Merrick Garland Is To Be Joe Biden's Nominee For Attorney General

Jan 6, 2021
Originally published on January 7, 2021 12:30 pm

Updated at 1:10 p.m. ET

Federal appeals court Judge Merrick Garland will be nominated to serve as attorney general in the administration of President-elect Joe Biden, NPR has learned from two sources familiar with the process.

Garland, 68, is the widely respected former chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. He has deep roots inside the Justice Department, where he launched his career decades ago.

The sources also told NPR that former prosecutor and national security official Lisa Monaco will be tapped to serve as deputy attorney general, and former civil rights leader Vanita Gupta will be nominated as associate attorney general.

Kristen Clarke, who has led the Lawyers' Committee for Civil Rights Under Law, is Biden's choice to run the Civil Rights Division.

Track record inside DOJ

Garland oversaw the prosecution of Oklahoma City bomber Timothy McVeigh and gained significant management experience inside the sprawling department in the 1990s. He also was a career prosecutor inside the U.S. attorney's office in Washington, D.C., where, among other things, he investigated and helped bring to justice the city's mayor, Marion Barry.

A jury convicted Barry on a drug charge but deadlocked on several perjury counts.

Garland came to national attention in 2016 when President Barack Obama nominated him to the U.S. Supreme Court to fill the seat vacated by the death of Justice Antonin Scalia.

Despite his qualifications and a history of support from conservatives, Senate Republicans denied Garland even a hearing for the post, and he quietly returned to his job on what's considered the second most important court in the nation.

On the bench, Garland focused on professionalism, collegiality and transparency, making audio of arguments widely available.

Biden team seeks restoration

Some Justice Department veterans had been looking to history for a way to move ahead from the chaotic Trump era in which the president has routinely attacked federal prosecutors and the FBI and has pushed department leaders to help his friends and punish his enemies.

Trump's second attorney general, William Barr, likened some of his employees to young students at a Montessori school.

Former Justice Department officials pointed out that after Watergate, President Gerald Ford enlisted former University of Chicago President Edward Levi to be attorney general and restore public confidence in the institution. The Justice Department bestows an award for honor and integrity in his name.

Supporters said Garland could play a similar role, sending twin messages: The department will operate free from political influence in law enforcement matters, and that its leaders will prioritize morale of the DOJ's career employees.

"He will restore the independence of the Department of Justice," said his friend and former DOJ colleague Jamie Gorelick. "And this will be a perfect capstone of his career, which has been devoted to the law, to the judiciary for the last 23 years, and before that, at every seat at the Department of Justice."

Among the first and thorniest issues the next attorney general will face is what, if anything, to do about allegations President Trump obstructed justice or violated other laws before and during his occupancy in the White House.

The next attorney general also inherits a tax probe of Biden's son Hunter. The president-elect has defended his son but also pledged his Justice Department will operate free from improper influence by the White House.

Progressives likely disappointed

Garland's selection could frustrate more progressive members of the diverse coalition that helped elect Biden. On the bench, the judge developed a moderate to conservative record on criminal justice, according to an analysis by Tom Goldstein at SCOTUSblog.

A more recent analysis by professors at the University of Virginia concluded that Garland was "in line with the Republican appointees" on criminal cases.

The leaders of seven major civil rights groups recently met with Biden and pressed him to make someone with civil rights and justice reform credentials the next leader of the Justice Department.

If he is confirmed by the Senate, Garland would join an institution that DOJ veterans have said is in need of a "salvage operation." One said the next leadership team needs to conduct a sweeping assessment of enforcement cases that were brought and not brought in the Trump era to see whether anything can be done now about them.

Allies praised Garland's steady temperament and his collegiality, two qualities that could help settle the workforce. At the court, Garland also became known for his focus on transparency, including efforts to make argument audio available to the public.

His move also would open up a lifetime-tenured seat on the federal appeals court in Washington, considered the second most important bench in the country. After Democrats appeared on track to win two seats in Georgia, the Senate arithmetic made it more likely Biden could nominate and confirm a candidate for that judgeship.

Two sources told NPR the Biden team has been looking to promote U.S. District Judge Ketanji Brown Jackson to a vacancy Garland may leave on the federal appeals court in Washington.

