Merrick Garland begins his second year as attorney general much the same way he launched his first — a quiet man at the center of political storms over democracy, the rule of law and Donald Trump.
A year in, the central test of Garland’s tenure remains the same: convince lawmakers and the public that his is an apolitical Justice Department at a time when their biggest issues are inherently political, including the Jan. 6 attack on Congress, a congressional investigation of Trump’s efforts to undo the 2020 election results, and partisan battles over elections and civil rights.
Garland marked his first anniversary in the job in typically quiet fashion, conferring with senior aides in his office — the kind of face-to-face meeting that has been rare during the coronavirus pandemic. In a brief exchange with reporters before the meeting began, Garland — who declined to be interviewed for this article — steadfastly refused to discuss the possibility of investigating Trump.
Speaking in his characteristically low, raspy voice, the attorney general said the department does not “shy away from cases that are controversial or sensitive or political. To do that would undermine an element of the rule of law. … What we must avoid is any partisan element of our decision-making about cases.”
Steven Wasserman, a federal prosecutor in D.C. and president of the National Association of Assistant United States Attorneys, said it is difficult to quantify Garland’s impact on morale: Federal prosecutors across the country have a wide range of political views, and the association does not survey its members about their boss.
But Wasserman said there have been some notable differences since Garland took over. Attorney General William P. Barr, the second attorney general under Trump, intervened in cases, drew objections from line prosecutors, and famously accused career staffers of injecting themselves into politics and “headhunting” for high-profile targets.
Garland’s tenure has not been marked by “the type of controversy that existed in the last administration — certainly not the same type of rhetoric coming from the attorney general,” Wasserman said. He noted the return of “a level of stability and civility that I would think most prosecutors expect” from Justice Department leaders.
Garland’s biggest accomplishment, Wasserman said, was his supervision of the investigation into the Jan. 6 riot at the Capitol — a sprawling, complex probe that is by some measures the largest case in U.S. history. Last week marked a key moment in that investigation, when the FBI arrested Henry “Enrique” Tarrio, the longtime leader of the Proud Boys group, on charges of conspiring with followers to attack Congress on Jan. 6.
The arrest of Tarrio, who says he is no longer the Proud Boys’ leader, is significant in part because he was not in Washington on Jan. 6 — an indication prosecutors are moving farther from the scene of the crime toward anyone who may have plotted the attack from afar.
Wasserman said the association is concerned, however, with rising violent crime in the United States and whether the department’s policies are appropriate to meet the moment.
“The association believes that this administration needs to conduct an honest assessment of the policies that have encouraged leniency in the last 10 to 15 years, and whether those are appropriate and effective given the direction that crime is going,” Wasserman said.
Garland has plenty of critics on the right. They have accused him of blaming lawful gun owners for crime, targeting conservative critics of school coronavirus policies, and refusing to give them information about an ongoing investigation of President Biden’s son Hunter. But he has also faced vocal skepticism from those on the left who want him to aggressively investigate Trump and his inner circle for possible crimes surrounding the 2020 election and the Jan. 6 Capitol breach.
Kristy Parker, a former federal prosecutor and counsel at the advocacy group Protect Democracy, said Garland’s legacy will probably be defined by that issue. At stake, she said, is not just whether Trump will face personal consequences but whether the Justice Department can hold accountable those who commit crimes, irrespective of their political status.
“This is a big moment in history,” said Parker, who thinks Trump should be investigated for his efforts to overturn the 2020 election. “This is going to be a defining moment in how we view our own justice system, and how everybody else in the world views it. We’ve always held ourselves up as a beacon of how to do democracy in the world. And if we’re not capable of investigating a president of the United States who openly flouted the law, then that’s going to be a real turning point for us, and in my view, we’ll be taking the wrong turn at the fork in the road.”
It’s still unclear whether the department is targeting the former president specifically as it investigates the Jan. 6 riot, Parker said. There are some worrying signs it is not, she said, particularly in not seeking interviews with those closest to Trump. But Garland has insisted investigators are building cases up from low-level players and will follow the evidence however high it leads. So far, investigators are not known to have interviewed those closest to Trump as part of their probe.
