Why Merrick Garland Is a Better Attorney General Pick Than You Think

Politico reports that, Joe Biden will pick Merrick Garland to be Attorney General. As I was discussing this morning, it was fairly clear that Biden was delaying this decision until after the Georgia race, which made it clear that Garland was likely going to be his choice if Dems took both seats. Pending Biden’s decisions on other positions, this pick is better than you think.

First, Garland’s resignation from the DC Circuit opens up a judgeship that Biden can fill right away, with confidence his judge will be confirmed. He is likely to pick someone far more liberal than Garland. The candidate will almost certainly be a person of color, probably a Black woman. And she’s likely to be in her 40s. In short, Garland’s resignation allows Biden to start counteracting the damage Trump has done to courts right away, and in the second most important court in the country. Biden will start his Administration with an important judicial appointment that will likely have an impact for decades.

The other positions that matter are Deputy Attorney General — who is the person who runs DOJ on a day-to-day basis — and the Assistant Attorneys General, especially at the Criminal Division and Civil Rights Division. Reporting has said that Biden will emphasize diversity in these roles, and he’s likely to pick people to Garland’s left (because most candidates will be to his left). If that is right, then it means the people running DOJ day-to-day will be more liberal Democrats, with someone who is viewed as a well-respected, fairly non-partisan person leading the department.

In general, that will give Republicans confidence that Biden is not simply replacing a hyper-partisan Barr with someone as partisan as Barr was, even while ensuring that the people who do much of the work will be solid liberals.

I also think this makes it more likely that DOJ could investigate and prosecute Trump. As AG, Garland would only have oversight over a select set of decisions in such an investigation. For example, he would likely have to approve subpoenaing Trump Organization to figure out if Trump got a bribe via an Egyptian bank during 2016 (though such a subpoena would be easier to do after Trump is out of office and if New York State charges other corruption crimes). The most important step Garland would have to approve would be any charges of Trump (or presumably those close to him).

But Garland would not be involved in the day-to-day investigation. He would sign off on any major steps against Trump, but prosecutors well below Garland’s level will conduct the investigation (including investigations already in process that implicate Trump).

That’s honestly how Democrats should prefer any prosecution of Trump, that they be sufficiently well-predicated and substantiated enough to get Garland’s blessing. And if any hypothetical prosecution of Trump does have his blessing, it’ll be more likely to be viewed as a legitimate prosecution, not payback.

My biggest concern about this appointment is criminal justice reform (something that would be pursued in the Criminal and Civil Rights Divisions). One item of note, however: Garland has been recusing on death penalty cases in recent weeks, obviously in anticipation that he might get this appointment. One reason he would do so is an expectation that Biden might change policy significantly in this regard. At the very least, it suggests it is something that has come up in conversations between the two.

Garland is not my first choice: Doug Jones would have been. But there are advantages this appointment gives Biden that Jones does not.

Update: And here are those other positions.

Biden is expected to announce Garland’s appointment on Thursday, along with other senior leaders of the department, including former homeland security adviser Lisa Monaco as deputy attorney general and former Justice Department civil rights chief Vanita Gupta as associate attorney general. He will also name an assistant attorney general for civil rights, Kristen Clarke, the founder of Lawyers’ Committee for Civil Rights Under Law, an advocacy group.

Gupta and Clarke are precisely the kinds of people who will attend to civil rights issues. It will genuinely be exciting to have the two of them working on these issues, as both are superb (as someone noted on Twitter, Clarke’s pinned tweet right now is about her lawsuit against the Proud Boys for damaging a Black church in DC).

In addition to being Obama’s Homeland Security Assistant, Lisa Monaco was also a top lawyer at DOJ, including at FBI. I think she’ll bring real weight at FBI, without needing to swap out Chris Wray. Ironically, she is the one person in Obama’s orbit who had a direct role in Mike Flynn’s efforts to undermine Russian sanctions (which she largely imposed), because Tom Bossert consulted with her on how the Russians were responding to the sanctions and then reported back to his bosses, including Flynn, minutes before Flynn called Kislyak.

