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Opinion Merrick Garland is no cowboy

U.S. Attorney General Merrick Garland, left, in D.C. on Nov. 8, 2021, and former president Donald Trump in D.C., on July 26. (Olivier DOULIERY and MANDEL NGAN / AFP)

For most of his tenure, Attorney General Merrick Garland has been battered by the left for not moving fast enough to pursue criminal charges against former president Donald Trump. Now, Garland finds himself in the crosshairs of conservatives infuriated by a court-ordered search of Mar-a-Lago, Trump’s Florida home, and working themselves into a frenzy over Garland’s supposed political “weaponization” of the Justice Department.

Both sides have it wrong. Neither seems to understand the first thing about the deliberative, hyper-methodical attorney general. Garland was going to go slow, or appear that way, because going slow is what careful lawyers do — and because responsible prosecutors do not show their hands in public until they are ready to bring charges. Yes, much to the dismay of those eager to see Trump in handcuffs, Garland is innately and immensely cautious — but caution is warranted in the case of an attorney general weighing the monumental step of prosecuting a former president.

But if liberals needed to find their inner Zen when it came to Garland, conservatives are positively unhinged. Their portrayal of Garland and his stewardship of the Justice Department bears no relation to the man or his performance. It is a caricature that would be laughable if it were not so alarming.

Trump immediately denounced the search as “prosecutorial misconduct, the weaponization of the Justice System, and an attack by Radical Left Democrats who desperately don’t want me to run for President in 2024.” No surprise there — it’s a trademark Trump move to accuse others of what he himself has done and to then try to transform his legal trouble into political advantage.

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And no surprise, either, to anyone who’s watched his cringeworthy Trump sycophancy, that Trump’s message was dutifully amplified by House Minority Leader Kevin McCarthy (R-Calif.). “I’ve seen enough,” McCarthy tweeted. “The Department of Justice has reached an intolerable state of weaponized politicization. When Republicans take back the House, we will conduct immediate oversight of this department, follow the facts, and leave no stone unturned.”

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Where was McCarthy on the department’s “intolerable state of weaponized politicization” when Garland’s predecessor, William P. Barr, was busy overruling career prosecutors’ sentencing recommendation for Trump ally Roger Stone or dismissing the case against former national security adviser Michael Flynn, after Flynn’s guilty plea? Or when Trump himself was trying to, yes, weaponize the Justice Department in his desperate effort to undo the election results?

Other members of the lap dog brigade went further. “At a minimum, Garland must resign or be impeached,” tweeted Sen. Josh Hawley (R-Mo.), calling the search “an unprecedented assault on democratic norms and the rule of law.”

An assault on the rule of law, really? With the execution of a search warrant approved by a federal magistrate who would have found probable cause to believe that a crime may have been committed and that evidence was present in the place to be searched.

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That is the definition of the rule of law — not an assault on it.

Even Senate Minority Leader Mitch McConnell (R-Ky.), no Trump fan, weighed in. “The country deserves a thorough and immediate explanation of what led to the events of Monday,” he said in a statement Tuesday. “Attorney General Garland and the Department of Justice should already have provided answers to the American people and must do so immediately.”

Note to McConnell: Garland and his prosecutors are bound by law, Justice Department policy and the rules of professional ethics to, as Garland put it Thursday, “speak through its court filings and its work.” These restrictions leave them at a disadvantage, unable to respond to criticism. But the purpose of the constraints is to protect the subjects of their investigations, who enjoy the presumption of innocence. That, too, is an element of the rule of law.

But if Garland can’t really defend himself, I can. And while I don’t know the facts underlying the search, I do know this: The attorney general did not authorize a search of the home of a former president — and Garland said that he personally approved the search — unless he was doubly certain the action was justified. We’ll know more about the justification if a court grants the department’s motion to unseal the warrant.

Garland is the opposite of a cowboy; he is more inclined to worry an issue to death than to shoot from the hip. He is a stickler for procedure; if anything, his missteps at the department have been to hew too closely to department norms and stick to positions adopted under the Trump administration.

More fundamentally, there can be no accusation more unfair than that Garland, of all people, is introducing politics into the Justice Department. He began at the department in 1979 as an aide to then-Attorney General Benjamin Civiletti, helping to write rules adopted in the aftermath of the Watergate scandal to govern contacts between the White House and Justice Department and were designed to insulate the department against improper political influence.

His tenure as attorney general has been aimed at repairing the damage to the department inflicted during the Trump years, reaffirming the norms “that like cases be treated alike. That there not be one rule for Democrats and another for Republicans,” as he said in his first speech to department employees.

We’ve all become inured to Trumpian gaslighting. The portrayal of Garland as the great politicizer is something worse. It’s a smear of a man who has devoted his career to ensuring the opposite.

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