Climbing into the DWT time machine, let me refresh what I wrote about Merrick Garland 6 years and two weeks ago, the first time we mentioned him. Obama had just nominated him to the Supreme Court and McConnell hadn't killed the nomination yet. Fox's senior judicial analyst, Judge Andrew Napolitano, had just explained that "Garland is the consummate Washington, DC insider [and] the most conservative nominee to the Supreme Court by a Democratic president in the modern era."
Despite fulsome praise from the carefully orchestrated Democratic lapdog organizations, progressives are anything but impressed with Merrick Garland... Mark Plotkin isn't high on President Obama's nomination of Merrick Garland and points out that a nominee's acceptability to Republicans-- with Garland has aplenty-- shouldn't be what motivates "a president to choose someone in particular. A president who takes that path is denigrating the process and making this most important appointment nothing more than a political deal." But what Plotkin is all worked up over is a case many people have never heard of, Alexander v. Daley.
The basis of the legal argument put forth by American University law professor Jamin Raskin, Assistant D.C. Corporation Counsel Walter Smith and attorneys Charles Miller, Evan Schultz and Tom Williamson of Covington & Burling-- as noted in a law review article co-authored by Raskin in Human Rights Brief-- was that the "denial of the D.C. community's right to be represented in the U.S. Congress violates the rights of Equal Protection, Due Process, a republican form of government, and the privileges and immunities of national citizenship-- all critical democratic guarantees of the U.S. Constitution."
What Garland did, along with another judge, was to rule against the citizens of D.C. In a tortured and simplistic opinion, he said that since D.C. was not a "state," its citizens should not be accorded the same rights as every other U.S. citizen. This opinion was the moral equivalent of Plessy v. Ferguson (1896), saying that "separate but equal" was legal.
In my opinion, it was a classic illustration of voter suppression, using a phony legal justification for denying the vote to an entire group of U.S. citizens-- in this case, citizens of the nation's capital. That decision alone should disqualify him from consideration to the highest court in the land.
It is my opinion that Garland did not want to go out on a limb and favor anything so radical as providing the vote to over 600,000 disenfranchised citizens (76 percent of whom are registered as Democrats). You see, this opinion would be viewed as controversial and too liberal, and the last thing Garland wanted was to have those monikers attached to him.
So he carefully positioned himself on the "right" side so he could be viewed as viable if a chance for the Supreme Court ever presented itself. When it came to this decision, Garland, with all his impressive educational and professional credentials, chose to think of his own judicial advancement first.
At the very top of the Supreme Court, emblazoned in stone, are these simple words: "Equal justice under law." Merrick Garland decided to ignore and violate that sacred principle.
If my opinion of Garland, now Biden's weak, foot-dragging Attorney General, has changed since then, it hasn't been for the better. On Friday he was questioned at a press conference about the pressure on his department to move at a more reasonable pace on the cases around the Trump coup attempt. He gave his typical bullshit line about following the facts wherever they go. So far they haven't gone anywhere-- and probably won't. Garland is going nowhere with the investigation-- and very, very slowly. I doubt he-- or Biden-- have any intension of holding Trump to any kind of accountability. The U.S. doesn't do that with former presidents, not even illegitimate ones like Trump.
Yesterday a trio of NY Times ace reporters gave Garland the benefit of the doubt, noting that, right from the start of his term his "deliberative approach has come to frustrate Democratic allies of the White House and, at times, President Biden himself. As recently as late last year, Biden confided to his inner circle that he believed Trump was a threat to democracy and should be prosecuted, according to two people familiar with his comments. And while the president has never communicated his frustrations directly to Garland, he has said privately that he wanted Garland to act less like a ponderous judge and more like a prosecutor who is willing to take decisive action over the events of Jan. 6." If that's true-- which I sincerely doubt-- Garland is paying no heed.
Democrats’ increasingly urgent calls for the Justice Department to take more aggressive action highlight the tension between the frenetic demands of politics and the methodical pace of one of the biggest prosecutions in the department’s history.
“The Department of Justice must move swiftly,” Representative Elaine Luria, Democrat of Virginia and a member of the House committee investigating the riot, said this past week. She and others on the panel want the department to charge Trump allies with contempt for refusing to comply with the committee’s subpoenas.