52 replies
  1. rosalind says:

    via twitter: “Biden has chosen Merrick Garland to run the Justice Department, Lisa Monaco to be Deputy AG, Vanita Gupta for Associate, and Kristen Clarke to run the Civil Rights division”

    one name surfacing to replace Garland: Katanji Brown Jackson

  2. Mister Sterling says:

    Yates was my first pick, not that lump of human goo named Jones. But Garland is a brilliant pick. Like Yates he is a quiet conservative. The FBI and DOJ are going to ask him to authorize cases against the Trump’s and he will silently sign off.

    • bmaz says:

      Yates would have been as horrible of a pick as imaginable. Doug Jones is twenty light years better than Sally Yates.

    • Sharksbreath says:

      Why do we need a Conservative. Haven’t they done enough.
      You guys might want to go to red state and go see what’s going on.

      At what point will you Dems stop trying to reach out to people who want to kill you.

      Stop it.

  3. bmaz says:

    I agree with every word of this. I do hope that an excellent landing spot for Jones is found though, whether at DOJ or not. He is a very good guy. Leondra Kruger would be a spectacular choice for Garland’s seat on the DC COA. She is young and brilliant.

    • Peterr says:

      I’m inclined to agree in general, but have serious reservations about how much leeway Gupta and Clarke will have to pursue reform. My sense is that Garland is not exactly known for holding prosecutors and police accountable for their errors and misdeeds.

      Any thoughts?

      • bmaz says:

        That level of general policy will be set by Biden as much as Garland. Your thought also applies to Biden generally though. The most important thing right now is served well by Garland, and that is stability and independence of the DOJ after Trump.

        • Peterr says:

          That kind of confirms my point, bmaz. The DOJ needs stability and independence from the White House – absolutely. But the stability it needs is not found in a “let’s not rock any boats” mentality. The independence it needs is not found in avoiding things like consent decrees and taking strong steps to remove the militaristic approach of far too many police officers and departments.

          The DOJ needs not a manager but a leader, and I fear that Garland is the former and not the latter. And yes, you are right: that is just as Biden wants it. I’m not angry about it, but I am disappointed.

        • Pragmatic Progressive says:

          While there is good reason to want for someone with a reputation of not being afraid to take on the status quo, I would say that Garland’s reputation for independence is more valuable at this point in time. Take for example what happened at the Capitol this week. Biden was already able to say without any reservation that DOJ will independently decide what charges will be brought.

          Also, on the very last day as Chief of the D.C. Circuit, Garland provided a new policy with additional safeguards for all of the D.C. Circuit’s employees. It may not seem really important, but it does demonstrate that he is someone who will provide thorough consideration to the opinions of his DOJ subordinates.

          The simple fact that he even wants to leave his role as a Federal Appeals Court Judge to take on the duties of the Attorney General shows at the very least he does want to bring about some progress.

          I would expect him to rely heavily on the decision making of subordinate DOJ political appointees and restore some faith in the DOJ across the political spectrum.

      • Raven Eye says:

        There is a skill in good staff work, no matter what the level. Leadership and followership.

        First, loyalty to your boss does not always mean agreeing with him/her — as long as the boss knows that you’ll follow orders when required. (That’s something I learned during years on flag and general officer staffs.)

        So you get the guidance from the boss and you work the issues. You engage in meaningful research, discussion, and development. And one of the ways you save your boss’s butt is to make sure all the angles are covered.

        If the boss is a dictator, that process won’t work. But if there is dialogue, that’s where a good staff builds out on the original task, and adds a piece here and there that satisfies the original tasking and also allows for consensus-based “enhancements”.

        Early on I was told by a boss that if he ever found out I was agreeing with him just because I thought that’s what he wanted to hear, he’d find somewhere else for me to work because — obviously — that he didn’t need me taking up space in the office. He was a dream to work for.

        If Garland is a steady hand on the tiller, and listens to his people, things should work out.

  4. Teddy says:

    Having to call the Trump-prosecuting Biden Attorney-General “Judge Garland” is enough for me. The GOP will hate it, but that’s the way it is. Garland’s replacement makes this icing on the cake.

  5. Mystic says:

    What this ignores is that the AG sets priorities for DOJ. Garland’s priorities are likely to be pretty milquetoast.

