About Merrick Garland

“The American people must protect each other.” That’s what Attorney General Merrick Garland said on 60 Minutes Sunday night. He choked up saying it, perhaps because it’s so out of reach these days, or perhaps because he has relatives who died in the Holocaust simply because they were Jews and that’s an integral part of who he is. Let’s not fault anyone who’s emotional on occasion about the fate of our country—we should all be at this point.

Other important things happened in Merrick Garland’s wide ranging interview. Although it’s easy to set him aside as the Attorney General who was too slow to act when it came to Trump, we now know that it’s complicated. Garland walked a careful balance on a knife’s edge and only history will be able to assess whether he got it right. But there is much to like about his commitment to democracy and his willingness to give the type of interview few attorneys general do—it’s easier, given the nature of the work, to stay cloistered on Pennsylvania Avenue, giving talks only at carefully chosen venues. This interview was an effort to reach out beyond that and to speak to people who might not otherwise hear from him.

Asked about his objective as Attorney General, Garland said it was to “pass our democracy on, in working order, to the next generation.” That would have been mere pleasantry from any of his predecessors. For Garland, it’s serious business, and it’s important to hear him say it out loud.

Joe Biden’s Attorney General was always going to be in a tight spot, no matter who he chose for the job. The weightiest of choices, whether to indict a former president, was always going to rest on their shoulders. And that decision was going to be made in the context of a Justice Department that had lost much of its credibility with the public despite the diligence of its employees, due in no small part to the deliberate efforts of Donald Trump to undermine the country’s confidence in the Department.

Merrick Garland has been the subject of more criticism and outright disapproval by members of the party that appointed him than any other attorney general, at least since Watergate. And of course, he’s been the subject of criticism and abusive and sometimes dog-whistling antisemitic commentary from the other side. He has been careful to stay above the fray, in and of itself laudable conduct for someone in this moment and has repeatedly made the point, which he reaffirmed in the interview, that he doesn’t work for the president or the Congress. He works for the people—that’s the quintessential role of the attorney general; they are the people’s lawyer. History will have to answer the question of whether Garland got it right or not, but Sunday evening’s interview did some important work, if we are, in fact, going to pass on a functioning democracy.

DOJ is not the most transparent of agencies, often frustratingly so for the public. Garland explained something attorneys general and other DOJ employees sometimes hint at or discuss in shorthand, but he went further, laying out all of the reasons DOJ does not talk about ongoing investigations: “One reason is to protect the privacy and the civil liberties of the person who's under investigation. It's to protect witnesses who also may or may not become public later in an investigation. And then finally, it's to protect the investigation itself. Investigations proceed in many different directions, eventually coming to a fruition, a decision to charge or not charge about a particular thing or not. And if witnesses and potential subjects knew everything that the investigators had previously looked at and were about to look at, it could well change testimony. It could well make witnesses unavailable to us.” Garland explained that, far from being the rule just for Trump, it was the rule for all cases: “This is the rule for all investigations. This is part of what we call our Justice manual. It's been there for probably at least 30 years and probably longer than that.”

60 Minutes is a good venue for that conversation, because it attracts all sorts of viewers, including conservatives who may not veer away from Fox or still more partisan sources of news for much else. Whether Garland’s words sink in is another matter, but if nothing else, he certainly planted seeds as we head into the season of criminal proceedings against the former president.

Garland underlined, in the following exchange, a commitment to Americans that the Justice Department, under his leadership, was not a political arm of the White House:

***

Scott Pelley: You are not in communication with the president or any member of his administration with regard to the investigation of Former President Trump?

Merrick Garland: No, I am not.

Scott Pelley: If President Biden asked you to take action with regard to the Trump investigation, what would your reaction be?

Merrick Garland: I am sure that that will not happen, but I would not do anything in that regard. And if necessary, I would resign. But there is no sense that anything like that will happen.

Scott Pelley: Have you ever had to tell him, "Hands off these investigations, Mr. President"?

Merrick Garland: No, because he has never tried to put hands on these investigations.

***

The mystery of Merrick Garland’s tenure is why he didn’t appear to be eager to jump in and investigate the former president following January 6. We don’t yet know the answer to that. Was there always investigation beneath the surface that the public was unaware of? Did he believe the evidence wasn’t there? It’s hard to reach that conclusion without investigating. Was he concerned that doing that would rip the country apart? Was he operating with a well-meaning but misplaced belief that Trump would slink off into the dust bins of history after leaving the White House? Or was he a pragmatist who believed that, however well-merited, prosecuting the current president’s former political opponent was a slippery slope towards the end of democracy? We just don’t know.

