Like Sessions and Barr, Garland must now choose principle over politics

Attorney General Merrick Garland just got his fish in the mail. In the mob, there is no clearer message that your days are numbered than a newspaper-wrapped fish left at your doorstep. The message left for Garland in various newspapers this week was equally clear: Either prosecute Trump or sleep with the fishes.

Garland may be legitimately confused. Just last year, commentators like the Washington Post’s Jennifer Rubin celebrated the confirmation of Garland for his pledge “to keep the department free of political interference.” Now, many of these same figures, including Rubin, are declaring Garland unfit for office and calling for him to be canned.

On CNN Sunday, Rep. Joaquin Castro (D-Texas) declared that “Merrick Garland is failing the United States of America” by failing to prosecute Trump. Rep. Elaine Luria (D-Va.) on Monday evening told Garland to just “do your job” and get on with the Trump prosecution. Luria emphasized “The Department of Justice … needs to move swiftly.”

It appears time — not ethics — is the priority.

As one columnist declared, Democrats are “nearly out of time” before the midterm elections and the possible loss of Congress.

Perhaps the clearest signal came from his boss, President Joe Biden. This week, The New York Times ran a leaked account of how Biden was telling people that he wants Trump prosecuted. The Times reported the president wants “Mr. Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6.”

Many of these figures, including President Biden, spent four years criticizing Trump for threatening and pressuring his attorneys general, from Jeff Sessions to Bill Barr. I joined in that criticism. To their credit, Sessions and Barr stood firmly against such pressure and protected the independence of the Department.

Of course, by leaking Biden’s comments, Biden did not have to say it to Garland directly; instead, the media delivered the message to Garland: Get moving or get out.

Ironically, some of us have criticized Garland for his inexplicable refusal to appoint a special counsel in the Hunter Biden scandal and his responsiveness to prior White House demands. However, that is not enough for his critics: Trump remains the only measure of his devotion.

It is a familiar pattern. When the Supreme Court failed to rule in the way some liberals demanded, their response was to call for packing a new Court with an instant liberal majority. When Garland was seen as hesitating to prosecute Trump, the response was to replace him with a new attorney general.

As with the “Pack the Court” campaign, there is now a “Sack the AG” campaign. Indeed, activists and others are calling on the same legal experts to offer cover for this unethical effort.

Former MSNBC host Keith Olbermann put it plainly: “Where is the president who will fire this wooden statue we call Merrick Garland? … We need somebody in your chair who realizes that democracy could be dead a year from right now. We want that to be you. But if it isn’t, the rest of us don’t have any more time to wait, or to waste.”

Rubin wrote to remind Biden that he “can replace” Garland for lacking “the necessary qualities to conduct the sort of investigation our fragile democracy requires.” While Rubin just last year heralded Garland as “the right pick” for attorney general, she now denounces the former judge as the “wrong man for the job” because he will not yield to the pressure to prosecute Trump and others.

The logic becomes perfectly Orwellian: Rubin condemns Garland for being unable to “absorb political attacks” from the right — as she and others demand that he yield to attacks from the left. His refusal means Garland “is not up to the challenge before him.”

With Garland, critics cannot argue that he is a Trumper or a stooge — so they have labeled him a wimp or, according to President Biden, just too “ponderous.” Of course, other Democrats have failed this test. Two years ago, D.C. Attorney General Karl Racine seemed to be on every network proclaiming that he was pursuing possible charges against Trump over Jan. 6. No charges were brought. When the ultra-liberal Manhattan District Attorney Alvin Bragg indicated that he was not yet comfortable with the push to prosecute Trump on state offenses, an MSNBC legal analyst declared that he and Garland have “some explaining to do.”   

Recently, these critics declared that a district court judge in California supplied the missing link needed to arrest Trump. In a ruling for the disclosure of attorney-client material to Congress related to the Jan. 6 riot, Judge David O. Carter found that “the illegality of the plan was obvious” in opposing the certification of the election. Rubin declared that Garland “will have a hard time ignoring” that ruling, while others said the opinion was “more than enough” for Garland to move against Trump. It is the liberal version of releasing the Kraken. 

That opinion offers more rhetorical than legal support for a prosecution, however. The case involves advice given to Trump by lawyer John Eastman, who argued that former Vice President Mike Pence could refuse to certify the election. Many of us disagreed with Eastman’s interpretation as well as the underlying claim that the election was stolen. 

However, Judge Carter effectively declares the view to be so wrong as to be criminally culpable. He simply brushes aside the fact that Eastman and Trump might have believed in their factual and legal position by stating that “ignorance of the law is no excuse.” The court is not simply saying that they are wrong in that view but, because they are wrong, legislative challenges amounted to criminal obstruction of Congress.

In the Post column, Rubin reminds readers “this is a federal court, not a pundit or politician.” Yet, at points in the ruling, it was hard to tell the difference. Judge Carter seemed intent on rendering judgment on what he described as a “coup” rather than a riot: “Dr. Eastman and President Trump launched a campaign to overturn a democratic election … Their campaign was not confined to the ivory tower — it was a coup in search of a legal theory.”

While I agree with many aspects of Judge Carter’s decision, there is no clear limiting principle of when a legal opinion becomes a criminal conspiracy beyond the court’s predisposition of the meaning of these facts.

The question is whether Garland will now yield to the pressure that his predecessors resisted from another president. Both Sessions and Barr were effectively sacked for standing on principle rather than politics. Just as the “Pack the Court” campaign failed to intimidate the justices, the “Sack the AG” campaign is unlikely to intimidate Garland. Hopefully, like his predecessors, he knows that there are far worse things than losing a job.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.