What can law enforcement expect from U.S. Attorney General Merrick Garland?
Before Garland was Biden’s nominee for Attorney General, he was Obama’s nominee for the U.S. Supreme Court
Whether by tradition or sincerity Department of Justice employees applauded newly appointed U.S. Attorney General Merrick Garland as he strode into his office at the Robert F. Kennedy DOJ building. Will law enforcement leaders be joining in that applause? Police leaders have reason to be wary, given the overtones of the Biden administration’s intent to dig into local law enforcement matters and the legacy of the Obama era’s unfriendly stance on police.
Obama’s nominee for the U.S. Supreme Court
Before Merrick Garland was Biden’s nominee for Attorney General, he was Obama’s nominee for the U.S. Supreme Court. Garland’s credentials for that nomination were considered substantial and his record thought to be moderate enough to satisfy many republicans.
But timing is everything and the March 2016 nomination to replace stalwart conservative Justice Scalia never came to a vote. Senate Majority Leader Mitch McConnell declared that no nomination would be considered until after the upcoming presidential election, in which he hoped Donald Trump to be the victor. Trump moved to nominate Gorsuch who was then appointed to the vacancy.
McConnell voted to confirm Garland as Attorney General on Wednesday, March 10 where the vote to approve was 70-30.
Oversaw the prosecution of Timothy McVeigh
Garland begin his DOJ career under Jimmy Carter. As a federal prosecutor, he oversaw the Timothy McVeigh case in which McVeigh was found guilty and was executed for the 1995 bombing of the federal building in Oklahoma City, Oklahoma that killed 168 and wounded nearly 700.
He also led the investigations of the 1996 Olympics bombing in Atlanta and the Unabomber, Ted Kaczynski. Garland went on to serve as an appeals court judge in the influential DC federal district court.
Critics of Garland’s label by liberals as a centrist and moderate point to the lack of truly controversial issues that the DC appeals court deals with. Planted in the regulatory morass of the Capitol, hot button issues that define liberal, conservative, and left- or right-wing extremism are rare. That may be one of the reasons judges from the DC court, where core views are rarely exposed, are frequent Supreme Court nominees.
Priorities for the new AG
Priorities for the new AG include the investigation of the January 6th assault on the US Capitol building, ensuring the independence of the DOJ and equality of enforcement under the rule of law.
In his first formal address, Garland made reference to the changes at the DOJ after the politicization of the Nixon administration and a “return” to norms, alluding to the rumbles in the previous administration.
"I will do everything in my power, which I believe is considerable, to fend off any effort by anyone to make prosecutions or investigations partisan or political in any way," Garland said in his nomination hearing.
Garland faces potential political pressure in investigations of Trump ally Rudy Giuliani, whose career as a federal prosecutor ended about the same time that Garland entered a similar role. Hunter Biden, the President’s son, will also be the subject of an ongoing investigation. Both are accused of entanglements with Ukraine, and both cases have the explosive potential for political intrigue.
With increasing sentiment against the death penalty, Garland has stated that he has concerns about its application, did not regret the execution of McVeigh and had not committed to recommending presidential commutations of all federal death row inmates.
Garland seemed to be neutral about continuing the “Russia probe” but expressed concern about potential abuses of FISA, the secret warrant process authorized in 1978 and expanded after the World Trade Center terror attack.
Gun control, immigration
As a barometer of the new AG’s moderate credentials, Judge Garland’s rulings while on the federal bench generally found agreement with Bush-appointed Supreme Court Chief Justice John Roberts. One area of variance is gun control where Roberts has often been accused of being frustratingly quiet, but Garland has expressed that there is room for more federal gun control legislation including the banning of some types of guns.
In hearings, Garland said, “The president is a strong supporter of gun control and has been an advocate all of his life, professional life, on this question. The role of the Justice Department is to advance the policy program of the administration as long as it is consistent with the law” and wasn’t sure if the Constitution allows people to carry loaded guns in public.
The new AG also parroted the Biden administration’s stance on immigration, decrying Trump’s zero-tolerance policies and family separation. Given the major influx of unattended minors and reported gang affiliates crossing the border since Biden took office, the evolution of immigration policy and its enforcement by Garland will be interesting to watch.
“Police the police”
Garland also said during confirmation hearings that he was not a supporter of defunding the police but did intend to “police the police” and was a supporter of other agencies responding to persons experiencing mental health crisis rather than law enforcement.
He indicated, as expected by any informed observer, that there will be an increase in civil rights investigations of police agencies suspected of having a “pattern and practice” of policing in ways that violate Constitutional principles. These investigations seldom get to a level of open examination and result in the capitulation of agencies in the form of consent degrees resulting in years of expensive federal oversight.
One thing hasn’t changed regardless of who is in the White House – police policymakers, managers and line operators all have reason to watch the trends in the Department of Justice.
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Justice Barrett is protective of privacy rights and has authored two 7th Circuit opinions wherein she held for the defendant in search and seizure cases