Sunday, February 28, 2021

Lady Justice Back in Charge at Main Justice?

             President Biden signaled the end of Trumpism in U.S. foreign policy by assuring our European allies this month [Feb. 4]   that “America is back” and diplomacy “is back at the center of our foreign policy.” Biden’s nominee as attorney general similarly served notice last week [Feb. 22-23] that the Trump era of a politicized Department of Justice is also over by promising, in effect, that the blindfolded Lady Justice will be back in charge at Tenth and Pennsylvania if he is confirmed as attorney general.

            Merrick Garland, who earned his spurs as a federal prosecutor a quarter-century ago by superintending the death-penalty prosecution of the Oklahoma City terrorist bomber Timothy McVeigh, performed flawlessly in his confirmation hearing as he maneuvered around probing questions from the Senate Judiciary Committee’s now-out-of-power Republicans.

            Fresh from his trip to Mexico, Texas’s insurrection-leading senator Ted Cruz asked Garland whether he would be President Biden’s “wingman” at the Justice Department. Garland hit the question out of the park with his answer. “I do not regard myself as anything other than the lawyer for the people of the United States,” Garland said. “I am not the president’s lawyer. I am the United States’ lawyer.”

            “I do not plan to be interfered with by anyone,” Garland added later, without citing any of the several cases in which Trump, as president, signaled instructions to the Justice Department in politically sensitive prosecutions against the president’s allies. Trump, it must be recalled, publicly criticized the long prison sentence that career prosecutors recommended for Trump’s longtime political adviser, Roger Stone, for obstructing the Mueller probe into Trump’s 2016 campaign. Trump also criticized the prosecution of his former national security adviser, Lt. Gen. Michael Flynn, for lying to the FBI during the Mueller probe. The Justice Department, under Trump’s attorney general William Barr, dismissed the case.

Garland, with lifetime tenure as a federal judge, has no need for work nor any need at age 68 for another line on his  resume. Why then, senators asked, did he agree to be nominated as attorney general? Garland answered, overcome with emotion, by recalling that his parents immigrated to the United States to escape anti-Semitic persecution in Eastern Europe. “I feel an obligation to the country to pay back,” Garland said. “This is the highest, best use of my own set of skills to pay back.”

Garland’s skill set apparently includes a measure of political tact in dealing with sensitive cases. He signaled a hands-off policy toward the investigation headed by special counsel John Dunham into whether Obama administration officials erred in 2016 by opening an investigation into cooperation between Trump’s campaign and its ties to Russia. Garland said he would consult with Dunham, a former U.S. attorney tasked with the investigation by Barr, before making any determination how to proceed.

 In answer to Republican senators’ questions, Garland said he has not discussed the investigation of  Hunter Biden with the president. He noted that the Trump-appointed U.S. attorney in Delaware has been asked to stay on and continue overseeing the investigation. “I have absolutely no reason to doubt that was the correct decision,” Garland said.

            On broader policy issues, Garland promised in his opening statement to put civil rights and racial justice issued at the top of his agenda. “Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system,” Garland stated. The committee’s only African American senator, the New Jersey Democrat Cory Booker, followed up with an appreciative line of questions. In reply to the Missouri Republican Josh Hawley, however, Garland specified that he does not support the “defund the police” slogan adopted by the Black Lives Matter movement and some others on the political and legal left.

            Garland also  put domestic terrorism, including investigations into the Jan. 6 riot at the U.S. Capitol,  at the top of his prosecutorial priorities. In answer to Rhode Island’s Democratic senator Sheldon Whitehouse, Garland said the investigation should encompass any “upstream” funders, organizers, or ringleaders even if they were not present at the Capitol on Jan. 6. “We will pursue these leads wherever they take us,” Garland said.

            Garland voiced no second doubts about having sought the death penalty in the Oklahoma City bombing case, but said he had become aware over time of flaws in handling of capital cases. Biden has said he will support efforts to end the death penalty. Garland said he would support a moratorium on federal executions if President Biden adopts such a policy. Garland avoided any specific criticism, however, of the Trump administration’s policy of renewed federal executions: with more than a dozen since last summer.

            Garland was explicitly critical, however, of the Trump administration’s policy of separating migrant children from their parents after arrests at the southern border. He called the policy “shameful” and promised to cooperate with a congressional investigation into the policy.

            Garland’s credentials  and his pledge of independence may lend credibility to the most delicate question he will face after taking office: whether to open criminal investigations of the former president. For the immediate future, however, the issue rests with the Manhattan district attorney Cyrus Vance Jr., who last week finally got Trump’s tax returns and financial records to look for tax fraud or other possible financial offenses. Vance specified no timetable for the case. “The work goes on,” he said when pressed by reporters.

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