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merrick garland
We Are All Paying the Price for Merrick Garland’s Abject Failure
Decades from now, historians will memorialize Garland not as a dedicated public servant but as the head of the Justice Department who brought a butter knife to an existential gunfight with Trump, quickening our collective descent into neo-fascism.
Jan 22, 2025
It’s hard to say who is the worst attorney general in American history. The candidates are many and comprise a veritable rogue’s gallery of sadists, reactionaries, and incompetents. They range from A. Mitchell Palmer, mastermind of the original Red Scare that decimated the left in the wake of the First World War, to Jefferson Beauregard Sessions III and William Pelham Barr, who sacrificed the rule of law in service to Donald Trump.
Merrick Garland may not share the malignancies of his fellow train wrecks, but he deserves to be in the discussion. Decades from now, historians will memorialize Garland not as a dedicated public servant and fair-minded federal judge whose nomination to the Supreme Court was torpedoed by Mitch McConnell and Senate Republicans, but as the head of the Justice Department who brought a butter knife to an existential gunfight with Trump, quickening our collective descent into neo-fascism.
After his appointment to helm the DOJ, Garland had one overarching mission: to swiftly convene a grand jury to investigate Trump for his role in inciting the Jan. 6, 2021, insurrection at the Capitol. This was a task a third-year law student could easily have accomplished. Garland failed, abjectly.
Garland will forever bear the principal stain of wimping out when courage and—to put it in the vernacular—balls were needed to stop Trump.
Probable cause for an early indictment was abundant and obvious. On January 6, millions of Americans watched Trump stand on the Ellipse at the south end of the White House and urge his supporters to march on the Capitol and “fight like hell.” Millions watched the actual assault that followed, blow by medieval blow. Even the corrupt McConnell, who voted to acquit Trump in his second impeachment trial in February 2021, declared on the Senate floor, “There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day [January 6].”
Instead of targeting Trump and his chief lieutenants immediately, Garland set out to arrest and try the foot soldiers of the uprising. And while he did a commendable job in that respect (eventually charging more than 1,500 with federal crimes), he dithered on Trump until November 2022, when he appointed Jack Smith as a special counsel to probe Trump for the insurrection and absconding from the White House with a trove of highly classified documents.
By then, it was too late.
Although Smith secured an indictment of Trump in Washington, D.C., for conspiracy, obstruction, and election subversion on August 1, 2023, the indictment was gutted by the Supreme Court (Trump v. United States) the following July in a decision that granted Trump sweeping and unprecedented immunity from criminal prosecution.
Written by Chief Justice John Roberts, a lifelong conservative activist with an undeserved reputation as a judicial institutionalist, the ruling is arguably the worst edict handed down by the high court since the Dred Scott case of 1857. “Trump v. United States is distinct as a deliberate attack on the core institutions and principles of the republic, preparing the way for a MAGA authoritarian regime much as Dred Scott tried to do for the slavocracy,” wrote Sean Wilenz in a scathing article for The New York Review of Books.
Smith also indicted Trump in Florida in the documents case, but that prosecution was subsequently scuttled by District Court Judge Aileen Mercedes Cannon, an inexperienced MAGA sycophant whom Trump installed on the federal bench in the runup to the 2020 election.
In addition to Garland, the Supreme Court, and Cannon, former President Joe Biden also shares responsibility for letting Trump off the hook. From Day 1, Biden should have used the bully pulpit to attack, isolate, and destroy Trump and his MAGA base. Instead, he pursued a politics of accommodation, preaching a return to the false neoliberal normalcy of bipartisanship. Most critically of all, Biden decided to seek a second term, when it was apparent to everyone with two eyes and ears that he was no longer fit, either physically or mentally, for another stint behind the Resolute Desk. With Biden’s approval rating plunging to 40%, former Vice President Kamala Harris had little to no chance of defeating Trump at the polls.