The presidential transition team has stressed the need to view the Justice Department nominees as a group.

Monaco, who as deputy attorney general would be responsible for day-to-day management of the department, launched her career prosecuting violent crimes as a federal prosecutor in Washington, later joining the task force investigating financial wrongdoing at the defunct energy company Enron, and becoming a righthand woman to former FBI Director Robert S. Mueller III. She was the first woman to serve as assistant attorney general for the National Security Division at the Justice Department.

She spent the last few years of the Obama administration as the former president's homeland security adviser.

Gupta, the choice to serve as associate attorney general, would oversee a portfolio that includes civil rights and civil litigation. Gupta has a long background in civil rights work and managed several crises in the Obama years.

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NOEL KING, HOST:

During the Trump administration, morale suffered at the Justice Department. President-elect Joe Biden seems to be hoping to appoint some DOJ veterans to change that, starting with Merrick Garland, the appeals court judge who's in line to serve as attorney general. NPR's Carrie Johnson first reported on Biden's interest in Garland. Good morning, Carrie.

CARRIE JOHNSON, BYLINE: Good morning, Noel.

KING: You were early to this one. What, to Joe Biden, is the appeal of Merrick Garland?

JOHNSON: You know, Merrick Garland cut his teeth at the Justice Department. He worked as a prosecutor in the U.S. attorney's office here in D.C. And later on, he supervised the investigation of the Unabomber and the Oklahoma City bombing. He developed a reputation for having, really, a level head and an even temperament. Most people know Merrick Garland because president - then-President Barack Obama nominated him to the Supreme Court. Of course, Republicans did not act on that nomination. But Garland's former law clerk, David Pozen, told me the judge has always had his heart at the Justice Department. Let's listen.

DAVID POZEN: Well, as good a judge as Merrick Garland was, his true professional passion was always the Justice Department. He spoke with the utmost fondness, respect and appreciation for the work of the DOJ.

KING: I mean, that sounds like some good news because we have talked over the past four years a lot about chaos at the Justice Department. What could Merrick Garland do to fix that?

JOHNSON: Yeah, the thinking is that Garland can help restore confidence among the work force of 108,000 people and restore some public confidence that the Justice Department is not acting to shield the president or acting to go after the president's enemies. The Biden team seems to be wanting to follow an example after Watergate. And that's when former University of Chicago President Ed Levi came in to help shore up the Justice Department after some bleak years under President Richard Nixon. Max Stier is president of the Partnership for Public Service. He says there's a lot of work to do at Justice.

MAX STIER: There is a lot of harm that's been done to the institutional capability of our government. And no agency has seen more challenge and turmoil than the Department of Justice.

KING: And so who else is Biden considering?

JOHNSON: Yeah, Lisa Monaco is in line to serve as deputy attorney general. She's done almost every job at Justice - a line prosecutor in D.C., worked on the Enron task force, that major white-collar crime investigation. She led the national security division in the Obama years. She also was a top adviser to former FBI Director Bob Mueller. Civil rights lawyer Vanita Gupta is the pick for associate attorney general. She'd be the first Asian American woman to fill that job. She managed a lot of crises in civil rights during the Obama years, helped to investigate the police in Ferguson and Baltimore and Chicago. And she cut her teeth at the NAACP Legal Defense Fund and the ACLU, which has called her an inspired choice for this job. Last but not least, Noel, is Kristen Clarke, who leads a civil rights organization in Washington. She'll be nominated to run the Civil Rights Division at Justice, and that's going to be a big job for the next four years.

KING: Now, all these people would need to be confirmed by the Senate. How good or not so good are their prospects?

JOHNSON: Looking pretty good. The math is good for the Democrats, given the results in the Georgia Senate races. But even before then, Republicans like Lindsey Graham of South Carolina and Charles Grassley of Iowa had voiced their support for Merrick Garland. So things could be a little bit different for him in 2021.

KING: NPR's Carrie Johnson. Thanks so much, Carrie.

JOHNSON: Happy to do it.

(SOUNDBITE OF TRIOSENCE'S "OUT OF REACH") Transcript provided by NPR, Copyright NPR.