Merrick Garland Has Turned the Department of Justice into a Left-Wing Blog By Dan McLaughlin
“America dodged a bullet keeping this man off the Supreme Court. Garland is too partisan to be attorney general, let alone a justice. So long as he runs the Justice Department, its chief role will be supporting whatever cause animates left-wing blogs. America deserves more equal justice under law.”
E arlier this month, Merrick Garland marked the first anniversary of taking over the United States Department of Justice. It would be an understatement to say that Garland has politicized the DOJ. Garland has turned the Justice Department into something indistinguishable from a left-wing blog.
It wasn’t supposed to be this way. Unlike some other recent attorneys general — say, Jeff Sessions, another AG who had previously had a judicial nomination rejected by the Senate — Garland did not have a background in elected office and had never been a public presence in culture-war fights. When he was nominated to the Supreme Court in 2016, after years on the D.C. Circuit, Garland was known to be a social liberal (Democratic spin about him as a “moderate” to the contrary), but he was widely regarded as a sober-minded, pro-big-government, institutional liberal in the mold of Stephen Breyer rather than a rhetorical bomb-thrower.
When Garland testified before the Senate at his confirmation hearing, he assured the senators that his department would be both impartial and independent:
I have been a judge for almost 24 years. . . . I have grown pretty immune to any kind of pressure other than the pressure to do what I think is the right thing given the facts and the law. That’s what I intend to do as attorney general. I don’t care who pressures me. If I am confirmed, the Department will be under my protection for the purpose of preventing any kind of partisan or other improper motive in making any kind of investigation or prosecution. That is my vow.
Senators could have been excused for believing this. Clearly, many did, given that Garland was confirmed by the Senate with 70 votes. But they were lied to.
What has happened instead is that Garland has acted like an ideological commentator who cannot possibly let any polarizing issue go by without taking sides with a gesture designed to communicate the depth of his conviction to the cause. And it’s always the same side. He has done this even when it has frequently required him to take highly aggressive legal positions with little precedent, file lawsuits with limited prospects of success, launch prosecutions of people already adequately handled by state prosecutors, or rely on exceedingly flimsy evidence. None of this is unusual for ideological writers, or for interest-group advocates looking to push the envelope or expand the “Overton Window” of what things are possible. But they are unusual for the Justice Department, and they make a farce of Garland’s claims to be acting dispassionately and following the facts and law without fear or favor.
The DOJ has always been involved in politics and divisive political and cultural issues, all the way back to its creation under Ulysses S. Grant to smash the Ku Klux Klan in the 1870s. But this is new. It is not normal.
There have been four hallmarks of Garland’s tenure. One is the filing of lawsuits to obstruct state laws from going into effect. Garland has brought the weight of the federal government to bear against elected state governments making policy that accords with the wishes of their voters. The second is declarations of policy that disregard the laws passed by Congress, setting up the Justice Department as the arbiter of law, not just its enforcer. The third is the launching of criminal prosecutions that are targeted at getting headlines from left-leaning media rather than following the evidence to prosecute crimes that are beyond the reach of state authorities. The fourth is the coercive use of federal investigatory powers where a case is not presented in court.
Suing the Elected Governments
Garland’s DOJ has, to date, sued both Georgia and Texas over their election laws; sued Texas over its abortion law; and sued Texas over its redistricting. More suits of the same nature are likely to follow. It has conspicuously avoided suing Maryland, New York, or Illinois over gerrymandering, even with the governor of Maryland publicly begging him to do so. But that’s a Democratic gerrymander.
Consider, as an example of his approach, Garland’s lawsuit against Texas over SB8, the abortion bill. Texas passed a law restricting abortion. The Garland Justice Department, committed fully to Roe v. Wade, felt that abortion clinics ought to be able to sue in federal court to stop the bill. That alone is a defensible enough position, if legally a stretch, given that Roe is a creation of federal courts in the first place. But it didn’t stop there. Garland supported the wholly unprecedented remedies of federal-court injunctions against state-court judges and clerks as well as a global injunction against basically the entire world to prevent the filing of lawsuits.
He went further and had the United States file its own lawsuit. The ostensible justification for the suit was that the Texas law could be read to apply against the federal government and recipients of federal programs. But the suit pursued much broader relief under an extremely aggressive legal theory: that the federal government can sue any state any time the state passes a law that (in the view of federal authorities) violates the Constitution. When Justice Clarence Thomas asked the solicitor general at oral argument, “Do you have any examples, not precedents but examples, of the national government taking part in or playing the exact same role or doing exactly what you’re doing in other areas involving constitutional rights?” she had to concede, “I don’t have examples.” Several of the justices were alarmed that the DOJ suit either requested an unlimited power, or — if it was to be limited — depended upon making an “only for this case” rule. In the end, the Court threw the case off its docket, leaving in place a stay entered by the Fifth Circuit. Only Justice Sonia Sotomayor dissented from that contemptuous resolution of the DOJ lawsuit.
