What has occurred in the last six months has left some of us shaken, given our early faith in Garland.
This week, Attorney General Merrick Garland took to the pages of the Washington Post to lash out at critics who are spreading what he considers “conspiracy theories crafted and spread for the purpose of undermining public trust in the judicial process itself.” His column, titled "Unfounded attacks on the Justice Department must end," missed the point.
It is Garland himself who has become the problem. The solution is in Wilmington, Delaware, where 12 average citizens just showed a commitment to the rule of law that seems to be harder and harder for the attorney general to meet.
Since his appointment, Garland has repeated a mantra that he is apolitical and would never yield to the pressures of politics or the White House. When he was nominated, I believed that claim and enthusiastically supported Garland’s confirmation. He was, I thought, the perfect man for the job after his distinguished judicial service as a moderate judge.
I was wrong. Garland’s tenure as attorney general has shown a pronounced reluctance to take steps that would threaten President Biden. He slow-walked the appointment of a special counsel investigating any Biden, and then excluded from the counsel's scope any investigation of the massive influence peddling operation by Hunter Biden, his uncle and others.
However, it is what has occurred in the last six months that has left some of us shaken, given our early faith in Garland.
I have long been a critic of Garland's failure to order a special counsel to look into the extensive evidence of corruption surrounding the Bidens. As I stated in my testimony in the Biden impeachment hearing, there is ample evidence that Biden lied repeatedly about his knowledge of this corruption and his interaction with these foreign clients.
However, a more worrisome concern is the lack of consistency in these investigations. First, Special Counsel Robert Hur found that Biden knowingly retained and mishandled classified material. However, he concluded that Biden’s age and diminished faculties would make him too sympathetic to a jury. It was less sympathetic than pathetic, given that this is the same man who is running for re-election to lead the most powerful nation on Earth. More importantly, Garland has not made obvious efforts to reach a consistent approach in the two cases by dropping charges based on the same crimes by Trump in Florida.
Second, Garland has allowed Special Counsel Jack Smith to maintain positions that seem diametrically at odds with past Justice Department policies. This includes Smith’s statement that he will try Trump up to (and even through) the next election. It also includes a sweeping gag order which would have eviscerated free speech protections by gagging Trump from criticizing the Justice Department. While Garland has said that he wants to give the special counsels their independence, it falls to him to protect the consistency and values of his department.
Garland's most brazenly political act has been the laughable executive privilege claim used to withhold the audiotape of the Hur-Biden interviews. The Justice Department has not claimed that the transcript is privileged, but only that the audiotape of Biden’s comments is privileged. This is so logically disconnected that even CNN hosts have mocked it.
The Justice Department went further in court by adding conspiracy to absurdity as part of its unhinged theory. It asserted a type of “deepfake privilege” on the basis that the release of the audiotape could allow AI systems to create fake versions of the president’s words. It ignores that there are already ample public sources now to create such fake tapes and that, by withholding the real audiotape, the Justice Department only makes such fake copies more likely to arise and ensnare the unwary.
Most importantly, the arguments of a “he-who-must-not-be-heard” privilege or a deep-flake privilege are ridiculous. Garland knows that, as would any first-year law student. Yet, he is going along with a claim that is clearly designed to protect Biden from embarrassment before the next election. It is entirely political and absurd.
After stumbling through a half-hearted defense of the audiotape decision before he was held in contempt of Congress, Garland was faced with another clear test of principle. Three House committees (Oversight, Judiciary, and Ways and Means) this month referred for prosecution cases of perjury against Hunter Biden and his uncle, James Biden. Despite what appear to be open-and-shut allegations that they lied to Congress, most everyone in Washington believes that Garland and the Justice Department will slow-walk and then scuttle the referrals to protect the Bidens.
This is the same Justice Department that seemed on a hair-trigger to prosecute Trump officials for perjury and contempt after referrals from Democrat-controlled committees.
The questions at issue were not "gotcha" traps, like showing up at Michael Flynn’s office to nail him on his description of a meeting with Russian diplomats. These were some of the most-discussed questions heading into Hunter Biden’s long-delayed appearance before the committees.
Hunter is accused of lying about his position at Rosemont Seneca Bohai, a corporate entity that moved millions of dollars from foreign individuals and entities to Hunter Biden. He also allegedly lied about the identity of the recipient of his controversial message to a Chinese businessman, in which he threatened that his father was sitting “right next to me” and would join him in retaliating against the Chinese if they did not send millions. They promptly wired the money as demanded.
Hunter's answers appear to be demonstrably untrue. Yet, there is little faith that the Justice Department will allow the matter to be presented to a grand jury. If Garland’s pledge to remain apolitical were widely accepted, there would be little question about the prosecution of such compelling claims.
Garland now appears entirely adrift in his own department. While mouthing platitudes about being beyond politics, he continues to run interference for the Biden White House. He appears to be looking to close aides for such direction.
He should instead look to those 12 people in Wilmington, Delaware.
Despite facing overwhelming evidence of Hunter Biden's guilt, his legal team pursued a jury-nullification strategy. Wilmington is Bidentown, the hometown for the president and his family. An array of Bidens, including the first lady, lined up behind Hunter during the trial, in case anyone forgot that fact.
Yet the jury convicted Hunter on all counts without any hesitation. Despite sympathy for a recovering drug addict in a town that has overwhelmingly supported the Bidens for decades, "nobody mentioned anything about political motivations” in the jury room, as one juror noted. "I was never thinking of President Joe Biden," said another.
Garland needs to show a modicum of that courage and principle as attorney general. He could start by dropping the farcical privilege claims over the audiotape and sending the referrals to the U.S. Attorneys Office for the same priority treatment afforded to Trump officials like Flynn.
As it stands, few believe that will happen, despite Garland’s repeated line about transcending politics. It is not the mantra that is in doubt, but the man.
Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Washington University School of Law. He is the author of "The Indispensable Right: Free Speech in an Age of Rage" (Simon and Schuster, 2024).
