The utter failure of Merrick Garland

Merrick Garland began his tenure as attorney general with the stated intention of restoring faith in the Justice Department and the rule of law. By that standard, Garland has been a failure.

In fact, if anything, the crisis of faith surrounding his department has only deepened on his watch, and he bears some of the blame.

Polls show that half the country distrusts the FBI. A recent poll by Harvard CAPS-Harris found that 70 percent are either very or somewhat concerned about election interference by the FBI and other intelligence agencies. An additional 71 percent agreed that changes post-2016 had not done enough to prevent further interference and that “wide-ranging” reform was still required. Another poll showed 64 percent view the FBI as “politically compromised.”

During the term of his predecessor, Bill Barr, 50 percent of the public viewed the department favorably, and 70 percent had a favorable view of the FBI. The public trust of the department appears to have declined under Garland. At the very least, it has not dramatically improved.

There is variation in these polls, but they show a deep-seated distrust of the Justice Department that continues to taint all of the department’s work.

For example, the recent indictment of former President Donald Trump contains extremely damaging elements, including an audiotape that directly contradicts Trump’s assertions that he declassified all of the documents in his possession. Yet even the Justice Department’s release of an unusually detailed indictment, with pictures designed to sway public opinion, appears to have had little effect. While 48 percent of the public believes that the charges are justified, 47 percent believe the charges are “politically motivated.”

The response to this indictment shows the gravitational pull of public perceptions of the Justice Department. That perception of bias is well earned. Various officials were removed from the Department by career officials for their express bias and misconduct during the Russia-collusion investigation. That investigation was recently found by Special Counsel John Durham to have been launched with the backing of the Clinton campaign and without the minimal evidence ordinarily required by the department.

The Justice Department and the media kept the investigation going for years despite the lack of credible evidence.

When Biden gave the nod to Garland, I thought it was a brilliant move. Garland had been an affable, principled and moderate judge. Many of us criticized the Senate’s refusal to give him a vote after his nomination to the Supreme Court. I now believe that he would have made a great justice for all the reasons he has proven to be a poor attorney general.

He is affable but not influential or effective in changing the department. He is the very symbol for maintaining a status quo that the public rejects.

Garland leads the department with the same judicial temperament and persona. Predecessors such as Barr came to the department as former prosecutors with a clarity of purpose and mission. That would put Barr in conflict with Trump, but he was a hands-on manager who penetrated every level of the department. While some opposed Barr’s priorities, no one doubted who was in control of that department.

Garland’s reputation is more like that of a supervising judge who defers to the views and decisions of his agency. The result has been disastrous for the department. Even FBI Director Christopher Wray admitted that the past scandals demanded fundamental changes in the department’s operations.

Yet Garland allowed the culture to remain unchanged. He remained largely reactive to new scandals like the task force quickly assembled at the request of the teacher’s union and school board officials to investigate parents challenging school boards.

Garland remained largely silent as the FBI cracked down on conservative groups across the country in the wake of the Jan. 6 riot. He said nothing as his subordinate prosecutor Michael Sherwin bragged on in a television interview how they sought to unleash “shock and awe” on those who supported the election challenge to ensure that certain “people were afraid to come back to D.C.”

While most of us supported the tough punishment of rioters, the Justice Department was criticized for its draconian treatment of people charged with relatively minor offenses such as trespass and unlawful entry into the Capitol.

The controversies continue to pile up, from the seizure of the phone of a member of Congress to alleged disparate treatment in investigations of pro-life over pro-choice groups. Some of these and other controversies are legitimately debatable; others are not.

Garland could have taken steps to assure the public that there is not a two-tiered system of justice but repeatedly refused to do so. For example, Garland has continued to refuse to appoint a special counsel in the investigation of Hunter Biden. By doing so, Garland has removed the president’s greatest threat in the form of a report that would detail the scope of the Biden family’s alleged influence peddling and foreign contacts.

Garland is now looking at a new inflammatory situation after Special Counsel Jack Smith has leveled 37 charges against Trump while Robert Hur, “the other special counsel” investigating Biden, has largely disappeared from sight.

There is also the notable absence of any decision by Smith on another part of his mandate: crimes associated with Jan. 6th. Some of us have argued that Trump’s controversial speech was constitutionally protected. While Smith was swift to charge on the documents matter, he has not resolved the other part of his mandate even though the Jan. 6th matter has widely investigated by the Justice Department and Congress. The concern is that the Justice Department does not want to undermine the widespread claims in the media and Congress that Trump committed crimes in supporting an “insurrection.”

Garland has also supported the appointment of controversial officials such as Kirsten Clarke and Rachael Rollins, deepening the distrust of conservatives.

Time and again, Garland could have made decisions to seek to assure the public with more moderate and transparent decisions. He has repeatedly failed to do so.

Garland is not solely at fault. Biden took office promising to be a unifier and a moderate. He immediately adopted far left policies and fueled divisions by denouncing millions of “MAGA Republicans” and his political opponents as “semi-fascist” extremists.

Garland repeatedly pledged that political considerations would hold no sway with him as attorney general. He has certainly refrained from Biden’s style of divisive rhetoric. However, he has done little prospectively to assure the public that the department is pursuing cases without political bias. He continues to repeat the mantra of “trust us, we’re the government,” long after that trust has been lost with many citizens.

The failure of Merrick Garland is becoming more and more evident by the day. The public continues to distrust the Department, and his assurances of fair dealing have been overwhelmingly rejected by Republicans and independents.

It is hard to dislike Merrick Garland as a man. But as an attorney general, there is little to like about his last two years.

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