As Attorney General Merrick Garland completes his first full year in office, what would normally be seen as a banner year of liberal accomplishments has been clouded by the specter of Donald Trump, and the question of whether the former President will be held accountable for attempting to overturn the results of the 2020 election.
Despite reinvigorating the Justice Department’s civil rights enforcement and reversing a number of Trump-era legal positions, Democrats are increasingly worried that Garland will let the former President go unpunished for fomenting what amounts to an attempted coup that led to the January 6 attack on the US Capitol.
In the eyes of many Democrats, Garland has over-corrected in his effort to restore norms at the Justice Department after four years of political wars during Trump’s presidency. That caution, they fear, may in the end mean a lack of accountability for the man who busted those norms.
“There is a difference between protecting DOJ political independence and being too scared to do anything that might be perceived as political even if it is the right and necessary thing to do,” Elie Honig, a CNN senior legal analyst and former federal prosecutor said.
Pressure to at least examine Trump’s activities is mounting in part due to the work of the House select committee investigating January 6. In a March 2 court filing, the committee accused the former President of engaging in a criminal conspiracy to overturn the election.
The committee could make a criminal referral to the DOJ. But many Democrats had hoped the department would act on its own accord. To date, there remains no discernible indication that Garland will formally seek to investigate Trump for his role in inciting the attack.
“From my perspective as a former prosecutor with the Department of Justice, the department shouldn’t be waiting on our committee for any referral,” Rep. Adam Schiff, a member of the committee, told CNN. “If the Justice Department believes there is evidence of crime, involving anyone, including the former President, they should be investigating.”
The committee’s work has been aided by the Justice Department’s and the Biden White House’s extraordinary decision to share Trump-era documents that normally would be shielded by various executive branch legal privilege claims.
Some Justice Department officials had hoped that providing documents to Congress to shed light on the events surrounding January 6 would relieve pressure on the department.
But the opposite has happened.
“I think that that brief was, in large part, a call to action from Congress to DOJ,” said Honig, referring to the committee’s March 2 court filings, which were submitted in a dispute over the disclosure of a Trump ally’s emails.
In a speech ahead of the anniversary of the January 6 attack on the US Capitol, Garland broke his relative silence on the matter by seeming to suggest ongoing investigations of attack would spare no one.
“The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law,” he said, temporarily placating critics on the left.
Whether Garland actually meant those words to include Trump is unclear. But so far, none of the telltale signs of an investigation, such as subpoenas or witness interviews, have spilled into public view to indicate that Trump might be a prosecution target.
The Justice Department declined a request to interview the attorney general for this story.
Separately, Justice Department investigators have continued to examine conduct of lawyers connected to Trump, including Rudy Giuliani, who was a ringleader in efforts to overturn the election results, and Sidney Powell, whose vote fraud claims eventually grew too bizarre even for Trump.
To be sure, investigative activity could be ongoing behind the scenes that are not public.
“There are things I’d like to see more aggressiveness on,” said Mary McCord, a former DOJ official who served in top positions during the Obama administration. “But I spent enough time in the department to understand why these investigations take time and why really getting back to the core fundamental principles of rule of law are more important.”
In recent weeks, the department has twisted itself in knots to avoid saying whether the FBI and national security prosecutors are examining the handling of classified documents retrieved in boxes of presidential records that Trump took with him to his Florida estate. The FBI routinely conducts so-called spillage reviews when classified information is found to be handled in ways that are out of the norm.
But after the National Archives reached out to the Justice Department to report finding classified information in boxes taken to Mar-a-Lago, Garland has only said the department is dealing with the issue and will “look at the facts and the law and take it from there.”
In many ways, Garland has had the kind of year that progressives would normally be applauding.
He has stepped up the Justice Department’s civil rights enforcement, overseeing successful prosecutions in two notorious killings of Black men and opening investigations into alleged abuses in police departments. He is suing the states of Georgia and Texas over new voting laws that the department says are discriminatory. And he has imposed a moratorium on federal executions, after his predecessor carried out more than a dozen death sentences.
The Justice Department’s civil rights activities have been a centerpiece of Garland’s tenure, in keeping with his promise when he was confirmed by the Senate. He tearfully invoked at his confirmation hearing last year the experience of his grandparents fleeing antisemitic pogroms in Europe in the 1900s, as a cause for his focus on civil rights today.
He also choked back tears last month when asked about the family of Ahmaud Arbery, who was murdered by White men while going for a run in a south Georgia town.
Garland expressed similar emotion recently in a call with the brother and nephew of George Floyd after ex-cops were found guilty of violating Floyd’s civil rights following a trial in Minnesota, according to a person briefed on the matter and Floyd family attorney Benjamin Crump.
