*Episode published on 2/24/2021

Elie Honig:

From CAFE, this is Third Degree. I’m Elie Honig. What a difference an administration makes. After four years of outrageous, unapologetic, relentless exploitation and degradation of the United States Department of Justice by President Donald Trump, aided, abetted and prodded along in particular over the last two years by his top henchman, Bill Barr, it seems finally, the Justice Department is back, or at least on its way back, back to basics, back to fundamentals, back to those norms, the rules, the written and unwritten rules that make DOJ unique within our government as this independent force for truth and, well, justice. See, DOJ is different. It’s been said before, I didn’t invent this, but it’s the only agency named for an ideal, for an aspiration. It’s not treasury or energy or transportation, it’s Justice. Capital J, Justice. Forgive me, I’m an alum, and many of us feel like DOJ is something more than just a place where we used to work and have these great jobs. It feels more like a place where we grew up. It’s something we all believe in deeply.

DOJ stands alone above and beyond politics, or at least it ought to. Merrick Garland’s Senate confirmation hearing this week was mostly substantive, even a little, dare I say, boring in a good way. And that’s a contrast to his predecessor, Bill Barr. Now, Barr’s confirmation hearing, if you remember two years ago, was explosive because remember this, Barr had written this whole long memo beforehand, before his nomination, announcing that he would all but certainly clear Donald Trump on the Mueller investigation, the biggest investigation that Bill Barr was about to go in and oversee. Barr wrote that the investigation was, and I quote, “Fatally misconceived.” So Barr’s hearing became really all about that memo and his obvious, I think, predisposition. And at his hearing, Barr fibbed and lied and fudged and hemmed and hawed and played dumb and played death to try to get around it. And at the end, I remember thinking, and I bet everybody was thinking, “Well this guy’s totally in the bag for Donald Trump.”

Maybe that was a good thing for some people, maybe a bad thing for others. And by the way, Barr ended up getting confirmed, of course, it was nearly almost a straight line party vote. And then he lived up to exactly what he had promised in that memo. He covered up for Donald Trump and got Donald Trump through the Mueller investigation, wonders never cease. Now, Merrick Garland has written no such memo. He actually has not forecasted at all what he will do on any pending DOJ case, and there are some big ones which we’ll talk about. I mean imagine that, how refreshing an impartial prosecutor who hasn’t already announced his determination on a major case he’s going to be dealing with, nor did we see Merrick Garland wriggle around and giving mush mouth, half truthy type answers like his predecessor did. Garland’s hearing really stood out to me, if anything, because of this. It’s signaled to return to DOJ’s most important, most fundamental values. It was a simple return to the basics and it was really refreshing from my point of view as a DOJ alum.

Here are a few things that stood out to me. First of all, independence. Garland’s top recurring theme throughout the hearings was DOJ’s independence, independence from politics, independence from outside influence, meaning DOJ does not exist to protect the president or any political party, politics need to stay out of prosecution, and just as importantly, prosecution needs to stay away from politics. It’s so simple. It’s so fundamental. But also, as we just learned the hard way, it’s also so fragile and so easily exploited and abused. One of the things Garland said in his testimony was this.

Merrick Garland:

The president nominates the attorney general to be the lawyer, not for any individual, but for the people of the United States.

Elie Honig:

Now, ordinarily, nothing remarkable about that. It should be boiler plate for any attorney general. But after what we just saw from Donald Trump and Bill Barr, and Jeff Sessions before him, it’s remarkable, it’s important that Merrick Garland didn’t just say that, but he kept on coming back to that one fundamental pillar of independence. Let me detour for a second to talk about Ted Cruz. Give me a break, Ted Cruz. I want to say something stronger, but then we’ll keep this PG. But this is a test for me. I mean Ted Cruz has got to be kidding me. If you watched his interrogation of Merrick Garland, Ted Cruz went back and asked this whole series of questions suggesting that DOJ was this model of corruption. And you know how he did it? He completely ignored the past four years, not a word about anything Bill Barr did or Donald Trump did, it was all about the greatest hits of 2011 and things that he claimed were done horribly under Eric Holder and Barack Obama. I mean are you kidding me?

Look, I worked at DOJ under the Bush administration and the Obama administration, actually almost equal both. Let me tell you, there is no comparison. I’m not saying DOJ was perfect in those years, definitely not. But what we saw the last four years under the Trump administration was exponentially worse in terms of DOJ’s independence, honesty, all of it came from the top, it was a ridiculous display from Ted Cruz. It was hypocrisy, it was willfully ignorant, it was Ted Cruz in a nutshell. Now, back to Merrick Garland. Merrick Garland said everything that he needed to say, but really the first tests are awaiting him. I mean think about the slate of cases that Merrick Garland is going to walk into. We know that there are already pending DOJ investigations into the current president’s son, Hunter Biden, the former president’s lawyer, Rudy Giuliani, the highest profile governor’s office in the United States, Andrew Cuomo, whatever it is John Durham is still trying to do, heaven knows. That’s quite a lineup, and that’s before we even get to the investigations relating to Donald Trump himself.

