Barring any surprises at his Senate confirmation hearing next week, Judge Merrick Garland appears poised to become President Joe Biden’s first attorney general, bringing a longtime jurist with a steadying hand to a department that’s teetering between crises.
From the sprawling investigation into the January insurrection to sensitive probes of presidential allies, the caseload at the Justice Department is as controversial as ever, and Garland will be met by a workforce whose rejection of their previous boss’s political maneuverings was unprecedented.
For boosters of Garland, it was his reputation for fairness, honed over more than two decades on Washington, DC’s, federal appeals court, that made him a good fit to lead the department out of the Trump era. His success in rebuilding the public’s trust in the department, however, may hinge largely on his political deftness.
“Every attorney general walks into sensitive, high-profile ongoing investigations to one degree or another. Garland is about as well qualified as you can get legally to handle anything that comes his way. The question is whether and how he navigates the political parts of the job,” said Sarah Isgur, the former public affairs chief for Attorney General Jeff Sessions, who had to confront a probe of President Donald Trump’s ties to Russia upon his arrival to the Justice Department.
A person familiar with the matter said Garland will focus his testimony Monday on the importance of the independence of the Justice Department, on the value of integrity within the department, and on prioritizing civil rights under his leadership.
Republicans to push on Cuomo, Hunter Biden
GOP senators, on the other hand, have already signaled they’ll try to draw the judge out at his confirmation hearing on the hot-button federal investigations into New York’s Democratic Gov. Andrew Cuomo, and the President’s son, Hunter Biden, setting up the first opportunity for Garland to reveal how he’ll handle his full plate of political problems.
“When Judge Garland testifies before this committee, we expect him to commit the Department of Justice to fully investigating this cover-up to determine whether any criminal laws were violated and to prosecute any violations,” a group of Republican Senate Judiciary Committee members wrote in a letter released this week about the Cuomo case.
Revolving around an A-list Democratic figure once discussed as a potential Biden attorney general nominee himself, the Cuomo investigation emerged publicly this week as an instant addition to Garland’s day one headaches.
On Wednesday, CNN reported that federal authorities in New York were scrutinizing Cuomo’s handling of some of the data surrounding Covid-19 deaths in long term care facilities in New York, according to a law enforcement official.
The inquiry is in its early stages, and it was not clear whether authorities were looking at the governor or members of his administration, the source said. John Marzulli, a spokesman for the Eastern District of New York, told CNN that he could not confirm or deny the existence of an investigation.
Perhaps the thorniest case awaiting Garland, however, has been with the department since 2018 and centers on a figure as close as can be to the new president: his son Hunter.
Federal investigators in Delaware have been examining multiple financial issues involving the younger Biden, including whether he violated tax and money laundering laws in business dealings in foreign countries, principally China, two people briefed on the probe told CNN in December.
GOP Sen. Lindsey Graham, a senior member of the Judiciary Committee, has already urged the current acting head of the Justice Department not to interfere with the case as it progresses, and a Republican aide said senators were planning to bring it up at Garland’s confirmation hearing Monday and Tuesday.
Graham has also hinted that he’ll ask Garland about the ongoing probe into the early days of the FBI’s Russia investigation being carried out by special counsel John Durham.
Earlier this month, in a traditional changing of the guard, the Justice Department asked US attorneys who had been appointed by Trump to resign, but allowed the top federal prosecutor in Delaware, David Weiss, to remain in office as he oversees the Hunter Biden probe. Durham, who had served as the US attorney in Connecticut, will resign that role but stay on as a special counsel.
Biden has made a point of distancing himself from the decision-making at the Justice Department, and as questions about his son swirled earlier this winter, he pledged to install independent leaders at the agency.
“One of the most serious pieces of damage done by the last administration was the politicizing of the Justice Department,” Biden said at a CNN town hall on Tuesday. “I made a commitment, I will not ever tell my Justice Department – and it’s not mine, it’s the people’s Justice Department – who they should and should not prosecute.”
That put him in sharp contrast with Trump, who routinely called on his Justice Department to investigate and prosecute his political enemies.
