WASHINGTON — Judge Merrick Garland, President Joe Biden's nominee for attorney general, is expected to face questions Monday about how he would navigate some daunting challenges, including investigations of Biden's son and the actions of former President Donald Trump and his close advisers.
During a confirmation hearing before the Senate Judiciary Committee, Garland is likely to stress protecting the independence of the Justice Department from White House political interference in investigations after Trump's attorney general, William Barr, was frequently accused by federal judges and others of putting Trump's interests ahead of the department's.
When his nomination was announced last month, Garland said he would strive to make sure that "like cases are treated alike, that there not be one rule for Democrats and another for Republicans, one rule for friends, the other for foes."
Senators will seek reassurances that he would not allow politics to influence a tax investigation, begun under Barr, of Biden's son Hunter or an inquiry into former Trump lawyer Rudy Giuliani's dealings with the Ukrainian government. He will also face questions about special counsel John Durham, whom Barr appointed to examine the FBI's investigation of the 2016 Trump campaign.
Democrats may press him to explain how he would evaluate allegations that remarks by Trump and Giuliani incited the Jan. 6 attack on the U.S. Capitol. The Senate voted not to convict Trump in an impeachment trial, but Republican leader Mitch McConnell of Kentucky said: "We have a criminal justice system in this country. We have civil litigation, and former presidents are not immune from being accountable by either one."
Garland and his deputies would face the task of managing the federal investigation of the riot, in which more than 250 people have been charged so far, and more than 550 open investigations. In his prepared remarks for the hearing, he called the riot "a heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government."
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He would confront an even bigger challenge in deciding whether and how federal law should be changed to give the FBI more latitude to investigate domestic terrorism without violating the right of free expression. Matthew Schneider, who as U.S. attorney in Detroit charged members of an extremist group with plotting to kidnap Michigan's governor, said it is one of the biggest questions facing law enforcement.
"Any time there is a significant event in U.S. history, there has been a change in the law," he said. "There was organized crime in the '70s — they passed RICO [the federal racketeering law]. Credit card fraud in the '80s, they passed ID statutes. After 9/11, they passed the Patriot Act. So the question is do you believe after January 6 we need a new domestic terrorism law?"
If he is confirmed — as seems likely, with Democrats controlling the Senate — Garland would return to the department he left 24 years ago to become a federal appeals judge in Washington. He first came to public attention in 1995: After the bombing of the Oklahoma City federal building, Garland was appointed to oversee the government's handling of the case.
President Bill Clinton put him on the appeals court, and in 2016 President Barack Obama nominated him to succeed Antonin Scalia on the Supreme Court. But Republicans blocked the nomination, and Garland never even had a hearing.
Garland's prepared remarks said the mission to uphold civil rights remains urgent. "We do not yet have equal justice. Communities of color and other minorities still face discrimination in housing, education, employment, and the criminal justice system," he said.
A bipartisan group of more than 150 former Justice Department officials signed a letter supporting Garland's nomination, including four former attorneys general: Democrats Eric Holder and Loretta Lynch and Republicans Alberto Gonzales and Michael Mukasey.
In announcing Garland's nomination, Biden said: "You won't work for me. You are not the president or the vice president's lawyer. Your loyalty is not to me. It's to the law, the Constitution, the people of this nation."
On Monday, Garland will answer hours of questions about how he would put that goal into practice.
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