26 United States The Economist January 22nd 2022
MerrickGarlandandhiscritics
I
t is hardto pinpoint a moment at which the Republicans aban
doned democratic norms for the endjustifiesthemeans power
politics that connects Mitch McConnell’s Senate leadership to Do
nald Trump’s demagoguery. Yet Mr McConnell’s refusal in March
2016 to hold confirmation hearings for Merrick Garland, an ap
pealscourt judge nominated by Barack Obama to the Supreme
Court bench, is a top contender. Though both parties had hitherto
been culpable of eroding the Senate’s traditions of compromise
and restraint, Mr McConnell’s ploy raised the damage to a new lev
el. It suggested he would press for maximum partisan advantage
at every opportunity, whatever the institutional cost.
When President Joe Biden named Mr Garland as his attorney
general, with prime responsibility for restoring the rule of law and
Americans’ faith in it, the symbolism was obvious. No institution
was more politicised by Mr Trump than the Department of Justice
(doj). Under Bill Barr, a culture warrior and for two years Mr
Trump’s legal consigliere, its leadership resembled the former
president’s personal defence team. Mr Barr effected this with
McConnellite tactics. Too canny to break laws, he subverted the
unwritten norms that enshrine the doj’s independence—such as a
custom that attorneysgeneral do not interfere in criminal inves
tigations to get the president’s cronies off the hook. Also like Mr
McConnell, although Mr Barr did not go along with Mr Trump’s ef
fort to steal the election, one or two of his underlings, schooled in
his hyperpartisan tactics, were instrumental in it.
Even setting aside the symbolism of his appointment, Mr Gar
land looked a good choice to right the ship. The owlish 69yearold
is a dojveteran who led celebrated investigations of the Oklahoma
City bombing and Unabomber cases in the 1990s. There and on the
Washington, dc, appellate circuit, which he also led, he was
known for his intellect, moderation and discretion. He promised
to be the least political attorneygeneral since Janet Reno, three
decades before. And ten months into his tenure he has lived up to
that billing. He has been methodical in handling the Capitolriot
investigations and taciturn to the point of inscrutability. dojin
siders are relieved to have him. “It was abhorrent the way Barr pol
iticised what we do,” one says. “Garland does things by the book.”
Outside the department he faces more scepticism. Leftwingactivists,whowanta reckoning at the doj, not a return to normal
ity, have criticised him for failing to reverse some of his predeces
sor’s decisions. Mr Garland’s dojhas, for example, continued to
defend Mr Trump in a defamation suit brought by a journalist, E.
Jean Carroll, who claims to have been raped by the former presi
dent. Why, asked theNation, is he “carrying water for Bill Barr?”
After the department began charging smallfry insurrectionists,
but no political bigwig, the sniping from the left increased. Some
ruleoflaw experts, led by Jack Goldsmith, a conservative scholar
at Harvard Law School, have added to it. They fear Mr Garland is
not fortifying his departmentagainst the next rulebending attor
neygeneral—as one of his heroes and predecessors, Edward Levi,
did in the aftermath of Watergate. The common thread is that the
attorneygeneral, for all his qualities, is suspected of being too
conventional to recognise or act upon the threat that America still
faces from the Trumpist right.
Much of the criticism seems overwrought. If Mr Garland re
versed all of his predecessor’s actions he would not be the impar
tial arbiter the department requires. And he is hardly holding back
on the Capitol riot. The doj has charged more than 750 insurrec
tionists. And it is standard practice in such cases, as Mr Garland
explained in a speech this month, to round up the minor actors in
search of evidence against the major ones. Last week the depart
ment duly charged 11 followers of a farright militia called the Oath
Keepers with “seditious conspiracy” to stop the transfer of power.
By far the most serious charge yet levelled over the riot, it is a dev
astating rebuke to the revisionist Republican view of it as a legiti
mate protest that got out of hand.
Whether it presages the charges against Mr Trump and his as
sociates that some Democrats crave is unclear. There are no signs
that the department is investigating them. But it might yet. Or
maybe it sees no cause to. The First Amendment is exceptionally
accommodating, notes Benjamin Wittes of the Brookings Institu
tion: “You can give a speech inviting people to riot and keep your
hands clean.” And Mr Trump’s critics do have a history of exagger
ating the legal peril he faces.
The concern that Mr Garland is not shoring up his depart
ment’s defences against a renewed authoritarian assault seems
more solid. Mr Goldsmith and his coauthor Bob Bauer have pro
posed many ways to do so, some of which were included in a capa
cious reform bill passed by the Democratic House. It would com
pel the dojto police presidential pardons for corruption, for ex
ample, and it would also require the attorneygeneral to record all
communications with the White House. Other suggestions, which
typically involve codifying the unwritten norms that Mr Barr
flouted, would not require legislation. Yet there is little progress
on any of them. The House bill has been sidelined. The Justice De
partment has made no discernible effort to make its norms harder
to contravene. And it has actively resisted calls to beef up its
watchdog, the inspectorgeneral.Merrick ah be brave
Mr Garland could again confound his critics. The insurrection and
many smaller course corrections—on policing, environmental
policy and so forth—are dominating his todo list. And his reti
cence makes him hard to secondjudge. Yet the signs are not pro
mising. Like Mr Biden, who declared American democracy to be in
grave danger but then pivoted to economic policy,heappears odd
ly complacent about the threat of a renewed Republican assault on
the system. He of all people should know better.nLexington
The attorney-general needs to bolster the Department of Justice’s defences against Trumpism