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Biden plans to nominate Merrick Garland as his attorney general

Judge Merrick Garland is President-elect Joe Biden’s choice for attorney general. (Alex Wong/Getty Images)
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President-elect Joe Biden plans to nominate federal judge Merrick B. Garland, a Democratic casualty of the bitter partisan divide in Washington, to be the next attorney general, tasked with restoring the Justice Department’s independence and credibility, according to people familiar with the decision.

Garland, 68, serves on the federal appeals court in the District. He is best known for being nominated to the Supreme Court in 2016 by President Barack Obama — a nomination that went nowhere because Senate Republicans refused to give him a hearing. The opening on the high court was eventually filled the following year by President Trump’s choice, Neil M. Gorsuch.

Biden’s transition team declined to comment. An announcement on Garland’s nomination, first reported Wednesday by Politico, and a slew of others to fill top Justice Department positions could come as early as Thursday.

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Many Democrats still think of Garland as a living example of Republican double-standards when it comes to the courts and the law, though some Biden advisers have come to view him as well-suited to restore norms of nonpolitical decision-making at the Justice Department, given his track record as a judge and a former senior official at the department, according to people familiar with the decision. Like others, they spoke on the condition of anonymity because Biden’s selection has not been formally announced yet.

Democratic lawyers hailed Garland as an inspired choice to repair the Justice Department’s credibility, which eroded under Trump’s frequent demands to investigate his political enemies and exonerate his friends. Garland enjoys a reputation as a unifying, moderating force on the appeals court, and some Democrats said they view his selection as a signal to congressional Republicans that the department will operate in an evenhanded fashion in the Biden administration.

Karen L. Dunn, a former prosecutor who once clerked for Garland, called him “the perfect choice for this job. He will restore independence and integrity to the Justice Department, be the people’s lawyer, not the president’s lawyer, and will come in with the respect of the career public servant who advance the cause of justice every day.”

On a day when a mob of angry Trump supporters stormed the Capitol, leading to bedlam in the halls of Congress, Garland won plaudits from some key GOP voices.

Sen. Lindsey O. Graham (R-S.C.) called Garland a “sound choice to be the next attorney general. He is a man of great character, integrity and tremendous competency in the law.”

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Brian Benczkowski, a Republican lawyer who served as head of the Justice Department’s criminal division in the Trump administration, said: “Merrick Garland is a well-respected judge and Justice Department veteran who can be expected to be a steady and evenhanded leader. He is a welcome choice by those of us who, on a nonpartisan basis, care about the stewardship of this important institution.”

But some defense lawyers and criminal-justice-reform advocates have said they worry Garland’s record on the bench shows he is too deferential to the government and law enforcement — and perhaps would not be as aggressive about implementing the kind of dramatic changes they seek.

Biden advisers are hopeful that the slate of senior officials tapped to fill out Justice Department leadership roles around Garland will ease any such concerns from civil rights groups, according to people familiar with the discussions.

These people said Biden and his inner circle of advisers plan to nominate Lisa Monaco, a former national security official during the Obama administration, to serve as deputy attorney general in the Justice Department’s No. 2 position. Monaco, once considered by Obama as a candidate to lead the FBI, has held senior positions within the Justice Department and the bureau.

The incoming administration has picked Vanita Gupta, the former head of the department’s civil rights division under Obama, to take the No. 3 job there, these people said. Gupta is president of the Leadership Conference on Civil and Human Rights and an outspoken critic of the Trump administration’s record on civil rights.

Biden also plans to nominate Kristen Clarke to lead the Justice Department’s civil rights division, these people said. Clarke once worked in that division’s criminal section, handling police misconduct, brutality and hate crimes cases. She is president of the National Lawyers’ Committee for Civil Rights.

Garland was nominated to the appeals court by President Bill Clinton after a stint as a senior Justice Department official in which he oversaw the prosecution of the 1995 bombing of the federal building in Oklahoma City that killed 168 people. He also oversaw the prosecution of Theodore Kaczynski, the Unabomber who eluded authorities for years while mailing bombs to people.

Garland has called his work on the Oklahoma City case “the most important thing I have ever done in my life,” and his selection suggests that the incoming Biden administration wants someone running the Justice Department with experience in dealing with domestic terrorism.

James Wyda, the longtime federal public defender for Maryland, said Garland has an opportunity to remake the department, which he said “needs to not just be healed, but changed.”

Throughout the coronavirus pandemic, Wyda said the department has failed in its response to the public health crisis in jails and prisons. Instead, the department “prioritized executions and scrambled to kill as many prisoners as possible before the next administration took office.”

“The Department of Justice wields so much power. I am hopeful Judge Garland will bring many new voices — including some from outside of the Department — to the table as he attempts to restore the credibility of this essential institution,” Wyda said in an email.

Neal Katyal, a former acting solicitor general, called Garland “the definition of fair. It’s a hard task to bring back honor and integrity to the Justice Department after what Trump has done,” Katyal said. “If anyone can do it, it’s Judge Garland.”

If Garland is confirmed as attorney general, the selection would leave an opening on a key federal appeals court. Before Tuesday’s Senate elections in Georgia, some Democrats had worried Republicans might block an effort to fill the vacant seat, leading to a loss of Democratic influence on the court. But with twin victories by Democrats Raphael Warnock and Jon Ossoff, Democrats will narrowly control the Senate, making it easier for Biden to get nominees for both administration posts and the federal courts.

The last federal judge to serve as attorney general was Michael Mukasey, who led the department during the last two years of George W. Bush’s administration. Garland’s selection also echoed the decision in 1975 by President Gerald Ford to tap Edward H. Levi, a legal scholar and president of the University of Chicago, to restore credibility to the department in the post-Watergate era.

A Biden transition official said the Georgia races did not factor into the president-elect’s decision to pick Garland. Rather, he wanted to be sure his nominee would be seen as a lawyer serving the country’s interests and not the president’s personal interests, this person said, noting that Biden also was eager to select a figure who would empower career department employees to work independently of any political influence.

Jamie Gorelick, a former deputy attorney general who worked with Garland when he was last in the Justice Department, said he will “bring his judicial temperament and judicious personality to the table.”

Garland will be confronted with a number of thorny legal and political challenges if he is confirmed, including how to handle the two-year-old investigation into the finances of the president’s son Hunter Biden and what to do about calls from liberals and other Trump critics to investigate or prosecute Trump and his inner circle.

The next attorney general will also face a host of policy decisions made by the previous administration that will either be undone, modified or left alone. Democratic administrations have sought to shorten prison sentences for some types of drug offenses, while the department under then-Attorney General Jeff Sessions moved in the opposite direction.

Biden had considered former deputy attorney general Sally Q. Yates and former senator Doug Jones (D-Ala.) to be the nation’s top law enforcement official.

Yates was well-liked by many in the civil rights community, though some feared her confirmation could be a bruising battle, particularly before the Senate races in Georgia.

Jones — who famously prosecuted a long-dormant case against members of the Ku Klux Klan for bombing a Black church in Birmingham in 1963 and killing four girls — was considered a better candidate for winning Republican votes for confirmation, but some civil rights leaders had feared his credentials on civil rights were not sufficiently broad.

Annie Linskey and Matt Viser contributed to this report.