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Will Merrick Garland Defend Democracy?


Merrick Garland (right) met with Jamie Gorelick (center), then the deputy attorney general, and her counsel, Amy Jeffries, at the Justice Department in September 1995.

BILL O’LEARY/THE WASHINGTON POST/ GETTY

In his first year-plus as Biden’s attorney general, Garland has regularly pursued policies and made decisions consistent with his reputation for judicial caution. In one controversial decision nearly a year ago, Garland’s department said it would continue defending Trump against legal efforts by the writer E. Jean Carroll to go after Trump over defamation. Carroll claimed that she was raped by Trump in a department store in the mid-1990s. Trump denied this, asserting that Carroll was “not [his] type.” Carroll sued Trump for defamation. But Barr’s Justice Department argued that Trump was entitled to protection under an obscure law granting immunity against civil litigation to federal employees under certain circumstances, and Garland’s Justice Department said it would continue to defend Trump. Last year, the department also persuaded U.S. District Judge Amy Berman Jackson to allow it to maintain the secrecy of a section of a memo from advisers to Barr outlining legal arguments supporting a March 2019 decision by Barr not to charge Trump with obstruction of justice.

In other areas, Garland’s department has been more assertive. Civil rights enforcement has been a sharp focus, with the attorney general pushing forward with federal investigations of killing of African Americans such as George Floyd and of alleged racism in multiple police departments, including Minneapolis, Louisville, and Phoenix. The department also filed lawsuits against the states of Texas and Georgia alleging that new voter registration laws were discriminatory. Following a plea deal the DOJ made with two of the three white men convicted of the murder of Black Georgia jogger Ahmaud Arbery, Garland publicly appeared to tear up when asked about the case.

Recent public declarations from Garland, whose spokespeople did not respond to multiple requests for interviews with him or his top aides, regarding where the investigation is headed have been portentous, but also ambiguous. In a publicly broadcast speech to Justice Department officials before the one-year anniversary of the riot, Garland explicitly promised: “The actions we have taken thus far will not be our last…. The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy…. We will follow the facts wherever they lead.” After listing the types of persons who have been threatened with violence by far-right activists, ranging from election officials to airline crews, journalists, teachers, elected officials, lawmakers, police, prosecutors, and judges, Garland noted that there is “no First Amendment right to unlawfully threaten to harm or kill someone.”





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