But for his first year as the nation’s top law enforcement leader, Garland seemed resistant to holding Trump accountable. There were none of the signs of an early investigation—no leaks of grand jury subpoenas, no protesting witnesses moving to quash. No significant searches or seizures that emerged as part of a pattern trending towards Trump. Although it’s possible there was quiet investigation in the background, there were no signs of it. By all accounts, it wasn’t until late 2021, as the January 6 committee hearings were being set in motion, that someone or something lit a fire under the Justice Department and signs of investigation surfaced.

Something shook loose in January of 2022. Without ever naming Trump, Garland signaled what seemed to be a sea change, in a speech the day before the first anniversary of January 6: “The actions we have taken thus far will not be our last. The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” He continued, “we will follow the facts wherever they lead.”

Until then, the Department had focused its efforts on the important work of holding people who overran the Capitol on January 6 accountable. But of course, that was never going to be enough without holding those most responsible accountable. That’s DOJ’s job. After the speech, the logjam seemed to break. Suddenly there were signs of investigation regarding Trump’s election interference on what we now know was the same timeline that DOJ was beginning to realize that the former guy had a problem with classified documents. Whatever the cause, Garland’s views seemed to have evolved. That evolution seems to have remained consistent, despite the unexpected classified documents case, which led to the discovery of classified documents in Joe Biden’s possession as well, necessitating the appointment of two special counsels.

I had not always been a fan of the Attorney General’s approach to Trump and insurrection before the January 2022 speech. But I believed what he said in it, that he was committed to following the facts wherever they led. I wrote about it at the time as a watershed moment, and personally, began to sleep a little easier. Merrick Garland is a moderate, and that has become something of a dirty word in our era. But moderation and deliberation are important traits in an attorney general, they must balance against the ticking of the clock as the 2024 election grows nearer.

The loss of that first year is still deeply troubling as we see trial dates bumping up against the 2024 election. We do no know Merrick Garland’s side of the story for why that happened—as he explained, that sort of conversation about ongoing cases is something DOJ doesn’t do. That’s difficult here, but ultimately, you cannot break the rules of democracy to save it. That’s always been the challenge of Trump; how do you continue to play by the rules when dealing with someone who absolutely does not, someone who is willing to blow things up to get his way. That is the ultimate challenge of the times, preventing Trump from pushing us to the point where we destroy it for him. And so, patience and deliberation—and a strong, consistent commitment to the principles of the rule of law and democracy—are necessary if we’re going to end up where we want to be.

Ultimately, Merrick Garland appointed a special counsel who has proven quick to wrap up his investigation and make decisions about whether and what to indict. Jack Smith is also fierce in the courtroom, as his commitment to treat “Mr. Trump” as much like any other defendant as possible becomes increasingly apparent.

It must be frustrating for an attorney general to be forced to be “hands off,” as Garland repeatedly said he was in special counsel investigations, with both the former president and the current president’s son under indictment by federal prosecutors. It may ultimately be Garland’s restraint and good judgment on ethical issues, while permitting others free of his political conflicts to handle the most important prosecutions of the day, that assures he can do his part in passing on democracy to the next generation. It is easy to second guess. Something I learned while working at DOJ is that often the public sees just the tip of the iceberg, making it easy to make negative assessments about how investigations are being handled without being privy to the entire picture.

Today, Trump, who appeared for the first day of court proceedings in the New York civil fraud case against him, ordered out for McDonalds for the trial team for lunch. Sounds like everyone got McDonalds, whether they wanted it or not, since the order ran to six large bags of food. Everyone has to eat during trial, and it’s convenient to bring food in at lunchtime, but it’s the measure of the man. Nero may have fiddled while Rome burned, but Trump is eating fast food burgers as his Rome goes up in flames. What happens when the flame goes out and the empire is at an end? Will Trump lash out? Try to steal another election? Both?

As much as Merrick Garland has been criticized for being steady, deliberate and patient, we may well find, as we head into the maelstrom, that we are fortunate to have someone at the helm of the Justice Department whose North Star is passing democracy on, intact, to the next generation.

I suspect that’s a controversial view, and not without critics. Part of the problem is that we do not know and cannot know all of the thinking that goes on inside of DOJ. We are left to speculate, and that of course is imperfect, leading to much confusion. Garland, in essence, is asking Americans to trust him and the Department he leads, without explaining why it is safe to do so, given what we’ve lived through in recent history.

But encouraging Americans to protect each other is a good start. Garland also said: “People can argue with each other as much as they want and as vociferously as they want. But the one thing they may not do is use violence and threats of violence to alter the outcome. An important aspect of this is the American people themselves. American people must protect each other. They must ensure that they treat each other with civility and kindness, listen to opposing views, argue as vociferously as they want, but refrain from violence and threats of violence. That's the only way this democracy will survive.”

Of course, the one person who needs to hear that the most seems incapable of listening. But Garland’s quiet persistence may well prove to be exactly what the moment demands to get us where we need to be, in time, nonetheless.

We’re in this together,

Joyce