Biden picks Merrick Garland for attorney general

Garland, a Harvard Law School graduate and judge on the U.S. Court of Appeals for the District of Columbia Circuit who was former President Barack Obama’s ill-fated 2016 nominee for the Supreme Court, now faces yet another confirmation process in the Senate, which the Democratic Party, it appears, will have control of following dual Georgia Senate races on Tuesday.

Biden’s new pick will take over at a contentious time, amid calls from some Democrats for President Trump to be investigated after he leaves office and as now-special counsel John Durham’s investigation into the Trump-Russia investigators continues. The Justice Department has joined in the Trump administration’s pressure campaign toward China, and how Biden will approach the Chinese Communist Party remains to be seen. Biden will also be taking office in the wake of federal executions scheduled under now-former Attorney General William Barr during the transition period, with the former Obama vice president promising to end capital punishment and vowing to pass national police reform legislation once in office.

The September death of Ruth Bader Ginsburg, the 87-year-old liberal justice who was nominated by President Bill Clinton and confirmed in 1993, in the middle of 2020’s election, drew comparisons to the death of Justice Antonin Scalia, the 79-year-old conservative icon and Ronald Reagan appointee who died in February 2016 during the Democratic and Republican primaries.

Obama nominated Garland, then the chief judge of the D.C. appeals court, to fill Scalia’s vacancy in March 2016. But Senate Republicans, led by Senate Majority Leader Mitch McConnell, declined to hold confirmation hearings or a vote, arguing that they wouldn’t confirm a justice appointed by a lame-duck president of the opposite party and that the winner of the 2016 presidential contest should fill the vacancy. Neil Gorsuch took the spot after Trump nominated him and the Senate confirmed him in 2017. Amy Coney Barrett was confirmed to fill Ginsburg’s vacancy in October.

Garland, 68, was born in Chicago and went to Harvard for both undergraduate studies and law school, where he graduated magna cum laude in 1977. He clerked under Supreme Court Justice William Brennan, seen as a leader of the left wing of the court, in 1978 and 1979, and served as a deputy assistant attorney general for DOJ’s criminal division during the Clinton administration. Jamie Gorelick, a Clinton-era DOJ official, was Garland’s college friend, longtime mentor, and boss, including when he worked for her when she was deputy attorney general.

At the Justice Department, Garland played key roles in the investigation and prosecution of the 1995 Oklahoma City bombing carried out by Timothy McVeigh and Terry Nichols, with the prosecution of Unabomber Ted Kaczynski, and with the investigation related to the Centennial Olympic Park bombing in Atlanta in 1996, where the FBI initially investigated security guard Richard Jewell as a suspect but ultimately identified and convicted Eric Rudolph following more bombings in 1997.

Garland made it to the D.C. appeals court, considered the second-most powerful bench outside the Supreme Court, after being nominated by Clinton and confirmed by the Senate in 1997, and he served as its chief judge from 2013 through early 2020.

Barr, who left his post just before Christmas and was succeeded by acting Attorney General Jeffrey Rosen, was a harsh critic of the Trump-Russia investigations, but he rejected calls to appoint special counsels to investigate either Hunter Biden or allegations of voter fraud, saying the Justice Department had not unearthed widespread fraud that could change the outcome of the presidential race.

Biden was asked by NBC’s Lester Holt in late November about the possibility of investigating Trump after he leaves office, and the former Obama vice president suggested he wouldn’t direct his attorney general to do so.

“I will not do what this president does and use the Justice Department as my vehicle to insist that something happen,” Biden said. “There are a number of investigations that I’ve read about that are at a state level — there’s nothing at all I can or cannot do about that. But I’m focused on getting the American public back in a place where they have some certainty, some surety, some knowledge that they can make it. Middle-class and working-class people are being crushed — that’s my focus.”

