Merrick Garland & January 6: Muddled Message

U.S. Attorney General Merrick Garland speaks at the Department of Justice, in advance of the one year anniversary of the attack on the U.S. Capitol, in Washington, D.C., January 5, 2022.
(Carolyn Kaster/Pool via Reuters)

There is no U.S. constitutional right to vote.

It is always bracing to hear that — so much so that it’s rarely said, and thus not broadly understood. But it is a fact, one that is well known to the Justice Department and the former federal appellate judge at its helm. It is thus irritating, though par for the course, to find Attorney General Merrick Garland stumping for the Democrats’ election “reform” legislation by beseeching Congress “to give the Department the powers we need to ensure that every voter can cast a vote that counts.”

Our Zachary Evans reports on the AG’s speech here. It was occasioned by the first anniversary of the Capitol riot. Given the notorious politicization of the Biden DOJ, we should not be surprised to find Garland hyping January 6 whenever doing so may promote the Democratic agenda, as apparatchiks habitually do.

Nevertheless, it remains a stubborn fact that the Constitution gives the states primacy over elections, including presidential elections, the focal point of the January 6 observance. Article II, Section 1, provides that “each State shall appoint, in such Manner as the Legislature thereof may direct” the electors who cast the state’s votes in the Electoral College (emphasis added). The legislature of every state in the Union has long vested the manner of appointing its electors in the public, through a popular vote. The Constitution (in the same section of Article II) empowers Congress to determine when Election Day takes place, but how the election is carried out is up to the states (subject to such constitutional mandates as equal protection under the law). The Twelfth Amendment, ratified in 1804, prescribes how electors must meet in their respective states, and how electoral votes are transmitted and counted; this altered some of the procedures originally set forth in Article II, and underscores that such a change had to be made by constitutional amendment because Congress did not have the power to do it by legislation.

Congress may not delegate to the executive branch a power Congress itself does not have (a straightforward principle, but one the Biden administration has difficulty grasping — that’s a big problem underlying the president’s flawed vaccine mandates). Given that the Constitution empowers the states, not the federal government, to determine the manner in which elections are conducted, Congress is in no position to empower the Justice Department to manage those elections. Given that state law, not federal law, is the source of what Garland describes as the right of “every voter [to] cast a vote that counts,” it would be unconstitutional for Congress “to give the department the powers” Garland claims “we need.”

Garland is a smart guy. Don’t think he doesn’t understand that he’s talking nonsense. He’s engaging in political rhetoric, not advancing a sound legal position.

The rhetoric was part of the AG’s overall theme that the Capitol riot was an “attack on our democracy.” That’s true (a point on which I elaborate in a column today, marking the first anniversary). Nevertheless, the unconstitutional federal usurpation of state authority over elections was an objective of progressives long before January 6, 2021. The Biden administration and congressional Democrats are pretextually using the Capitol riot to advance the progressive cause — ironically, even as they obstruct bipartisan legislative action to fine tune the Electoral Count Act, the flaws of which actually factored into the January 6 outrage, as our Dan McLaughlin explains.

That aside, Garland’s speech was pretty tame. As one would expect, he gave an overview of the January 6 prosecutions (public developments that have been tracked on the Justice Department website for nearly a year). He said 725 defendants from all over the nation have been charged. About 400 of these cases involve misdemeanor charges, and 145 of those defendants have pled guilty. More serious are 325 felony cases, which so far have yielded 20 guilty pleas, with trials expected to begin this year (Garland said trials for 17 of the accused have been scheduled so far).

The most significant cases charge obstruction of a congressional proceeding (the January 6 joint session of Congress), and assaults on police officers from the Capitol PD and the D.C. Metro PD. Garland placed special emphasis on the latter, observing that 140 cops had been injured, some quite seriously. On that score, he repeated some of the gruesome details that were featured in the testimony of four officers in the first public hearing held by the House January 6 Committee.

In describing the investigation, he said a few interesting things.

First, he took pains to say that five officers had lost their lives “since” the Capitol riot. It was a subtle shift in Democratic rhetoric. Undoubtedly, Garland invoked police deaths in the context of the riot because he expects the listener the assume the rioters are culpable for the deaths. But at least Garland did not claim that the police in question were killed in the course of the riot, which is what has been routinely suggested by Democrats and the January 6 Committee. As I reiterate in today’s column, there is scant proof that the deaths (four by suicide, one involving Officer Brian Sicknick’s strokes that commenced hours after the riot) were causally connected to the riot. The Justice Department has made no such claim against any of the 725 defendants charged to date.

Second, clearly bothered by complaints from the left that DOJ has failed to charge those regarded by Democrats as riot ringleaders (here, of course, they are thinking of former President Trump, his advisers, and his congressional supporters), Garland asked for patience. He claimed that it was routine in investigations to get the less serious cases out of the way — here, the hundreds of misdemeanor charges — to build to more substantial cases. I must say, that is not the norm in my experience.

Sometimes, developments in minor cases can lead to major prosecutions. But most of the time, the Justice Department brings the big case if it has one, and worries about the lesser matters afterward. There are basically two reasons for that. If prosecutors bring related minor cases first, they have to provide discovery that shows the government’s hand. Having that information helps later-charged defendants prepare to dismantle the case, and may even invite witness- and evidence-tampering. Moreover, there is only so much bandwidth for any investigation, no matter how significant, until it peters out in exhaustion. The last gasps of any probe are for dealing with loose ends, not the main event.

Finally, in hyping the gravity of his prosecutions, Garland rationalized that even though the misdemeanor defendants got little or no prison time, the sentences have gotten more severe now that felony cases are being addressed. While this is true, what Garland conveniently omits is that the sentences in these more-substantial prosecutions do not, and will not, approach the sentences one would expect to see in a terrorism case — notwithstanding that the AG and Democrats have risibly asserted that January 6 (“an attack on democracy itself”) was worse than a terrorist attack.

Nor did Garland mention that, for all the Democrats’ tireless insurrection rhetoric, not a single defendant has been charged with insurrection or seditious conspiracy (i.e., conspiring to make war on the U.S., or to oppose the U.S. government by force).

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