    • Rayne says:

      In that role, Garland’s responsibilities included the supervision of high-profile domestic-terrorism cases, including the Oklahoma City bombing, Ted Kaczynski (also known as the “Unabomber”), and the Atlanta Olympics bombings.[5][27]

      Garland insisted on being sent to Oklahoma City in the attack’s aftermath to examine the crime scene and oversee the investigation in preparation for the prosecution.[28] He represented the government at the preliminary hearings of the two main defendants, Timothy McVeigh and Terry Nichols.[28] Garland offered to lead the trial team, but could not because he was needed at the Justice Department headquarters. Instead, he helped pick the team and supervised it from Washington, where he was involved in major decisions, including the choice to seek the death penalty for McVeigh and Nichols.[28] Garland won praise for his work on the case from the Republican Governor of Oklahoma, Frank Keating.[5]

      Okay, based on his background, sure. Right.

      • Peterr says:

        Well as long as you’re quoting his wiki . . .

        While on the bench, Garland has shown a tendency to be deferential to the government in criminal cases, siding with prosecutors in ten of the fourteen criminal cases in which he disagreed with a colleague.[51] For example, in United States v. Watson (1999), Garland dissented when the court concluded a prosecutor’s closing argument was unduly prejudicial, objecting that a conviction should be reversed for only “the most egregious of these kind of errors.”[51] In 2007, Garland dissented when the en banc D.C. Circuit reversed the conviction of a Washington, D.C. police officer who had accepted bribes in an FBI sting operation.[52]

        • Rayne says:

          “While on the bench” being operative. Now he’s on the other side of the bench, and he’s going to be working with a more diverse team who will be highly conscious of the efforts to rein in abuses in policing by both state legislatures and Congress.

          I’m more concerned about his past wrt deregulation and antitrust, and whether he will encourage pursuit of antitrust regulation affecting Big Tech.

    • BobCon says:

      AGs rarely act on broad policy issues except in concert with the White House. Barr had a lot of autonomy due to the usual Trump chaos, but I think his policies are going to be a collaboration, and we’ll see how that goes.

      And as far as investigations and prosecutions, the post is right that Garland won’t be putting heavy hands on them.

  6. I Never Lie and am Always Right says:

    Like bmaz, I agree with this analysis. The proof is in the pudding, but the recipe looks really, really, good.

  7. TooLoose LeTruck says:

    Listening to some Republican blowhard rant on and on at the hearings…

    (I know this is off topic and it’s happening live, right now…)

    He’s the first one to speak… don’t know his name… and boy, is it embarrassing…

    You gotta love the big copy of the Declaration of Independence in the back ground…

    Now, we’re over in the Senate chamber and McConnell is BOMBING Trump’s claims…

    Ooops… McConnell just flipped his switch… now he’s lying thru his teeth…

  8. John Langston says:

    So long as the AG investigates and prosecutes the Trumpers criminally and civilly, I am all in. But this lawlessness has gone on too long. There shouldn’t be a political class that’s above the law. Trumpers have obstructed, colluded, extorted, and abused every lever of government and bald assed lied their way through it.

    National unity can’t be achieved by looking the other way just because it’s a messy business to keep lawless politicians accountable. Upholding the law isn’t an option, it’s an obligation. I just hope Merritt is up for it.

    • Robert Britton says:

      Can I give you an amen? AMEN. a BILLION TIMES AMEN.

      This is absolutely ridiculous. If Biden doesn’t reassert the and reaffirm our republic’s basis for rule of law, I don’t know if even with Biden in office that much will happen to counter act the damage done to America.

      I’m not looking for political witch hunts. I simply want those in power to be held accountable. Whether that be for the Obstruction of Justice as reported by Mueller on Trump and his associates, or to those who lied to Congress, those who perpetrated fraud (political, campaign or other).

      Enough of the “when they go low, we go high” bs. If we are a nation of laws, then it is beyond time that the law needs to apply to those in power. (Why is it considered going “low” to fight in a determined, focused, and courageous way for the Constitution and the Rule of Law? Enough with the strongly worded letters and “let’s heal the nation” platitudes. )

      If we are a nation of laws, then Justice needs to be restored, and that means holding anyone, especially those in charge of our Nation, responsible.