Durham, a federal prosecutor from Connecticut, has been looking into a host of issues related to the origins and conduct of the investigation into Russian meddling and alleged collusion with Trump, and his criminal inquiry has netted one guilty plea already, with ex-FBI lawyer Kevin Clinesmith admitting to altering an email to say that former Trump campaign associate Carter Page was “not a source” for the CIA as the bureau pursued flawed Foreign Intelligence Surveillance Act warrants against him, relying upon British ex-spy Christopher Steele’s discredited dossier.

Biden has not said whether he will allow Durham to finish his investigation.

Much of Trump’s presidency was consumed by the Trump-Russia investigation, which was launched in July 2016 and escalated following Trump’s firing of FBI Director James Comey and the appointment of Robert Mueller as special counsel.

Mueller’s 448-page report, released in April 2019, said the Russians interfered in 2016 in a “sweeping and systematic fashion,” but the special counsel “did not establish that members of the Trump campaign conspired or coordinated with the Russian government.” The special counsel also laid out 10 possible instances of Trump obstructing justice but did not reach a conclusion. Barr and Rod Rosenstein, who was deputy attorney general at the time, concluded Trump had not obstructed justice.

During an ABC News town hall in October, George Stephanopoulos asked Biden what his Justice Department would do with the evidence of possible obstruction by Trump.

“What the Biden Justice Department will do is let the Department of Justice be the Department of Justice. Let them make the judgments of who should be prosecuted. They’re not my lawyers. They’re not my personal lawyer,” Biden said, adding, “I’m not going to rule in or out. Well, I’m going to hire really first-rate prosecutors and people who understand the law like Democrat and Republican administrations have had, and let them make the judgments, but turning this into a vehicle for your, as if it’s your own law firm, you don’t own that Justice Department.”

The Biden transition website currently lists just four priorities: COVID-19, economic recovery, climate change, and racial equity. In that final section, it states that Biden “is working to strengthen America’s commitment to justice, and reform our criminal justice system.” The site promises that the Biden administration will work with Congress on police reform legislation to include “a nationwide ban on chokeholds” and “a national police oversight commission.”

Jen Psaki, picked by Biden to serve as his press secretary, said in December that the president-elect would not discuss the investigation of his son Hunter with any of his candidates for attorney general, even after one takes office. She also declined to say whether the incoming president would keep on the U.S. attorney in Delaware known to be investigating the younger Biden.

“He will not be discussing an investigation of his son with any attorney general candidates, he will not be discussing it with anyone he is considering for the role, and he will not be discussing it with a future attorney general. It will be up to the purview of a future attorney general in his administration to determine how to handle any investigation,” Psaki told Fox News. “As you know, U.S. attorneys are — that’s a personnel decision. … But we’re going to allow the process to work how it should, which is for the Justice Department to be run independently by the attorney general at the top.”

Hunter Biden has been under criminal investigation stretching as far back as 2018 as federal authorities scrutinize his taxes and foreign business dealings. While the full scope of the federal inquiries have not been made public, the 50-year-old’s financial transactions with China are likely at the forefront. Joe Biden’s campaign, along with many in the media, had dismissed the Hunter laptop story and other allegations as being part of a Russian disinformation operation, even though Director of National Intelligence John Ratcliffe said he had not seen “intelligence that supports that … Hunter Biden’s laptop is part of some Russian disinformation campaign.”

Last month, Biden talked about the investigation into his son during an interview on The Late Show with Stephen Colbert, who asked the former vice president what he will do about people “who want to make hay” and would “use your adult son as a cudgel against you.”

“I have, we have, great confidence in our son,” Biden replied, adding, “I’m not concerned about any accusations that have been made against him.” Biden claimed that “it’s used to get to me” and “I think it’s kind of foul play.”

Biden said his willingness to reach across the aisle should not be taken to mean he wasn’t angry about how he thought his son was being mistreated. “Don’t get me wrong, doesn’t mean I’m not angry — doesn’t mean I wasn’t angry, and it doesn’t mean if I were back in the days in high school I wouldn’t say ‘come here’ you know, and go a round,” he said.