Merrick Garland to testify before Congress, with his record in the spotlight

With a few words late on a Friday in 2021, President Biden sent Justice Department leadership scrambling. The president told reporters that federal prosecutors should indict Stephen K. Bannon, a former aide to President Donald Trump who was refusing congressional demands to testify about events leading up to the Jan. 6 attack on the U.S. Capitol.

Attorney General Merrick Garland and his aides wanted to make clear they would not take orders, or even suggestions, from the White House on criminal cases, according to people familiar with the discussions, who like others interviewed spoke on the condition of anonymity to share sensitive conversations.

Within two hours, the agency's spokesman publicly declared: "The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. Full stop."

Garland wanted to reassure the Justice Department workforce, too. That evening, he personally communicated with the U.S. attorney's office in D.C. - which was handling the Bannon case and others like it - telling them to ignore elected officials and make charging decisions for themselves, according to people familiar with the communications.

Garland's public and private brushoff of Biden was a chance to put in practice the promise he made on taking office: to run a law enforcement agency insulated from political interference. But in the two years since, the politics around the Justice Department have become only more treacherous for Garland, a former federal judge and Supreme Court nominee. His seemingly hands-off approach to some of the department's trickiest investigations has drawn praise but also some criticism.

The attorney general last fall appointed a special counsel to investigate Trump, resulting in the first two indictments of a former president. A different special counsel is probing Biden's possession of classified documents after his tenure as vice president. And a third special counsel last week brought felony gun charges against Hunter Biden, the president's son, after a collapsed plea deal and a years-long probe that even Garland's allies say may have suffered from his desire to keep his distance.

The investigations are unfolding as President Biden seeks reelection, and Trump is the front-runner for the 2024 Republican presidential nomination.

"At the heart of all this is the disparate treatment, the unequal standard of the law, the double standard," the committee's chair, Rep. Jim Jordan (R-Ohio), said on Fox News on Tuesday, comparing the 44 federal charges against Trump with the three-count indictment of Hunter Biden.

Rep. Adam B. Schiff (Calif.), a Democrat on the committee, said Garland is doing what he should be doing, consistent with the rule of law. "Republicans are never going to be satisfied because they are not looking at the facts," Schiff said in an interview. "They are looking to try to get a political advantage."

By résumé, reputation and temperament, Garland's defenders say, he is the right person to navigate the complexities of this moment: a moral leader devoted to the traditional norms and ideals of the Justice Department, many of which were tested during the Trump administration.

To others, however, Garland's attempt to adhere to these norms isn't pragmatic at a time when the department's highest-profile investigations are intersecting with presidential politics, and its loudest critics are willing to air flimsy or unsubstantiated accusations to undermine the attorney general's credibility.

Garland's hands-off approach may have opened the door to misunderstandings, they say. His seeming lack of aggressive political instincts has left the Justice Department unprepared to defend itself against an onslaught of attacks - not just from the right but also from liberals who think the agency came down too hard on Hunter Biden or wasn't aggressive enough early on in pursuing Trump.

Pursuing the president's son

Garland's approach has been particularly tested by his department's investigation of Hunter Biden.

The president's son was already under investigation by Delaware U.S. Attorney David Weiss, a Trump nominee, when Garland became attorney general in March 2021. The Biden administration asked Weiss to stay on. But Garland never specifically laid out the parameters of the authority Weiss held as he investigated the president's son for potential gun and tax crimes, according to people familiar with the matter.

Instead, Garland made clear that Weiss had full authority to make decisions, these people said. Garland told Congress he wouldn't interfere with the investigation and, as the case dragged on, he didn't check in with Weiss about it, leaving that to other Justice Department employees in Washington.

This summer, a deal that would have had Hunter Biden plead guilty to two misdemeanor tax crimes fell apart in spectacular fashion when prosecutors and defense attorneys could not agree whether it provided him with immunity from additional criminal charges related to the same time period.

But last month, Garland made Weiss a special counsel in the probe, giving him formal authority to pursue a broad investigation. Weiss charged Hunter Biden with a gun felony in Delaware last week and could use his special-counsel status to bring tax charges in California or Washington.

Senior Justice Department officials have said that Weiss never sought special-counsel status before August — and Garland never asked if he wanted such powers. Republicans had long advocated that Garland appoint a special counsel. But once he did, they said that the action came too late and that Weiss could no longer be trusted.

Lawyers for the president's son, meanwhile, have argued the Justice Department has caved to its Republican critics, echoing Democratic arguments that rather than giving Hunter Biden a sweetheart deal, the agency has treated him more harshly than others accused of similar conduct.

