After Attorney General Merrick Garland’s stunning testimony before the House last week, facts are clear. They argue for considering his impeachment based on duplicity, dishonesty, and incompetence. As enervating for listeners was his uncooperative attitude, demagoguery, and pure hubris.
In April 1940, a dozen years before Garland was born, Franklin D. Roosevelt’s Attorney General, Robert H. Jackson – later on the Supreme Court – gave a powerful speech. That speech – entitled “The Federal Prosecutor” – can be found, believe it or not, on Justice’s website, and in history books.
Jackson’s theme was timeless, presentation arresting. The speech stands as a confession of an attorney general to what most know but few say: A federal prosecutor, not least a US Attorney General, has an extraordinary, almost unchecked power to destroy people’s lives.
Jackson, respected by both parties, spoke with candor about what a federal prosecutor can do. He –especially an Attorney General – can create and obscure facts, deny or misapply the law, formulate false narratives, punish political enemies, reward friends, produce indictments without opposition, prevent defense counsel from their day in court, and use the power of government to coerce, delay, and betray.
The confessional nature of Jackson’s speech was, however, not the reason he gave it, nor why it remains important – especially as one looks at the profoundly disappointing tenure of Garland at Justice.
The reason for the confession of unchecked power, how an Attorney General can abuse power, was a dire warning – to prosecutors in his time and ours, a plea to think bigger, do not go political.
Garland should reread the speech. If under a “truth serum” or suffering a flash of humility, he might resign. What Jackson, a lifetime Democrat, warned about – potential corruption – is Garland’s world.
Before getting to what Garland said, and why it warrants consideration of impeachment, listen to FDR’s AG of the topic of integrity, and think about modern context, investigations Garland allowed to lapse, never undertook, and others he fomented – into parents and former presidents – no leash.
Wrote Jackson: “The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.”
“Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed … order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.”
Jackson pulled no punches: “He may dismiss the case before trial, in which case the defense never has a chance to be heard …If he obtains a conviction, the prosecutor can still make recommendations as to sentence …and after he is put away, as to whether he is a fit subject for parole.”
“While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.” Exactly right.
Especially of concern to Jackson was an AG’s power to do damage political opponents. “Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself,” a prosecutor must avoid politics.
Now look at Garland. For motive, we could surmise he is interested in the Supreme Court, or angry he was denied a spot by Republicans, but that is secondary.
What we learned last week is atrocious. Beyond inaction on bad actors from Justice and the FBI, he is resolved to stake his reputation, like Nixon’s ill-fated AG John Mitchell, on covering the ball.
Garland repeatedly refused to answer direct questions from a co-equal branch, constitutionally vested to do oversight of his department, about basic operations, practices, conversations, and facts.
Specifically, he refused to explain why he allowed prosecutors to kill investigations, delay prosecution of the Bidens, why he allowed the statute of limitations to run on probes of the President’s son – which implicated the President in bribery, foreign corrupt practices, RICO, and more sobering charges.
He stonewalled dozens of questions tied to the president, including why he did blocked multijurisdictional prosecution of the president’s son, dropped charges to prevent a plea deal from turning into a trial – which might prove culpability by the president.
He directly contradicted multiple credible whistleblowers on his actions around protecting the son and president, including FBI and IRS whistleblowers. He ignored hundreds of suspicious transaction banking reports, CTRs, CMIRS coming from Treasury – non-political banking records – that suggest guilt.
He claimed not to have had conversations with the White House, nor to have talked with prosecutors who reported to him, when admitting that might suggest cover-up.
He claimed never to have told the president to stop carting his son around the world for deals, even as evidence mounts. He greenlighted – failed to redlight –presumptively criminal acts.
He never inquired into 15 trips by the father-son duo, their baseless contracts, 17 accounts set to avoid attention, 20 million dollars seemingly paid for access. He looked the other way, still is doing so.
Garland boldly denied Congress’s constitutional power to check him, to intercede, to offer witnesses “use” or “transactional” immunity for truth – especially on Garland’s and Biden’s behaviors. He squarely contested separation of powers, Congress’s oversight of his own suspicious behavior.
Bottom line: Having led the oversight of Clinton’s Justice Department, watched 50 years of executive-congressional relations, clerked, litigated, and read Jackson’s speech, I am appalled. Garland is not being honest. His impeachment is now worth considering.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
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