In his inaugural speech to Justice Department employees last week, Attorney General Merrick Garland chose to mention only one of his predecessors. Skipping Bobby Kennedy, William Barr, and other Attorneys General whose tenures have generated headlines, Garland singled out Edward Levi, whom President Gerald Ford had chosen as the country’s chief law-enforcement officer, in the immediate aftermath of Watergate. Levi was a conservative legal scholar and president of the University of Chicago, who was celebrated for his probity and his nonpartisanship. Ford’s goal in the appointment was to restore public trust in the idea that federal officials would enforce the law equally, not abuse it for political gain, as Nixon’s allies had. “The only way we can succeed and retain the trust of the American people is to adhere to the norms that have become part of the DNA of every Justice Department employee since Edward Levi’s stint as the first post-Watergate Attorney General,” Garland said. “Those norms require that like cases be treated alike. That there not be one rule for Democrats and another for Republicans, one rule for friends and another for foes, one rule for the powerful and another for the powerless, one rule for the rich and another for the poor, or different rules depending upon one’s race or ethnicity.”
Levi’s norms are, unquestionably, the standard that should be upheld by every U.S. Attorney General, but the political landscape—and the nation—that Garland inherits is vastly different from the one that Levi confronted nearly fifty years ago. On Wednesday, the intelligence community released a report warning that the threat of domestic violent extremism was rising. Partisanship is at its highest levels in decades. Public trust in institutions, from Congress to the courts, is at a near-record low. Republicans and Democrats increasingly get their information from cable and online information ecosystems that describe opposite realities. This division reached a zenith in the January 6th insurrection at the Capitol, which left five dead after an attempt to block Congress from certifying last year’s election results, and in Donald Trump’s subsequent second impeachment for his role in inciting the violence. In a recent poll, eighty-one per cent of Democrats said that Trump was mainly responsible for the violence and destruction. In a separate poll, fifty-eight per cent of Trump voters said that the attack was primarily inspired by Antifa.
In the weeks since the Senate acquitted the former President at his second impeachment trial, congressional efforts to create a nonpartisan, 9/11 Commission-style inquiry to investigate the riot have devolved into partisan bickering. Initial congressional hearings on the attack have, too. Legal experts, including Stephen Gillers, a professor of legal ethics at New York University’s law school, contend that the ongoing federal criminal investigation—which has led to the arrest of more than three hundred people from upward of forty states, and which Garland now controls—is likely the best way to determine to what degree Trump and his associates were involved in fomenting the siege. “The public understands that, if the same clues existed for someone else, they would be investigated,” Gillers told me. “Garland should approach January 6th with the same vigor that was used with crime bosses, drug traffickers, 9/11, and the Oklahoma City bombing. It should be no-holds-barred. Begin with the insurrectionists themselves and then try to flip them and see if there are ties to the White House.” (A Justice Department spokesperson declined to comment.)
Federal prosecutors and F.B.I. agents appear to be employing the tactics that Gillers described. In a court filing last week, prosecutors said that the “investigation and prosecution of the Capitol Attack will likely be one of the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence.” Last Friday, the Washington Post reported that investigators were attempting to collect evidence to indict the founder of the Oath Keepers, a far-right militia, on conspiracy charges for the role that members of the group played on January 6th. Four leaders of the far-right Proud Boys have been charged with leading about a hundred members of that group in the assault, as part of a coördinated plan to block Congress from certifying Trump’s defeat. For weeks, speculation has circulated about ties between the former Trump campaign adviser Roger Stone and the Oath Keepers, who have acted as his unofficial bodyguards in the past. Stone has condemned the violence, denied any role in the attack, and not been charged.
