A President, in Joe Biden’s position, would seem to be in a bit of a bind regarding his Attorney General. The “bind” comes from two factors:
- 1) on the one hand, Attorney General Garland seems to be shrinking from an important part of the task at hand; but also
- 2) Biden has rightly promised that — in distinct contrast with Donald Trump — he would respect the rightful autonomy of the Department of Justice, and not involve himself in specific investigations (neither to sic the DOJ on particular people, nor to protect particular people from the workings of justice).
But there’s a reasonable solution to this bind.
1) There’s some apparently valid dissatisfaction with Attorney General Garland: there’s precious little evidence that the Department of Justice is going after crimes committed by major players in the Republican/Trump world.
(The validity of that complaint is suggested by the repeated concerns expressed by Lawrence Tribe, Harvard Law School professor and a giant among America’s constitutional authorities; and by people like former Senator (and former prosecutor) Claire McCaskill who declared that there was no good reason for the DOJ to have taken three weeks to come up with an indictment of Steve Bannon on the contempt of Congress charge.)
2) The proper separation between the White House and the Department of Justice need not mean that the President cannot hold the Attorney General to the full range of his responsibilities.
Here is what I believe would be both called for and proper for President Biden to say to Attorney General Garland:
You took this office pledging to restore “the rule of law,” and restore the American people’s faith that the law would be applied fairly and impartially. It was for that purpose that I chose you for that job.
But there is a widespread impression in the country that the DOJ — perhaps from fear of appearing “partisan” — is shrinking from applying the law to major political figures who have committed arguably criminal acts, many of them in full public view.
I want to encourage you to set aside whatever inhibitions you may have about any warranted investigations and prosecutions. You have pledged to enforce the law “without fear or favor,” and that’s all I’m asking you to do.
A central requirement of “the rule of law” is that the Department of Justice demonstrate — and the American people witness — that “no one is above the law.”
My request is that you make sure that vital principle — that no one is above the law — is fully honored by your Department.
It may well be that President Biden shares AG Garland’s skittishness about dealing with the blatant wrong-doing issuing from the other side of the political divide. But whether or not Biden’s own impulse to shrink from confrontation is a part of the problem, it is a problem. And the law applied “without fear or favor” is what the President of the United States should demand at this dangerous moment when our whole system of “laws, not of men” is in jeopardy.
(I will be posting soon a piece on what Biden himself can and should be doing about the ongoing disgraceful conduct of the Republicans— a course that, I would argue, would not only serve the nation’s most vital interests but would also go far to restore Biden’s recently-eroded standing with the American people.)