On his first day as US attorney general last March, Merrick Garland told employees of the justice department that he was inspired by Edward Levi, a Republican who served in the same role under Gerald Ford in the 1970s.
Levi, like Garland, was a Chicago native – but, more importantly, he was widely credited with restoring faith in American justice after the tumultuous and scandal-ridden presidency of Richard Nixon.
“The only way we can succeed and retain the trust of the American people is to adhere to the norms that have become part of the DNA of every justice department employee since Edward Levi’s stint as the first post-Watergate attorney-general,” Garland said.
“Those norms require that like cases be treated alike. That there not be one rule for Democrats and another for Republicans; one rule for friends and another for foes,” he added.
Garland is now trying to apply those principles to Donald Trump, an effort that has suddenly thrust the 69-year-old former federal judge and prosecutor into the political limelight.
Until he authorised the unprecedented FBI search of the former president’s Mar-a-Lago residence last week, Garland had faced frustration from the left over his perceived hesitance in investigating Trump – particularly in connection with the January 6th 2021 attack on the US Capitol.
But now Garland has become a lightning rod for conservative fury, accused by Trump and his allies of spearheading a politically motivated plot to undermine his chances to run for a second term in 2024.
“[Garland] is taking on a former president of the United States who still has a very large following, filled with conspiracy theorists. He has had to proceed with great caution,” said Elaine Kamarck, senior fellow in the governance studies programme at the Brookings Institution.
“He’s not talking about it. He didn’t ask the White House’s permission. He just played it very, very straight, which is his reputation,” she added.
The attorney general had been aware for months that the former president was withholding documents at Mar-a-Lago from his time at the White House, including some that were highly classified. Garland tasked senior prosecutors to persuade Trump’s lawyers to release them, first voluntarily, and then through a subpoena.
After those efforts failed, Garland authorised the request for a search warrant, but refrained from speaking publicly about the Mar-a-Lago swoop on the day it occurred. He has only done so once since, though without delving into the substance of the investigation.
“Much of our work is by necessity conducted out of the public eye. We do that to protect the constitutional rights of all Americans and to protect the integrity of our investigations,” he said.
In recent days, however, court filings by the Department of Justice have shown the gravity of Trump’s potential violations of the law, invoking provisions relating to obstruction of justice and mishandling information critical to national security under the Espionage Act. They have also revealed the wide-ranging nature of the investigation, which includes more than one witness.
Garland – who helped secure the convictions of Oklahoma City bomber Timothy McVeigh and domestic terrorist Ted Kaczynski in the 1990s as a US attorney and served for 24 years on Washington DC’s federal appeals court – will want to ensure the case for pursuing a criminal indictment of Trump is ironclad before he takes the next step, which would be to seek charges.
“I think that right now what they are doing is they are likely combing through the evidence, figuring out what [Trump] had exactly ... and figuring out if they need to go investigate other angles, other people,” said Kel McClanahan, a national security lawyer and a professor at George Washington University. “This is being run like a mob investigation, like an organised crime investigation.”
The search of Trump’s home has made Garland, as well as the justice department and FBI generally, villains in the eyes of the right – adding to public pressure on the attorney general and raising safety concerns for the prosecutors, officials and agents working on the case.
“Impeach Merrick Garland, gut the [Department of Justice], defund the corrupt FBI, and Impeach Biden. Weaponized law enforcement is communism and has no place in America,” Marjorie Taylor Greene, a Republican lawmaker from Georgia and one of Trump’s closest allies on the extreme right, said in a tweet on Monday.
Other Republicans, including on the House of Representatives judiciary committee, have asked Garland to retain his own documents related to the search and be ready for an investigation of his actions should they regain control of the lower chamber of Congress in November.
But Garland – who was nominated to the supreme court by Barack Obama but denied a confirmation hearing by Senate Republicans – has so far appeared to withstand the pressure. “The attorney general is in an extremely, extremely difficult position,” said Aziz Huq, a constitutional law scholar at the University of Chicago.
“I think that what the justice department and what Garland have tried to do ... is to demonstrate the legalistic bona fides of the justice department at a time in which those bona fides have come under tremendous strain,” he added.
If Garland shies away from indicting Trump – either over the classified documents at Mar-a-Lago or his role in the January 6th riot – his legacy may end up being that of the attorney general who blinked while challenging a former president’s wrongdoing. But ploughing ahead with a prosecution – even an ultimately successful one – is not without its risks in a country as deeply divided as the US.
“He’s got an obligation to uphold the law. But he obviously understood the huge political ramifications and he’s a very careful person,” said Kamarck at the Brookings Institution. “Why would you open up a hornet’s nest like this unless you had some serious crime in mind?” – Copyright The Financial Times Limited 2022