      I’m afraid, speaking as the village idiot and everyday Joe the Plumber with a two bit BS sheepskin from a chump college, that under the guise of “healing the nation”, so many of those who clearly broke the law will not be held to account. Whether that’s Trump, the Sackler Family, Perdue, Loeffler, or frankly any friggin democrat. Enough with the damn “admission of no wrong doing” and a fine type of settlements. NYS is really good at that. $$$ fines as a substitute for consequence/punishment.

      If a guy on the street can get busted for some petty crimes, or hauled off to the slammer for tax evasion/fraud, then so to do those in power.

      America will never recover from this if the justice isn’t restored. No witch hunts, no partisan ship. Simple indictments and prosecutions for ANY who have committed crimes.

      It frosts my cookies to think about the political criminals that are walking free. Manafort. Stone. Trump. Scooter Libby. And in my own district, Chris Collins. (couldn’t believe my neighbors voted in a criminally indicated man back into office.)Yes, those names are conservatives. Wish I could think of some D’s to add into the stink pile.

      Take away politics. Take away the decisions based upon power, and influence.

      Add in measured justice. Restore the rule of law as being applied to EVERYONE.

      Sorry for the rant. Just an idiot from NY who is pissed at the criminals in power getting away with the raping and pillaging and burning down of our country, government, and institutions.

      • Robert Britton says:

        Hey, what’s a litttle sedition, literally storming the Capitol and causing the VP to go to his bunker.

        Marshall Law on the way, as planned.

        Welcome to the Republic! A Nation of Laws and Law abiding citizens. Huzzah!

      • blueedredcounty says:

        You are right to be pissed off. Every single thing you are complaining about is unchecked corruption.

        It is way past time for a second set of Constitutional amendments, like the Bill of Rights, but for crushing the rampant corruption. And it is going to take Constitutional amendments because it needs to address the corruption of the political party system (unmentioned in the Constitution) and corruption in all three branches of government.

        • Rayne says:

          We don’t need Constitutional amendments for the corruption. We have laws already. What we need are elections which are free, fair, in which every vote counts so that we have elected officials who more closely represent their constituents and not dark money donors. If eligible voters believe their vote will be counted, they’ll turn out and elect folks like Raphael Warnock and Jon Ossoff instead of corrupt hacks like David Perdue (Kelly Loeffler was never elected).

        • vvv says:

          Didja mean, “Whether that’s Trump, the Sackler Family, Perdue, Loeffler, or frankly any friggin *Republican*.”?

      • Ginevra diBenci says:

        You want corrupt Dems? Take Rod Blagojovich–please! (My family lived in Chicago. We have Daleys, too. Illinois proves venality knows no party.)

  9. jdmckay says:

    I also think this makes it more likely that DOJ could investigate and prosecute Trump.

    AFAIC this is one of the most important million $$ questions. I’ve read many of the usual supsects opinions, ranging the whole gamut from “do not prosecute” citing “precedent” (I see Comey said this this morning) to prosecute (Gupta?). But now, with Trump having broken our Federal government and installing sabeteurs on his way out, I come down strongly on prosecuting Trump and a number of his bobblehead crooks.

    I find myself reflecting about some of Obama’s criticial decisions not to go after Bush right after he as innaugerated. Aside from all BushCo’s Iraq crimes, America is still suffering the affects of the “financial crisis”. These were crimes and fraud that nearly bankrupted the planet in spectacular fashion, and now over a decade later I know few people who have even a rudimentary understanding what happened, and how. Obama was elected with Bush’s approval #’s (as I recall) the lowest in history for a president. Bush’s entire administration was both asleep at the wheel wrt the very forseeable mortgage bond crash, but also empowering the crooks who pulled it off. Obama had a strong mandate, and could have been agressive in prosecutions, financial reform, explaining to US citizens how that happened, seizing worst offending complicit financial instituions… cleaning house, cut out the “rot”, and sending loud message this kind of extreme malfeasnce will be prosecuted severely. Several of his prominent advisors before he was elected wanted to take this aggressive action. Instead, Obama played it safe. Appointed Wall Street insiders to “fix” this, essentially flood inflationary TARP $$ ignore the crimes.

