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Attorney general’s indifference to Trump dulls praise at anniversary

Merrick Garland touts his record of going after high-profile wrongs, but those eager for him to take on the former president are still holding their breath.

WASHINGTON (CN) — As Attorney General Merrick Garland marks his first year as the nation’s top prosecutor, some justice experts and advocates say President Biden’s pick has won some major cases but also appears to be avoiding others.

Former federal prosecutor Neama Rahmani points to the civil rights cases involving the deaths of George Floyd and Ahmaud Arbery as Garland’s “biggest wins” so far.

“Those were tough cases. Obviously they were convicted in state court," Rahmani told Courthouse News, referring to Floyd and Arbery's killers, "but all of the real nasty racist evidence came out in the federal civil rights trial."

When compared to the record of Garland's Republican predecessor, Rahmani continued, Garland's activity is even more striking.

“Frankly, you know, civil rights prosecution — that’s something William Barr [and] the Trump administration didn't even really pursue,” he said. “And to the extent they did foresee those cases — they were reverse-discrimination cases.”

But Rahmani says he is surprised that Garland has not tried to bring a case against former President Donald J. Trump.

“If you're thinking that, you know, he was involved in the insurrection, or he's committing tax fraud, you know, and to sort of punt [the] potential to abdicate his responsibility — as attorney general, the chief prosecutor, you know, I think that was surprising,” he said.

There are both legal and political factors at play, according to Rahmani, noting the danger of the United States being seen as a country that “prosecutes one's political opponents.” Such an image may “set up a potentially bad and dangerous precedent.”

Garland told reporters Thursday, the eve of his one-year anniversary, that the Justice Department does "not shy away from cases that are controversial or sensitive or political."

“To do that would undermine an element of the rule of law that we treat like cases alike without regard to the subject matter," Garland said.

Though the AG refused to answer whether he would appoint a special counsel to investigate former President Trump, Rahmani says Americans are eager for closure.

“I think there should be just a clear statement like, you know, we have investigated and concluded that you know, there's not enough evidence or … this is not a good use of Justice’s resources or [it’s] typically divisive — it’s going to divide the country,” he said.

Scott Anderson, a senior fellow at Columbia Law School, told Courthouse News that he thinks Garland has had a “strong, quiet year.”

Garland has been “rebuilding the Justice Department from a period where it was under a lot of scrutiny for undue political influence,” he said.

According to a report released by Justice Department Inspector General Michael E. Horowitz in November, one of Garland’s biggest challenges will be proving to the public that the Justice Department is not politicized.

The watchdog cited public reports claiming “political considerations allegedly influenced the department’s decision to obtain communications of members of Congress and the media, accusations that lawful protesters were cleared from Lafayette Square for political purposes, as well as claims that some Department officials may have sought to take action to alter the outcome of the 2020 election.”

Public perception of the events, he said, has “crystalized the urgency” for the department to prove that it is free from political influence by strengthening its policies on objectivity and impartiality.

Anderson says Garland has had to be very careful about his management of the department.

“[He’s] had to do things very deliberately and frankly, like maybe not taking some steps people want him to take,” he said.

Anderson noted that Garland has faced scrutiny from people who argue he is focusing too much on lower-level Capitol rioters, rather than going after high-profile defendants.

Critics, he said, are angry, and “they view indictments and other sorts of action by the Justice Department as an appropriate response to addressing the source of those grievances.”

“For Garland, I don't think he disagrees with that, but I suspect he would say ‘but it's a lot better to approach these things slowly,’” he said.

A slower approach, he said, allows prosecutors to build a stronger case and better avoid accusations of political bias or influence.

“We know we have the facts in a row and frankly, it gives the career prosecutors and investigators the space and political cover that they need to really do their job and a conscious and independent way,” Anderson said.

Meanwhile, David Muhammad, executive director of the National Institute for Criminal Justice Reform, says he thinks Garland has done a “pretty extraordinary job prosecuting far more people who were responsible than I expected when it first happened.”

More than 750 people have been charged in connection with the Capitol riot. As of Thursday, approximately 195 people have pleaded guilty to misdemeanors, 29 have pleaded guilty to felonies, and at least six people have been sentenced to prison. 

This week was the first trial for a Capitol riot defendant and the Justice Department walked away with a victory after a jury returned a unanimous guilty verdict on Tuesday.

Muhammad also noted that, four days earlier, Garland launched an interagency task force to enforce sanctions against Russian oligarchs, as the Kremlin continues a war in Ukraine that began on Feb. 24.

“These are things that I know the administration wants to focus on,” he said, calling out the Capitol riot and Russia-Ukraine conflict as massive events that Garland can't ignore. 

“They’re unfortunate distractions,” Muhammad continued. “And there could have been … [more] time spent on holding police departments accountable, you know, and more efficiently getting money out of the door to community organizations and government agencies to increase services around violence prevention and other areas.”

In the upcoming months, Muhammad thinks Garland should refocus his priorities and finish hiring key department positions, including appointing a new director to the beleaguered Bureau of Prisons.

Those next few months meanwhile bring with them midterm elections.

“I think he's very much thinking about legacy,” Anderson said of Garland, noting that the AG has established a reputation as a “credible, thoughtful, considerate” person with a “fair amount of bipartisan credibility.”

“Despite the Supreme Court nomination loss … he’s going to go down as a legal legend,” Anderson said.

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