USA TODAY International Edition
From Trump to Hunter Biden, a lot hangs over Garland hearing
AG pick vows to take on domestic terror threats
When Merrick Garland accepted President Joe Biden’s nomination to serve as attorney general, the federal appeals court judge said he looked forward to a “homecoming” at the Justice Department where he began in the Carter administration.
Any celebration marking his return – 24 years after departing for the federal bench – could be short- lived.
Not since Watergate has an attorney general nominee faced the kinds of questions awaiting Garland as he prepares to take his seat Monday for a confirmation hearing before the Senate Judiciary Committee.
The rolling crisis that defined the Justice Department and its relationship with President Donald Trump, who repeatedly sought to bend the agency to serve his political interests, is one of many challenges facing the nominee.
Last month, a resurgent domestic extremist movement was thrust into public view during the deadly Capitol siege. The assault launched federal law enforcement authorities on one of the most far- reaching investigations in history while raising deeper concerns about the government’s capacity to contain the threat.
As senators weigh confirmation, Garland is certain to be confronted with pointed inquiries about whether the Justice Department should investigate, and potentially prosecute, Trump for inciting the riot Jan. 6 that left five dead, including a Capitol Police officer.
Senate Minority Leader Mitch McConnell, R- Ky., all but threw Trump’s fate to the Justice Department last week when the Senate acquitted the former president at his impeachment trial.
“There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day,” McConnell said after the Senate trial. “No question about it. ... He didn’t get away with anything, yet. We still have a criminal justice system in this country. We still have civil litigation, and former presidents are not immune from being held accountable by either one.”
There is little open opposition to Garland’s nomination, a departure from 2016 when President Barack Obama’s pick for the Supreme Court was blocked by a Republican- controlled Senate.
Since the close of Trump’s impeachment trial, the Biden administration has deflected questions about the former president’s potential criminal vulnerability in the riot.
“We’re doing something new here,” White House press secretary Jen Psaki said last week. An “independent Justice Department ( would) determine what any path forward and any investigation would look like.” It was a notso- subtle dig at the Trump White House, which routinely intervened in some of the most politically sensitive matters at the department.
Pending confirmation, it would be largely Garland’s call on a criminal investigation and the resulting shadow Trump may cast on the new administration.
As much as Biden has sought to get rid of the kind of politicization that marked the Trump Justice Department – from the dismissal of FBI Director James Comey for his management of the Russia investigation to dropping the prosecution of former national security adviser Michael Flynn – any decision involving Trump is fraught with political implications.
William Yeomans, a former justice official whose service spanned the administrations of Jimmy Carter and George W. Bush, said that if the facts lead to Trump, the former president “must be held accountable.”
“It has been and must remain a fundamental tenet of our adherence to the rule of law that we do not tolerate the use of the prosecution power to target individuals simply because they are political opponents,” Yeomans said. “That generally means we must proceed with care in prosecuting a former president, particularly one of a different political party. But it does not mean that a former president whose crimes are uncovered by a fair and full investigation should escape accountability.”
Alberto Gonzales, who served as attorney general in the George W. Bush administration, said Garland should not commit “one way or the other” on the possible legal jeopardy facing Trump.
“Given the political nature of the case and the public interest, he may commit or at least say he would consider appointing a career prosecutor to make an initial assessment ( on) whether a formal investigation should be commenced,” said Gonzales, one of two Republican attorneys general who have announced their support for Garland.
Gonzales said Garland “may be pressured by Republicans to formally recuse himself from the final decision whether to prosecute.”
“I am not aware of any legitimate reason he would be required to do so under DOJ regulations if he wants to make this decision,” Gonzales said. “There is no financial, political or personal reason I know of to recuse. But he will be pressed about this.”
White House firewall
On the campaign trail, Biden said the Justice Department had been transformed into the “president’s private law firm” under Trump, who casually penetrated the institutional firewall with well- aimed tweets.
