February 22 and 23, 2021
Senate Judiciary Committee
On Monday, February 22 and Tuesday, February 23, the Senate Judiciary Committee held hearings on the nomination of Judge Merrick Garland to serve as Attorney General under the Biden Administration. In relatively jovial hearings, Senators questioned the witness on a wide array of topics, including investigating the January 6 insurrection and growing domestic extremism, immigration, the Durham investigation, FISA reform, civil rights and racial justice, DOJ independence, anti-trust actions, and drug and violent crimes.
- Independence of the DOJ – Multiple Senators raised concerns with the rising perception of political pressure on the Department of Justice (DOJ) and asked Garland to elaborate on how he will keep the Department independent. As expected, Garland stressed the non-political nature of the Justice Department and noted that one of the reasons he agreed to be President Biden’s nominee was because President Biden promised not to interfere with or pressure the Department. He stated he would be the American people’s lawyer, not the President’s lawyer, and his Justice Department would seek to protect rights and enforce the law without respect to race, power, politics, or other factors.
- Extremism and the January 6 Insurrection – Multiple Senators raised concerns about the January 6 insurrection at the U.S. Capitol, rising right wing and white supremacist extremism, and attacks on federal property by other organizations. They asked Garland to elaborate on what tools the Department needs to address these issues and to elaborate on his view of what domestic terrorism is. Garland stated that FBI Director Wray has highlighted far right and white supremacist extremism as a pressing threat to American security and stated his commitment to supporting DOJ efforts to prosecute hate crimes. He added that while he expects he will need to work with Congress to acquire additional resources for the January 6 investigation, he first wants to meet with DOJ leadership to understand the scope of the investigation and where resources are lacking. Garland stated that while he is in favor of a 9/11-type commission in Congress, he cautioned that the commission should be careful to not undermine or obstruct the DOJ investigation into January 6.
- The Durham Investigation, Crossfire Hurricane, and the FISA Courts – Multiple Republican Senators raised concerns related to the Department of Justice’s investigation into the Trump campaign prior to the 2016 election, including the continued Durham investigation and recommended reforms to FISA processes. Garland stated that nothing that he knows now would lead him to remove Special Counsel Durham, and that any such move would be for cause and transparent. Garland also expressed support for some reforms of the FISA process, while also reiterating its importance as a law enforcement tool.
- Police Accountability and Racial Justice – Multiple Senators raised concern with accountability for local law enforcement agencies, with Senators expressing a range of opinions on the issue. Some Senate Republicans criticized consent decrees the Department of Justice has established with some local law enforcement agencies. Multiple Senators also raised concerns about mass incarceration and racial equality in the justice system. Garland highlighted that he is in favor of accountability for bad actors in local law enforcement agencies, noting that bad behavior by certain individuals paints the larger law enforcement community in a bad light, while also reducing the community’s trust, thus reducing the effectiveness of those agencies. He noted that President Biden is not in favor of defunding the police and neither is he. He stated that he believes in giving police departments the resources needed to reform and better connect with their communities and stated his support for setting up additional resources, especially for mental health services, to help ensure police officers are not stuck with a job they do not want and are not trained for. Garland noted there are other tools for DOJ to use to compel or incentivize good behavior at state and local law enforcement agencies beyond consent decrees, including pattern or practice investigations, grantmaking, and technical assistance. He stated he will ensure that existing consent decrees are honored and enforced. He also acknowledged that the justice system fails to treat all people equally at this point, and pledged to address it, including through an increased emphasis on the Civil Rights Division of DOJ.
- Immigration – Multiple Senators raised concerns about immigration, with some noting the backlog of cases waiting before immigration court judges, while others noted concerns with drug traffickers and the Biden administration’s immigration policies. Garland stated that he does not have much experience in immigration court administration but stated the backlog of over 1 million cases will likely require additional resources to increase the number of judges and that DOJ will probably provide these judges with more ability to prioritize cases before them. He stated that his DOJ would investigate and prosecute drug traffickers, and stated that he is not in favor of, and has not heard discussion about, decriminalizing illegal immigration.
- Cannabis – Senator Cory Booker (D-NJ) noted the disparate impact the federal prohibition on marijuana has had on the Black community and asked Garland for his thoughts on the topic. Garland stated that the federal government should allocate resources away from prosecuting marijuana crimes to instead focus on violent and dangerous crimes and recommended revisiting sentencing guidelines for marijuana cases. Garland stated that marijuana use does not require incarceration and that the current approach taken by the federal government towards enforcing marijuana laws was wrong. Garland also stated that to the best of his belief, if confirmed, his DOJ would return to the Cole Memorandum –directing U.S. attorneys to not enforce the federal marijuana prohibition in states that had legalized marijuana. Garland stated that the role DOJ should play in these states is to make sure criminal organizations aren’t trying to take advantage of state laws that legalized marijuana. He also criticized mandatory minimum sentencing requirements.
- Anti-Trust Action – Senators Josh Hawley (R-MO), Ted Cruz (R-TX), and Amy Klobuchar (D-MN) raised concerns about DOJ’s anti-trust division, especially on action around Google and Facebook. Garland noted that as a sitting judge he was prohibited from speaking about pending cases, so he could not speak much on the ongoing DOJ anti-trust investigation into Google but noted that from what he has read in the press, there would be no reason to shut down the investigation. He highlighted the strong recusal and conflict of interest regulations in the anti-trust division that will ensure there are not conflicts of interest among DOJ lawyers. He stated he would probably return to Congress with a request for additional resources for the anti-trust division.
- Section 230 – Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT) raised concerns over the liability shield for online publishers, called Section 230, and asked if Garland would support their efforts to reform 230. Garland stated that the only experience he had on the issue was a singular straightforward case that came before his court, but that he would work with the committee on its reform efforts.
- China – Several Senators raised concerns about the threat of China to U.S. national security. Garland stated that from publicly available reporting, it certainly seems like China is behind many cases of industrial espionage and IP theft, and that confronting China will take a whole-of-government approach.
- Violent Crimes – Multiple Senators raised concerns with the increasing rate of occurrences of violent crimes and murders across the country in 2020 and asked what Garland intends to do to address violent crime. Garland noted that while it likely is a practical impossibility to give DOJ enough resources to investigate and prosecute every crime, all violent crimes should be investigated and prosecuted. He stated that realigning resources from non-violent and non-dangerous crimes, like marijuana possession, could help provide the resources needed to investigate and prosecute violent crime.
Garland’s nomination appears to be coasting toward confirmation. Not everything discussed at the hearing was pleasant – issues like the January 6 insurrection, the Durham investigation, and police reform all are politically charged. However, the two days of questioning carried an inevitability in Garland’s confirmation.
The key news of the day may not even be the hearing, as Senate Minority Leader Mitch McConnell indicated yesterday that he plans to support Garland’s nomination.
While Garland may have bipartisan support, the biggest barrier to Garland’s confirmation is a crowded floor schedule. The Senate Judiciary Committee will need to reconvene to formally vote on Garland’s nomination before it can move to the Floor. Looming in the background is the COVID-19 relief package that Democrats are expected to send to the Senate as soon as the end of this week.