But standing atop the heap, Garland will forever bear the principal stain of wimping out when courage and—to put it in the vernacular—balls were needed to stop Trump before the forces of reaction had time to regroup and reorganize. They are now in control.
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'Ghoulish': Trump Expands Federal Death Penalty
The Republican president "articulated his plan to drastically increase executions, and we all know this is one promise he can't wait to keep," said one death penalty abolitionist.
Jan 21, 2025
Delivering on a promise to "vigorously pursue the death penalty," U.S. President Donald Trump on Monday night signed an executive order that reverses his predecessor's moratorium on federal capital punishment and calls for expanding it.
The widely expected order—one of several issued on Inauguration Day—was swiftly criticized on factual and moral grounds.
Attorney and death penalty expert Robert Dunham pointed out that the order "starts with a demonstrable falsehood ('Capital punishment is an essential tool for deterring and punishing those who would commit the most heinous crimes'), signaling that the administration intends not to allow the facts to affect its policy decisions."
"In fact, the death penalty does not contribute anything to public safety," said Dunham, citing a study by the Death Penalty Policy Project, which he directs. "As for 'deterring the most heinous crimes,' see my analysis of the worst of the worst mass shootings in the United States."
"It is essential, with the importance and deadly consequences of this policy, that media coverage report the truth and not just the rhetoric," he stressed. "The executive order is grounded in a false, dark fantasy about deterrence and has nothing to do with making the public safer."
Declaring that "the death penalty is unjust and cruel," the ACLU warned that Trump's order not only directs an expansion of its use at the federal level but also encourages states to do the same.
Specifically, the order says that "in addition to pursuing the death penalty where possible," the attorney general shall seek it "regardless of other factors" for federal cases involving the murder of a law enforcement officer or a capital crime committed by an undocumented immigrant—and shall "encourage state attorneys general and district attorneys to bring state capital charges for all capital crimes with special attention to" those circumstances, "regardless of whether the federal trial results in a capital sentence."
The order further directs the head of the U.S. Department of Justice to "seek the overruling of Supreme Court precedents that limit the authority of state and federal governments to impose" the death penalty and "ensure that each state that allows capital punishment has a sufficient supply of drugs needed to carry out lethal injection."
Last week, outgoing U.S. Attorney General Merrick Garland "withdrew the Justice Department's protocol for federal executions that allowed for single-drug lethal injections with pentobarbital, after a government review raised concerns about the potential for 'unnecessary pain and suffering,'" The Associated Pressreported. "The protocol could be imposed by Trump's new acting Attorney General James McHenry III, or his pick to lead the Justice Department, Pam Bondi, once she's confirmed by the Senate."
Though Trump's order doesn't name Garland, it explicitly takes aim at former President Joe Biden for his moratorium as well as his attempt to prevent another GOP killing spree like the one that occurred at the end of the Republican's first term, accusing the Democrat of commuting the sentences of "37 of the 40 most vile and sadistic rapists, child molesters, and murderers on federal death row: remorseless criminals who brutalized young children, strangled and drowned their victims, and hunted strangers for sport."
Biden said last month that "in good conscience, I cannot stand back and let a new administration resume executions that I halted." He left Charleston church gunman Dylann Roof, Pittsburgh synagogue shooter Robert Bowers, and Boston bomber Dzhokhar Tsarnaev on death row. The others now face life in prison without the possibility of parole.
Trump cannot reverse Biden's commutations, but he directed the attorney general to "evaluate the places of imprisonment and conditions of confinement for each" of those 37 men and "take all lawful and appropriate action to ensure that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose."
The president also said that the attorney general "shall further evaluate whether these offenders can be charged with state capital crimes and shall recommend appropriate action to state and local authorities."
Death Penalty Action executive director Abraham Bonowitz said in a Monday statement:
President Trump's executive order demanding capital charges for the murder of law enforcement officers or capital crimes by illegal aliens is unnecessary bluster, because the death penalty already exists for such crimes. But Trump can't help himself. Donald Trump's Agenda2025 articulated his plan to drastically increase executions, and we all know this is one promise he can't wait to keep.