Distance from the White House

Even before the Hunter Biden investigation heated up, there was a deliberate distance between the president and Garland, according to people familiar with the relationship who spoke on the condition of anonymity due to the sensitivity of the matter. Some Biden aides and allies said there has been growing frustration within the White House about Garland's use of special counsels, which they view as him bowing to political pressure from congressional Republicans.

"Look, I made a commitment that I would not in any way interfere with the Justice Department, who they prosecuted, if they prosecuted, how they proceeded," Biden said in an MSNBC interview in June. "I have not spoken once, not one single time, with the attorney general on any specific case, not once."

Olivia Dalton, the White House principal deputy press secretary, said Biden appointed Garland "because of his decades of fidelity to the rule of law consistent with his commitment when he ran for president to restore the independence of the Justice Department, free from political interference."

Garland named veteran prosecutor Jack Smith as special counsel overseeing the Trump investigations two days after the former president announced his 2024 White House bid, citing the "extraordinary circumstances" of both Trump and Biden planning to seek another term in the White House.

Since then, the Justice Department has made Smith its public face of those high-profile cases. Garland and his deputies have not disclosed how often the two speak or what role Garland plays. But special-counsel regulations say the attorney general may challenge investigatory steps and prosecutorial decisions if he feels they do not comply with Justice Department regulations.

Both personal friends and Justice Department co-workers say Garland rarely mentions the Trump or Biden investigations or the pressures he's facing because of them. But he does indicate he is aware of the criticism and gets frustrated when he reads attacks on the agency or individual prosecutors.

More than a dozen current and former Justice Department officials said in interviews that Garland has worked to rebuild trust with the public and strengthen agency morale after both were tattered during the Trump administration.

He has done so by stressing privately and publicly the department's independence, trusting and strengthening the say of career staffers, and creating new channels for him to personally praise mid- and low-level officials who have notched law enforcement successes.

The attorney general has hosted social events for the rank-and-file, lingering to speak and take photos with anyone who approaches him. Monty Wilkinson, a former senior official who left the department this summer, said he traveled with Garland to at least a dozen U.S. attorney's offices across the country, and heard him allude at times to the politics that can engulf the biggest investigations.

"He has said that their job is to focus on their cases and not be distracted by the politics of Washington," Wilkinson recalled. "He says that's his job to deal with those types of issues."

Charting his path

The Justice Department has pushed forward on major national security and civil rights initiatives, including creating an office of environmental justice and devoting more resources to investigate threats to election workers. The main Justice Department has worked with Matthew Graves, the U.S. attorney for D.C., to indict and convict hundreds of people in connection with the attack on the Capitol.

Gupta and other aides say Garland has earned respect from his staff by showing up prepared to every meeting. He is known to take a judge's approach, asking detailed questions to ensure that he and his prosecutors fully understand all sides of the situation.

As a judge, he relished taking his time. Now he's become more comfortable moving quickly.

Justice Department colleagues and friends say Garland is fully aware of the intense criticism his agency faces, reading most articles written about him and his agency, and noting the incendiary comments Trump makes about his criminal cases and the prosecutors handling them. Garland has grown more accustomed to the reality that every decision he makes will be the subject of intense backlash, those close to him say. They believe the realization has empowered him to make the decisions he wants.

The constant barrage "has almost become background noise. . . . At the end of the day, I think his skin has thickened in this job," Gupta said. "He has from the very start been criticized by the left and the right, and people have faulted him for being apolitical or seeming aloof. And I think frankly, given the moment we are in in this country, that is something we should want from the Justice Department."

President Barack Obama nominated him to the Supreme Court in 2016, touting him as a moderate, uncontroversial nominee who could muster enough votes in a Republican-controlled Senate to be confirmed. But Sen. Mitch McConnell (R), then majority leader, refused to move the nomination forward, leaving the seat open until Trump became president.

When Biden tapped Garland four years later to become attorney general, Democrats again hoped he could be a unifying force in a polarized Washington. His mission was to show that the Justice Department, which Trump had tried to use in his election-denying effort, would be an agency that operated separately from the Biden White House.

After his confirmation, Garland asked that a portrait of former attorney general Edward Levi be hung right outside his office. He wanted to remind everyone who passed by of the man who is credited with restoring order within the Justice Department after President Richard M. Nixon resigned.

Those who work with Garland say he frequently invokes Levi's legacy when bringing new people to meet with him.

"As Ed Levi said at his own swearing-in," Garland said in 2021 when he accepted his nomination as attorney general, "nothing can more weaken the quality of life, or more imperil the realization of the goals we all hold dear, than our failure to make clear by words and deed that our law is not the instrument of partisan purpose."