Merrick Garland On Glidepath To Confirmation As Biden AG : The NPR Politics Podcast In his confirmation hearing to serve as Attorney General, Merrick Garland emphasized loyalty to the people of the United States over fealty to the president. Monday's hearing comes almost five years after Garland was denied a Supreme Court confirmation hearing by Republican Mitch McConnell.

This episode: congressional correspondent Susan Davis, national justice correspondent Carrie Johnson, and legal affairs correspondent Nina Totenberg.

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Merrick Garland On Glidepath To Confirmation As Biden AG

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Merrick Garland On Glidepath To Confirmation As Biden AG

Merrick Garland On Glidepath To Confirmation As Biden AG

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  • Transcript

ALLIE: Hi. This is Allie (ph) from Clarksville, Tenn. I'm currently counting down the hours until my fiancé Ben comes home from his nine-month overseas deployment. This podcast was recorded at...

SUSAN DAVIS, HOST:

2:11 p.m. on Monday, February 22.

ALLIE: Things may have changed by the time you hear this, but I'll no longer be safer at home alone.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

DAVIS: Aww (ph), happy reunion to you.

CARRIE JOHNSON, BYLINE: That is so nice to hear on a rainy, cold day.

DAVIS: Absolutely.

NINA TOTENBERG, BYLINE: It is.

DAVIS: Hey there. It's the NPR POLITICS PODCAST. I'm Susan Davis. I cover Congress.

JOHNSON: I'm Carrie Johnson, national justice correspondent.

TOTENGERG: And I'm Nina Totenberg, the legal affairs correspondent.

DAVIS: And President Biden's pick for Attorney General, Merrick Garland, is appearing before the Senate Judiciary Committee for his confirmation hearing today and tomorrow.

(SOUNDBITE OF ARCHIVED RECORDING)

MERRICK GARLAND: If I am confirmed as attorney general, it will be the culmination of a career I have dedicated to ensuring that the laws of our country are fairly and faithfully enforced and the rights of all Americans are protected.

DAVIS: Carrie, you said this in a recent piece, and I loved it. You said, most people know Judge Merrick Garland for what didn't happen to him. So before we get to today's hearing, can you just take us in the way-back machine to when the country was first introduced to Merrick Garland?

JOHNSON: Well, what happened was in February 2016 Justice Antonin Scalia died unexpectedly, and it opened up a vacancy on the Supreme Court during an election year. And a month later, in March 2016, then-President Barack Obama chose Merrick Garland to fill that open seat. The idea was that Garland was a moderate, a consensus-builder, a guy who had really received bipartisan support from the Congress in earlier years, and that if anyone would be confirmed, it would be Merrick Garland. But things didn't turn out that way.

DAVIS: No, and none of the opposition to him was personal. It was all tactical, right? He was a pretty popular guy. He is currently a federal appeals court judge, but he also has a very long career, including past experience at the justice department. So what's sort of the background that he brings to this attorney general job?

JOHNSON: Yeah, he has more experience at almost every level of the justice department from working inside DOJ headquarters after Watergate, trying to really redraw the lines on partisan influence in the justice department and establish new boundaries for the FBI, to working as a line assistant U.S. attorney in D.C., including on the prosecution of then-Mayor Marion Barry on drug charges, to supervising that Oklahoma City bombing back in 1995 - a lot of experience, actually, dealing with domestic extremists that's all too relevant today.

TOTENGERG: I want to say something about Oklahoma City because Merrick Garland at the time was the principal deputy to the deputy attorney general. And he went out to Oklahoma City, and he basically ensconced himself there. And when I went and covered this later, what I found was that he had this enormous well of good feeling in Oklahoma City from - everybody from victims to the former Republican Governor Frank Keating just learned to have enormous respect and affection for this person. And so he is a very popular nominee in that sense.

DAVIS: Carrie, in the hearing today, did he outline what his priorities would be as attorney general?

JOHNSON: Yeah. He talked a lot about domestic terrorism and how the threat seemed even now more serious than it did back in the '90s, when he was dealing with Oklahoma City and the Unabomber, in part because of technology and the proliferation of firearms. And he also talked about protecting civil rights in a way that was new and, at times, very emotional.

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CORY BOOKER: I'm wondering if you could just conclude by talking - telling - answering the question about your motivation, maybe some of your own family history in confronting hate and discrimination in American history.

GARLAND: Yes, senator. So, you know, I come from a family where my grandparents fled anti-Semitism and persecution. The country took us in and protected us. And I feel an obligation to the country to pay back. And this is the highest, best use of my own set of skills to pay back.

DAVIS: Well, it does seem that one of the biggest challenges for the next attorney general is sort of the public image of the Justice Department that has become hyper-politicized following the Trump administration and sort of a really contentious agency with Congress and many of the senators he's sitting before today.

JOHNSON: One of the things that really struck me about today is that Garland was speaking, really, not just to the senators in that room or on Zoom but to some other audiences as well. One is the workforce at the Justice Department, which has been pretty demoralized. These are 115,000 people who have been beaten up by President Trump on Twitter and attacked and called Montessori schoolchildren by the last attorney general, Bill Barr. And the other audience that Merrick Garland seemed to be speaking to really was the American people who may have lost faith in the non-partisan enforcement of the law. And I really heard a lot of that today from him.

TOTENGERG: You know, the Republicans know that this is a really - a good nominee not only for President Biden but for them. He is something of a centrist, and we know that they know that because they made an agreement to vote on his nomination in a week from today. And there's no possibility of invoking the rule that the minority can to put it off for yet another week. That was part of the agreement for this date, February 22, and that there would be a vote a week later.

