The Attorney General and the Oversight Hearing

On Wednesday, Attorney General Merrick Garland testifies before the Senate Judiciary Committee in an oversight hearing. The Senate’s website describes the process this way: “Congress has historically engaged in oversight of the executive branch—specifically the review, monitoring, and supervision of the implementation of legislation. Oversight hearings are one technique a committee can use in this evaluation.” Don’t expect much, if any, of that sort of high-level discussion, designed to promote good and effective governance, when the AG is seated at the witness table tomorrow morning. Instead, prepare for an exhausting political circus, which you can watch on C-SPAN.

It’s worth noting that oversight hearings used to be the norm for attorneys general. During the Obama administration, they were held routinely by both the House and Senate Judiciary Committees. Eric Holder continued to show up, even after he became the first Cabinet Secretary ever to be held in contempt. That happened in the House in 2012, when the Committee’s Republican leadership was angered that DOJ had turned over a mere 7,600 pages of documents and sent witnesses to testify at only 11 congressional hearings about the Fast and Furious gun investigation. Holder had the last word, telling Rep. Louie Gohmert (R-Tx), “Good luck with your asparagus,” following contentious questioning, a reference to an earlier hearing where Holder had criticized Gohmert’s claim that DOJ failed to prevent the Boston Marathon bombing and Gohmert incoherently responded, “The attorney general will not cast aspersions on my asparagus.”

But Senate oversight hearings for DOJ ended abruptly during the Trump administration. When Senator Dick Durbin, now the chairman, convened one for DOJ in 2021, it was the first the Senate Judiciary Committee had held since 2017. During the Trump administration, attorneys general simply declined to show up in the Republican-controlled Senate. When it came to the House, Bill Barr put the Judiciary Committee off for more than a year before finally deigning to appear in July 2020.

With oversight hearings restored, enter Garland, who Republican member of the committee Ted Cruz said should be impeached, in September 2022 on Twitter.

Cruz said it again on his podcast in October 2022 after Steve Bannon was convicted by a jury and sentenced to four months in prison. Also on Twitter that month. And again, on conservative talk radio host Charlie Kirk’s show in late January 2023, where he said, “I think Garland should be impeached because he’s been the most political attorney general in history, and he’s undermined the integrity of law enforcement.” In other words, we know what to expect from Republicans when Garland testifies.

This oversight hearing comes on the heels of the House Weaponization Select Subcommittee’s lackluster first session. And it will overlap with the annual Conservative Political Action Coalition (CPAC) meeting, which begins on Wednesday as well, at a Maryland resort. Trump will speak at that meeting on Saturday. Expect these political bookends for Garland’s oversight hearing to compel MAGA Republicans to serve up even more red meat than usual to keep their base happy and fed in Wednesday’s hearing.

This hearing will be Republican committee members’ first chance to question Garland about the FBI’s search of Mar-a-Lago, where a federal magistrate judge signed off on the search warrant. Garland, of course, will not comment on substantive matters about the investigation. That’s the same position he’ll take if questioned about any other ongoing cases or investigations by members of either party, including the January 6 cases. It will also be the first opportunity members will have to question Garland about his appointment of a special counsel in the Biden classified documents case, where we can expect the Attorney General to be similarly unforthcoming about the substance of the investigation. Republicans will likely air grievances that Trump was subjected to a search and a criminal investigation, while Biden (and of course Pence) haven’t been. They’ll do that while neglecting to acknowledge Trump’s lengthy history of refusing to return classified documents and lying about having returned them all to such an extent that a neutral judge found probable cause to believe evidence of a crime would be recovered at Trump’s Florida residence. Drink every time a Republican Senator says “witch hunt” or mentions the President’s son, Hunter Biden. It’s going to be a long day.

But it’s incredibly important and appropriate for the Attorney General to show up. That’s the job. The Constitution gives Congress the ability to engage in oversight of the executive branch, and even when some members stoop to aggressive, annoying, and disingenuous tactics, it’s the Attorney General’s job to be there and answer the questions he can so that Congress can do its job and the American people can hear from him. Garland’s appearance tomorrow breathes more life into the rule of law.

