Biden’s attorney general wanted to return to normal order; it hasn’t been easy

The day after rioters ransacked the U.S. Capitol and interrupted the peaceful transfer of power, the new president-elect unveiled his choice to lead the Justice Department.

At that news conference on Jan. 7, 2021, Joe Biden described Merrick Garland as a man who embodies character and decency. He pledged that Garland would be a lawyer for the people and not the president. And he said Garland would help restore the DOJ’s independence from the White House.

Now, more than three years later, the way Garland drew the line between politics and law has somehow alienated Biden, former President Donald Trump and many of their supporters. That violent Jan. 6 siege on the Capitol—and the people responsible for it—will help define Garland’s tenure in what may have been his final act of sustained public service.

“He’s really the consummate institutionalist,” said Alex Aronson, a former Justice Department lawyer and Democratic Senate aide. “I think he came in to his tenure as attorney general very much with that good-faith intention to preserve those institutionalist values.”

But Aronson, now executive director at advocacy group Court Accountability, said Trump and his followers pose an ongoing threat to democracy—one that Biden and Garland misunderstood in this historical moment.

“Like a lot of leading Democrats, establishment Democrats, he sort of tried to wave a magic wand and bring back these norms of the pre-Trump era — and that’s just not a realistic approach after what happened during Trump,” Aronson said. “And that’s not how norms work.”

Commitment to the public

Garland entered a Justice Department that had endured blistering criticism from the former president.

While president, Trump fired the FBI director, derided career public servants for probing his campaign’s contacts with Russia, called for investigations of his political rivals and threatened to replace the acting Attorney General with an underling who advanced bogus claims about election fraud.

“After Donald Trump’s attorneys general were criticized for being biased in favor of Trump … it was important for the legitimacy of the Justice Department for President Biden to appoint a leader who was seen as above reproach,” said Paul Butler, a law professor at Georgetown University who got his start prosecuting public corruption cases at the DOJ.

Melissa Murray, a law professor at New York University, said she often joked that the attorney general in the Trump years had been a “public defender” for the president. Not so under Garland, she added.

“I heard lots of people complaining about the problem with Merrick Garland is that he’s too deliberative, he’s too judicious,” Murray said. “Well, you know, he was a judge. That’s what they do. He was put in that role for a particular reason and given the mandate and the directive, to make clear a separation between the office and the presidency, I think he did that.”

Biden and his team selected Garland, a respected federal appeals court judge with a 40-year track record, precisely because of his distance from politics. In his early years as attorney general, Garland wrote out his own answers to nitpicky follow-up “questions for the record” from Congress and spent days preparing for oversight hearings.

Peter Keisler is a longtime appellate lawyer who once served as acting Attorney General in the George W. Bush years. He said Garland has been the perfect person to serve now, because of his smarts, judgment and commitment to the public good.

“Any attorney general is going to be called upon to make some very tough decisions on some very controversial issues,” said Keisler. “That’s the nature of the job.”

Politically fraught cases

But the sheer number of legal problems that landed on Garland’s desk is remarkable.

Start with the biggest federal criminal investigation in history: some 1,500 cases against the rioters who stormed the Capitol and the extremists who engaged in seditious conspiracy to prevent the peaceful transfer of power.

Then, the Justice Department launched an investigation of President Biden, after aides found classified documents in his academic office. Garland named a special counsel who ultimately concluded he would not charge Biden with wrongdoing, partly because of his age and faulty memory.

A different special prosecutor, a holdover from the Trump administration, brought charges against Biden’s son Hunter, for gun and tax crimes.

A third special counsel ultimately pursued two history-making indictments against Donald Trump: the first, for allegedly hoarding classified papers at his Florida resort and another, for trying to cling to power in 2020 after he lost to Biden.

Those cases against Trump represent the first time a former president has been charged with federal crimes, though conservative courts went on to narrow and constrain the actions against him.

Methodical pace criticized

Neither case against the former president will go to trial before the November election—even though the attorney general once said the Jan. 6 probe amounted to “the most urgent investigation in the history of the Justice Department.”

That investigation marched along, with public action mostly from the boots on the ground officials, rather than the higher-ups—until Garland’s decision to appoint a special counsel in November 2022.

That methodical pace drew withering criticism.

Tim Heaphy served as chief investigative counsel to the House Select Committee that investigated Trump’s effort to cling to power.

“There were several pretty significant witnesses, or witnesses who emerged as really central to our investigation, that had not been interviewed prior to the time we reached out,” said Heaphy, a partner at Willkie Farr & Gallagher.

But Chuck Rosenberg, a former U.S. attorney who’s advised two different attorneys general over the years, defended the Department of Justice’s approach.

He said prosecutors face a much higher burden of proof than lawmakers do.

“The fact that DOJ works more slowly is both important and necessary—and not at all surprising,” Rosenberg said.

Keisler, the appellate lawyer, agreed, saying investigators had to take their time to search for possible financial ties among militia groups and the people in Trump’s inner circle, even if those allegations produced no charges.

“It’s easy to say once all the work is done that you could have, and should have, done it more quickly by not spending time chasing down things that didn’t pan out,” Keisler said. “But you can’t know what you’ll find and won’t find unless you first conduct a thorough investigation.”

Supreme Court calculations

In the end, the conservative Supreme Court waited months to review the Jan. 6 case against Trump this year—and then granted him substantial immunity from prosecution in July.

The conservative supermajority rejected altogether a part of the indictment that accused Trump of misusing the DOJ to advance a phony election fraud scheme, underlining how much power future presidents wield over the Justice Department and its people.

If that election interference case against Trump survives the election, it may not go to trial until 2026.

Kristy Parker prosecuted civil rights cases at the DOJ for 19 years. Parker, now a special counsel at the nonpartisan advocacy group Protect Democracy, said people may be asking too much of the justice system and the Justice Department.

“You know, we can’t rely on criminal investigations and prosecutions to do more than what they do, which is to seek accountability for specific violations of law,” Parker said. “They can’t be relied on to address larger political problems.”

Protection from politics

As for Merrick Garland, his time in the administration may be drawing to a close. There’s no real hint yet about whether a new Democratic president might want to keep him on the job, at least for a while, because of the possible difficulty in confirming a new attorney general, or because of major cases already underway.

He mostly lets his work speak for him, and has hardly embraced the public speaking part of his job. But he made an exception this month, when he delivered a major speech about protecting DOJ investigations from political interference.

Garland’s voice broke with emotion as he defended the department and its people.

“Our norms are a promise that we will not allow this department to be used as a political weapon. And our norms are a promise that we will not allow this nation to become a country where law enforcement is treated as an apparatus of politics,” he said to a round of applause from the standing-room-only crowd.

It’s now up to voters to decide whether to return former president Trump to the White House, and by extension, what happens to these fundamental norms that Garland has embraced.