Merrick Garland faces multiple crises to address and politically tough decisions to make as he belatedly takes the reins at the Justice Department as attorney general.
He’ll try to heal a workforce that was battered during the Trump era, deliver on President Joe Biden’s liberal priorities and campaign promises and oversee some of the most complex investigations in a generation.
In an address to the department’s 115,000-person workforce, Garland said Thursday that he would “adhere to the norms” and invoked the name of Edward Levi, the attorney general who took over after the Watergate era.
“Those norms require that like cases be treated alike,” the newly minted attorney general said. “That there not be one rule for Democrats and another for Republicans. One rule for friends and another for foes. One rule for the powerful and another for the powerless. One rule for the rich and another for the poor. Or different rules depending upon one’s race or ethnicity.”
The decisions Garland, 68, makes will shape Biden’s presidency and could transform the legacy of former President Donald Trump and his allies, who might face scrutiny in the massive criminal investigation into the Capitol insurrection.
Garland got a bipartisan nod of approval of 70-30 on Wednesday, earning the support of 20 Republicans in a Senate where zero-sum partisanship is the new normal. But that was the easy part for Garland, who’s been a federal appellate judge since 1997.
His first briefing was on the investigation into the January 6 Capitol attack, as well as ongoing security threats. FBI Director Christopher Wray, acting Deputy Attorney General John Carlin and other senior officials from the FBI and the US attorney’s office in Washington, DC, were expected to participate, DOJ officials told CNN.
This Capitol riot investigation has already dredged up difficult questions for department leaders: Are sedition charges appropriate? How aggressively should prosecutors scrutinize former President Donald Trump’s role in inciting the deadly riot? And how will they walk a constitutional tightrope while examining communication between GOP lawmakers and right-wing extremists?
There will be no easy decisions as Garland navigates this political minefield.
“He is exactly what the DOJ needs at this historic moment in our nation’s history,” said Michael Zeldin, a former CNN contributor who previously served in several senior roles at the Justice Department. “He knows the department, he’s a legal scholar, and he recognizes the inflection point the criminal justice system is at and understands the imperative of getting it right.”
On his first day, Garland was greeted with applause and a warm welcome from department employees. But there are plenty of potential flashpoints that will make his job more challenging.
Some issues percolated to the front-burner before Garland was confirmed. Under Biden, the Justice Department already revoked some hardline immigration policies and told the Supreme Court that it was reversing the Trump-era position that the Affordable Care Act is unconstitutional.
Other issues pose long-term challenges. Biden made big promises on criminal justice and police reform. At the peak of last summer’s protests against racial inequality, Biden said at an NAACP town hall that the US had reached “a moment where we must make substantive changes now.”
Any action on that front will run through Garland and the Justice Department. Biden’s base, including many Black voters who helped him win key battleground states, will be watching.
The Trump-era and Obama-era Justice Departments didn’t bring federal charges against the men that killed Trayvon Martin, Michael Brown, Eric Garner and Tamir Rice, and others. Liberals want to know if the Biden Justice Department will be any different, and the issue is front and center with the ongoing state trial against the police officer who killed George Floyd.
Another related priority looms at the Justice Department. Biden vowed to crack down on White supremacists and right-wing extremist groups. It’s now up to Garland to make that happen.
These groups are resurgent and rising in the public conversation. The phrase “domestic terrorism” was uttered 19 times at Garland’s confirmation hearing, including references to his role supervising the Oklahoma City bombing investigation. Wray, the FBI chief who now reports to Garland, said last week that White supremacists are on par with ISIS as the top terror threat.
But even the broadly popular goal of taking down extremists comes with its own set of thorny issues. These investigations often rely on court-approved electronic surveillance and other national security powers that aren’t popular among liberals and privacy groups. Plus, some Republicans have questioned the tactics that the FBI used to digitally track Capitol rioters.
“Garland will be watched closely for his handling of domestic terrorism matters,” said Jessica Carmichael, a DC-area defense attorney who specializes in privacy and surveillance issues. “I hope (that he) approaches this issue in keeping with a broader goal of criminal justice reform and not simply advocating for more criminal laws, more surveillance, and more incarceration.”
Filling in the top ranks
Then there are the politically charged investigations.
What will come of the scrutiny of New York Gov. Andrew Cuomo’s scandal-plagued handling of Covid-19 deaths in nursing homes? How will Garland wrap up the Durham inquiry into the origins of the Russia probe? What about the ongoing tax and money laundering investigation into the President’s own son, Hunter Biden?
It will be an uphill climb – especially in this heated political climate and with disinformation running rampant – to convince Americans that these investigations are being handled without bias. After repeated abuses and attempts by Trump to politicize the Justice Department, experts have said that it could take many years to restore the public’s faith in federal law enforcement.
As he tries to accomplish that goal, Garland won’t have his deputies right away. The Senate still hasn’t confirmed Biden’s nominees for several senior-level positions at the Justice Department.
If Democrats stay united, they can confirm Lisa Monaco to the No. 2 post, Vanita Gupta to the No. 3 spot, and Kristen Clarke to run the Civil Rights Division. But the GOP hasn’t made it easy.
During Gupta’s confirmation hearing Tuesday, Republicans peppered her with questions about old tweets, even though they spent years ignoring Trump’s vitriolic posts. Gupta apologized for using “harsh rhetoric” and pledged to use gentler language in the future. Conservative-leaning super PACs are running attack ads against Gupta and Clarke, who are both women of color.
Regardless, insiders who know Garland believe he will be able to hit the ground running.
“I don’t think it will be much of a transition,” said former Deputy Attorney General Jamie Gorelick, who was Garland’s boss in the Clinton administration. “The two parts of his career, as a prosecutor and as a judge, are the two most important parts of the Justice Department.”
Gorelick continued, “He was talking about the Justice Department as ‘we’ during his confirmation hearing because he grew up there, and it will be very natural for him to return.”
This story has been updated with Garland’s speech Thursday.
CNN’s Jessica Schneider and Evan Perez contributed to this story