Merrick Garland needs to end his 'relative silence' about DOJ matters and speak out: legal experts

Eleven months into Joe Biden’s presidency and almost a year after the January 6 insurrection, many critics of former President Donald Trump and his cronies are arguing that U.S. Attorney General Merrick Garland hasn’t gone after MAGA criminality aggressively enough. Legal experts Quinta Jurecic, Andrew Kent and Benjamin Wittes address that criticism in an article published by Lawfare on December 21.

The article defends Garland, for the most part. But Jurecic, Kent and Wittes agree that Garland needs to speak out a lot more.

“Attorney General Merrick Garland is taking a great deal of criticism these days,” they observe. “He’s being attacked for not having indicted former President Trump, for not having brought cases faster against witnesses who have defied the January 6 committee, and for not having moved more aggressively against political figures for their supposed involvement in the January 6 insurrection. These criticisms speak to genuine frustrations with the slow pace of Department (of Justice) action. They are also based on two flawed assumptions.”

Jurecic, Kent and Wittes continue, “The first is the assumption that the evidence and equities would support prosecutions and, consequently, that the absence of criminal cases reveals weakness or hypercaution on the Justice Department’s part. This may be the case — but it may not…. The second problem is the confusion of what has not happened with what has not happened yet. The Justice Department can be very busy without making a lot of noise. The fact that indictments have not materialized so far does not mean they won’t appear tomorrow — or the day after. But nearly a year into his tenure as attorney general, though much of the criticism of Garland has been unfair or at least premature, the attorney general does have something to answer for: his relative silence.”

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The legal experts go on to say that Garland has cited Edward Levi, who served as U.S. attorney general under President Gerald R. Ford in the mid-1970s, as a role model. Levi, Garland said, “enunciated the norms that would ensure the Department’s adherence to the rule of law.”

“There’s a very good reason the senior Justice Department leadership keeps pointing to Ed Levi as a kind of founding father of the Justice Department they seek to restore,” Jurecic, Kent and Wittes write. “Indeed, we are sympathetic to the Justice Department’s need to revive the norms and practices of apolitical, independent and professional justice that Levi did more than any other single person to create…. Yet Garland seems to be ignoring one crucial aspect of Levi’s legacy: Ed Levi spoke a lot. Garland has been, in sharp contrast, largely invisible.”

Levi, they add, “personally attached great importance to his speeches and testimonies.”

“Despite our sympathy with the challenges facing Garland,” the legal experts write, “his unwillingness to give the public any insight into his thinking seems ripe for criticism. It reflects a decision not to sell a vision — a vision that Garland clearly possesses and embodies — about how decisions should get made when the Department is functioning properly.”

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