“Attorney General Garland,” Luria said during a committee hearing, “do your job so that we can do ours.”
...The Jan. 6 investigation is a test not just for Garland, but for Biden as well. Both men came into office promising to restore the independence and reputation of a Justice Department that Trump had tried to weaponize for political gain.
For Biden, keeping that promise means inviting the ire of supporters who say they will hold the president to the remarks he made on the anniversary of the assault on the Capitol, when he vowed to make sure “the past isn’t buried” and said that the people who planned the siege “held a dagger at the throat of America.”
...When it comes to Jan. 6, Justice Department officials emphasize that their investigation has produced substantial results already, including more than 775 arrests and a charge of seditious conspiracy against the leader of a far-right militia. More than 280 people have been charged with obstructing Congress’s duty to certify the election results.
And federal prosecutors have widened the investigation to include a broad range of figures associated with Mr. Trump’s attempts to cling to power. According to people familiar with the inquiry, it now encompasses planning for pro-Trump rallies ahead of the riot and the push by some Trump allies to promote slates of fake electors.
The Justice Department has given no public indication about its timeline or whether prosecutors might be considering a case against Trump.
The House committee investigating the Jan. 6 attack can send criminal referrals to the Justice Department, but only the department can bring charges. The panel is working with a sense of urgency to build its case ahead of this year’s midterm elections, when Republicans could retake the House and dissolve the committee.
Biden, a longtime creature of the Senate, is aghast that people close to Trump have defied congressional subpoenas and has told people close to him that he does not understand how they think they can do so, according to two people familiar with his thinking.
Garland has not changed his approach to criminal prosecutions in order to placate his critics, according to several Justice Department officials who have discussed the matter with him. He is regularly briefed on the Jan. 6 investigation, but he has remained reticent in public.
“The best way to undermine an investigation is to say things out of court,” Garland said on Friday.
Even in private, he relies on a stock phrase: “Rule of law,” he says, “means there not be one rule for friends and another for foes.”
He did seem to acknowledge Democrats’ frustrations in a speech in January, when he reiterated that the department “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law.”
Quiet and reserved, Garland is well known for the job he was denied: a seat on the Supreme Court. President Barack Obama nominated him in March 2016 after the death of Justice Antonin Scalia, but Senate Republicans blockaded the nomination.
Garland’s peers regard him as a formidable legal mind and a political centrist. After graduating from Harvard Law School, he clerked for a federal appeals court judge and Justice William Brennan Jr. of the Supreme Court before becoming a top official in the Justice Department under Attorney General Janet Reno. There, he prosecuted domestic terrorism cases and supervised the federal investigation into the Oklahoma City bombing.
His critics say that his subsequent years as an appeals court judge made him slow and overly deliberative. But his defenders say that he has always carefully considered legal issues, particularly if the stakes were very high-- a trait that most likely helped the Justice Department secure a conviction against Timothy McVeigh two years after the Oklahoma City attack.
...[T]there is unrelenting pressure from Democrats to hold Trump and his allies accountable for the violence that unfolded at the Capitol on Jan. 6. While there is no indication that federal prosecutors are close to charging the former president, Biden and those closest to him understand the legal calculations. What Garland is confronting is anything but a normal problem, with enormous political stakes ahead of the next presidential election.
Federal prosecutors would have no room for error in building a criminal case against Trump, experts say, given the high burden of proof they must meet and the likelihood of any decision being appealed.
A criminal investigation in Manhattan that examined Trump’s business dealings imploded this year, underscoring the risks and challenges that come with trying to indict the former president. The new district attorney there, Alvin Bragg, would not let his prosecutors present a grand jury with evidence that they felt proved Trump knowingly falsified the value of his assets for undue financial gain.
One of the outside lawyers who oversaw the case and resigned in protest wrote in a letter to Bragg that his decision was “a grave failure of justice,” even if he feared that the district attorney’s office could lose.
At times, Biden cannot help but get drawn into the discourse over the Justice Department, despite his stated commitment to stay away.
In October, he told reporters that he thought those who defied subpoenas from the House committee investigating the Jan. 6 attack should be prosecuted.
“I hope that the committee goes after them and holds them accountable criminally,” Biden said. When asked whether the Justice Department should prosecute them, he replied, “I do, yes.”
The president’s words prompted a swift statement from the agency: “The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop.”