With President-elect Joe Biden’s choice of Judge Merrick Garland as his new attorney general this week, the question arises: Will Garland carry out his responsibilities in a nonpartisan manner, or will he return the Justice Department to the days of the Obama-Biden administration — when, as I have argued, Eric Holder politicized the department more than almost any other prior attorney general?
Given some of Biden’s choices for Garland’s subordinates, Garland may have a difficult time avoiding the renewed politicization of the Justice Department.
Like recently resigned Attorney General William Barr, Garland has had a distinguished career. He is a former Justice Department lawyer and experienced federal prosecutor. He reached the highest point in his prosecutorial career when he was the principal associate deputy attorney general under Attorney General Janet Reno during President Bill Clinton’s administration.
Garland is probably best known to the general public for his nomination by President Obama in March 2016 to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia. The Senate’s Republican majority refused to hold a confirmation hearing for Garland, arguing that the nomination in an election year should be left open for the next president to fill. Democrats strongly objected to this.
Before his Supreme Court nomination, Garland was recognized for his role in the investigation and prosecution of the 1995 bombings of the Oklahoma City federal building that killed 168 people. In 1997, President Clinton nominated him to the U.S. Court of Appeals for the District of Columbia, where he has served with distinction ever since, including as the chief judge of that court.
The key question is whether Garland will carry out his role in an objective, apolitical manner. The fact that he’s a well-respected federal judge and a former federal prosecutor gives hope that he understands the fundamental importance of his duty to not be the president’s "wingman" — as Eric Holder once referred to himself — but to act as the chief law enforcement officer of the United States, who enforces the law fairly, regardless of the political consequences.
Our nation deserves an attorney general who makes prosecution decisions in the best interests of justice, not based on the political demands of the president or his allies in Congress.
Among the most sensitive issues the new attorney general will face will be whether to prosecute Biden’s son Hunter for possible improper conduct involving his lucrative foreign business dealings, primarily with China.
Hunter Biden is now under investigation by the Justice Department to determine if he violated any tax and money laundering laws. Hunter Biden said in a statement last month that "I handled my affairs legally and appropriately including with the benefit of professional tax advisors."
President-elect Biden has expressed confidence in his son and said he will leave decisions on prosecuting crimes to the Justice Department. But it’s certainly not hard to imagine the pressures any attorney general would be under involving an investigation of a president’s son or daughter
The attorney general must also demonstrate a willingness to go after prosecutors and others inside the Justice Department when they abuse their authority. Former Attorney General Barr did just that when he appointed U.S. Attorney John Durham to investigate the origins of what Barr summarized as "frenzied and baseless accusations of collusion" between the 2016 Trump election campaign and Russia.
Barr acted similarly when he launched the probe of the Justice Department’s handling of the investigation and prosecution of Michael Flynn, who briefly served as President Trump’s national security adviser. Barr initiated both of these internal probes even though they could end up embarrassing the Justice Department and result in the prosecution of federal agents and Justice Department lawyers.
So a key test of Garland, if he is confirmed, is whether he will allow Durham to continue the Russia investigation or whether he will give in to political demands from Democrats to terminate the investigation. The premature ending of the probe would be a bad sign that politics is once again a prime consideration in the administration of the Justice Department.
Unfortunately, Garland may have a hard time maintaining a steady course if Vanita Gupta and Kristen Clarke are confirmed and given a free hand as the associate attorney general — the third- highest-ranking official in the Justice Department — and the assistant attorney general in charge of the Civil Rights Division, respectively.
Gupta and Clarke have a history of endorsing some radical ideas. Based on their past statements and actions, they think that voter ID requirements are an echo of Jim Crow, oppose equal enforcement of civil rights laws, and see the world through a racial lens.
Gupta is a former American Civil Liberties Union and NAACP lawyer who is currently the head of the Leadership Conference on Civil Rights. She headed the Civil Rights Division of the Justice Department in an acting capacity during the Obama administration from 2014 to 2017, arguably in violation of the Federal Vacancies Reform Act.
Rather than enforcing federal anti-discrimination laws on a race-neutral, non-political basis, Gupta acted as if the Civil Rights Division was simply the in-house counsel of the Democratic National Committee and its political ally, the NAACP. She used the division to attack voter ID laws and opposes other election reforms, such as maintaining accurate voter rolls intended to improve the integrity and security of the election process.
During her tenure, the division’s own website shows Gupta didn’t file a single case against any of the numerous colleges and universities that are blatantly discriminating on the basis of race in their student admissions in explicit violation of federal civil rights laws. Apparently, she believes that racial discrimination is perfectly acceptable as long as it is carried out against whites and Asians and benefits blacks and Hispanics.
Similarly, Kristen Clarke, the nominee to lead the Civil Rights Division, is currently the head of the Lawyers Committee for Civil Rights and was a career lawyer inside the division when I worked there. Like Gupta, she is a left-wing ideologue.
Clarke opposes reforms intended to safeguard the security and integrity of elections. Her organization has filed numerous lawsuits, as outlined on its website, challenging voter ID and other election reforms. She does not believe in the race-neutral enforcement of federal discrimination laws, which were intended to protect all Americans from discrimination.
Testifying in 2010 before the U.S. Commission on Civil Rights, Christopher Coates, the former head of the Voting Section of the Civil Rights Division, said that Clarke met with division officials in 2008 to demand that the Justice Department dismiss its first-ever case against a Black official for violating the Voting Rights Act — despite the fact that a federal district court had already found him liable for engaging in flagrant discrimination.
Why? Because Clarke apparently doesn’t believe the Voting Rights Act protects all voters or should be enforced in a race-neutral manner.
At his confirmation hearing, Garland should be asked about his view of law enforcement, federal anti-discrimination laws, and a host of other issues. We must have an attorney general who understands that his first loyalty is to the Constitution, equal justice under the law, and the best interests of the American people — not to the political objectives of the progressive left.