney General John Mitchell, Nixon’s close friend, went to jail for “masterminding” Watergate. Eric Holder (Barrack Obama’s AG for the first six years) played his role as liberal activist so close to the edge of legality that his petitions to target political opponents were turned down by the US Supreme Court an unprecedented 20 times (all by votes of 9-0). And his harebrained “Fast and Furious” ID scheme ended up providing half the drug dealers in Mexico with free automatic weapons.
Weighing in on the side of integrity, Eliot Richardson resigned as Nixon’s AG rather than fire special Watergate prosecutor Archibald Cox, thus leading to the “Saturday Night Massacre,” where Nixon then fired Deputy AG William Ruckleshouse (who also refused remove Cox) and ordered Solicitor General Robert Bork to do it. Shortly afterward, a federal court ruled that Nixon’s actions were illegal. It was the flint that struck the blaze against Nixon and marked the beginning of the end of his presidency. And it took men of conscience to do it.
No such problem for Donald Trump who handpicked former (HW Bush) AG William Barr precisely because he whole-heartedly believed in the doctrine of presidential infallibility. Once on board, Bill Barr immediately set about to weaponize the Department of Justice, using it almost daily as a triphammer against Trump’s critics and Democratic opponents. He also loaded the DOJ up with political hacks and right wing idealogues who daily set about to build a firewall around the Trump presidency and any hint of misdoings. Barr ignored House and Senate committee subpoenas, withheld (then redacted) Trump’s conversations with the president of Ukraine, and blocked so many House and Senate initiatives that he became only the second AG in US history to be held in Contempt of Congress. He single-handedly tried to nullify the entire Affordable Care Act (but failed) and gave Trump’s personal attorney Rudy Giuliani carte blanche to access all classified documents inside his department. Finally, Barr set about early-on to cast doubt about the upcoming 2020 presidential campaign—falsifying documents and behaving so egregiously that 1600 lawyers (inside the department) published an “open letter” declaring their belief that Barr would try to use the DOJ to undermine a free and fair election.
Ultimately, Barr drew the line at treason and resigned as AG in December 2020 rather than participate in DJT’s demented, seditious scheme to overthrow a peaceful and legal transfer of power—a scheme that The Donald continues to press to this day with an alarming degree of help from the GOP.
That brings us back to Merrick Garland, who has now been issued a 3-week deadline from the Head of the Senate Judicial Committee Dick Durban that he either subpoena Bill Barr, Rod Rosenstein and Jeff Sessions over their participation in the Trump/DOJ/Apple metadata scandal or risk the humiliation of being overridden by Congress.
You know you’re in trouble when your own party slaps you with legal ultimatums. And at this point Merrick Garland just appears lost. Here he sits six months into his term with a Frankenstein monster of a DOJ, reeking of leftover parts and partisans from a William Barr construction that includes the vestigial psychosis of a Trump polluted philosophy. And for some perverse reason of judicial continuity, he seems unwilling or unable to do anything to fix it.
In so doing, Garland’s reluctance is more pathetic than tragic. He still somehow believes that his DOJ is the continuance of a tradition—a gentleman’s agreement of higher purpose set among honorable men. Deluded by intimations of mutual respect, he has left this monstrous apparition leftover from the Trump/Barr era to continue to sabotage the machinery of democracy unimpeded.
Most striking is the DOJ’s manifest impotence in the face of Republican state legislatures in 21 states from Georgia to Michigan to Texas and their illegal reconfiguration of electoral procedures to allow state legislators to overturn legally certified elections on the mere suggestion of voter impropriety. These are, for all with eyes to see, blatant threats to our democracy. But rather than fight these egregious new statutes and the Cyber Ninja recount circus going on in Arizona, Merrick Garland has sent out warning letters accompanied by his publicly announced intentions to “keep a close eye” on these unprecedented legislative initiatives. By definition, the DOJ has the power of injunction to challenge these Constitutional violations in our nation’s courts. But Merrick Garland wants to “wait and see.”
By now, we all know the Gladstone trope that, “Justice delayed is justice denied.” Apparently, Merrick Garland has no problem with that. What he does have is trouble making decisions and would rather let sleeping dogs lie. Only this Dog happens to be a pit bull with rabies, and an eye on 2024.