We can expect to hear him speak, to the extent he has the opportunity, about his pride in the accomplishment of agents and prosecutors at the Justice Department. (DOJ includes not only lawyers in Main Justice and at the 94 U.S. Attorneys’ offices across the country, but four law enforcement agencies—FBI, DEA, ATF, and the U.S. Marshals Service—as well as a number of specialized units.) This has been a theme for Garland throughout his tenure. He has consistently sought to restore morale by pointing to the career people’s accomplishments, despite the challenges they have faced.

Garland likely won’t be asked much about the questions he would most like to answer—the core accomplishments of the Department under his leadership. Of course, for many people, nothing else matters if he cannot hold Trump accountable. Overseeing the investigation that will determine whether the former president will be charged in connection with the election and the insurrection that followed is Garland’s singular duty and most important work. It’s work we can’t yet assess whether he will succeed at—we won’t know until his time in office comes to an end and we can see the full scope of what he accomplishes, or not, in this regard.

Although it doesn’t always feel like it, there is other important work happening on Garland’s watch.

On Tuesday, the Civil Rights Division announced that it had settled yet another case as part of its national redlining initiative. Redlining is an illegal practice some mortgage lenders engage in to avoid providing services to people living in communities of color. The long and well-documented history of denying Black and brown people the credit they need to buy homes, when it is available to similarly situated white people, has had a generational impact on the ability of those families to buy homes and build wealth. Tuesday’s settlement required Park National Bank to acknowledge it had engaged in a pattern or practice of lending discrimination by redlining in the Columbus, Ohio, metropolitan area and, according to the settlement agreement:

• Invest at least $7.75 million in a loan subsidy fund to increase access to credit for home mortgage, improvement, and refinance loans, as well as home equity loans and lines of credit, in majority-Black and Hispanic neighborhoods in the Columbus area; $750,000 in outreach, advertising, consumer financial education, and credit counseling initiatives; and $500,000 in developing community partnerships to provide services to residents of majority-Black and Hispanic areas that expand access to residential mortgage credit;

• Open one new branch and one new mortgage loan production office in majority Black-and Hispanic neighborhoods in the Columbus area; ensure that a minimum of four mortgage lenders, at least one of whom is Spanish-speaking, are assigned to serve these neighborhoods; and maintain the full-time position of Director of Community Home Lending and Development, who is responsible for overseeing lending in majority-Black and Hispanic areas; and

• Conduct a Community Credit Needs Assessment, a research-based market study, to help identify the need for financial services in majority-Black and Hispanic census tracts in the Columbus area.

Those are very real accomplishments. And it’s not all that the Civil Rights Division has done in this area. There have been six redlining cases and settlements, securing $84 million in relief for communities of color that have been victims of lending discrimination across the country since the work began in October 2021. That includes a $31 million settlement with City National Bank in Los Angeles County, the largest in this area in DOJ’s history.

This quiet stretch of successful cases by the Civil Rights Division represents an enormous amount of difficult, diligent, but largely unheralded work. It will lead to meaningful improvements in the lives of a large number of people in this and future generations. Protecting people’s rights is why we have a system of government like ours in the first place. It’s good to see it working. The redlining initiative is no small accomplishment, and it is by no means the only work being done in the Civil Rights Division or the larger Justice Department at the moment.

But don’t expect to hear much about any of that tomorrow. Tomorrow is supposed to be about oversight. But it’s unlikely that’s what Republicans will be there for. So listen carefully as Garland discusses the real work the Department is doing. Some of it will be January 6 related, but much of it will not be. We want DOJ to hold those who are most responsible, all of them, accountable for what they have put the country through. We want to make sure they can never do it again. But there is also good news about other work, especially in the area of civil rights. It’s up to us to see that and to spread that word. Even as we worry about whether the country will be able to fully recover from the insurrection and whether our criminal justice system is capable of delivering justice in that regard, we can draw encouragement from successes in other areas where justice has been elusive and difficult to obtain, but is now coming to fruition.

We’re in this together,

Joyce