“I want to be clear to those who lead this department ( about) who you will serve,” Biden said when introducing Garland as his nominee Jan. 7. “You won’t work for me. You are not the president or the vice president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation, to guarantee justice.”
Accepting the nomination, Garland invoked the name of Edward Levi, the attorney general nominated by President Gerald Ford to restore the department’s credibility after the Watergate scandal that led to the resignation of President Richard Nixon.
“As Ed Levi said at his own swearing in, ‘ Nothing can more weaken the quality of life, or more imperil the realization of the goals we all hold dear, than our failure to make clear by words and deed that our law is not the instrument of partisan purpose,’” Garland said.
If he is confirmed, Garland said, it would be “my mission ... to reaffirm those policies as the principles upon which the department operates.”
Hunter Biden and Durham probes
A test of that commitment looms in the federal tax investigation involving the president’s son Hunter Biden and the pending inquiry into the origins of the Russian investigation led by Connecticut federal prosecutor John Durham, appointed by Trump Attorney General William Barr.
Before departing in December, Barr resisted Trump’s calls to appoint a special prosecutor in the Biden case.
Although all presidentially appointed federal prosecutors are expected to submit their resignations during transitions to new administrations, the Biden administration said the Trump- appointed U. S. attorney leading the Hunter Biden inquiry and Durham would remain to complete their work.
“These were decisions that were made in order to fulfill ( Biden’s) promise of maintaining independence and ensuring that he sent that message and every action that was taken,” Psaki said this month.
The enemy within
The Capitol assault was still fresh when a long- simmering debate began anew: Is federal law enforcement adequately equipped to confront the resurgent domestic terror threat.
The question is certain to spill into the Senate hearing for Garland, who oversaw the investigation of the Oklahoma City bombing – the most deadly domestic terror attack in U. S. history – during his previous justice tenure.
In remarks prepared for delivery at Monday’s Senate hearing, Garland cast the fight against extremism as “central” to the department’s mission.
“We have to do something,” House Homeland Security Committee Chairman Bennie Thompson, D- Miss., said this month during the first congressional examination of the domestic threat after the attack Jan. 6. Thompson sued Trump and his lawyer Rudy Giuliani.
For some, including Rep. Michael McCaul, R- Texas, a former chairman of the homeland panel, the remedies should include legislation that treats domestic terrorists no differently from their international counterparts.
During the homeland panel hearing, McCaul said the Capitol attack “cries out” for such action.
The government has moved to thwart right- wing extremism when it appeared to be on the precipice of violence, though authorities face limits in the form of free speech rights.
Some fear that a revamped domestic terrorism law raises the prospect of formally designating groups as domestic terror organizations, similar to the Islamic State or al- Qaida, merely because their messages may be repulsive.
Brian Jenkins, a longtime terror analyst and senior adviser at the Rand Corp., said any effort to single out specific domestic groups may deepen the country’s partisan divide.
Jenkins said Garland may be uniquely suited to confront the threat environment.
“This is someone who oversaw the investigation of Timothy McVeigh who was charged, convicted and ultimately executed for carrying out the worst domestic attack in U. S. history,” Jenkins said, referring to the Oklahoma City bomber.
“And Garland did that without a domestic terrorism law.”
Troubled police agencies
Garland’s nomination follows a summer of protests prompted by deaths and injuries of Black men and women during police encounters.
The incidents called attention to the Trump Justice Department’s departure from enforcement strategies that had sought to hold police agencies accountable for misconduct.
The Trump administration launched one investigation into a law enforcement agency during its four years, compared with 25 inquiries into “patterns and practices” of conduct in police agencies during eight years of the Obama administration.
Biden vowed new scrutiny of police tactics led by a reinvigorated Justice Department Civil Rights Division.
If confirmed, it would be up to Garland to set the tone on how aggressively to pursue those priorities.
“That mission remains urgent because we do not yet have equal justice,” Garland’s prepared remarks say.