DAVIS: Garland's also going to have to handle a lot of politically sensitive cases of his own. I'm thinking about the special counsel investigation into the origins of the Russian probe, the criminal investigation into Biden's son Hunter and all of the cases coming out of the January 6 attack on the U.S. Capitol. He's got a lot on his plate, Carrie, that could be pretty politically contentious.

JOHNSON: He really does. And what he seemed to fall back on today was this idea that he would follow the regular process. What we hear a lot from this new DOJ team in place already is that they want to return to regular order, and Garland talked about that a lot in his answers to people like Senator Chuck Grassley of Iowa and Senator Ted Cruz of Texas, who were kind of pressing him on some of these matters.

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GARLAND: But I can assure you I do not regard myself as anything other than the lawyer for the people of the United States. I am not the president's lawyer. I am the United States' lawyer.

TOTENGERG: I think that he views this as a moment of racing to the rescue of the Department of Justice, and he will do all he can to restore its reputation and its honor, in a way, for being a nonpolitical organization as much as you can do that in the kind of hyper-partisan atmosphere that we live in today.

DAVIS: Is there any reason to think that Merrick Garland is not going to be confirmed by the U.S. Senate?

TOTENGERG: No (laughter).

DAVIS: I don't think so either. All right. Let's take a quick break. And when we get back, we'll talk about some news out of the Supreme Court this morning.

And we're back, and the Supreme Court made some news this morning. They've cleared the way for New York prosecutors to gain access to former President Trump's tax returns in connection to an investigation there. Carrie, what exactly is under investigation by the Manhattan District Attorney?

JOHNSON: We don't know the exact boundaries of this investigation by DA Cy Vance. But we do know from some earlier court filings that it seems to be pretty broad, and it could encompass things like mortgage fraud, insurance fraud. It started out with allegations that Michael Cohen, Trump's former fixer, had used some hush money to pay off women who had extramarital affairs with Trump to silence them during the 2016 campaign. But it appears to have broadened much beyond that to include Trump's business empire, potentially his kids and members of that Trump organization, too.

TOTENGERG: They've subpoenaed not just his business records but his personal records. And all the deals that he did with Deutsche Bank and other banks - those people are willing to have been willing to provide the material, but Trump managed to block it until the Supreme Court ruled against him last June. Then he went back to the Supreme Court saying, look; that subpoena is still too broad. You've got to stop this guy. And the court today tossed out that plea.

And so now what we're going to see is - we won't see his tax returns, but the grand jury may well see all of his tax returns and all of his business records. I mean, this is basically the first day of the rest of your life, Donald Trump. You are going to be on the defensive in a lot of areas, but this is the biggest one. They've subpoenaed records going back to 2011. And if they find criminal or civil wrongdoing, they will pursue it. Criminal obviously has the potential for jail time. Civil has the potential for losing a lot of money.

JOHNSON: You know, Trump issued a statement today kind of talking tough, as he usually does. He basically said the Supreme Court never should have let this fishing expedition happen, but they did. And he says he's going to fight on just as he has for the last five years, but I don't see many more directions for him to go here on this.

TOTENGERG: No, I don't either.

DAVIS: Nina, can you clarify what exactly did the court rule? Was it an actual ruling? I mean, was there dissent?

TOTENGERG: No, no. He came back to the Supreme Court with an appeal saying, OK, I lost in June. But you said I could try again, and here I am. The subpoena for my records is too broad. And the court said, go away (laughter), basically.

DAVIS: Like, we're not even going to deal with this - got you.

TOTENGERG: No, we're not going to deal with this at all. Goodbye.

DAVIS: After thinking about it for months and months.

JOHNSON: Yeah.

TOTENGERG: Right.

DAVIS: I mean, that's the thing to me - is it's still just really notable of how long this process can take through the courts because Trump was able to run two presidential campaigns and serve an entire term in the White House without ever having to reveal his taxes. So he did win in one regard in that waiting game. He was able to keep it at bay for a while.

TOTENGERG: Yes, he did. But you have to figure that the court really doesn't want to do anything that either helps or hurts him during a campaign.

DAVIS: Yeah.

TOTENGERG: So that's probably why they didn't rule on this until after the election. And when the election became disputed and then we had the Capitol riot, they waited till those things were sort of done. Now we have a new administration, and they basically said, go away.

DAVIS: Nina, the court also agreed to take up a case involving abortion rights. I think that's one that's going to be pretty closely watched, given it's the first case related to abortion under the new 6-3 conservative majority. Can you explain the case that they agreed to take up?

TOTENGERG: The case involves a cutoff of money to private organizations like Planned Parenthood. If they provide any sort of referral on the question of abortion, they are then disqualified from, under the Trump rule, family planning money, millions, even billions of dollars that go out to these organizations altogether. And the Biden administration is in the process of changing the rule. It takes some time, but there is language in the Affordable Care Act that bars any rules that interfere with doctor-patient communications, and that's what this rule does.

My deep suspicion is that eventually the Biden administration will jump through all the administrative hoops they have to. They will revoke this rule, which is much like other rules that have been similarly put into place by some other Republican presidents and then revoked by Democratic presidents. But now the Supreme Court - at least for now - says it's going to hear arguments in the case but not until probably next fall.

DAVIS: Oh, wow. So it'll be a while. All right. Well, I think that's it for us today. We'll be back in your feeds tomorrow. I'm Susan Davis. I cover Congress.

JOHNSON: I'm Carrie Johnson, national justice correspondent.

TOTENGERG: And I'm Nina Totenberg, NPR's legal affairs correspondent.

DAVIS: And thanks for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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