Attorney General Garland's stature shrinks as he doggedly pursues Trump

·6 min read

In the cult classic "The Incredible Shrinking Man," the character Scott Carey is caught in a thick fog that causes him to gradually shrink to the point that he lives in a doll house and fights off the house cat. At one point, Carey delivers a strikingly profound line: "The unbelievably small and the unbelievably vast eventually meet – like the closing of a gigantic circle."

If one image sums up the incredibly shrinking stature of Attorney General Merrick Garland, it is that line in the aftermath of the FBI search of former President Donald Trump's home at the Mar-a-Lago resort in Palm Beach, Fla.

Two years ago, I was one of many who supported Garland when he was nominated for attorney general. While his personality seemed a better fit for the courts than the Cabinet, he is a person with unimpeachable integrity and ethics.

Doubts about Garland's handling of controversy

If there are now doubts, it is not about his character but his personality in dealing with political controversies. Those concerns have grown in the past week.

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In the aftermath of the FBI's search of Trump's home, much remains unclear. The inventory list confirms that there were documents marked TS (Top Secret) and SCI (sensitive compartmented information) – two of the highest classification levels for materials. The former president's retention of such documents would appear to be a very serious violation.

Attorney General Merrick Garland said he personally approved the decision to seek a search warrant for former President Donald Trump's home in Florida.
Attorney General Merrick Garland said he personally approved the decision to seek a search warrant for former President Donald Trump's home in Florida.

However, the status of the documents is uncertain after Trump insisted that he declassified the material. While the declassified status of these documents would not bar charges under the cited criminal provisions, it could have a significant impact on the viability of any prosecution.

In other controversies, Garland has seemed largely reactive and rote in dealing with questions over bias or abuse in his department.

In his confirmation hearing, Garland repeatedly pledged that political considerations would hold no sway with him as attorney general. Yet, in just two years, the Justice Department has careened from one political controversy to another without any sign that Garland is firmly in control of the department.

Last year, for example, Garland was heavily criticized for his rapid deployment of a task force to investigate parents and others challenging school boards.

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The party in power investigating the opposing political party

When Garland has faced clear demands for independent action, he has folded. For example, he has refused to appoint a special counsel in the investigation of Hunter Biden.

By refusing a special counsel, Garland has removed the president's greatest threat. Unlike the U.S. attorney investigating the president's son, a special counsel would be expected to publish a report that would detail the scope of the Biden family's alleged influence peddling and foreign contacts.

Likewise, the Justice Department is conducting a grand jury investigation of the riot at the Capitol that is aggressively pursuing Trump associates and Republican figures, including seizing the telephone of a member of Congress. That investigation not only has bearing on the integrity of America's elections but also on the status of Biden's potential opponent in 2024.

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The investigation also raises concerns over the party in power investigating the opposing political party. It is breathtaking that Garland would see no need for an independent or special counsel given this country's continued deep divisions and mistrust.

Democrats often compare the Jan. 6 investigation to Watergate but fail to note that the Watergate investigation was led by an independent counsel precisely because of these inherent political conflicts.

Then came the FBI search of Mar-a-Lago. While Garland said he personally approved the operation, he did little to help mitigate the inevitable political explosion. This country is a powder keg, and the FBI has a documented history of false statements to courts and falsified evidence in support of a previous Trump investigation.

Yet, there was no prepared statement or response for days, which allowed speculation and rage to grow. When Garland did respond Thursday, he offered a boilerplate defense of the department and sought only the release of the warrant and inventory list.

If there was one occasion for total transparency, including the release of the FBI affidavit, this was that moment. Yet Garland refused to act further. He declined to seek the release even as the news media reported an array of leaks from the Justice Department, including the allegation that Trump took nuclear weapon secrets to Mar-a-Lago. As his department leaked like a sieve, Garland withheld the affidavit that would set the record straight.

Former prosecutors have argued that the Justice Department wants to keep details of the affidavit confidential to protect the identity of sources and shield classified information from release.

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Garland is not primarily political

Despite this record, I do not view Garland as inherently political in contrast to predecessors like Eric Holder.

Garland sometimes looks more like a pedestrian than a driver on decisions in his own department. Top positions were given to figures denounced as far-left advocates on issues from defunding the police to racial justice. For the moderate Garland, these did not seem like natural choices. Neither did the department's recent controversial move to effectively circumvent a Trump clemency to prosecute a Florida nursing home operator.

And Garland has not responded to new allegations of bias at the FBI and Justice involving the downplaying of evidence involving the Hunter Biden laptop controversy.

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Also of concern is the decision to appoint the special agent in charge of the FBI's Detroit office to lead the Washington, D.C., office. The agent, Steven D'Antuono, led the disastrous investigation of the alleged plot to kidnap Michigan Gov. Gretchen Whitmer. Given the importance of the Jan. 6 investigation, it is baffling that the Department of Justice would make this controversial transfer at this time.

An attorney general should not be motivated by optics in his decisions, but he also cannot ignore optics when they undermine the integrity of his department. The search of Mar-a-Lago was historic  sweeping political implications, including on the approaching midterm elections. Garland must have known that it would be viewed by Republicans as a largely political move.

Jonathan Turley
Jonathan Turley

Yet, with leaks coming out of his department undermining Trump's claims, Garland merely offered "trust us we're the government" assurances while resisting the release of the affidavit.

When Scott Carey faced his diminished stature, he asked, "I was continuing to shrink, to become ... what? The infinitesimal? What was I?" That is a debilitating question for any person, but it is disastrous in an attorney general.

It is not that Merrick Garland is absent but that his presence often seems immaterial.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley

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This article originally appeared on USA TODAY: FBI Mara-a-Lago search: Garland's pursuit of Trump shrinks own stature