Biden's attorney general wanted to return to normal order; it wasn't easy

The day after rioters ransacked the U.S. Capitol and disrupted the peaceful transfer of power, the new president-elect announced his decision to lead the Justice Department.

At this press conference on January 7, 2021, Joe Biden described Merrick Garland as a man who embodies character and decency. He promised that Garland would be an advocate for the people, not the president. And he said Garland would help restore the DOJ's independence from the White House.

Now, more than three years later, the way Garland drew the line between politics and law has somehow alienated Biden, former President Donald Trump and many of their supporters. That violent siege of the Capitol on Jan. 6 — and the people responsible for it — will help define Garland's tenure in what may have been his final act of sustained public service.

“He really is the consummate institutionalist,” said Alex Aronson, a former Justice Department lawyer and Democratic Senate aide. “I think he began his term as attorney general with the good intention of preserving those institutionalist values.”

But Aronson, now executive director of the advocacy group Court Accountability, said Trump and his supporters pose a persistent threat to democracy — one that Biden and Garland misunderstood at this historic moment.

“Like a lot of leading Democrats, establishment Democrats, he's kind of tried to wave a magic wand and bring back those pre-Trump norms — and that's just not a realistic approach after what happened during Trump,” Aronson said. “And that’s not how norms work.”

Commitment to the public

Garland entered a Justice Department that had endured harsh criticism from the former president.

As president, Trump fired the FBI director, mocked career officials for investigating his campaign's contacts with Russia, called for investigations into his political rivals and threatened to replace him Attorney General with a subordinate who made false claims of election fraud.

“After Donald Trump's attorneys general were criticized for their pro-Trump bias … it was important to the legitimacy of the Justice Department that President Biden appoint a leader who was viewed as above reproach,” said Paul Butler, a law professor at the Georgetown University, who began prosecuting public corruption cases at the DOJ.

Melissa Murray, a law professor at New York University, said she often joked about it The attorney general had been a “duty defender” of the president during the Trump years. Not so under Garland, she added.

“I've heard a lot of people complain that the problem with Merrick Garland is that he's too thoughtful and too sensible,” Murray said. “Well, you know, he was a judge. That's what they do. He was appointed to this role for a reason and was given the mandate and direction to create a clear separation between office and presidency. I think he did.”

Biden and his team chose Garland, a respected federal appeals court judge with a 40-year track record, precisely because of his distance from politics. In his early years as attorney general, Garland wrote down his own answers to nitpicking follow-up questions from Congress and spent days preparing for oversight hearings.

Peter Keisler is a longtime appellate attorney who once served as acting attorney general during the George W. Bush years. He said Garland was the perfect person for him because of his wisdom, judgment and commitment to the public good.

“Every attorney general will be asked to make some very difficult decisions on some very controversial issues,” Keisler said. “It’s the nature of the job.”

Politically explosive cases

But the sheer number of legal issues that landed on Garland's desk is remarkable.

Start with the largest federal criminal investigation in history: approximately 1,500 cases against the Rioters who stormed the Capitol and extremists who carried out seditious plots to prevent the peaceful transfer of power.

Then the Justice Department launched an investigation into President Biden after aides found classified documents in his academic office. Garland appointed a special counsel who ultimately concluded he would not accuse Biden of wrongdoing, in part because of his age and faulty memory.

Another special prosecutor, a holdover from the Trump administration, charged Biden's son Hunter with gun and tax crimes.

A third special investigator ultimately pursued two historic charges against Donald Trump: the First, for allegedly hoarding classified documents at his Florida resort, and second, for trying to cling to power in 2020 after losing to Biden.

These cases against Trump mark the first time a former president has been charged with federal crimes, although conservative courts later narrowed and limited the cases against him.

Methodological pace criticized

None of the cases against the former president will be heard before the November election – even though the attorney general once said the Jan. 6 investigation was “the most urgent investigation in the history of the Justice Department.”

That investigation progressed, with public action largely coming from officers on the ground rather than supervisors — until Garland decided to appoint a special counsel in November 2022.

This methodical pace sparked scathing criticism.

Tim Heaphy served as senior investigative adviser to the House special committee investigating Trump's efforts to stay in power.

“There were several fairly important witnesses or witnesses who turned out to be really central to our investigation who had not been interviewed prior to our contact,” said Heaphy, a partner at Willkie Farr & Gallagher.

But Chuck Rosenberg, a former U.S. attorney who has advised two different attorneys general over the years, defended the Justice Department's approach.

He said the burden of proof is much higher for prosecutors than for lawmakers.

“The fact that the DOJ is working more slowly is both important and necessary — and not at all surprising,” Rosenberg said.

Keisler, the appeals attorney, agreed, saying investigators need to take time to look for possible financial ties between militia groups and the militia People in Trump's inner circle, even if these allegations did not result in charges.

“It is Once all the work is done, it’s easy to say that it could and should have been done faster by not wasting time tracking down things that didn’t work out,” Keisler said. “But you can't know what you'll find and what you won't find unless you first conduct a thorough investigation.”

Supreme Court calculations

In the end, the conservative Supreme Court waited months to review the Jan. 6 case against Trump this year — and then granted him broad immunity from prosecution in July.

The conservative supermajority rejected in its entirety part of the indictment accusing Trump of abusing the Justice Department to advance a false election fraud scheme, underscoring how much power future presidents wield over the Justice Department and its people.

If this election interference case against Trump survives the election, he may not go to trial until 2026.

Kristy Parker argued civil rights cases at the DOJ for 19 years. Parker, Now special counsel for the nonpartisan advocacy group Protect Democracy, he said people may be asking too much of the justice system and the Justice Department.

“You know, we can't rely on criminal investigations and law enforcement to do more than what they do, which is to demand accountability for certain violations of the law,” Parker said. “You can’t rely on them to address larger policy issues.”

Protection from politics

As for Merrick Garland, his time in government may be coming to an end. There's no real indication yet whether a new Democratic president would want to keep him in office, at least for a while, because it may be difficult to confirm a new attorney general or because there are already extensive cases pending.

Most of the time he lets his work speak for itself and rarely incorporates the public speaking aspect of his job. But this month he made an exception when he gave a major speech about protecting Justice Department investigations from political interference.

Garland's voice broke with emotion as he defended the department and its people.

“Our norms are a promise that we will not allow this department be used as a political weapon. And our standards are a promise that we will not allow this nation to become a country where law enforcement is treated like a political machine,” he said to applause from the standing-room-only crowd.

It is now up to voters to decide whether to return former President Trump to the White House and what happens to those basic norms that Garland embraced.