Civil-rights groups are also calling on Garland to enact reforms at the F.B.I., which, since 9/11, they say, has abused its surveillance powers and placed undue focus on Muslim-Americans as threats to national security. Mike German, a fellow at the Brennan Center for Justice at N.Y.U. and a former F.B.I. agent, said that prosecutors should investigate the Capitol assault as the culmination of a series of violent attacks by far-right groups in the past several years. German said he believed that bias among F.B.I. officials had caused them not to take the Proud Boys or the Oath Keepers sufficiently seriously. “All they had to do was look at the newspaper,” German said. “This was happening all across the United States.”
On March 2nd, the F.B.I. director, Christopher Wray, testified before the Senate Judiciary Committee for the first time since the assault. Wray said that domestic terrorism had been “metastasizing across the country” and disclosed that the number of white supremacists arrested in the U.S. in 2020 had almost tripled since 2017. Despite the stakes, some senators used their question time to amplify narratives that resonate in their political echo chamber. Democrats correctly highlighted Trump’s role in exacerbating extremism, but focussed little on how to quell the disinformation and social forces that help drive it. Republicans described Antifa and government surveillance as the gravest perils facing the nation. (Senator Josh Hawley demanded to know if the F.B.I. had collected cell-phone metadata from those near the Capitol at the time of the riot.) The country’s political polarization is stunting the legislative branch’s ability to act as a credible fact-finding body.
In an interview, a federal law-enforcement official told me that investigators were eager to arrest and prosecute anyone who broke the law, but were loath to be drawn into Washington’s partisan stew. “There is a resolve to insure that everybody that engaged in violence and destroyed property faces justice, regardless of ideology or motivation,” the official, who asked not to be named, said. But he said that federal law-enforcement officials do not have the power, or the desire, to declare domestic groups terrorist organizations. “Those are decisions that are up to elected officials and policymakers, not law enforcement,” he explained. “It’s not our role.”
Garland’s January 6th dilemma is a microcosm of the one that Joe Biden faces. Should the Attorney General adopt an aggressive approach, vigorously investigate the former President and his associates, and crack down on far-right groups and militias? Or should he follow a more cautious path, try to appeal to centrists, and avoid stoking far-right conspiracy theories regarding overreach by the federal government? A core part of Trump’s political project was the discrediting of the idea that nonpartisanship is even possible. In his dark vision of public life, nonpartisan public servants, from public-health experts to prosecutors, were politically biased, incompetent, or corrupt. Gillers told me that he hoped Garland would prove to be a “legal romantic” who “truly believes” that “law is a distinct space, with its own methodology and responsibility, and it must be divorced from political considerations.”
If Garland hopes to revive Levi’s ideals, his course is apparent. A federal criminal investigation is a comparatively blunt instrument, but it is the last, best route to uncovering the truth about one of the most violent attempts to overthrow a Presidential-election result in American history. During his confirmation hearing, Garland said, of the siege, “This was the most heinous attack on the democratic processes that I’ve ever seen, and one that I never expected to see in my lifetime,” and vowed to pursue leads “wherever they take us.” The risks for the new Attorney General, though, are significant. Justice Department prosecutors could struggle to find enough evidence to prove a conspiracy beyond reasonable doubt. Stone, other Trump associates, and Trump himself have adeptly operated in legal gray areas for decades. Garland could be forced to announce that the investigation has concluded without charges being filed against them. In that event, he would likely be barred, by law, from revealing any evidence collected, because most criminal investigations are conducted in secret, via grand-jury subpoenas. Garland could also announce charges, go to trial, and fail to win convictions, a debacle that would reinforce claims from Trump that he is the victim—and the unbowed survivor—of another deep-state plot against him.
Yet facts, hopefully, remain weapons. That is why Garland should use his powers as Attorney General to exhaustively, and impartially, reconstruct the events of January 6th and the months that preceded it—to go, as prosecutors are supposed to, where the facts lead him, and then determine who deserves to be criminally charged. “You can’t make that decision without an investigation,” Gillers told me. “You follow the facts, you learn the facts, and then you make a decision.” Our increasing inability to agree on basic facts, of course, is the great challenge, and tragedy, of our time.
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