Attorney General Merrick Garland told lawmakers that the Justice Department “will apply the facts and the law and make a decision” when considering a criminal contempt referral for Steve Bannon the House is preparing to approve on Thursday.
Garland is appearing before the House Judiciary Committee Thursday as the full House prepares to vote on a criminal contempt resolution for Bannon. The move will put before the department a decision on whether to prosecute the adviser to former President Donald Trump for his refusal to cooperate in the House’s January 6 insurrection investigation.
“The Department of Justice will do what it always does in such circumstances, we’ll apply the facts and the law and make a decision, consistent with the principles of prosecution,” Garland said, when asked about referrals approved by the House related to its January 6 probe.
In addition to the Bannon contempt referral, lawmakers may seek to question Garland about the department’s broader response to the Capitol attack, as it has charged more than 600 people who allegedly participated in the mob.
An opening statement submitted by Garland for the hearing called the Capitol breach an “intolerable assault, not only on the Capitol and the brave law enforcement personnel who sought to protect it, but also on a fundamental element of our democracy: the peaceful transfer of power.”
“I have great confidence in the prosecutors who are undertaking these cases. They are doing exactly what they are expected to do: make careful determinations about the facts and the applicable law in each individual case,” the statement reads.
Democrats repeatedly praised the department for its “important work of bringing those responsible for the violence of January 6 to justice,” as Committee Chairman Jerry Nadler put it.
“I ask only that you continue to follow the facts and the law where they lead – because although you have rightly brought hundreds of charges against those who physically trespassed in the Capitol, the evidence suggests that you will soon have some hard decisions to make about those who organized and incited the attack in the first place,” the New York Democrat said.
Still there were some indications from some Democratic concerns, particularly from Washington Rep. Pramila Jayapal. She asked Garland about the pace of the prosecutions as well as reports that Garland was concerned that jailing Jan. 6 defendants would further radicalize them.
Garland said that the time the prosecutions have taken is “is really not long at all,” given the challenges of tracking down the defendants, the amount of discovery in the cases, and the way the pandemic affects court room operations.
He said he recalled a “different context” than what was reported about his comments about radicalization in jail. He also addressed the critiques from some judges about how harshly the DOJ was treating the January 6 defendants.
“There are some judges that are criticizing the kind of charges we’re bringing being not harsh enough, but there are other judges who are criticizing the same charges as being too harsh,” Garland said. “As I’ve mentioned before this comes with the territory of being a prosecutor.”
Garland defends school board threats memo attacked by Republicans
Republicans at the hearing zeroed in on a memo issued by the department earlier this month laying out steps it was taking to address threats against local school board officials, which conservatives have mischaracterized as the DOJ spying on parents exercising their First Amendment rights to protest school policies like mask mandates.
Rep. Jim Jordan, the top Republican on the committee, claimed the FBI’s move to facilitate lines of communication to report threats amounted to the FBI creating a “snitch line on parents.”
Garland defended the memo and said that “we are not investigating peaceful protest or parent involvement at school board meetings.
“We are only concerned about violence, threats of violence against school administrators, teachers, staff, people like your mother a teacher, that is what we’re worried about,” Garland said. “We are worried about that across the board we’re worried about threats against members of Congress, we’re worried about threats against police.”
Nadler offered a prebuttal to Republicans’ criticisms in his opening remarks, telling Garland he was “absolutely right to ask the FBI and federal prosecutors to meet with local law enforcement agencies and set up dedicated lines of communication, so that we can confront this spike in violence head on.”
Democratic skepticism of DOJ move to shield Trump from defamation suit
But Garland has not entirely escaped Democratic skepticism. Earlier this year, the committee’s majority questioned the department’s move to keep alive a Trump-era effort to shield the former president from a defamation lawsuit.
Rep. Steve Cohen, a Democrat from Tennessee, asked Garland directly about the decision.
“Sometimes being the attorney general and sometimes being the judge, that means taking positions with respect to the law that are required by the law, but which you would not take as a private citizen,” Garland said. “In this circumstance, the Justice Department’s briefing is not about whether this was defamation or it wasn’t defamation, it was solely on the question on the application of the tort claims act.”
As both the congressional and Justice Department investigations into the Capitol breach roll along, Republicans have sought to focus attention on DOJ’s handling of antifa-related violence, which some GOP lawmakers have equated to the attack on Congress’s election certification vote. They’ve also critiqued legal guidance put out by the department related to restrictive state election rules.
Garland’s prepared opening statement lays out the work the department has done “reinvigorating civil rights enforcement” as he highlights the department’s focus on voting rights in particular – a subject that could cause a clash with the committee’s Republicans who have defended restrictive election laws that have been passed recently by states.
“We are scrutinizing new laws that seek to curb voter access, and where we see violations, we will not hesitate to act,” Garland’s prepared opening statement said. “We are also scrutinizing current laws and practices to determine whether they discriminate against Black voters and other voters of color.”
Garland, a former appellate judge, has in the past pledged his commitment to keep partisanship out of the department’s decisions.
“I have grown pretty immune to any kind of pressure, other than the pressure to do what I think is the right thing, given the facts and the law,” Garland said during his February Senate confirmation hearing. “That is what I intend to do as the attorney general, I don’t care who pressures me in whatever direction.”
This story has been updated with additional details from the hearing.