Merrick Garland’s Future Looks Bleak

Merrick Garland is highly unlikely to serve a second term as attorney general amid mounting criticism of the Biden classified documents report, a law professor has said.

Professor Anthony V. Alfieri, a law professor at the University of Miami in Florida, was reacting to Garland’s appointment of Robert Hur as special counsel to investigate President Biden’s handling of the documents.

Garland has been under pressure for the perceived unfairness of the report and his silence in its aftermath.

The report said that Biden claimed he couldn’t remember details of classified documents he held after leaving the White House as vice president, and would likely claim forgetfulness if put on trial.

“Garland’s lack of fairness in this case, and the ensuing political fallout, renders a second term of service highly unlikely,” Alfieri told Newsweek.

“Attorney General Garland’s appointment of Robert Hur as Special Counsel, despite a notably conservative pedigree and record, is less controversial than Garland’s conclusion that Hur’s report was neither ‘inappropriate’ nor ‘unwarranted’,” Alfieri said.

“That conclusion and his release of the report to the House and Senate Judiciary Committees without addition, redaction, or modification, both explicitly and implicitly approves formally descriptive but substantively gratuitous, ad hominem and politically charged language prejudicial to Mr. Biden.”

Alfieri said the report did not follow proper fairness procedures.

“This unfairness is compounded by Garland’s additional conclusion that the release of the report in full is in the ‘public interest’ and consistent with Department of Justice policy. American Bar Association Model Rules of Professional Conduct and Standards Relating to the Administration of Criminal Justice specifically regulating the prosecution function, as here, require fairness to the targets of federal investigations,” he said.

Hur’s report on the Obama-era classified documents found at Biden’s Delaware home and at his Penn Biden Center office in Washington, D.C., between November 2022 and January 2023 was released on Thursday. Hur declined to prosecute Biden for mishandling the classified documents, partly because he cooperated in the investigation and that the evidence “does not establish Mr. Biden’s guilt beyond a reasonable doubt.” However, his report raised questions about Biden’s mental fitness and called him “a well-meaning, elderly man with a poor memory.”

Garland appointed Hur to lead the Biden investigation in January 2023. Hur also served as U.S. attorney for the District of Maryland until 2021, having been appointed to the position by former President Donald Trump in 2018.

Former federal prosecutor, Neama Rahmani, told Newsweek that Garland may be forced to resign.

“If Biden is reelected, it will be interesting to see if Garland serves a second term or whether he resigns, voluntarily or not,” he said.

“There is a legitimate question of whether Hur’s statements about Biden’s memory were appropriate, and whether Garland should have insisted that those portions of the report be removed or revised,” Rahmani said.

Newsweek sought email comment from Merrick Garland and Robert Hur’s offices on Tuesday.

Rahmani, now the president of the West Coast Trial Lawyers law firm in Los Angeles, California, said that Garland was justified in appointing Hur to investigate.

“Garland didn’t have much of a choice but to appoint a Special Counsel. There was an allegation that his boss, President Biden, broke the law, so this is what the Special Counsel statute was meant to do: have an independent prosecutor investigate the case. The appointment was also necessary because Trump is being prosecuted for similar charges,” he said.

“Garland could have decided not to release the report because it did not recommend prosecution, or to redact portions of the report, but Garland had already publicly committed to transparency, so that may have resulted in more political fallout.”

There has been intense criticism of Garland for the public release of the report and signs that he might not survive the controversy.

Longterm Democrat Party consultant Robert Shrum wrote on X, formerly Twitter, on February 9 that Garland was the wrong choice for Attorney General.

“I have refrained from all the criticism of Merrick Garland. I was wrong. And he was the wrong choice for DOJ. History will not absolve him,” he wrote.

Author and legal analyst, Jeffrey Toobin, told CNN on February 10 that Garland would have been able to predict that the Biden report would come with political bias.

“I don’t know why Merrick Garland, out of all the lawyers in the United States, had to choose this one. But this is what happens when you appoint people who have political agendas against your boss, to investigate your boss,” he said.

Garland also faced criticism from Laurence Tribe, his former Harvard Law professor, on Monday, February 12.

In a post on X, formerly Twitter, Tribe, professor emeritus of constitutional law at Harvard University, shared his thoughts on the matter by criticizing Garland for bending “too far backwards.”

“I’ve long respected my friend and former student Merrick Garland but he has bent too far backwards in order to avoid seeming pro-Biden,” he wrote.

This is not the first time Tribe criticized the report as he reposted a video on X on Sunday of former Judge J. Michael Luttig of the U.S. Court of Appeals who repeatedly called Hur’s report “an abuse of power.” In response to the video, Tribe wrote, “It was indeed. A gross abuse, and one the Attorney General should have intervened to correct.”