Opinion: Merrick Garland's integrity saved the DOJ only to doom it again

In 2016, the American Bar Assn. couldn’t say enough good things about Merrick Garland, then the chief judge of the powerful U.S. Court of Appeals for the District of Columbia and President Obama’s nominee for the Supreme Court, when it sent the Senate a report giving him its highest rating. So at Garland’s confirmation hearing, a bar official gave senators samples of the unanimous praise from hundreds of lawyers, judges and law professors who were contacted by the group’s evaluators.

“He may be the perfect human being,” effused one anonymous fan. Another: “Judge Garland has no weaknesses.”

Therein lies the tragedy of Merrick Garland. A man who could have been a truly supreme justice — but for then-Senate Majority Leader Mitch McConnell’s unprecedented Republican blockade — instead became a seemingly ineffectual attorney general, at least regarding the defining challenge of his tenure: holding Donald Trump accountable for trying to steal the 2020 presidential election.

The traits that the bar experts saw as Garland’s strengths — deliberative caution, modesty, judicial temperament, indifference to politics — turned out to be weaknesses for the head of the Justice Department in these times.

So intent was Garland on restoring the department’s independence and integrity — after Trump, in his first term, openly sought to weaponize it against his enemies — that the attorney general initially shied from investigating and prosecuting Trump for his role in the postelection subversions culminating on Jan. 6, 2021. By all accounts, Garland feared the optics of the Justice Department turning its legal powers against the man President Biden had just beaten at the polls.

Of course Trump, the master of projection, was going to, and did, accuse the attorney general of the very thing that Trump himself was guilty of: weaponizing the Justice Department. Yet in a nation based on the rule of law, the case against Trump needed to be pursued.

Garland succeeded in reviving the department’s post-Watergate norms, which restrict contacts between law enforcement officials and the White House, norms that Garland, as a young Justice lawyer in the Carter administration, helped develop in response to Nixon-era abuses. But so much for Garland’s achievement: Trump, saved by his election from having to answer for Jan. 6 or for a separate federal indictment for filching classified documents, will be back in power next week, more emboldened than before and backed by appointees willing to do his vengeful bidding at the Justice Department and the FBI.

Last week, there were small victories for accountability, if not for Trump’s alleged federal crimes. On Friday he was sentenced for his one conviction, in New York state court in May, for falsifying business records to cover up hush-money payments to a porn star ahead of the 2016 election. Judge Juan M. Merchan gave the president-elect no penalty, but at least the sentencing underscored Trump’s distinction as the only felon-president. Separately, Garland indicated he would make public the final report from special counsel Jack Smith detailing the evidence for Trump’s culpability for Jan. 6.

The 72-year-old attorney general soon leaves office having angered all sides — Republicans for going after Trump at all, Democrats for not going after him fast and hard enough. California Sen. Adam B. Schiff, formerly a member of the House Jan. 6 committee, was among the first Democrats to publicly blame the Justice Department, at least partially, for letting Trump avoid trial before the 2024 election, complaining on CNN that the department had focused too long on “the foot soldiers” who attacked the Capitol “and refrained from looking at … the inciters.”

A recent CNN retrospective on the Trump prosecution called 2021 “the lost year.” At a time when the former president was still on the defensive about Jan. 6, the Justice Department followed a bottom-up strategy targeting more than 1,500 rioters in its largest criminal investigation ever. Prosecutors insisted they were chasing leads involving Trump and close allies, while sorting out the legal complexities of trying a former occupant of the Oval Office.

By 2022, questions about Garland’s deliberative dillydallying became unavoidable. In March, U.S. District Judge David O. Carter ruled in a civil case that “the illegality of the [fake electors] plan was obvious.” The next month FBI Director Christopher Wray authorized a criminal investigation into the scheme. Then in June the House Jan. 6 committee held its televised hearings, essentially a daytime drama about Trump’s multipronged efforts to keep power, starring Republican eyewitnesses.

That development, finally, prodded Garland to get serious about the man at the top. In November 2022, Garland named Smith as special counsel. As fast as Smith seemed to work, it wasn’t until August 2023 — two and a half years after the insurrection — that Trump was criminally indicted. Months of legal challenges from the Trump team followed, delaying everything and putting forward what seemed like a crazy claim, that Trump should have presidential immunity.

Yet to point fingers solely at Garland for letting Trump off the hook shifts blame from those even more deserving of it. McConnell, for instance, who engineered Trump’s Senate acquittal in February 2021 after his impeachment for inciting the insurrection; conviction could have been paired with a vote banning Trump from seeking federal office. And the Supreme Court’s right-wing supermajority, which took seven months before mostly siding with Trump’s claim that he and future presidents are immune from criminal charges for supposedly official acts.

Even if Garland had moved aggressively, there’s a good argument that all the delays available to Trump would’ve made a trial and verdict before the election unlikely. And this fact remains: The ultimate jury — voters — had more than enough incriminating facts available to decide Trump was unfit to be president again. A plurality decided otherwise.

Still, Garland’s performance makes me doubly sad that he ended up at Justice instead of becoming a justice.

@jackiekcalmes