The riot at the US Capitol building last week demonstrates the importance of President-elect Joe Biden’s nomination of Merrick Garland to be attorney general. After President Trump urged thousands of supporters at a Jan. 6 rally to march on the Capitol and “fight like hell” to overturn the election, the angry mob invaded the Capitol, and five people died. It was an unprecedented unlawful attack on American democracy.
In contrast, the Department of Justice, at its best, institutionalizes our nation’s commitment to law, justice, and democracy. The next attorney general will be challenged to restore confidence in a department perceived by many to have become partisan under Trump and at a time when passions are inflamed.
Among other challenges, the future attorney general will have to make many decisions with profound political implications. If confirmed, Garland will need to consider whether there are “extraordinary circumstances” that make it “in the public interest” to appoint a special counsel to investigate the business activities of President Biden’s son Hunter. The next attorney general will also have to consider whether there is a proper basis to investigate Trump or members of his family for any crimes they may have committed, and whether it would be in the public interest to do so. He may also have to weigh whether to assert that a former president who pardoned himself can be prosecuted.
The department is already considering whether to prosecute Trump for his remarks on Jan. 6. However, speech is generally protected by the First Amendment. It is not criminal unless the speaker intended to incite criminal conduct and was likely to provoke it promptly. This is a high standard, and Justice Department policy prohibits indicting any case unless prosecutors believe they are likely to be able to prove it beyond a reasonable doubt.
In addition, the attorney general will have to decide on how to balance protection of civil liberties and of the public in an era in which domestic terrorism is a great and growing danger.
These decisions will inevitably be controversial. It is important to our democracy that reasonable people accept them as principled and legitimate, not partisan. Therefore, it is essential that the next attorney general be respected for his experience, intelligence, integrity, and impartiality.
Born in Chicago, Garland had a brilliant academic record and clerked for Supreme Court Justice William Brennan. He was also a federal prosecutor and an assistant to the attorney general and deputy attorney general of the United States, supervising major domestic terrorism cases. He has served on the US Court of Appeals since 1995.
As the distinguished appellate lawyer Tom Goldstein has written, Garland is regarded as “essentially the model, neutral judge.” He should be well-prepared to, if necessary, make decisions that disappoint his supporters, including the president.
The challenges to restoring trust in the Justice Department are great, but not unprecedented. When President Richard Nixon resigned in disgrace in 1974 as a result of the Watergate break-in and cover-up, there was corrosive public cynicism about the executive branch, particularly the Justice Department. Two of Nixon’s attorneys general were later convicted of crimes.
In 1975, President Gerald Ford appointed Edward H. Levi attorney general. Levi was president of the University of Chicago and not known to be a member of any political party. During World War II, Levi had been an assistant to US Attorney General Francis Biddle, a former federal Court of Appeals judge.
Ford told Levi that he wanted the attorney general to “protect the rights of American citizens, not the president who appointed him.” In 1976, Levi received allegations that Ford had, as a congressman, accepted illegal campaign contributions from a union. He doubted their veracity but, recognizing the public skepticism about whether an attorney general could be trusted to investigate the president who appointed him, referred the matter to a special prosecutor. Although the special prosecutor determined that the charges were unfounded, some Republicans blamed the referral for Ford’s narrow defeat in the 1976 election.
In 1977, Levi left office acclaimed by Democrats and Republicans. He had led the department with the understanding that, as he put it, “If we are to have a government of laws and not of men, then it takes particularly dedicated men and women to accomplish this through their zeal and determination, and also their concern for fairness and impartiality.” Under the leadership of Levi, who died in 2000, public trust was restored in the department, which largely endured until recently.
Biden has now selected another attorney general from Chicago. In 1985, Ford wrote, “All Americans, of every political persuasion, should be thankful for [Levi’s] fair, principled, and untarnished leadership in the Department of Justice.” There is good reason to hope that Biden will someday say the same about Garland.
Mark L. Wolf is a senior US district judge in Massachusetts. He was a special assistant to Attorney General Edward H. Levi.