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Flop Era

Merrick Garland Is Too Weak to Be Attorney General

Over and over again, the Biden appointee has proven to be painfully naïve in the face of Republican bad faith.

Merrick Garland testifying before Congress in 2023.
Greg Nash/Getty Images
Merrick Garland testifying before Congress in 2023

When Attorney General Merrick Garland appointed Robert Hur as special counsel overseeing the Justice Department’s investigation into Joe Biden’s retention of classified documents during his time as vice president, it was tempting to see the move not only as a slam dunk, but as an extension of Garland’s larger effort to restore the DOJ’s  tattered reputation. After all, it was clear from the very beginning that Hur would not find any criminal wrongdoing—the documents Biden possessed were clearly kept by mistake. 

In a stark contrast to Donald Trump—who had been accused of not only willfully retaining sensitive documents but refusing to return them—Biden’s wrongdoing was minimal, accidental, and common. The appointment of Hur, a Trump-nominated United States attorney, seemed similarly obvious. A Republican could not be accused of bias; his findings would have to be taken seriously by Biden’s critics in the GOP and right-wing media. 

That’s almost what happened. Hur’s report, the findings of which were released late last week, cleared Biden of criminal wrongdoing, as expected. It revealed Republican efforts to attack Biden’s handling of classified documents as what they were: a smear aimed at clouding Trump’s brazen criminality. But none of that mattered. Instead, the report has been an unmitigated disaster for Biden, all because Hur used his 388-page report as a means of pushing another of the right’s favorite attacks: that Biden is not only old and doddering, but senile. The Hur report, in gratuitous fashion, presented the president as a Mr. Magoo-like figure, unable to remember basic facts like the year of his son’s death or his own term as vice president—details that were wholly irrelevant to the investigation itself. 

Garland should have seen this coming. He didn’t. Three years into Garland’s term as attorney general, it’s clear that he has failed. Far from rebuilding the Justice Department’s reputation, he has failed to carry out some of his basic duties out of fear of being attacked as a partisan. His rigid adherence to “norms” has instead aided Republican bad faith attacks. For all of the efforts undertaken to cleanse the agency of the politics of his predecessor, Garland has allowed a more insidious politics to seep into the Department of Justice’s affairs—and it only appears that he has given it his blessing.

When Merrick Garland was sworn in as attorney general in March 2021, he promised to restore the Justice Department’s reputation after it was left tainted by the corruptions of William Barr, who often ran the DOJ as if it were Donald Trump’s legal retainer. Where Trump had weaponized the department to attack his enemies and protect himself, Garland would be straitlaced, a no-nonsense prosecutor above the petty realities of politics. “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,” Garland said shortly after being sworn in. 

“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, one rule for the powerful and another for the powerless, one rule for the rich and another for the poor, or different rules depending upon one’s race or ethnicity,” he continued. 

Garland’s aim of depoliticizing the Justice Department is a laudable one. Garland had little choice but to try to rebuild trust and an air of nonpartisanship. But during his tenure, Garland’s noble goals have, again and again, rendered him overly passive to the threat posed by the right. Perhaps fearing backlash, the attorney general slow-walked the investigation into Donald Trump’s role in the January 6 insurrection, only appointing Jack Smith as special counsel in late November 2022, after Trump formally declared his bid for the presidency. With Hur, Garland appears to be back-footed about the threat posed by a Republican-aligned special counsel. And when Hur presented his lengthy report, which was full of irrelevant information about Biden’s cognitive faculties, he did nothing—again, perhaps because he feared that stepping in would make him seem political. 

But stepping is exactly what Garland should have done. Hur’s report deviated from Justice Department norms in many key ways. It is not standard for lengthy reports to be written in cases where criminal charges aren’t being sought. Hur’s report goes to great lengths, however, to weaponize one five-hour interview, taking several drive-by attacks on Biden’s mental state, calling him “an elderly man with a poor memory,” among other things. The report may have ended one Republican attack, but it provided ammunition for another even more potent one. 

Biden’s attorneys are understandably furious. “Mr. Hur’s criticism of President Biden mirrors one of the most widely recognized examples in recent history of inappropriate prosecutor criticism of uncharged conduct,” Biden’s lawyers wrote to the DOJ. “The FBI and DOJ personnel’s criticism of uncharged conduct during investigations in connection with the 2016 election was found to violate ‘long-standing Department practice and protocol.’”

I am less convinced that Hur’s report mirrors the email scandal that helped derail Hillary Clinton’s presidential campaign. Biden’s age is a legitimate campaign issue and it’s one that voters are rightly concerned about—having a president who is 81 years old and who has clearly aged in office is a serious issue. It is legitimate for voters to factor it in as they assess his fitness for office. 

But Biden’s age had nothing to do with Hur’s investigation or with Biden’s retention of classified documents after his time in office. Hur simply used his report as a back door to sneak derogatory information in, and out into the public view. It was brazenly political—exactly the kind of thing that Garland promised to snuff out. Instead, he deviated from norms, all in a futile effort to appear nonpartisan. 

Garland, it’s worth noting, should know better. He is arguably the poster child of the GOP’s deviation from norms and their general adherence to bad faith in all areas of politics. He should be sitting on the Supreme Court right now. He isn’t because Mitch McConnell invented a precedent to keep him from being sworn in back in 2020. And yet, somehow, he has learned nothing from that experience. If anything, he’s paid it forward, onto fresh victims. It’s not yet clear just how much the Hur report has done to Biden’s standing. Whatever harm is done, however, is Garland’s fault.