Senate confirmation hearings for Merrick Garland, Joe Biden’s pick for attorney general, begin Monday. The wannabe Supreme Court justice instead is poised to take the reins of a Justice Department tainted by egregious political prosecutions from James Comey’s Crossfire Hurricane to the destructive Robert Mueller special counsel probe.
Despite years of assurances, only one Justice Department employee has been held criminally responsible for the lawless investigation into Donald Trump and his presidential campaign, which included the use of illegally-obtained FISA warrants to spy on Trump associates. On his way out the door, former Attorney General William Barr refused to litigate flagrant instances of election fraud that potentially swayed the outcome of the 2020 election in favor of Joe Biden.
Unpunished for acting as the law enforcement arm for the Democratic Party, the Justice Department is now accelerating its hunt for Americans who dared to support Donald Trump in 2020. The Justice Department launched its “Capitol breach” investigation last month; Michael Sherwin, the acting U.S. Attorney for the D.C. office, which is overseeing the entire effort, warned the probe will be “unprecedented” in scope and scale.
More than 200 people have been arrested already and charged with various crimes for their involvement in the January 6 chaos. Most offenses deal with trespassing, disorderly conduct, or disrupting an “official” government proceeding.
Nonetheless Garland, in his inflammatory opening statement, will assure the Senate Judiciary Committee that he intends to prioritize the agency’s nationwide manhunt. “From 1995 to 1997, I supervised the prosecution of the perpetrators of the bombing of the Oklahoma City federal building, who sought to spark a revolution that would topple the federal government,” Garland’s prepared statement reads. “If confirmed, I will supervise the prosecution of white supremacists and others who stormed the Capitol on January 6—a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government.”
Those words should alarm every Republican on the committee—and it’s imperative that they use Garland’s hearing to publicly expose the Justice Department’s partisan inquisition. Here’s a list of questions Republicans should ask Garland this week:
- Michael Sherwin said he will use misdemeanor charges as a “start” to build rare sedition cases against American citizens. As attorney general, do you agree with that unprecedented approach?
- Do you agree with the political consensus that what took place on January 6 was an “insurrection,” and if yes, why? Explain your legal justification.
- Out of the more than 200 defendants detained so far, only 14 face weapons charges. It appears that prosecutors are overreaching in their description of “deadly and dangerous weapons.” For example, one man is charged with using a riot shield he found at the scene as a “deadly and dangerous weapon.” Do you agree that items such as a riot shield or collapsible baton are deadly and/or dangerous weapons and if so, will political protestors in the future who use those objects face the same charges?
- Two men face charges for unlawful firearm possession but prosecutors do not allege either man entered the Capitol. Should these men be considered part of the Capitol breach probe since no evidence exists that they were involved?
- Federal prosecutors are demanding that dozens of offenders, even those with no prior criminal record and only charged with minor trespassing violations, be held throughout trial without bail. Their argument is that any action at the Capitol amount to an “attack on our democracy.” We could debate all day on the extensive list of conduct that could be described as an “attack on our democracy,” but that’s what federal prosecutors allege. Do you agree?
- In addition to collecting video and social media evidence, FBI agents are raiding the homes of suspected “insurrectionists.” One man, who turned himself into authorities, had his house searched and was accused of being part of a “white supremacist” group based on a t-shirt they found at his home. The man denied any association. Is owning a piece of clothing a crime or evidence of a crime?
- Is it illegal to belong to the Proud Boys or Oath Keepers?
- Charging documents specifically cite a defendant’s distrust in the last election as proof of wrongdoing. For example, prosecutors write that one defendant “considered the prospect of a Biden presidency an existential threat.” Is it illegal for any American to doubt the outcome of the 2020 presidential election and should those views be banned on social media or used as evidence in a trial?
- Do you believe that violence and destruction at a public building such as the Capitol is more unlawful than similar activity at other government buildings or private businesses?
- How can you assure Americans that under your leadership, the Justice Department will handle the investigation into the events of January 6 in a fair manner without partisan influence, especially when the country witnessed how differently so-called “peaceful protestors” were handled by law enforcement and the judicial system last year?
Unfortunately, there are only a few Republican members of the committee—Senators Josh Hawley (R-Mo.), Ted Cruz (R-Texas), Mike Lee (R-Utah), and Marsha Blackburn (R-Tenn.)—who might be bold enough to confront Garland with these questions. (No doubt Nebraska’s Senator Ben Sasse will avoid the matter.)
But the increasing weaponization of the country’s top law enforcement agency is a dire threat to the stability of the country and the fair application of the rule of law—a phrase Garland will undoubtedly say often during his confirmation process. It’s unlikely Garland will do anything to restore the Justice Department’s reputation but Republicans should at least try to make him publicly commit to do so.