There is no doubt that he grasps how wrong he is.
There is no doubt that he grasps how wrong he is.
M errick Garland turns out to be a political hack.
The attorney general very much enjoys his reputation as a distinguished former federal appellate judge and wants to be seen in his current incarnation as a wise, moderate progressive. Those types, we should know by now, are always progressives first. Their “moderation” reflects not skepticism about statist goals but awareness of the need to maintain political viability by not overdoing the pace of Change! It is a moderation too feeble, too blah, to temper the passionate self-righteousness, extortionate tendencies, and deep pockets of the Bolshevik Left that now dominates the Democratic Party.
There was a reason Garland was an Obama/Biden nominee to the Supreme Court. Even if he is more law-and-order-oriented than his party’s increasingly anti-enforcement mainstream, he would have been a reliable vote on the cases that matter to the Left. And there is a reason President Biden named him attorney general. Given the radicalism of progressive prosecutors beatified by the Bernie Bros, Garland projects the very embodiment of law-enforcement gravitas.
In a 50–50 Senate, this made him an easy confirmation. The 20 Republicans who joined all Democrats in approving him were just thankful that he wasn’t Chesa Boudin or Kim Foxx. Like Biden himself, Garland was sold as the adult who could hold the crazies at bay, the “moderate” face of Main Justice — an effective damper on ambitious firebrands who enlisted in the Justice Department to prosecute a war on white supremacists (a.k.a. Republicans and conservatives).
Now, just as Biden has shed his centrist shell to march in lockstep with the progressive avant-garde, Garland is igniting DOJ’s firebrands, not dousing them. And, typical of how the game is played, when the AG gets caught abusing the government’s investigative power as a political weapon, he peevishly denies doing so with an “argument” that comes down to, “Don’t you know who I am?”
Yeah, we know. And that makes it worse because there is no doubt that he grasps how wrong he is.
For most of his congressional testimony over the past two weeks, Garland was simply overmatched. Democrats are waging a hard-edged culture war on their political opposition. The hard edge right now is the Justice Department’s enforcement powers — the investigative process exploited for purposes of intimidation. Garland, however, is not a wartime consigliere. On the AG’s now-infamous action memo rousing federal law-enforcement legions to battle against the nation’s parents, even a gifted demagogue would have a tough time defending himself. Garland is not that guy.
I once prosecuted a well-heeled terrorist who was represented by a prestigious law firm, counsel for whom denied that the client was a terrorist (bombing convictions notwithstanding) because . . . well . . . the client was represented by the prestigious law firm, and, by God, that law firm would never represent a terrorist! That was Garland in the Senate. Caught crudely politicizing the Justice Department, he bitterly denied doing so because, as a highly regarded former federal appellate judge and Supreme Court nominee, he would of course never, ever do politics, no siree.
But the facts don’t lie. Progressive ideologues at the National School Boards Association (NSBA) colluded with progressive ideologues in the Biden administration to conjure up a September 29 letter, pleading for action from Biden. Parents protesting against their school boards over progressive indoctrination in the classroom, they insisted, should be investigated as would-be domestic terrorists.
It was a lunatic suggestion because it had to be, there being no federal criminal jurisdiction to monitor relations between parents and their local school administrators. Because education is so critical, it is always the case — has always been the case — that there are occasional heated disputes, some of which cross the line into threats (and a negligible percentage into actual assaults). But the vast majority of the time, parental dissent is benign and respectful, especially when — as is often the case — it is the school that is in the wrong. The rare departure from the nonviolent norm has never been anything that local police couldn’t handle. Not surprisingly, the NSBA’s board of directors, which had not been consulted, apologized for the letter, and many of the association’s state chapters have renounced it.
Alas, this is 2021, and for Democrats, all opposition to woke-progressive indoctrination is another January 6 waiting to happen. Since today’s concerned parent is deemed tomorrow’s violent insurrectionist, the Biden and NSBA culture warriors insisted in their letter that there must be federal intervention using Patriot Act investigative measures — the ones Democrats have historically railed against when they are applied against actual jihadists.
Do not miss the choreography here. It would have been too contrived for Biden White House officials to write a letter to themselves demanding mobilization of the Justice Department. So they used like-minded progressives at NSBA as their cut-out, beseeching Biden for the deployment of federal investigators to suppress parental dissent. On cue, the Justice Department would then issue the threat, capitalizing on Garland’s judicial credentials to lend the abuse an air of propriety.