We are also dismayed at President Biden's cynical compromise that commuted 37 federal death sentences while leaving seven prisoners on federal and military death rows. While expressing both his personal opposition to the death penalty and his desire to maintain the moratorium on executions he imposed in 2021, Biden has nevertheless primed the pump for Donald Trump to resume his execution spree.
Social media users also slammed Trump's order, with one saying that "this is extremely disturbing" and another calling it "one of the most ghoulish things I've ever fucking read." Many critics highlighted that the president issued the measure while pardoning over 1,500 insurrectionists who stormed the U.S. Capitol on January 6, 2021, which led to the deaths of multiple police officers.
James Goodwin, policy director at the Center for Progressive Reform, noted that it "is straight out of Project 2025," the sweeping Heritage Foundation-led playbook from which Trump unsuccessfully tried to distance himself during the campaign.
Trump has a long history of supporting capital punishment. As journalist Prem Thakker
put it, "On Martin Luther King Jr. Day, the man who bought [a] full-page [newspaper] ad calling for the execution of the Central Park Five—five Black and Latino teens wrongfully convicted of rape—makes one of his first acts as president to restore and prioritize the death penalty."
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As Trump 2.0 Looms, Durbin Urges DOJ to Rescind War Powers Opinions
Praising his targeting of "overbroad, undemocratic, and dangerous" opinions, one lawyer said that "irrespective of who holds the presidency, no one should have unilateral power to plunge the nation into major conflicts."
Jan 08, 2025
The top Democrat on the U.S. Senate Judiciary Committee this week urged the Department of Justice to rescind some war powers-related legal opinions and release certain records, a call that came in the lead-up to Republican President-elect Donald Trump's return to the White House.
Sen. Dick Durbin (D-Ill.) made the request in a Tuesday letter to U.S. Attorney General Merrick Garland, stressing the Constitution's division of treaty-making and war powers between Congress and the president, as well as the president's obligation "to take care that the law be faithfully executed."
Highlighting that the DOJ "has previously withdrawn flawed or outdated" guidance, Durbin identified five opinions from the department's Office of Legal Counsel (OLC) that he believes should be taken off the books:
- A 1989 opinion about the Federal Bureau of Investigation's authority to apprehend suspects overseas that concludes the president can unilaterally "override" the United Nations Charter's prohibition on the use of force;
- A 2001 opinion finding the president could effectively wage the entire "War on Terror" without congressional authorization;
- A 2002 opinion suggesting the president could wage the Iraq War without congressional authorization;
- A 2020 opinion related to the U.S. assassination of Iranian Gen. Qassem Soleimani that—though redacted—asserts the president has the authority to order an attack on a senior official from Iran; and
- A 2020 opinion claiming that a requirement for the president to give Congress advance notice of plans to withdraw from a treaty is unconstitutional.
"Congress and the executive branch may have differing views in some respects as to the separation of powers between them," Durbin wrote. "However, these opinions are concerning outliers even by the standards of the executive branch's own legal doctrine. Indeed, it does not appear that OLC has relied upon these opinions in other publicly available legal memoranda. For these reasons, I urge the Department of Justice to withdraw them."
The senator also gave Garland a list of 20 records to release "relating to the president's authority to deploy U.S. armed forces within the United States, and the activities in which those military personnel may or may not engage."
"The need for transparency regarding these legal interpretations is particularly urgent today given the risk of domestic military deployment to suppress protests or carry out mass deportations," he wrote to the outgoing attorney general.
Sharing the letter on social media Wednesday, Durbin more clearly said, "Donald Trump has promised to deploy the military for mass deportations, and we have a right to know how the Justice Department interprets this authority."
Durbin sent the letter on the same day that Trump, during a press conference at Mar-a-Lago, refused to rule out using military force to take over the Panama Canal and Danish territory Greenland, sparking global condemnation.
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