Amid a transition season of bruising battles between progressives and the old guard over Biden’s Cabinet picks, Merrick Garland for Attorney General was one choice that sparked relatively little controversy. Three months into Biden’s presidency, however, Garland is quickly shaping up to be the most consequentially bad Cabinet pick. On any number of important metrics — sweeping out holdovers from the Trump administration and reversing its positions, preventing corporate capture, and acting aggressively to advance the public interest — Garland is failing.
Despite the severe implications of this failure across a number of hot button issues, it has garnered relatively little attention. Below you will find a summary of the problems we have highlighted over the last several months and some areas calling out for further inquiry.
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U.S. ATTORNEYS
U.S. Attorneys will be key to the success or failure of President Biden’s criminal justice reform agenda. So far, however, his administration has failed to pay sufficient attention to these offices. Although most Trump-appointed U.S. Attorneys resigned this winter, most of their acting replacements were promoted to their #2 status in their offices by a Trump US Attorney. Biden has neither replaced these officials with other acting leaders nor nominated any permanent successors for these offices. Biden should move more quickly to put these roles in the hands of those who will use them to advance a criminal justice reform agenda. That will require breaking with norms that give insurrectionists like Josh Hawley and Ted Cruz the right to veto (or “blue slip”) U.S. Attorney picks for their home states.
Past work:
- Resignation of Trump-Appointed US Attorneys Is Just The Start Of DOJ’s De-Trumpification
- Trump Holdovers Still Dot US Attorneys Offices
- Bold Leadership Needed in Minnesota’s US Attorney Office
- Coalition Calls on Biden to Appoint US Attorneys Who Will Advance Criminal Justice Reform
Note that we have also observed that nominations for other important roles on criminal justice policy — like the United States Parole Commission — have been slow to emerge.
For further inquiry:
- How many U.S. Attorneys’ offices remain effectively in the Trump administration’s hands? What are the consequences?
- How is the Biden administration choosing U.S. Attorneys? Is it deferring to insurrectionists? Consulting Democrats in relevant states?
TRANSPARENCY
Information about the decision makers at the Justice Department is absurdly inaccessible. The names of the heads of many offices and branches, of advisors, and of senior officials are not publicly posted or announced. Knowledge of departmental leadership that should be published on the website instead leaks out through word of mouth or case filings. Details about the nature of officials’ employment, their potential conflicts of interest, and more are even more opaque. This lack of transparency has repeatedly helped to conceal when holdovers from the Trump administration have been left in or elevated to new, powerful positions in the department.
Past work:
- Letter Calls On Garland To Commit To Greater Transparency At DOJ
- Trump Appointees Still Setting Agenda At Biden’s Antitrust Division
For further inquiry:
- Why is it so difficult to access basic information about the Justice Department’s senior ranks?
- Who exactly is filling these roles?
- How much, or little, progress has Garland made in identifying and moving Trump holdovers?
REVOLVING DOOR
In most areas, the Biden administration represents a sea change when it comes to corporate influence. Not, however, at Merrick Garland’s Justice Department, where corporate lawyers continue to lead.
Past work:
- Garland Must Lock BigLaw Out Of DOJ Leadership To Enact Biden Agenda, 37 Groups Say
- Revolver Spotlight: Lisa Monaco
- Acting Officials Can Govern for Years. They Deserve Scrutiny.
- Biden’s Antitrust Minefield
For further inquiry:
- Are former BigLaw attorneys acting in a manner that is consistent with the Biden administration’s broader agenda?
- Are former BigLaw attorneys willing to use their powers aggressively to pursue their former clients?
LITIGATION POSITIONS
In essence, Biden promised to be Trump’s opposite. In numerous high-profile cases, however, his Justice Department has not deviated from the former’s path at all. In still others, it has dragged out and delayed decisions in important cases, giving baffling deference to a Justice department that consistently demonstrated its hostility to the rule of law.
Past work:
- The Trump Administration Made a Mockery of the Law. Why Hasn’t Biden Tossed its Cases?
- Merrick Garland: A Potential Wolf in Sheep’s Clothing for Criminal Justice Advocates
For further inquiry:
- How is it that Biden’s Justice Department is acting in a manner that appears so out of step with the broader administration’s policy?
- Why is it not moving with urgency to reverse the Trump administration’s positions?
IMAGE: Department of Justice