Experience. Now, let me go back to Bill Barr. This is something you all know I feel strongly about. It’s the subject of my book, so I’m really immersed in this now. Bill Barr was attorney general of the United States twice. He’s actually one of two people ever to do that. And guess how many cases Bill Barr ever tried as a prosecutor before, during, or after either of his stints as attorney general? I’ll give you a hint, it’s between negative one and one. That’s right. The man never handled the case himself as a prosecutor, never tried a single case as a prosecutor, even though he served as AG twice. Now, Merrick Garland is a little bit different. He spent years as a DOJ prosecutor before he became a judge. He worked his way up through DOJ’s ranks, he worked on the line, he became a supervisor. In fact, he supervised some of the highest stakes prosecutions in this country’s history. He supervised the investigation of the Olympic Park bombing in Atlanta in 1996, something I still remember vividly watching when I was in college.

And even more than that, Merrick Garland supervised the prosecution of the domestic terrorists who blew up the Federal Building in Oklahoma City in 1995, killing over 160 people. Also, of course, something that is seared into all of our memories. And Garland spoke eloquently at his hearing about the impact that that Oklahoma City experience had on him.

Merrick Garland:

From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City Federal Building, who sought to spark a revolution that would topple the federal government.

Elie Honig:

I did murder cases when I was a prosecutor, I did one case involving five separate murders or attempted murders. And even then, even against that maybe jaded backdrop, it still gave me chills to imagine the responsibility and the gravity of a case like Oklahoma City. So those are the stakes in the cases that Merrick Garland has handled. And this matters more than just resume filling, this matters because it suggests that Garland, unlike Bill Barr, understands what DOJ is all about. He understands what it means to be on the front lines, to build a case, to be at a crime scene, to go to trial, to deal with judges and defense lawyers and witnesses and jurors. It’s one thing to be an attorney general, comfy in your suite in Washington, DC, it’s very much another thing to duke it out in the courtroom, to take your lumps, to stand behind the podium and say, if you get the privilege ever to say this, “Elie Honig for the government.” I still like to say that even though I don’t represent the government anymore.

Elie Honig:

But to learn the hard way by doing the job yourself, and with that comes a keen appreciation of DOJ’s mission to do justice and never let politics play into any prosecutorial decision, any decent attorney general must have that experience and that perspective. And third, Garland’s focus on civil rights and domestic terrorist threats. I think the main substantive enforcement matter that Merrick Garland highlighted throughout his testimony was DOJ’s Civil Rights Division, and perhaps more than any other area, this division’s work rises and falls based on the politics of the administration. Elections have consequences. Under President Obama, the Civil Rights Division was very aggressive in enforcement, particularly with respect to police departments that had a demonstrable history of racially disparate or discriminatory practices. It was called pattern and practice. DOJ went in, identified problem police departments throughout the country, imposed supervision and really helped reform those police departments, including in Newark, New Jersey, which is something I was later involved in working on.

Elie Honig:

Under Donald Trump, that policy priority completely shifted. It was gone, it was done, it was down to zero. They explicitly abandoned this practice. Look, you can agree with it or disagree with it, I disagree with it, but that’s the right of an administration to decide where their policy priorities lie. But there was no systematic scrutiny placed on police departments. Now, count on this to come roaring back under Merrick Garland and the Biden administration. Garland stressed it repeatedly. By the way, unlike his predecessor, Bill Barr, Merrick Garland freely acknowledged that yes, indeed, there are racial disparities in criminal justice. I mean imagine that. Not a controversial proposition, shouldn’t be, but something that Bill Barr stubbornly resisted acknowledging. And the person who ran the Civil Rights Division under Barack Obama was Vanita Gupta, somebody I know a little bit. Now, she’s back in an even higher position at the Justice Department. She’s the number three official there pending her confirmation, associate attorney general.

Elie Honig:

And so she’s going to make a big difference. She’s been a leading voice for civil rights. But the thing is it won’t end at police reform because Garland explicitly and pointedly called out threats of domestic terrorism.

Merrick Garland:

We begin with the people on the ground and we work our way up to those who were involved and further involved. And we will pursue these leads wherever they take us.

Elie Honig:

And that’s of course again in contrast to his predecessor, Bill Barr and Donald Trump, both of whom hesitated to ever specifically call out the threat of right-wing domestic extremism. Merrick Garland also made clear that he has a sophisticated understanding of how these groups operate, how they communicate using social media, using other platforms, and Garland made clear that he was willing to go up the chain when he investigated the January 6th Capitol insurrection. So the confirmation hearings are now over and Merrick Garland almost certainly will be our next attorney general, likely with strong bipartisan support. It’s clear that several Republicans will support him, we’ll have to wait and see how many. By the way, won’t that be refreshing to see a strong bipartisan consensus of support emerged for an eminently qualified nominee? But the hearings really were the easy part, relatively speaking. And now, the hard part begins. So Merrick Garland has thus far said all the right things and now it’s time for him to do the job.

Elie Honig:

Thank you for joining us on another episode of Third Degree. We’ve got another episode coming on Friday. In the meantime, please send us any questions or thoughts or comments at letters@cafe.com. Hey, everyone. Every Friday on Third Degree, I talk with a rotating cast of some of the nation’s top law students about breaking legal news, compelling cases and what it means to lead a life and a career in the law. Those Friday conversations will soon become part of the CAFE Insider Membership. The Monday and Wednesday episodes will continue to be available for free in this feed. CAFE insiders enjoy access to exclusive content, including the CAFE Insider Podcast, hosted by Preet Bharara and Anne Milgram, audio essays from CAFE’s slate of contributors, including me, bonus content from Stay Tuned and Doing Justice, and special live events. You can try out the membership free for two weeks. Just head to cafe.com/insider. That’s cafe.com/insider. And college students with a valid .edu email, you can sign up at a lower rate at cafe.com/student. That’s cafe.com/student.

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.