What’s happened to Merrick Garland?

Former Attorney General William Barr’s problem was that he was an advocate but did not know who his client was. After years on the bench, Attorney General Merrick Garland knows who his client is, but more and more, it appears he is more judge than advocate.

In appointing Garland, President Biden said: “You won’t work for me. You are not the president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution.”

Garland has enjoyed a sterling career as a jurist, and his loyalty to the Constitution is beyond question. He would have made a superb Supreme Court justice, and he still may become one.

Unlike a judge, who must be independent, the attorney general under our system is a party to a controversy but he is no ordinary partisan. His duty is to the public, not to convict the guilty but to see that justice is done.

Barr was a partisan; but is Garland’s “I’m just following the law, ma’am” approach in reality a political cop-out? 

Garland has disappointed many who thought he would swiftly overturn decisions taken by Barr’s hyper-politicized Justice Department and proceed to indict Donald Trump for insurrection arising out of the events of Jan. 6. So at this point, we don’t know, but my opinion is not likely.

Reading the tealeaves, Garland has taken an appeal from an order of Washington, D.C., District Judge Amy Berman Jackson in a Freedom of Information Act case, which would have unveiled a secret Justice Department memorandum from 2019, possibly revealing whether Justice lawyers had concluded that President Trump was guilty of criminal obstruction of justice in the Russia election interference probe. Garland has done this despite his promise to the Senate during his confirmation hearings that he would “read the Freedom of Information Act generously.” 

Elizabeth Goitein, director of the Brennan Center for Justice’s Liberty and National Security Program, has said: “The thing that makes this story so jarring in some ways is the idea that this is the hill that Attorney General Garland wants to die on—that he’s willing to fight for. …[Justice Department] secrecy for this opinion..which is why this feels so unexpected to some people.”

Then, more recently, Garland took an appeal from an order of the Southern District of New York, which denied the motion of the Barr Justice Department to substitute the United States for Donald Trump in a libel suit brought by author E. Jean Carroll. Carroll originally brought the case in the New York State Court, but Barr removed the matter to the federal court, claiming that Trump’s statements to the press were part of his job as president, and that he was acting within the scope of his employment, as though we elect presidents to libel citizens over personal matters.

Carroll had claimed that Trump raped her in a Bergdorf Goodman dressing room in about 1995, years before he was president. Trump while president publicly called her a liar, claimed falsely that he had never even met her and told The Hill that “she’s not my type.”

Once in federal court, Barr’s Justice Department moved to substitute the United States for Trump with the certainty that if the motion were granted, the government would claim that sovereign immunity prevented the action from going any further, and Ms. Carroll would be left without a remedy.

Barr seemed to want to get Trump off the hook. The Supreme Court has held that presidents, even while in office, are subject to civil liability for personal conduct. Surely, if a president bought a dozen shirts, and refused to pay, the merchant could sue him. Similarly, we elect presidents “to faithfully execute the laws,” not to call citizens liars about personal matters or to comment on whether they meet his personal standards of taste in women. The excellent district judge denied the motion to substitute, and it was widely assumed that Garland would let the decision stand.

Garland, however, in a move many legal observers found nothing short of astonishing, adopted Barr’s position and appealed the ruling.

“The job of the Justice Department in making decisions of law is not to back any administration, previous or present,” Garland explained. He added that there should not be “one rule for Democrats and another for Republicans.”

The two positions do not bode well for the prospect that Garland will indict Trump over his incendiary remarks on Jan. 6. In his statement to the Senate, Garland said: “If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6 — a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.”

By this, did he mean he would prosecute Trump as insurrectionist-in-chief? But let’s face it, indicting a former president over a political speech, however incendiary, would take guts. 

Garland is treading cautiously and judiciously. There is much to the argument that America is not a banana republic, and we don’t prosecute former leaders as they do in countries like Brazil. But Harvard Law Professor Laurence Tribe makes the important point that if we don’t enforce the rule of law, we ourselves become a banana republic. The rule of law is weakened if the public cannot believe in it.

Chief Justice Marshall said over two centuries ago that we are a government of laws, not of men. Today, he would have added “and of women” But it is men and women to whom we entrust the administration of justice, and the attorney general needs to step up to the plate.

James D Zirin, a former federal; prosecutor is the author of the book, “Plaintiff in Chief—A Portrait of Donald Trump in 3500 Lawsuits.”