Miraculously, just three business days after Garland got the letter, even though he says the White House exercised no influence over him, he had ready to go his action memo. It is a slapdash piece of work, less than a page long. Mind you, our longtime federal appellate judge has at his beck and call the highly regarded Office of Legal Counsel, whose DOJ policy memos — particularly on such complex matters as the tension between protected speech and actionable incitement — routinely run many pages long, teeming with citations to judicial precedent and statutory law. Somehow though, Garland failed to cite a single case or statute. No federal legal authority . . . but the memo does manage to echo the worst excesses of the NSBA/Biden White House letter. Funny how that happened.
Called on it, Garland proved to be a weasel.
To the wrath of several Senate Judiciary Committee Republicans, the attorney general purported not to know that his memo had spurred the Biden administration’s United States attorney in Montana to issue a letter, setting forth extensive guidance on criminal statutes. These, the letter posited, could justify leveraging federal criminal-investigative power against those who are threatening “our educational community.” Confronted with the letter, Garland bleated that 115,000 people work for the Justice Department, so how could one man — even the AG — know the contents of every sentence of every document sent out by every federal prosecutor across these vast United States?
What a crock. Garland’s memo has been described as a way to “sic the FBI” on America’s parents. That doesn’t do it justice (pardon the pun). Have another look at it, here. The memo is not just directed to the FBI; it is also issued to all “UNITED STATES ATTORNEYS.” There are not 115,000 of these; there are only 94. They are the top federal prosecutors in each district who answer directly to the attorney general on the org chart. One of these to whom Garland’s memo was directly addressed is Leif M. Johnson of the District of Montana.
Garland’s memo expressly directs Johnson and the other U.S. attorneys to strike up a “partnership” with state and local law enforcement. Garland ordered that, within 30 days, these U.S. attorneys, in conjunction with the FBI, were to reach out to their counterparts in state police and prosecutor’s offices to forge “strategies for addressing threats against school administrators, board members, teachers, and staff.”
Just ten days after Garland’s memo was issued, Johnson issued his letter — as he put it, “pursuant to the Attorney General’s directive.” And consistent with Garland’s directive, the missive was addressed to Montana’s attorney general, all Montana county attorneys, and all Montana sheriffs. In short, U.S. Attorney Johnson did exactly what Garland told him to do: His letter presented a strategy for using federal law to hound suspects who were portrayed as engaged in felony menacing and forcible threats — but who are actually parents engaged in constitutionally protected dissent.
Nevertheless, in his congressional testimony, Garland expressed bafflement that anyone could suppose he was somehow responsible for the actions of a subordinate who followed his orders to a tee. Garland’s posture was, in essence, don’t blame me for some obscure prosecutor in flyover country who went off the reservation. In reality, it was a high-ranking prosecutor who answers to Garland and who diligently executed Garland’s plan.
Garland can’t bring himself to admit that, because the Montana letter is appalling. It summarizes a dozen offenses that could trigger federal investigations. For the most part, they are inapposite. The state law-enforcement officials to whom the letter was sent already know that if threats of violence are communicated through the U.S. mail or across state lines, there are potential federal crimes. That is not the situation they are dealing with.
In the main, Education Inc., a Democratic powerhouse, is grousing about parents who attend school-board meetings to protest against the marination of their children in gender radicalism, critical race theory, anti-Americanism, Marxism, and anti-religious bigotry. Overwhelmingly, the parents are not committing crimes, much less federal crimes. But how inventive of the Justice Department to suggest that, if parents are protesting a bit too vehemently for Education Inc.’s comfort, the FBI and federal prosecutors could seek warrants or convene grand juries to read their mail or scour their email correspondence — you know, just to make sure they’re not the next Timothy McVeigh.
As they say in the biz, there is nothing quite like a “creative” prosecutor. Thus it is, without a hint of irony, that Johnson suggests — at the very top of his list of federal crimes — that these dangerous suspects could be investigated for “Conspiracy to Deprive a Person of Civil Rights.” Laughably, what the feds theorize is that teachers and school administrators are being prevented by these unhinged parents from exercising their presumed federal right to proselytize.
Nevertheless, what Johnson is telling state police officials — again, pursuant to Garland’s explicit directive — is quite interesting. He explains that to establish the commission of felony civil-rights conspiracy, investigators must prove (1) that the potential defendants have entered into an agreement to (among other things) “oppress, threaten, or intimidate” another; and (2) that the suspects’ specific intent was to “hinder, prevent, or interfere with another’s enjoyment of a right secured by the Constitution or the laws of the United States.”
Could there be a better description of what Attorney General Garland’s Justice Department is doing to the First Amendment free-speech right of American parents to protest what progressives are doing to their schools?