Stanley Brand, a former House counsel who represents some of the Jan. 6 defendants and witnesses, said Garland has done well in a difficult first year, having come in “under very adverse circumstances, with low morale and high expectations.”
Garland’s quiet demeanor and strategy is the right one, Brand said, particularly for the Jan. 6 cases. “In this case, the less said publicly the better, because you don’t want to impact juries or judges” or give any ammunition to defense lawyers, he said.
In contrast, the House committee investigating Jan. 6 has been publicly outspoken, recently arguing in a court filing that it has “a good-faith basis for concluding that the president and members of his campaign engaged in a criminal conspiracy to defraud the United States.”
Declarations like that increase the pressure on Garland. But those who have worked with him in his first year says he has been painstakingly careful to keep his focus on the evidence and legal issues surrounding Jan. 6.
At his first briefing on the case a year ago, the former judge methodically asked prosecutors to explain the legal standards for the different crimes at issue, such as assault and obstruction. Critics say the attorney general seemed to be stuck in the weeds of the case and not focused enough on the big picture: a possible conspiracy to overthrow the government.
The debate over whether the Justice Department should pursue Trump has drawn some public attention away from several of the agency’s signature actions over the past year, including strengthening efforts to protect civil rights.
Garland hired a pair of civil rights lawyers, Vanita Gupta and Kristen Clarke, to oversee the Justice Department’s civil litigating divisions and the civil rights division, respectively. He doubled the number of staff attorneys in the voting rights section, which has filed lawsuits against a Georgia law that authorities allege purposely discriminates against Black voters and Texas redistricting maps that prosecutors said discriminate against Latinos.
Two of the department’s biggest wins came last month, with convictions in the hate-crimes case against three White men in Georgia who killed Ahmaud Arbery, a Black man, and the civil rights trial of three former Minneapolis police officers involved in the death of another Black man, George Floyd.
Both were rare federal prosecutions. And both outcomes represented the kind of high-level legal accountability that activists called for during the social justice protests in 2020 that were sparked by the deaths of the two men, as well as the police killing of Breonna Taylor, a Black woman, in Louisville. Experts said successfully charging the former Minneapolis officers with violating Floyd’s rights by failing to intervene and render aid could have a wider impact on efforts to rein in unconstitutional policing.
“Sometimes the public puts way too much stock in the potential for criminal prosecutions to change things, but I do think this prosecution may be a game-changer, and DOJ should get kudos for bringing it,” said Christy Lopez, a Georgetown University law professor who worked in the civil rights division during the Obama administration.
Garland also overturned a Trump-era ban on federal consent settlements with local jurisdictions over reforms for policing and other issues. Last year, the department launched sweeping pattern-and-practice investigations of the police departments in Minneapolis, Louisville and Phoenix. Justice investigators also are probing state prison facilities in New Jersey, Georgia and Texas.
Still, some activists have been frustrated by the pace of change. Civil rights groups in numerous jurisdictions have pleaded, so far unsuccessfully, for federal investigations into their cities’ police departments.
Jonathan M. Smith, executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, said the department got off to a slow start because Gupta and Clarke were not confirmed until late last spring, and they are still working to fully staff the civil rights division. But he also suggested that there was an internal culture clash preventing bolder action.
“You have a very forward-leaning, aggressive civil rights division and staff, and I am concerned that the higher-up leadership in the department is much more cautious,” said Smith, who served as chief of the special litigation section of the civil rights division from 2010 to 2015.
S. Lee Merritt, a civil rights attorney who represented Arbery’s mother, was among a group of civil rights activists who had pushed Biden to appoint a Black attorney general. He praised Gupta and Clarke for being “active and responsive, especially to cases that are high-profile.” But he said Garland’s more cautious approach has limited the department’s ability to “deal with the systemic and structural issues of discrimination” such as qualified immunity for police officers.
“They have not begun to address that.”