NRPLUS MEMBER ARTICLE I n Senate testimony Tuesday, Attorney General Merrick Garland insulted our intelligence. In response to questions by Senator Ted Cruz (R., Texas), he acknowledged that no protesters had been arrested for demonstrating outside the homes of Republican-appointed Supreme Court justices, despite the fact that doing so is against federal criminal law. Yet he claimed that the decision on whether to commence criminal proceedings had been up to the United States Marshals Service — an agency within the Justice Department.
Absurd.
It should go without saying that the attorney general runs the Justice Department and guides the activities of its component agencies, including the Marshals Service. It should also be obvious enough that the marshals’ main jobs are to provide security for judges, courthouses, and some other federal personnel and facilities, and to apprehend fugitives. They do not do much criminal investigation. Criminal investigations are mainly handled by the FBI and other DOJ agencies that specialize in specific crime categories (e.g., the DEA handles drug-trafficking probes). Those investigations evolve into prosecutions when those agencies work in conjunction with Justice Department prosecutors.
Garland knows what he told the Senate is rubbish. Federal prosecution rarely involves crimes witnessed by law-enforcement agents who then make arrests on the scene. (That scenario is more common in local policing — but even there, most crime is reported to cops who then investigate, not witnessed by cops who make instantaneous arrests.) In the vast majority of federal cases, evidence of criminal activity is reported to agents. Based on leads from witnesses, the agents conduct follow-up investigation. When they have amassed enough evidence, they seek an arrest warrant and make an arrest — very often days, weeks, or even months after the criminal conduct occurred. Moreover, as Senator Cruz pointed out in questioning Garland, it is the Justice Department prosecutors who make the charging decision, not the federal investigative agencies.
An obvious example of this is the Capitol-riot prosecutions. Most of the over 900 cases that have been brought in connection with the riot resulted from exhaustive reviews by investigators (principally, the FBI) of tens of thousands of hours of video collected from innumerable sources, including people who made amateur recordings on January 6, 2021. The agents have also scoured telephone records (including cell-tower surveillance) and social-media platforms. If they identify even a nonviolent protester who was seen in a restricted zone on January 6, agents will travel across the country to find him and drag him back to Washington for a trial, even if the conduct in question was not only trivial but actually encouraged by police.
The FBI and other agencies are performing this arduous work at the behest of the Biden Justice Department. Prosecutors have made it clear, in light of the obvious political dimensions of the Capitol riot, that they will bring charges the Justice Department ordinarily would never bring, even against first offenders, and even for such misdemeanor crimes as parading and unlawful presence in a prohibited area — precisely the kinds of crimes the Justice Department, under Garland’s guidance, has refused to prosecute in connection with the protests at the justices’ homes.
Furthermore, it would be laughable to suggest that this attorney general does not give guidance — partisan guidance — regarding the kinds of protest cases he wants prosecuted. Remember Garland’s October 4, 2021, action memo? The memo directed federal prosecutors and law-enforcement agencies to collaborate with their state counterparts in order to ensure the prosecution of parents who were protesting against woke indoctrination of their children. It did not matter that the conduct in question did not violate federal law, nor did the attorney general cede his authority to guide enforcement to agents on the scene. To the contrary, he powerfully signaled to the FBI and U.S. attorneys’ offices that he wanted the protesters arrested and charged, under the fiction that their protests were forms of actionable “harassment, intimidation, and threats of violence.” (From the memo: “The Department takes these incidents seriously and is committed to using its authority and resources to discourage these threats, identify them when they occur, and prosecute them when appropriate.”)
The FBI took Garland’s admonitions to heart, so much so that it created “threat tags” to categorize the resulting investigations. Not surprisingly, when questioned by senators about his aggressiveness when it came to the noncrimes of the parents, Garland played dumb, just as he did Tuesday when asked about his passivity when it came to the crimes of the protesters against the justices.
It is also worth remembering that, at the time, the Biden White House was publicly championing the protests at the justices’ homes. As explained by Jen Psaki, then the president’s press secretary:
I know that there’s an outrage right now, I guess, about protests that have been peaceful to date, and we certainly do continue to encourage that, outside judges’ homes, and that’s the president’s position.
The Biden administration was telling the protesters that it was permissible, or even “encouraged,” to intimidate and harass the justices at their homes, as long as there was no physical violence or property destruction. That, of course, is not what the law says, but though Garland is supposed to enforce the law, he fell into line behind “the president’s position.”
It wasn’t hard to do, surely. Democrats did not want the protesters touched. They not only agreed with the protesters’ sentiments, they were hoping the intimidation tactics would work. That, I am confident, is why Justice Alito’s draft Dobbs opinion was leaked in the first place. The objective was to turn up the heat on the conservative justices, to pressure one or more of them to change their votes so that the abortion right manufactured in the lawless Roe decision would be preserved. Roe being indefensible, it was always sustained by intimidation tactics, never by reason.
The protesters were easily identifiable. The demonstrations at the justices’ homes were on television day after day. They were the subject of numerous amateur video recordings, just like the Capitol riot had been. The Justice Department did not need the marshals to make arrests on the spot in order to charge the lawbreakers. No charges were brought because the Biden administration encouraged the protesters’ aims and their illegal methods.
Lacking the courage of his convictions, Attorney General Garland would now have you believe that the United States Marshals Service, the most unlikely of Justice Department agencies, made the call — as if a low-level deputy marshal would have dared make an arrest on the scene when it could not have been made clearer that the Biden administration supported the protests as long as there was no physical violence. That’s a pathetic display of cowardice. It’s not that Garland could not prosecute; it’s that Garland would not prosecute.