On Saturday, the Wall Street Journal reported that relations between President Joe Biden and Attorney General Merrick Garland had reached frosty proportions.
This apparently stems from a White House perception that Garland’s infatuation with special counsels has gone too far. The Journal reports that Biden aides “see Garland’s handling of investigations into the Biden family as motivated…by a careful desire to make sensitive investigations appear insulated from political pressure.”
Aides have new evidence. Newly appointed special counsel David Weiss heavily accused Hunter Biden of gun violations on Thursday.
These accusations hurt the Department of Justice, and they hurt all of us by throwing our friends into the MAGA feeding frenzy. Ultimately, they are Garland’s responsibility. One can empathize with each of Garland’s individual decisions; the sum, however, caused undeniable damage.
Let’s recognize that hindsight is 20/20. This is precisely why it must be faced with brutal honesty. Strong leaders use it to make the difficult decisions that await them.
It is also important to note that the cool relationship between the White House and the Justice Department may reflect a healthy independence on the part of attorneys general in their legal decisions.
At the same time, attorneys general can go so far as to prove their independence to the point of prioritizing this issue over their vision and personal responsibility to make a sound decision. This seems to be where we are.
Saturday’s Wall Street Journal article identifies two causes for the current chill between Biden and Garland.
First, there was Garland’s January 2023 appointment of a special counsel, Republican Robert Hur, to investigate whether Joe Biden’s possession of classified documents from his tenure as vice president violated the law. Second, unusual charges were filed against Hunter Biden on Thursday. There is a lot to discover with each one.
As for Garland’s nomination of Hur, Biden hasn’t publicly challenged it, but he certainly has a case to make. In January and February, Biden and Mike Pence were found to have classified documents from their respective tenures as vice president.
Although, on the surface, these circumstances seemed parallel to the situation that led the Justice Department to search Trump’s Mar-a-Lago home and ultimately charge him with numerous crimes, they could not be more different. Most notably, in neither case was there any sign of intentionality in the documents’ inclusion among the personal papers taken home after their tenure. The two men quickly returned the documents as soon as they were discovered.
Evidence of intentionality or obstruction of the government’s efforts to secure the return of documents is, rightly, what is required to prosecute former federal officials convicted of possessing classified documents. after their mandate. This is what happened in the case of Trump.
So why did Garland authorize special counsels to investigate Biden?
Clearly, he wanted to demonstrate the independence of his Justice Department from the White House and give the impression that he was treating Trump’s case the same way he treated Biden’s and Pence’s, even though they looked nothing alike. This matched his hypersensitivity on this issue from day one.
Garland didn’t have to go the special counsel route. He could have decided for himself whether charges were warranted or not, explaining the differences between Trump’s case and that of Biden and Pence.
Garland could have highlighted the strong evidence that Trump obstructed efforts to secure the return of national security secrets. For Garland, however, that would have meant taking on the pressure.
There is precedent. In 1997, Attorney General Janet Reno refused to appoint an independent prosecutor to investigate Republican allegations of fundraising irregularities in Bill Clinton’s White House.
Under pressure from Republicans to make this appointment, she stood firm: “We have no specific and credible evidence that a targeted official violated the law. » She added: “If I do what I think is right and I don’t have a job, so be it. »
However, when it comes to the Hunter Biden special counsel saga, the intrigue is even thicker. It begins in 2021, when Garland and President Biden retained David Weiss, the Trump-appointed U.S. attorney in Delaware, to complete the investigation he opened in 2019 into allegations of misconduct by Hunter Biden . Typically, all U.S. attorneys are replaced by appointees of new presidents who are from a different party than their predecessors, but that did not happen with Weiss.
Then came the failure in July 2023 of lawyers, including Weiss, to negotiate a strong plea deal that the federal judge would approve. In retrospect, one wonders if Garland could have done a better job of cutting his losses at this point.
It took Weiss four years to reach an unsuccessful plea deal. This failure could have been a reason to replace him. Instead, Garland promoted him to special counsel, which put Weiss in a position where he can now only be removed “for cause” rather than at the president’s discretion.
In the background of all this were cries of political favoritism from Fox News and the MAGA Republican House. They said the plea deal had been an “affair of the heart” for the president’s son.
A federal prosecutor’s job is to silence the political noise and deliver justice. To any impartial observer, it would appear that Weiss was missing earplugs. The same could be said of Garland in his decision to appoint Weiss.
The worst was yet to come. Before filing the new gun charges, Special Counsel Weiss had to inform Garland and get his approval.
This was another apparent turning point for the attorney general. He would have known that federal indictments for illegal purchase of firearms by a non-criminal in the absence of use of the weapon in a subsequent crime are rare, if any.
Yet if Garland disapproved of Weiss’ proposal to file precisely this type of indictment against Hunter Biden, the special counsel’s regulations required the attorney general to notify Congress and explain. Republicans would have a field day at the hearings if he did the right thing and dismissed the charges. Of course, he probably never would have faced such a dilemma if he hadn’t gone down a slippery slope by remaining loyal to Weiss until now.
On Thursday, Weiss indicted Hunter Biden on all three gun-related charges. They include two counts of making false statements in 2018 about his drug use to obtain a weapon and one count of illegally possessing a firearm while addicted.
The issue here is the commitment of the Ministry of Justice to apolitical justice for both sides, including that of the administration that appointed him. These accusations simply would never have been made without Hunter’s political valence as the son of Joe Biden.
Indeed, in an interview with Joyce Vance published Saturday, Charlie Oberly, who preceded Weiss as U.S. attorney in Delaware, bluntly stated, based on the facts of the Hunter case as he presented them, knew: “I can’t imagine that we would try to make such an individual a criminal.
None of this is reassuring. This suggests that one can go out of his way to prove one’s impartiality to the point of breaking the back of apolitical justice.
Nevertheless, there is reason to believe that a decent outcome could still occur in Hunter Biden’s case. This could take the form of a negotiated settlement. Alternatively, a court, a jury, or both could resolve the matter satisfactorily.
In the meantime, it is worth keeping the broader picture in mind as we lament the current path we find ourselves on and the resulting tensions between the Justice Department and the White House.
One might think it’s little consolation that the coldness between the current Attorney General and the White House is far better than the lack of independence and close alignment between Trump and Attorney General Bill Barr that we’ve witnessed for almost the entirety of Barr’s term. However, if Trump wins the election again in 2024, Garland will be replaced by someone who offers far worse than excessive impartiality, or even Barr’s toad: an attorney general totally loyal to a criminal president.