*Episode published on 2/22/2021

Elie Honig:

From Cafe, this is Third Degree. I’m Elie Honig.

President Biden:

For attorney general of the United States, I nominated a man of impeccable integrity, Judge Merrick Garland.

Elie Honig:

Merrick Garland is going to have an interesting place in our history. It looked for a while as if he would end up being known and remembered primarily as a what could have been. But now he’s on the brink of becoming the top prosecutor in the entire country, attorney general of the United States. Now you’ll probably remember, back in February 2016, Supreme Court Justice Antonin Scalia passed away unexpectedly. Scalia of course, had been a staunch conservative on the court of reliable right-wing vote. Hero to the Federalist Society crowd and to conservatives in general. His passing opened up a rare Supreme Court vacancy, and it threatened to tip the balance of power. Because of course, the president of the United States in February 2016 was Barack Obama, a Democrat. And Obama’s choice to fill Scalia’s seat was Merrick Garland.

Barack Obama:

Today I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.

Elie Honig:

You know what happened next. Even though Obama had another 11 months left in office, Senator Mitch McConnell back when he was majority leader, put up a stop sign. “No way” he said. He invented this “rule”, a president doesn’t get to fill Supreme Court vacancies during his last year in office.

Mitch McConnell:

The next president will be making the choice. The people will decide who should be the appointing authority. So no, he will not be considered by the Senate.

Elie Honig:

Of course, McConnell sang a very different tune over four years later when Justice Ruth Bader Ginsburg passed away in September, 2020 with just four months to go in President Donald Trump’s term. Then it was game on, let’s do this. Anyway, back in 2016, McConnell put up this blockade. Merrick Garland had broad support from Democrats, many Republicans alike, but McConnell just wasn’t having it. No confirmation from Merrick Garland, not even a hearing or an up and down vote in the Senate. And it seemed Garland would go down in history as the guy who got oh so close to the Supreme Court but didn’t quite grasp the brass ring. Give Merrick Garland credit by the way. He never complained, he certainly could have. He never lashed out. He never whined or played the victim. In fact, he’s never said anything of substance at all in public about how he got, well screwed over and denied a seat on the Supreme Court.

Elie Honig:

And now four years after what had to be a bitter disappointment, Garland is set to become attorney general of the United States. Not a bad fallback gig. Even though he never reached the Supreme Court, Garland has had an illustrious career. First of all, he’s a real prosecutor. And yes, I do mean that very much in contrast to his predecessor, William Barr. Who despite serving as attorney general twice now, never has tried a case in his life as a prosecutor. And that’s why Barr never learned what it means to be a real prosecutor on the front lines. And I believe that’s a big reason why his performance as attorney general was a disgrace because he never really understood what the job is all about. Much more on Barr later.

Elie Honig:

Now, Garland spent years as a [line 00:03:17] level AUSA. Among other things, he supervised prosecutions relating to the 1996 bombing of the federal building in Oklahoma city, which killed over 160 people. And he led the investigation of the 1996 Olympic bombing in Atlanta. So yeah, he’s got some chops. Garland then worked his way up through the DOJ ranks. He became a federal judge in 1997 for the US Court of Appeals for the district of Columbia. And that court is generally regarded as the most important, most powerful court in the country. After of course, the Supreme Court. Garland has now been a federal judge on that court for the past 23 plus years, including the past eight years as the chief judge. To put a button on it, this is a man who is deeply respected and admired by people on both sides of the political aisle. People who know him and have worked with him, Democrats and Republicans and fellow judges alike have raved about him publicly. His intelligence, his independence, his integrity. There’s not one single significant public criticism that I’ve seen of Merrick Garland.

And now he’s poised to become our nation’s next AG, his confirmation hearings in the Senate start this week on Monday and Tuesday. These will not be explosive hearings. Certainly not like we’ve seen with recent Supreme Court nominees or even with Bill Barr or Jeff Sessions for AG before him. But that’ll be the easy part for Merrick Garland. The hard part happens when he gets into office and starts doing the job because perhaps more than any attorney general in recent memory, Garland will take office with monumental decisions to make. Decisions about prosecutions and politics and the future of the justice department. Here are three big decisions, awaiting Merrick Garland.

First of all, the Donald Trump investigations. Now President Biden has said he will remain entirely hands off about DOJ’s prosecutorial decisions. That’s good. He should do that. He must do that. Of course, if he does, it will be a major departure from Trump and a return to the age old vital norm that DOJ should be left alone by politicians to make its own prosecutorial decisions. At the same time however, President Biden has telegraphed and smoke signaled and sign languaged and interpretive dance that he does not want his DOJ going down the Donald Trump rabbit hole. He hasn’t said it publicly, but he said it behind closed doors to many people who have in turn repeated it to the press. And Joe Biden is savvy enough to know that if he says something too many people behind closed doors, it’ll get out there.

