Merrick Garland speaks to Justice Department staff on his first day as Attorney General.Photo by Kevin Dietsch / Getty
In his inaugural address to Justice Department staff last week, Attorney General Merrick Garland decided to mention just one of its predecessors. Garland left out Bobby Kennedy, William Barr, and other attorneys general whose tenure had made headlines, and highlighted Edward Levi, whom President Gerald Ford had elected the country’s chief law enforcement officer immediately after Watergate. Levi was a conservative lawyer and president of the University of Chicago celebrated for his honesty and impartiality. It was Ford’s goal in making the appointment restore public confidence in the idea that federal officials would equally enforce the law and not abuse it for political gain, as Nixon’s allies had done. “The only way we can thrive and maintain the trust of the American people is by following the norms that have become part of the DNA of every Justice Department employee since Edward Levi’s tenure as the first attorney general after Watergate.” Said Garland. “These standards require that similar cases be treated equally. That there isn’t one rule for Democrats and another for Republicans, one rule for friends and another for enemies, one rule for the powerful and another for the powerless, one rule for the rich and another for the poor, or different rules , depending on race or ethnicity. “
Levi’s norms are undoubtedly the standard every US attorney general should adhere to, but the political landscape – and the nation – Garland inherits is very different from what Levi faced nearly fifty years ago. The intelligence community was released on Wednesday a report Warning that the risk of domestic violent extremism is increasing. Partisanship is at its highest level in decades. The public has great confidence in institutions, from Congress to the courts Almost a record low. Republicans and Democrats are increasingly getting their information over cables and online Information ecosystems that describes opposite realities. This division peaked on January 6th revolt in the Capitol, which left five dead after attempts to prevent Congress from confirming last year’s election results; and in Donald Trump’s subsequent second impeachment for his role in inciting violence. In one recent surveyEighty-one percent of Democrats said Trump was primarily responsible for the violence and destruction. In a separate surveyFifty-eight percent of Trump voters said the attack was primarily inspired by Antifa.
In the weeks since the Senate acquitted the former president on his second Impeachment proceedingsThe efforts of Congress to create an impartial 9/11 commission investigation into the insurrection have had an impact on partisan disputes. First congressional hearings on the attack have also taken place. Legal experts, including Stephen Gillers, professor of legal ethics at New York University’s law school, claim the ongoing federal criminal investigation – which has resulted in the arrest of more than three hundred people from over forty states and which Garland now controls – is likely the best way to see how much Trump and his staff were involved in starting the siege. “The public understands that if the same evidence existed for someone else, it would be investigated,” Gillers told me. “Garland should approach January 6th with the same force that criminal bosses, drug traffickers, September 11th and the Oklahoma City bombings were deployed. It should be unrestricted. Start with the insurgents themselves, then try to turn them around and see if there are any links to the White House. “(A Justice Department spokesman declined to comment.)
Federal prosecutors and FBI agents appear to be using the tactic described by Gillers. In a trial last week, prosecutors said “the investigation and prosecution of the Capitol Attack is likely to be one of the largest in American history, both in terms of the number of defendants prosecuted and the type and volume of evidence. ” The Washington Post last Friday reported Investigators tried to gather evidence to indict the founder of the Oath Keepers, an extreme right-wing militia, on January 6th for conspiracy over the role of the group’s members. Four leaders of the far-right Proud Boys were accused of leading around a hundred members of this group into the attack coordinated plan prevent Congress from confirming Trump’s defeat. Speculation has been circulating for weeks about connections between former Trump campaign advisor Roger Stone and the Oath Keepers, who served as his unofficial bodyguards in the past. Stone has condemned the violence, denied any role in the attack and was not charged.
Civil rights groups are also calling on Garland to reform the FBI, which since Sept. 11 has abused its surveillance powers and inappropriately focused on Muslim Americans as a threat to national security. Mike German, a staff member at NYU’s Brennan Center for Justice and a former FBI agent, said prosecutors should investigate the attack on the Capitol as the culmination of a series of violent attacks by far-right groups in recent years. German said he believed the bias among the FBI officials led them not to take the Proud Boys or the Oath Keepers seriously enough. “You just had to look in the newspaper,” said German. “This happened all over the United States.”
On March 2, FBI director Christopher Wray testified before the Senate Judiciary Committee for the first time since the attack. Wray said Domestic terrorism has “metastasized across the country,” revealing that the number of white supremacists arrested in the United States in 2020 has nearly tripled since 2017. Despite the stakes, some senators used their Question Time to reinforce narratives that resonate in their political chamber. Democrats have rightly highlighted Trump’s role in exacerbating extremism, but have focused little on how to suppress the disinformation and the social forces that drive it. Republicans identified Antifa and government surveillance as the greatest threats to the nation. (Senator Josh Hawley demanded to know If the FBI collected cell phone metadata from people near the Capitol at the time of the uprising.) The country’s political polarization affects the legislature’s ability to function as a credible intelligence agency.
In an interview, a federal law enforcement officer told me that investigators were keen to arrest and prosecute anyone who broke the law but did not want to be drawn into Washington’s partisan stew. “There is a determination to ensure that anyone who practices violence and destroys property, regardless of ideology or motivation, is brought to justice,” said the official, who asked not to be named. But he said federal law enforcement officers do not have the power or desire to designate domestic groups as terrorist organizations. “These are decisions made by elected officials and policy makers, not law enforcement,” he said. “It’s not our role.”
Garland’s January 6th dilemma is a microcosm of one who Joe Biden Faces. Should the attorney general take an aggressive approach, vigorously investigating the former president and his staff, and cracking down on right-wing groups and militias? Or should he take a more cautious path, try to address centrists and avoid stirring up right-wing extremist conspiracy theories about the overreach by the federal government? A central component of Trump’s political project was the discrediting of the idea that bipartisanism is even possible. In his dark vision of public lifeNon-partisan officials, from public health experts to prosecutors, have been politically biased, incompetent, or corrupt. Gillers told me that he hoped Garland would prove “legally romantic” who “really believes” that “law is a separate space, with its own methodology and responsibilities, and must be separated from political considerations”.
If Garland hopes to revive Levi’s ideals, his course is obvious. A federal criminal investigation is a comparatively blunt tool, but it is the last and best way to uncover the truth about one of the most violent attempts to overthrow a presidential election result in American history. During his confirmation hearing Said Garland“This was the most heinous attack on the democratic process that I have ever seen and never expected in my life” and vowed to pursue “wherever it leads us”. However, the risks for the new Attorney General are significant. Justice Department prosecutors may have difficulty finding enough evidence to unequivocally prove a conspiracy. Stone, other Trump employees and Trump himself have been skillfully operating in legal gray areas for decades. Garland may be forced to announce that the investigation has closed without charges being brought against her. If so, he would likely be legally prohibited from revealing any evidence he has gathered, since most criminal investigations are conducted in secret through subpoenas from the grand jury. Garland could also prosecute, go to trial and not win convictions, a debacle that would reinforce Trump’s claims that he was the victim – and the undefended survivor – of yet another conspiracy against him.
Hopefully facts will remain weapons, however. So Garland should use his powers as attorney general to fully and impartially reconstruct the events of January 6 and the months before – how prosecutors are supposed to do it, where the facts are leading him, and then determine who deserves to be prosecuted . “You cannot make this decision without an investigation,” Gillers told me. “You follow the facts, you learn the facts, and then you make a decision.” Our increasing inability to agree on basic facts is, of course, the great challenge and tragedy of our time.
