It will be a busy four (eight?) years...
..Should Garland be confirmed, he will be handed a number of thorny issues, including whether and how to investigate President Donald Trump for episodes of potential obstruction of justice described in Special Counsel Robert Mueller’s final report, as well as allegations of tax fraud and other crimes related to Trump’s business dealings.
Citing a longstanding Justice Department legal opinion precluding criminal charges against a sitting president, Mueller did not offer a definitive conclusion on the obstruction charges, although former Attorney General Bill Barr said none of the incidents would have amounted to a crime even in the absence of the opinion. However, the opinion does not preclude prosecution of a former president.
The new attorney general will also face a series of challenges to reorient a department that has taken a decidedly skeptical approach to criminal justice reform efforts and the Black Lives Matter movement. He also will face major challenges in restoring morale at the department, which has seen a number of high-profile staff departures during the Trump years.
As Garland was under consideration as a potential AG pick, he took some unusual steps to seek to remain above ethical reproach. Beginning in early December, he recused from a series of civil and criminal justice cases involving the U.S. government, including appeals related to a string of executions the Trump administration is carrying out in the weeks leading up to the change in administration.
Biden’s pick of Garland carries a benefit for Democrats that may have made him more attractive in light of the expected victory of Democrats in the Georgia Senate runoff races Tuesday: it opens a seat on the D.C. Circuit, which is widely considered the second-most powerful court in the country.
With Democrats likely to win control of the Senate—and with the filibuster for low- and mid-level judicial nominations eliminated in 2013—confirming a successor to Garland should be relatively easy. Some close to Garland thought he was likely to declare senior status soon and open a vacancy on the court during the new administration, regardless of the outcome in Georgia and whether he was tapped for the AG slot.
Garland has an unusually broad base of support among Democratic lawyers in Washington D.C. thanks to a large number of law clerks who have gone on to high-profile jobs at the Justice Department and at prominent law firms.
“Merrick Garland is the perfect choice for this job,” said former Garland clerk Karen Dunn, who also served in the White House Counsel’s Office under Obama and is now a partner at law firm Paul Weiss. “He will restore independence and integrity to the Justice Department, be the people’s lawyer, not the president’s lawyer, and will come in with the respect of the career public servants who advance the cause of justice every day.”