Then there’s the headline-grabbing suits over voting and election laws. Whenever Republicans attempt to advance any form of Republican policy on elections — such as improving the security of the ballot — they get sued by the Democratic Party’s lawyers. That’s politics. But under Garland, the Justice Department has advanced the arguments and interests of the Democratic Party in court on election law at every turn as if the party was its client, while laying off Democrat-run states.
Consider Georgia’s election law, which contains an entirely modest set of reforms. You would not know that from the hyperventilating Joe Biden’s rhetoric about how the law “makes Jim Crow look like Jim Eagle,” or from Major League Baseball’s ill-considered decision to relocate the All-Star Game from Atlanta to Denver in protest. In June 2021, Garland announced with great fanfare that the DOJ was suing Georgia to block the law under Section 2 of the Voting Rights Act. As I noted at the time, the suit was rushed into court ahead of the Supreme Court’s Section 2 decision in Brnovich v. Democratic National Committee, in order to commemorate the eighth anniversary of the Court’s 2013 Shelby County decision, much hated by progressive commentators, and to support the Biden administration’s case for new legislation being pushed on a party-line basis. The legal merits were an afterthought.
The Georgia case is still working its way through the system, and parts of it survived a motion to dismiss on the pleadings before examining the evidence, but its flimsy legal justifications are essentially repackaged partisan talking points about how Georgia may not alter pandemic-era absentee ballot rules and the like. The lawsuit against the Texas election law is similarly partisan. Under Garland, the DOJ has also filed statements of interest supporting lawsuits against Florida and Arizona.
Declining the Law
As Carrie Severino has detailed, Garland has also issued a series of edicts by which the DOJ will either refuse to enforce federal laws or reject elementary restrictions on its power:
Garland rescinded a 2018 Sessions memorandum that reformed the process of obtaining consent decrees and settlement agreements with state and local governments so that they would be narrowly tailored to remedying alleged violations instead of seeking to achieve broad policy objectives that would not normally be obtainable through litigation. . . . On immigration, Garland…abandon[ed] limitations on asylum eligibility claims based on fear of private criminal activity absent a government’s inability or refusal to curtail it. . . . On July 1, Garland imposed a federal moratorium on the death penalty.
Nate Hochman has covered another of Garland’s unilateral dictates:
Thousands of federal prison inmates who were sent home due to the pandemic would not be required to return to prison to finish their term. . . . The reversal is effectively a jailbreak, engineered by left-wing activist groups such as the ACLU under the pretenses of public health.
Garland has also insisted on covering up evidence of governmental misconduct: “Garland has yet to comply with a perfectly legitimate order issued by former President Donald Trump on his last day in office. The order, made in the worthy cause of public transparency, would declassify much of the material from the investigation into Russia’s efforts to help Trump win the presidency.” Meanwhile, Garland has shuttered the Justice Department’s investigation and prosecution of Chinese espionage.
Hot-Button Criminal Cases
Every year, there are a few hot-button criminal cases that get framed by the national media as emblems of race relations in our society, such as the deaths of George Floyd and Ahmaud Arbery. Garland has been gung-ho to involve the DOJ in those cases, again echoing Democratic and progressive arguments. In Minneapolis, Garland announced a federal probe after a state jury convicted Derek Chauvin of murder. In the Ahmaud Arbery case, the DOJ likewise took federal civil-rights charges to trial after the defendants had already been sentenced to life in prison, based mainly on evidence of them being racists that had little or nothing to do with the shooting.
Then there are explicitly political prosecutions, such as investigations of Donald Trump and his allies. Garland has been under political fire from the Left for not finding some excuse to prosecute Trump or other leading Republicans for January 6. Doing so would be a dramatic and dangerous step. But Garland can’t say that; he prefers, instead, to keep investigations looming without any real prospect of success. So, he answers questions about prosecuting Trump with pledges to perpetuate “a process that we will continue to build until we hold everyone accountable who committed criminal acts with respect to January 6.” Then there’s the indictment of Steve Bannon, which, as Andy McCarthy has detailed, was premature and self-defeating.
The DOJ vs. Parents
Perhaps the most heavy-handed use of the vast investigative resources at Garland’s disposal — and his power to threaten — came during the heat of the 2021 Virginia governor’s race, when Terry McAuliffe was desperate to delegitimize protests against school boards barring in-person instruction, imposing mask mandates, and allowing the teaching of critical race theory and other left-wing nonsense. Garland complied by issuing a highly politicized memorandum calling for federal intervention into parental “threats” against local school-board members. We have covered this extensively at National Review, including:
- How the vast majority of cited incidents did not actually involve threats, let alone violence.
- Why Garland’s congressional testimony on the memo was misleading and perhaps perjurious, and why he refuses to dismantle his politicized task force.
- The involvement of the National School Boards Association in the memo, for which the group has since apologized amidst mass membership defections.
- Senior FBI veterans sounding the alarm on Garland’s overreach, and a whistleblower arguing that Garland was misusing anti-terrorism tools against concerned parents.
America dodged a bullet keeping this man off the Supreme Court. Garland is too partisan to be attorney general, let alone a justice. So long as he runs the Justice Department, its chief role will be supporting whatever cause animates left-wing blogs. America deserves more equal justice under law.
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