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Opinion Merrick Garland is the wrong man for the job

Merrick Garland appears for his confirmation hearing before the Senate Judiciary Committee to be attorney general on Feb. 22. (Demetrius Freeman/The Washington Post)

Attorney General Merrick Garland on Tuesday made clear that he has decided to let bygones be bygones. I can only imagine the reaction from the scores of former Justice Department lawyers who spent four years writing pleas to their ex-colleagues to eschew partisan corruption, who demanded accountability for attorneys failing to live up to their oaths and who decried the damage to the department’s stature.

The New York Times reports: “Answering questions from reporters at the Justice Department on Tuesday, Mr. Garland said that reviewing the previous administration’s actions was ‘a complicated question.’” Afraid of being accused of partisanship, he chooses not to do his job.

The report continues:

“We always look at what happened before,” he said. But he stopped short of saying that he would undertake a comprehensive review of Trump era Justice Department officials and their actions, in part to keep career employees from concluding that their work would be judged through changing political views.
“I don’t want the department’s career people to think that a new group comes in and immediately applies a political lens,” Mr. Garland said.
He also invoked the investigations by the Justice Department’s inspector general, Michael E. Horowitz, noting that they spoke to the question of whether Mr. Trump had improperly used the department’s powers to investigate and prosecute.
“It’s his job to look at these things,” Mr. Garland said of Mr. Horowitz. “He’s very good at this — let us know when there are problems and what changes should be made, if they should be. I don’t want to prejudge anything. It’s just not fair to the current employees.”

Attorneys who did their jobs professionally would have nothing to worry about in a top-to-bottom review of the department’s conduct. Investigating wrongdoing, rooting out unethical behavior and getting to the bottom of the politicization of the department are central to restoring the Justice Department’s reputation. In allowing miscreants to escape accountability (unless Horowitz snares them in his inquiries), Garland has effectively told his department that there are no consequences for unethical or even illegal conduct.

Moreover, in refusing to examine what occurred in the last administration, he is not protecting career attorneys; he is protecting former attorney general William P. Barr and his political hacks who intervened in prosecutions, looked the other way when a whistleblower revealed the disgraced former president’s attempt to extort Ukraine, played along with phony accusations of election fraud and likely misrepresented facts in the census case that was before the Supreme Court. In a sense, Garland is also sheltering former president Donald Trump from investigation, since the only way to understand the extent of his effort to subvert the election is to examine in minute detail his interactions with the Justice Department.

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Garland does the department and the legal profession no favors by allowing former Justice Department political appointees to escape consequences for their conduct (e.g., professional sanctions, prosecution for obstruction of justice). To the contrary, he is encouraging future political appointees to do the bidding of the White House rather than upholding the independence of the department.

It is perfectly appropriate for Garland to direct Horowitz to conduct thorough investigations of wrongdoing over the past four years. However, playing whack-a-mole — waiting for each scandal to surface and then reacting — will not reform the department. It will not remove from the department lawyers who behaved inappropriately or who condoned such behavior.

It seems Garland is not the right person for his job, which requires determination to clean house and reestablish the highest standards for the department. That requires the ability to absorb political attacks from those who object to his mission to root out misbehavior. If he cannot explain to critics that a thorough investigation is not partisan, but an essential part of reasserting legal norms, he is not up to the challenge before him.

All of this comes at a time he has followed bad Trump-era positions (e.g., defending Trump in a defamation case brought by E. Jean Carroll) and failed to act aggressively in the face of a new Jim Crow movement to suppress voting. It’s frankly embarrassing that private voting rights advocates must play what should be the Justice Department’s role in challenging state laws in court.

Garland is not going to quit or be fired anytime soon — although after a year of service, he might consider “spending more time with his family.” Whatever he does, Congress must fulfill its oversight responsibilities to examine department wrongdoing in the Trump era. The House and Senate judiciary committees could hire a respected attorney — e.g., Preet Bharara, the former U.S. attorney for the Southern District of New York; former acting attorney general Sally Yates; former impeachment counsel Dan Goldman — to conduct the legwork and handle questioning in open hearings. Lawmakers can also call up Garland and his senior staff to question them as to the lack of initiative on protecting voting rights.

Failure to hold those who have disgraced the Justice Department accountable would be a gross miscarriage of justice and an insult to current and former department lawyers who acted responsibly (and raised red flags during the last administration). Worse, it would be a signal to future administrations that there is no price for heeding illegal and unethical direction.