Merrick Garland's 'Pit and the Pendulum' Problem
During Merrick Garland’s confirmation hearing opening statement, he spoke of “reaffirm[ing] that the role of the Attorney General is to serve the Rule of Law.” Similarly, Joe Biden spoke the need for the attorney general and the Justice Department to be independent from the president, arguing that President Trump had “treated the attorney general as his personal lawyer and the Department as his personal law firm.” Merrick Garland’s attempts to revitalize the tradition of an independent and apolitical DOJ will have the added burden of two highly politicized criminal cases.
Most Americans know Garland as former President Obama’s failed Supreme Court nominee. Prior to that, Garland’s career has been a successful navigation through the waters of partisanship. He worked briefly in the private sector before working as a federal prosecutor in George H.W. Bush’s administration. He would later serve in the Justice Department, where he worked to bring both Ted Kaczynski and Timothy McVeigh to justice. His work earned him bipartisan support during his nomination to the D.C. Circuit court. He earned the praise of both Chief Justice John Roberts and former chairman of the judiciary committee Orin Hatch. According to Yale law professor Akhil Amar, “he has a reputation for being a judge’s judge rather than a liberal’s liberal.”
However, Merrick Garland’s present task will earn him little praise; especially if done correctly. With both Presidents Trump and Biden facing personal legal accusations, his decisions will almost certainly be under a hot spotlight.
Multiple members of the Republican Judiciary Committee, including Senators Grassley and Cruz questioned Justice Garland on how he would handle the investigation in Hunter Biden for business dealings in both China and Ukraine. While former Attorney General William Barr worked hard to avoid the public nature of the allegations influencing the election, the case remains open and highly politicized.
Simultaneously, President Trump faces a plethora of legal challenges. Although the case of Brandenburg v. Ohio established a high bar for criminality regarding speech that incites violence — a bar that Trump’s words do not meet — prosecution of the political actors responsible for the events of January 6th remains a likely and necessary goal for the new administration. Merrick Garland wasted no time in speaking to his plans to bring these actors to justice, vowing to “supervise the prosecution of white supremacists and others who stormed the capitol building on Jan. 6th.”
Not only will Garland’s DOJ have an obligation to look into groups that planned the attack, such as the Proud Boys and QAnon supporters, they will also investigate Republican 501(c)(4) organizations that may have had a hand in the insurrection, as well. This, coupled with what was a highly contentious impeachment trial, could give the impression of a witch hunt if not handled deftly.
While the Hunter Biden and insurrection cases are not comparable in severity, both present a similar problem for Garland. They are straightforward cases, made complicated by political factors. Any action taken by Garland will face criticism. The lawful prosecution of those responsible for the attack, should it point to Republican donors in advance of the midterm election, will be tarred as McCarthyism. Similarly, any prosecution of Hunter Biden will be viewed as a traitorous affront to the Democrats’ political agenda. Conversely, failure to prosecute either case will be seen as toxic political insiderism. Already Biden has faced heat for the appointment of Nicholas McQuaid, a friend and former co-worker of Hunter Biden’s defense attorney, as acting chief of the criminal division within the DOJ. The moment Garland steps into office, he will be faced with similar scrutiny. It is the classic Pit and the Pendulum problem. Even a careful, moderate approach will be viewed as weak-willed.
There is, however, a way out: Garland must recuse himself of both cases. A man of high integrity, surely he knows the political nature of the position he seeks deems any decision uniquely subject to allegations of conspiracy. Appointing two Special Counsels is within his power, as both cases meet the federal regulatory requirements for such appointments. Special Counsels will see that both cases are tried fairly and without political interference — or its appearance. This is the best way for him to effectively lead the DOJ without political backlash or accusations of impropriety.
Jack Rowing is a politics major at the Catholic University of America.