Garland’s challenges at DOJ
Garland, whose 2016 nomination to the Supreme Court was scuttled by Senate Republicans, has said he wouldn’t have accepted the attorney general nomination without assurances from Biden about his independence.
Dissent among rank-and-file prosecutors reached a fever pitch at the Justice Department under the last Senate-confirmed attorney general, William Barr, who cast a polarizing figure after several news-making decisions that impacted the friends and political future of then-President Trump.
In unusual and striking number, current and former officials defected publicly from Barr as he made legal moves that benefited GOP operative Roger Stone and former national security adviser Michael Flynn, and launched a provocative critique of career employees in a September speech.
Just weeks after a mob descended on the Capitol building and temporarily shut down the certification of Biden’s electoral win, the massive investigation into the insurrection may present the most pressing matter for Garland if he makes it through a Senate vote.
More than 200 men and women have been arrested so far in the investigation, which officials said was the department’s largest since the one that followed the September 11, 2001, terrorist attacks, and decisions about whether to bring significant charges like sedition in some of the cases will vex Garland in his early days at the agency.
Political overtones also loom large over the US Capitol investigation.
The House of Representatives impeached Trump last month for inciting the riot, and despite an acquittal in a Senate trial, the senior-most congressional Republican, Senate Minority Leader Mitch McConnell, has suggested that the criminal justice system is the right venue to consider those allegations.
In an early news conference after the insurrection, the top federal prosecutor in Washington, DC, a Barr ally, indicated that investigators would consider charges against the former President if they proved appropriate, although the Justice Department has walked that back.
Trump’s former lawyer Rudy Giuliani could also face criminal exposure for his role in the riot after a speech he gave at the rally that preceded it. Giuliani is facing a civil suit filed earlier this week by a House Democrat over the insurrection, and is under scrutiny already in an unrelated federal investigation being run out of New York.
Garland, for his part, has only offered vague public comment on the insurrection and its aftermath. In a brief speech after Biden formally nominated him for the role on January 7, one day after the attack, Garland said the events at the Capitol underscored the need for a fair and equal justice system and referred to the “evolving threat of violent extremism.”
If confirmed, Garland would bring experience combating domestic terrorism to a Justice Department now facing down that growing threat.
In 1995, the day after an anti-government extremist blew up a moving truck at the Alfred P. Murrah Federal Building, Garland flew to Oklahoma City to run the federal investigation into what was then the deadliest act of domestic terrorism in the country’s history.
A senior official at the Justice Department at the time, Garland has called it the most significant case of his career.
“He saw up close the impact that having that kind of movement can have on our country, so I think he’s quite well prepared for this,” Garland’s then-boss, former deputy attorney general Jamie Gorelick, said in an interview. “He knows what the department can do when it’s fully organized to do it.
Race and criminal justice system
Garland will also likely face questions from both sides of the aisle on how he would steer the Justice Department amid policy debates over race and the criminal justice system, which came to the fore after a summer of mass protests spurred by the police killings of Black men and women.
The Republican aide said that senators were planning to press Garland on statements on the topic made by two women nominated to senior positions at the department alongside him that have generated controversy.
The aide pointed to the role that Biden’s nominee to head the Justice Department’s civil rights division, Kristen Clarke, played as a student in organizing a 1994 Harvard University event featuring an antisemitic professor. Clarke has since said she regrets hosting the event. Vanita Gupta, nominated for the number three position at the department, has also drawn blowback from Republicans for saying that every institution in the US is “suffering from structural racism.”
Meanwhile, the American Civil Liberties Union is pressing Garland from the left, writing in a letter released Thursday that he should make clear at his confirmation hearing that he will “adopt policies to build a more racially just criminal legal system” as attorney general.
A number of policies put in place by his Republican predecessors, like a 2018 Sessions memo that limited the use of court-ordered agreements with local police departments accused of civil rights violations, could soon be reversed under Garland. Dozens of lawmakers led by Democratic Rep. Ayanna Pressley have also urged Garland to end the use of the federal death penalty after an execution spree in the final days of the Trump administration that followed a policy change under Barr.
CNN’s Jessica Schneider contributed to this report