Merrick Garland addresses Justice Department staff on his first day as Attorney General.Photograph by Kevin Dietsch / Getty
In his inaugural address to Justice Department employees last week, Attorney General Merrick Garland chose to only mention one of his predecessors. Skipping Bobby Kennedy, William Barr and other attorneys general whose terms have made headlines, Garland singled out Edward Levi, whom President Gerald Ford had chosen as the country’s chief law enforcement officer, immediately after Watergate . Levi was a conservative jurist and president of the University of Chicago, which was famous for his probity and impartiality. Fords ‘goal in the appointment was to restore public confidence in the idea that federal officials would apply the law equally, not abuse it for political gain, as Nixons’ allies had done. The only way to succeed and maintain the confidence of the American people is to adhere to the standards that have been part of the DNA of every DOJ employee since Edward Levis became the first post-Watergate Attorney General, a Garland said. These standards require that similar cases be treated in the same way. Let there not be one rule for Democrats and another for Republicans, one rule for friends and another for enemies, one rule for the powerful and another for the powerless, a rule for the rich and another for the poor, or different rules depending on one race or ethnic origin.
Levis standards are, without a doubt, the standard that should be met by every attorney general in the United States, but the political landscape and nation that Garland inherits is very different from what Levi faced nearly fifty years. On Wednesday, the intelligence community released a report warning that the threat of domestic violent extremism was increasing. Partisanship is at its highest level in decades. Public confidence in institutions, from Congress to the courts, is at near an all-time high. Republicans and Democrats increasingly get their information from wired and online news ecosystems that portray opposing realities. This division peaked during the Jan.6 uprising on Capitol Hill, which left five dead after an attempt to prevent Congress from certifying the results of last year’s election, and during the second indictment by Donald Trumps for his role in inciting violence. In a recent poll, eighty-one percent of Democrats said Trump was primarily responsible for the violence and destruction. In a separate poll, 58% of Trump voters said the attack was primarily inspired by Antifa.
In the weeks following the acquittal of the former president by the Senate in his second impeachment trial, efforts by Congress to create a non-partisan 9/11 Commission-style inquiry to investigate the riot were transformed. in partisan bickering. The first congressional hearings on the attack were also. Legal experts including Stephen Gillers, professor of legal ethics at New York University School of Law, say the ongoing federal criminal investigation that led to the arrest of more than three hundred more people of forty states and which Garland now controls is probably the best way to determine the extent to which Trump and his associates were involved in fomenting the siege. The public understands that if the same clues existed for someone else, they would be investigated, Gillers told me. Garland is expected to approach January 6 with the same vigor that was used with crime bosses, drug dealers, September 11, and the Oklahoma City bombing. It should not be prohibited. Start with the insurgents themselves, then try to turn them around and see if there are any ties to the White House. (A spokesperson for the Department of Justice declined to comment.)
Federal prosecutors and FBI agents appear to be using the tactics described by Gillers. In a court filing last week, prosecutors said the investigation and prosecution of the attack on the Capitol would likely be one of the largest in U.S. history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence. Last Friday, the Washington Post reported that investigators were trying to collect evidence to indict the founder of the Oath Keepers, a far-right militia, with conspiracy over the role members of the group played on January 6. Four far-right Proud Boys leaders have been accused of leading around 100 members of that group in the assault, as part of a coordinated plan to prevent Congress from certifying Trump’s defeat. For weeks, speculation has circulated about links between former Trump campaign adviser Roger Stone and the Oath Keepers, who have acted as his unofficial bodyguards in the past. Stone condemned the violence, denied any role in the attack, and was not charged.
Civil rights groups are also calling on Garland to enact reforms to the FBI, which since 9/11 has abused its surveillance powers and placed undue emphasis on American Muslims as threats to national security. Mike German, a member of the Brennan Center for Justice at NYU and a former FBI agent, said prosecutors should investigate the attack on Capitol Hill as the culmination of a series of violent attacks by far-right groups in the United States. in recent years. German said he believed the bias of FBI officials led them not to take the Proud Boys or the Oath Keepers seriously enough. All they had to do was look at the newspaper, German said. It was happening all over the United States.
On March 2, FBI Director Christopher Wray testified before the Senate Judiciary Committee for the first time since the assault. Wray said domestic terrorism has metastasized across the country and revealed that the number of white supremacists arrested in the United States in 2020 has nearly tripled since 2017. Despite the stakes, some senators have used their question time to amplify the stories that resonate in their political echo chamber. Democrats have correctly highlighted Trumps’ role in exacerbating extremism, but have focused little on how to quell disinformation and the social forces that help drive it. Republicans have described Antifa and government surveillance as the most serious dangers facing the nation. (Senator Josh Hawley asked whether the FBI had collected cellphone metadata from people near the Capitol at the time of the riot.) The country’s political polarization is holding back the ability of legislative branches to act as credible investigative body.
In an interview, a federal law enforcement official told me that investigators were eager to arrest and prosecute anyone who broke the law, but were loath to be drawn into a partisan Washington stew. There is a will to ensure that all those who engage in violence and destroy property are brought to justice, regardless of their ideology or motives, said the official, who asked not to be named. But he said federal law enforcement officials have neither the power nor the desire to declare national groups as terrorist organizations. These are decisions that belong to elected officials and decision-makers, and not to law enforcement, he explained. It is not our role.
Garlands’ Jan. 6 dilemma is a microcosm of the one Joe Biden faces. Should the attorney general take an aggressive approach, vigorously investigate the former president and his associates, and crack down on far-right groups and militias? Or should he take a more cautious path, try to appeal to the centrists and avoid fueling far-right conspiracy theories about the federal government’s overbreadth? A central element of Trumps’ political project was the discrediting of the idea that non-partisanship is even possible. In his grim view of public life, non-partisan officials, from public health experts to prosecutors, were politically partisan, incompetent, or corrupt. Gillers told me he hopes Garland turns out to be a legal romantic who truly believes that law is a separate space, with its own methodology and responsibility, and it needs to be separated from political considerations.
If Garland hopes to revive the ideals of Lévis, his path is obvious. A federal criminal investigation is a relatively brutal instrument, but it is the last and best way to uncover the truth about one of the most violent attempts to overturn the outcome of a presidential election in American history. During his confirmation hearing, Garland said of the siege: It was the most heinous attack on democratic processes I have ever seen, and one I never expected to see in my lifetime. , and I vowed to pursue the tracks wherever they take us. The risks for the new attorney general are significant, however. Justice Department prosecutors may struggle to find enough evidence to prove a conspiracy beyond a reasonable doubt. Stone, other Trump associates, and Trump himself have skillfully operated in legal gray areas for decades. Garland could be forced to announce that the investigation has ended without charges being laid against them. In this case, the law would presumably prohibit him from revealing the evidence gathered, as most criminal investigations are conducted in secret, via subpoenas to appear before a grand jury. Garland could also announce charges, go to trial and fail to win convictions, a debacle that would bolster Trump’s claims that he is the victim and rebellious survivor of yet another deep state plot against him.
Yet we hope that the facts remain weapons. This is why Garland should use his powers as attorney general to comprehensively and impartially reconstruct the events of January 6 and the months leading up to it to go, as prosecutors are supposed to do, where the facts lead, then determine who deserves to be criminally charged. You can’t make that decision without investigation, Gillers told me. You follow the facts, you learn the facts, and then you make a decision. Our growing inability to agree on basic facts is, of course, the great challenge and the tragedy of our time.
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