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Not Warranted

The Slandering of Merrick Garland

The right’s spent the better part of the week trying to paint the attorney general as a despot. Those charges won’t stick.

Evelyn Hockstein/Getty Images
U.S. Attorney General Merrick Garland

One of the most compelling things about Merrick Garland is how fundamentally uncompelling he is. Back when then-president Barack Obama nominated him for the Supreme Court, he was tapped because he was an uncontroversial choice, all the better to win some votes from Republicans. (Things, obviously, didn’t go according to plan.) Now, he’s possibly the least charismatic member of the Biden Cabinet. The least photogenic as well: I can tell you firsthand what a struggle it is to find an interesting photograph of him. None of these traits seemed to be particularly advantageous—until, perhaps, this week, when the unassuming figure signed off on a warrant for federal agents to search Mar-a-Lago, President Donald Trump’s post-presidential way station.

It wasn’t immediately clear what exactly the Department of Justice was looking for at Trump’s resort. Most of the reporting on the matter suggested that the warrant pertained to the president’s alleged mishandling of classified materials, which The Washington Post later reported included “documents relating to nuclear weapons.” Garland confirmed this on Thursday afternoon and proceeded to ask for the warrant to be unsealed; The New York Times reported earlier in the day that the DOJ sought to recover those materials with a subpoena long before the warrant was executed. It’s also worth remembering that just because a warrant gets served, that doesn’t mean arrests or indictments are necessarily in the offing.

But what the subpoena news demonstrates is how unlikely it is that Garland or other high-ranking federal law enforcement officials would escalate in this manner without a good reason—and remember, a judge must also agree that there is just cause to serve a warrant. If those who sought and issued this warrant don’t have their ducks in a row, then the blowback will be intense. At the same time, even if everything was done by the book, the politicization of the whole fracas means that blowback is inevitable regardless.

But it’s here where Garland’s bland persona may serve him. There are many things you can say about him, but it’s a real challenge to characterize him as some sort of partisan firebrand. Indeed, for the bulk of his tenure, his seeming lack of passion for pursuing Trump with a Tommy Lee Jones-like zeal has left liberals vexed. Last October, California Democrat Adam Schiff, who played a leading role in Trump’s impeachments, said that he was in “vehement” disagreement with Garland’s seeming reluctance to hold Trump accountable.

As TNR’s Matt Ford has pointed out more than once, Garland never promised to be a Democratic avenger, nor has he at any time cultivated such a persona. What he has successfully communicated is that the Attorney General’s office would not be defined by some monomaniacal pursuit of Trump. The biggest task for Garland when he assumed office was the revival and restoration of the DOJ as a functional and independent institution after the wayward tenure of his predecessor, Bill Barr, during which time it really did seem like the DOJ could become a private tool of executive branch retribution.

It won’t be possible to escape the politicization of a DOJ investigation into Trump; some matters are beyond Garland’s control. But let’s note how Trump’s allies are responding: They’re foaming at the mouth about Garland being a corrupt autocrat whose actions are like unto dictatorships. As MSNBC’s Steve Benen pointed out, the seeds of this Garland smear campaign were planted long before federal agents descended on Trump’s resort. The GOP anticipated the possibility of further and more serious legal tribulations for Trump, probably because they have intimate knowledge of just how bad his misdeeds were.

But it’s going to be hard to make such a characterization stick to Garland. In dictatorships, government officials don’t serve search warrants or seek the permission of judges to carry out seizures; they don’t offer you a chance to amiably resolve the dispute in advance; they don’t give the people they’re trying to suppress a chance to make their case in public; they don’t assert the presumption of innocence or provide a forum for the accused to prove their case. More to the point, they don’t wait years to punish their political opponents. Indeed, Iraqi dictator Saddam Hussein, who Republicans might recall, undertook a violent purge of his government six days after taking power in what’s colloquially remembered as the “comrades massacre.” That’s a far cry from how Garland behaved, no matter what Republicans might allege.

What’s more, the only people talking about purges and political violence are Republicans. Trump is the one planning a mass dismissal of government bureaucrats if he’s reelected. And if you want to hear someone promising the dawn of autocracy, look no further than Florida Senator Marco Rubio, who in the wake of l’affaire Mar-a-Lago issued a not-so-vague threat: “What comes around goes around. And here’s what’s gonna happen now—one day they won’t be in power. And whoever is in power, there’s gonna be a lot of pressure on them to do it back to the other side. And now we do become a banana republic.” This is a pre-confession; in this scenario the “whoever is in power” is—according to Marco Rubio—Marco Rubio.

I almost feel bad for Trump’s allies, all of whom have spent the past half decade in a ruthless, backstabbing reality show about the sunk cost fallacy. But here’s the scoop: The guy is a corrupt dude who does crimes. By now, if you’re backing him, it’s because you’re itching to serve under the thumb of a caudillo; you are actively seeking political bloodshed and the disintegration of the Founders’ ideals. There are plenty of people on hand, right now, scratching and baying to become handmaidens to autocracy. Merrick Garland isn’t one of them.

This article first appeared in Power Mad, a weekly TNR newsletter authored by deputy editor Jason Linkins. Sign up here.