    As bad as that was, Trump and his minions crimes are far worse and far wider and deeper. I hope Garland authorizes going after these people, thoroughly. Jared’s $b UAE loan comes immediately to mind.

    I honestly don’t know if Trump should be in prison or an insane asylum.

    Right now watching a crowd of Trump protesters have broken into the Capital Hill (broke glass with practically know police/national guard to stop them).

    Wow. An awful lot to process.

    • readerOfTeaLeaves says:

      I’m wondering whether Garland won’t have his hands full defending cases about global warming related topics, and resource related cases. Better to leave some of these cases to the states.

      States are required by law to balance their budgets, and a lot of the casts of characters have screwed states out of tax revenue.

      In addition, the events of 1/6/2021 will surely register at some level to help policy makers grasp the elemental fact that any stable social system requires justice.

      ‘Cleaning out the rot’ needs to include dealing with Facebook, Fox, cable networks, social media, and rethinking antitrust, as well as media law.

      It sure looks like the FBI is going to need a lot more funding, as are forensic accountants.

  10. Fraud Guy says:

    Apparently one of Garland’s first tasks will be to prosecute hundreds of insurrectionists who are taking selfies of themselves in the Capitol.

  11. dude says:

    I think if Trump expected to get a pardon from Mike Pence upon leaving the White House, he’s not going to get one. He will have to self-pardon.

    CBS just read the Capitol Police alert to the Senators and Representatives which sounded like what the principal’s office issues to send middle-schoolers into lock down in an active shooter situation.

    • readerOfTeaLeaves says:

      I keep trying not to leave a comment about this very topic.

      Maybe the fear of having to go to work in a potentially dangerous place every day will register with a few more of these senators and representatives.

      The best possible outcome would be putting gun safety legislation as Job 1 of the new Biden Administration.

  12. Savage Librarian says:

    I’m relieved to hear Biden’s DOJ seems to be viable, with a potentially productive game plan. Hopefully, this team can find ways to deal with the problems expressed in this article:

    “Trump tapped into white victimhood – leaving fertile ground for white supremacists”- Lee Bebout, January 6, 2021
    “I teach about whiteness in the U.S. and am writing a book on the rhetoric of white entrenchment. I believe Trump and Trumpism tapped into a long-standing sense of aggrievement that often – but not exclusively – manifests as white victimhood.”
    “The danger isn’t simply a victimhood identity – it’s how victimhood can be deployed and weaponized. White power groups use this sense of victimhood to recruit and radicalize.”
    “In its most dangerous manifestations, the rhetoric of victimhood is used to excuse violence or rationalize murder. That’s evident in the cases of mass killers Elliot Rodger, Dylann Roof, Patrick Crusius or even Timothy McVeigh and the Oklahoma City bombing.”
    “Trump may recede from the limelight in coming months. But this politicized victimhood that existed long before him – a victimhood he powerfully tapped into and mobilized – will be fertile soil for white supremacy and political violence for generations to come.”


    • earlofhuntingdon says:

      Victimhood – whether invented or a distorted version of real grievance – is an essential element of fascism.

        • Ginevra diBenci says:

          Me too! SL, I’m writing about Berhard Goetz, the Central Park Five, and how Trump glommed onto Rudy Giuliani’s successful white-grievance campaign for mayor–the same campaign DJT pulled off in 2016 and just tried again with the old gang of Rudy and Stone. My fear: losing this election (and now the senate) will fuel the rhetoric of victimhood, feeding the paranoia Trump exploited and clearly does not control.

  13. d4v1d says:

    I think this is a strategic judicial move, to put someone young on the 9th circuit bench – which might explain Biden’s delay until after he knew he had the Senate to make this move.

  14. d4v1d says:

    I think this is a strategic judicial move, to put someone young on the 9th circuit bench – which might explain Biden’s delay until after he knew he had the Senate to make this move. So it’s a two-fer.

  15. Rugger9 says:

    I would prefer to be sure that Garland’s replacement on the DC Circuit is going to be confirmed as opposed to McConnell shutting things down. The 50-50 split helps, though.

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