It was the second time Garland had called the family members, after reaching out following the state trial months earlier.
“It has been proof that the Department of Justice in this administration is taking these matters much more seriously than the previous administration,” Crump told CNN, adding: “By their actions not just their words.”
Not all liberal activists are pleased with the Garland record, however.
In recent months, civil rights activists published a full-page advertisement in The Washington Post calling for the department to step up its oversight of alleged police abuses, in this case of the police department in Kansas City, Kan.
Garland has announced investigations of alleged abusive policing in Louisville, Minneapolis and Phoenix. But activists have chafed at what they believe has been a slow response to calls for more so-called pattern-and-practice investigations.
Garland remains unbowed by the criticism.
“There will be people from the Democratic Party who disagree with my determinations and there will be people from the Republican Party who will disagree with my determinations,” he told a House hearing last October when asked about some of the department’s actions in court. “That comes with the territory.”
After months of internal angst, Garland signed off on seditious conspiracy charges in January against a group of right-wing extremists accused in the sacking of the Capitol on January 6. Some prosecutors had sought to bring the charges eight months earlier, but Garland made them do more work before he thought the case was ready, according to people briefed on the matter.
He also signed off on contempt of Congress charges against Steve Bannon, former Trump adviser, who had thumbed his nose at the January 6 committee’s subpoena.
Both decisions came after some doubt over whether Garland would sign off.
The House committee has been waiting more than two months for the Justice Department to act on a similar referral seeking contempt charges against Mark Meadows, Trump’s former chief of staff. Compared to the Bannon case, the department faces a tougher legal analysis on Meadows because of his role as close adviser to the former President, Justice officials believe.
“With respect to higher-level people, people within former President’s orbit and the former President, there’s going to be a lot of caution exercised before bringing any case, and I can’t say whether a case ever will or will not be brought against any of those folks,” said McCord, who is now the executive director of the Institute for Constitutional Advocacy and Protection.
“You really want to be darn sure that you’re going to succeed in that, because failure could actually be more harmful to the country than not bringing a case at all.”
Political targets beyond Trump
Garland’s effort to distance himself and the Justice Department from politics can only go so far, given the political nature of many of the matters that are coming his way in his second year and beyond.
Prosecutors in the Delaware US Attorney’s Office continue to investigate Hunter Biden, President Joe Biden’s son, a probe that at least initially centered on possible tax violations, but that based on investigators’ questions to witnesses includes a broad examination of the junior Biden’s business activities, according to people briefed on the requests made of witnesses.
Hunter Biden has denied wrongdoing and the President has said he expects the Justice Department to act independently.
Florida Rep. Matt Gaetz is under investigation for possible sex trafficking and the Justice Department faces a looming deadline to bring charges to avoid interfering with Gaetz’s reelection campaign under Justice Department policy. Gaetz, a close ally of Trump, has denied wrongdoing and has accused the Justice Department of carrying out a political vendetta against him. The Gaetz probe began during the Trump administration.
The Giuliani probe, begun during the Trump era, has been slowed by legal wrangling over evidence seized early in the Biden administration. Federal prosecutors in Manhattan are still receiving batches of evidence from a neutral lawyer appointed by a judge, a process set up to protect attorney-client information.
Federal prosecutors on Wednesday filed racketeering and bribery charges against Michael Madigan, the Democratic former Illinois state House speaker. And public corruption prosecutors are investigating Texas Democratic Rep. Henry Cuellar, CNN has previously reported.
And then there’s the ongoing investigation by special C=counsel John Durham of the 2016 Trump-Russia investigation. Appointed by former Attorney General William Barr, Durham has now spent more time reviewing the Russia probe than special counsel Robert Mueller spent on his Russia investigation.
Durham has brought false statements charges against two people and has used his court filings to portray the FBI’s work investigating the Trump campaign as the product of a dirty political hit job carried out by Hillary Clinton’s campaign.
While Durham didn’t deliver a report before the 2020 campaign as Trump had openly urged him to, Durham’s investigation has continued to deliver fodder for the aggrieved former President to claim he was a victim not only in his 2020 loss, but also in the 2016 campaign he won.
As much as staying the course of some Trump-era decisions may upset the left, Justice Department leaders must also keep in mind maintaining the long-term credibility of the court, according to Garland’s defenders, particularly when there’s no a clear legal rationale for changing directions.
“When the Department of Justice just swings wildly from administration to administration – it doesn’t have any consistency and coherency in the way that it approaches cases, criminal and civil – I think that just destroys any confidence that the department is actually exercising good judgment and discretion within the rule of law,” McCord said.