The Incredible Shrinking Merrick Garland
By Jonathan Turley
Below is my column in USA Today on the diminishing role of Attorney General Merrick Garland at the Justice Department after a series of controversies. As a well-known moderate, many of us had hoped that Garland could be a unifying presence at the Department; assuring a divided nation that justice would be pursued in an even-handed and apolitical fashion. Yet, in controversy after controversy, Garland has failed to take modest steps to make such assurances. After well documented cases of bias and false statements by FBI and DOJ officials in past investigations, there was a clear need for greater transparency and independence in investigations. Garland has consistently swatted away such options. This week, Garland stayed on that path and refused to release any part of the affidavit used as the basis for the search of Mar-a-Lago. This included the possible issuance of a redacted copy or even responses to specific concerns over the timing or basis for the search. While Trump has called for the release of the affidavit, Garland will not even release those sections dealing with the account of the prior discussions and agreements with the Team Trump. There is little proactive effort to anticipate or address such concerns as vividly shown in the last week.
Here is the column:
In the cult classic, “The Incredible Shrinking Man,” the character Scott Stuart is caught in a thick fog that causes him to gradually shrink to the point that he lives in a doll house and fights off the house cat. At one point, Stuart delivers a strikingly profound line: “The unbelievably small and the unbelievably vast eventually meet — like the closing of a gigantic circle.”
If one image sums up the incredibly shrinking stature of Attorney General Merrick Garland, it is that line in the aftermath of the Mar-a-Lago search.
Two years ago, I was one of many who supported Garland when he was nominated for attorney general. While his personality seemed a better fit for the courts than the Cabinet, he is a person with unimpeachable integrity and ethics.
If there are now doubts, it is not about his character but his personality in dealing with political controversies. Those concerns have grown in the past week.
In the aftermath of the FBI’s search of former President Donald Trump’s home in Florida, much remains unclear. The inventory list confirms that there were documents marked TS (Top Secret) and SCI (Sensitive Compartmented Information) —two of the highest classification levels for materials. The former president’s retention of such documents would appear to be a very serious violation.
However, the status of the documents is uncertain after Trump insisted that he declassified the material and was handling the records in accordance with prior discussions with the FBI. While the declassified status of these documents would not bar charges under the cited criminal provisions, it could have a significant impact on the viability of any prosecution.
I have not assumed that the search of Mar-a-Lago was unwarranted given that we have not seen the underlying affidavit. Yet in another controversy, Garland seemed largely reactive and rote in dealing with questions over bias or abuse in his department.
In his confirmation hearing, Garland repeatedly pledged that political considerations would hold no sway with him as attorney general. Yet, in just two years, the Justice Department has careened from one political controversy to another without any sign that Garland is firmly in control of the department. Last year, for example, Garland was heavily criticized for his rapid deployment of a task force to investigate parents and others challenging school boards.
When Garland has faced clear demands for independent action, he has folded. For example, Garland has refused to appoint a special counsel in the investigation of Hunter Biden. But there is no way to investigate Hunter Biden without running over continual references to President Biden.
By refusing a special counsel, Garland has removed the president’s greatest threat. Unlike the U.S. Attorney investigating Hunter Biden, a special counsel would be expected to publish a report that would detail the scope of the Biden family’s alleged influence peddling and foreign contacts.
Likewise, the Justice Department is conducting a grand jury investigation that is aggressively pursuing Trump associates and Republican figures, including seizing the telephones of members of Congress. That investigation has bearing on the integrity and the status of Biden’s potential opponent in 2024.
The investigation also has triggered concerns over the party in power investigating the opposing political party. It is breathtaking that Garland would see no need for an independent or special counsel given this country’s continued deep divisions and mistrust.
Democrats often compare the January 6 investigation to Watergate but fail to note that the Watergate investigation was led by an independent counsel precisely because of these inherent political conflicts.
Then came the raid. While Garland said he personally approved the operation, he did little to help mitigate the inevitable political explosion. This country is a powder keg and the FBI has a documented history of false statements to courts and falsified evidence in support of a previous Trump investigation.
Yet, there was no prepared statement or response for days, which allowed speculation and rage to grow. When Garland did respond, he offered a boilerplate defense of the department and sought only the release of the warrant and inventory list.
If there was one occasion for total transparency, including the release of the FBI affidavit, this was that moment. Yet, Garland refused to act further. He declined to seek the release even as news media reported an array of leaks from the Justice Department, including the allegation that Trump took nuclear weapon secrets to Mar-a-Lago. As his department leaked like a sieve, Garland withheld the document that would set the record straight.
The Justice Department also reportedly refused to allow a special master to review the seized material after alleged attorney-client material was taken — a move that would have addressed concerns that the search was “pretextual” to seize January 6th evidence.
Despite this record, I do not view Garland as inherently political in contrast to predecessors like Eric Holder. Garland’s judicial temperament may be ill-suited to the demands of this office.
Garland sometimes looks more like a pedestrian than a driver on decisions in his own department. Top positions were given to figures denounced as far-left advocates on issues from defunding the police to racial justice. For the moderate Garland, these did not seem like natural choices. Neither did the department’s recent controversial move to effectively circumvent a Trump pardon to prosecute a Florida nursing home operator.
And Garland has not responded to new allegations of bias at the FBI and Justice involving the downplaying of evidence involving the Hunter Biden laptop controversy.
Concerns also have been raised about the decision to appoint the special agent in charge of the FBI’s Detroit office to lead the Washington, D.C., office. The agent, Steven M. D’Antuono, led the disastrous investigation of the alleged plot to kidnap Michigan Gov. Gretchen Whitmer. Many observers viewed that case as clear entrapment and abuse by the FBI. Given the importance of the January 6 investigation, it is baffling that the Department of Justice would make this controversial transfer at this time.
An attorney general should not be motivated by optics in his decisions, but he also cannot ignore optics when they undermine the integrity of his department. The search of Mar-a-Lago was a historic raid with sweeping political implications, including on the approaching midterm elections. Garland must have known that it would be viewed by many as an “insurance policy” taken out against a Trump presidential run.
Yet, with leaks coming out of his department undermining Trump’s claims, Garland merely offered “trust us we’re the government” assurances while resisting the release of the affidavit.
When Scott Stuart faced his diminished stature, he asked, “I was continuing to shrink, to become… what? The infinitesimal? What was I?” That is a debilitating question for any person, but it is disastrous in an attorney general.
It is not that Merrick Garland is absent but that his presence often seems immaterial.
(TLB) published this article from Jonathan Turley with our appreciation for this perspective.
Header featured image (edited) credit: Garland/orginal Turley article
Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.
After a stint at Tulane Law School, Professor Turley joined the George Washington faculty in 1990 and, in 1998, was given the prestigious Shapiro Chair for Public Interest Law, the youngest chaired professor in the school’s history. In addition to his extensive publications, Professor Turley has served as counsel in some of the most notable cases in the last two decades including the representation of whistleblowers, military personnel, judges, members of Congress, and a wide range of other clients.
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