Now the decision will fall to Merrick Garland, and it certainly should. It’ll be sitting there waiting on his desk and what a brutally tough decision it is. And by the way, when I say investigations of Donald Trump, that’s a broad category. It includes the hush money payments, the obstruction of the Mueller investigation, potential bribery and extortion relating to Ukraine, attempted election interference down in Georgia and the January 6th riots. So what does Garland do here? Does he first open investigations? If he does, of all of these things? Of only some of them? And if some, why some b.ut not others? And if he does open investigations, how aggressive will he be? Will we see subpoenas start flying to powerful people, elected officials, former Trump Administration advisers, et cetera. Or will he try to keep things quiet and under wraps? And even if he tries, will they really be able to stay quiet? It’s kind of a no win situation.

Either way about half the country will be furious. If Garland pursues, the Trump cases, it will suck up every ounce of oxygen and attention and focus from whatever else he’ll be trying to accomplish. 70 million plus people will in unison yell, “Witch hunt”. These are all tricky cases, also. We’re not talking about robberies or drug trafficking. We’re talking about issues that largely turn on issues of subjective intent, constitutional authority, difficult stuff to make out a crime. But if not, if Merrick Garland does not follow up on these cases, how does he justify that? Just walking away. Take Mueller. Mueller found 11 potential acts of obstruction. And he laid out element by element why each one could be criminally charged. Is Merrick Garland going to do nothing about that? If so, why? Because it feels like the moment has passed? Because it’s been buried by four or five other major scandals since? Is Merrick Garland going to not look at the Ukraine scandal because well, that’s last year’s news? That is not how prosecutors should operate.

My take is he has to open investigations on all of this. He can’t just turn away. He can’t just ignore these things because they seem like they’re in the past or they’re not on the front pages anymore. Maybe some of these investigations will result in criminal charges, maybe not. Maybe all, maybe some, maybe none. But Merrick Garland cannot make those decisions to charge or not to charge without getting all of the facts first on all of these topics.

Second, Hunter Biden. We learned recently that DOJ has had investigations of Hunter Biden going on since 2018. We know this because Hunter Biden himself came out and announced it shortly after the election. And there appear to be two investigations. One in the US Attorney’s Office for Delaware, the other in my old office, the Southern District of New York. It’s not clear exactly what the subject is. Hunter Biden told us that there’s a tax angle. There also appears to be investigation of some of Hunter Biden’s financial dealings overseas. Of course, Donald Trump was loudly calling for Hunter Biden to be investigated and prosecuted or at a minimum he wanted to see special counsel appointed. Now Barr to his credit, I think correctly refused to appoint special counsel and didn’t even leak news of the investigation before the election.

So what on earth does Merrick Garland do here? He’s going to be the attorney general and he’s going to have an investigation of the president’s son going on under his watch. My recommendation as to what Merrick Garland should do, nothing. Nothing. Merrick Garland should do nothing. His only message to the US attorneys on this case in Delaware and the SDNY should be this, do your job. Give this thing as full and fair and investigation as humanly possible, no leaks. And then you come report to me. We’ll sit down, we’ll lay out all the facts and we’ll decide what to do. No special treatment here. No limits on what you can and can’t do. Nobody gets fired or talked about behind closed doors, no scales get tilted. None of this stuff that became so commonplace under Donald Trump and Bill Barr. And Biden needs to do his part too, by the way. No public comments, nothing. Let Merrick Garland do his job as AG and Garland needs to let the prosecutors on the ground do theirs.

And finally, restoring the justice department. Look Garland is walking into a department that has simply been trashed by his predecessor Bill Barr. You probably know my thoughts on Bill Barr by now. He was a weak pretender. He did unprecedented damage to DOJ by lying to the public, by playing politics. So, not a fan here. Heck I’m writing a whole book about it. And the more I research and write the more I’m really flabbergasted by just how badly Bill Barr corrupted the DOJ. In a sense then, Garland’s job is sort of easy. Just get back to the basics. Don’t lie to the public as Barr did repeatedly. Don’t do the president’s bidding. Don’t give special treatment to well-connected friends of the president. Don’t promote wild conspiracy theories about voter fraud, the threat of left wing radicalism. Garland’s already off to a good start. Barr’s top brass at DOJ were all like Barr himself, prosecutorial pretenders.

Like Barr, none of the top people around him, his deputy AG has associate AG, had ever tried a case as a prosecutor. They were not raised in DOJ. They utterly lacked this true sense of the department’s core mission. They were collectively a disaster, but Merrick Garland has surrounded himself with deeply experienced senior staff. He’s got Lisa Monaco, his deputy attorney general. Vanita Gupta as associate attorney general. And of course, Lisa hosted the United Security podcast here on Cafe before she was nominated as deputy AG. It’s nice to see some of us go on to do important things. I know them both a little bit, but if you talk to people who know them or see what’s been said about them in public, they’re both experienced, trial tested, widely respected. These people are pros, they’re not pretenders.

And to be clear, there has been no visible degradation in the performance of the thousands of men and women who make DOJ run on a day-to-day basis. They did their jobs to the best of their ability despite Bill Barr’s corrupt mismanagement, and they’ll continue to do their jobs I believe just the same now. But it starts at the top and starting this week, Merrick Garland will have a chance to rehabilitate and remake DOJ and to return it to its rightful station in our government.

Thanks for listening to Third Degree, we’ll be back with new episodes on Wednesday and Friday. Please subscribe and rate us and send us any questions or comments to letters@cafe.com. Third Degree is presented by Cafe Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Wiener. And the Cafe team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh and Margot Maley.