On Wednesday 5 January 2022, the day before the Yearly Insurrection Celebration, A.G. Garland gave a brief talk. He was speaking to the well over 100,000 employees of the Department of Justice, but his remarks were available to the press.
In his remarks, (transcript here), Garland said:
[With regard to the anniversary of the 1/6 attack] it is a fitting time to reaffirm that we at the Department of Justice will do everything in our power to defend the American people and American democracy.
He went on:
We will defend our democratic institutions from attack. We will protect those who serve the public from violence and threats of violence. We will protect the cornerstone of our democracy: the right to every eligible citizen to cast a vote that counts. And we will do all of this in a manner that adheres to the rule of law and honors our obligation to protect the civil rights and civil liberties of everyone in this country.
…
Those involved [in the Capitol attack] must be held accountable, and there is no higher priority for us at the Department of Justice.
He pointed out they have arrested over 725 defendants, charged over 325 with felonies, and charged about 40 with conspiracy to obstruct a congressional proceeding or interfere with law enforcement. This was before the department charged the Oath Keepers with sedition, so that was not in his remarks, but is important to our overall evaluation.
He continued:
The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead. … [We plan to continue] as long as it takes and whatever it takes for justice to be done — consistent with the facts and the law.
That ought to strike terror in the hearts of the people at the top of the conspiracy, but I’m sure it doesn’t. They’ve evaded justice for years, so why fear it now?
He also said, “We have all seen that Americans who serve and interact with the public at every level — many of whom make our democracy work every day — have been unlawfully targeted with threats of violence and actual violence.” He then listed a long litany of election officials, airline workers, educators, journalists, and local officials, including members of Congress, judges, prosecutors, and police officers who have been attacked or threatened with attack.
In one particularly egregious act, a federal judge was attacked:
And in 2020, a federal judge in New Jersey was targeted by someone who had appeared before her in court. That person compiled information about where the judge and her family lived and went to church. That person found the judge’s home, shot and killed her son, and injured her husband.
He assured us the DOJ would continue to investigate threats and press charges, and that the number of people charged went up last year. But he also said everyone needs to help:
The responsibility to bring an end to violence and threats of violence against those who serve the public is one that all Americans share.
He also said that the DOJ was critical in securing civil rights promised in the 13th, 14th, and 15th Amendments to the Constitution. That specifically meant protecting Black Americans’ right to vote against violence from white supremacists. Continuing:
The Department of Justice will continue to do all it can to protect voting rights with the enforcement powers we have. It is essential that Congress act to give the department the powers we need to ensure that every eligible voter can cast a vote that counts.
But [the DOJ and Congress] cannot alone defend the right to vote. The responsibility to preserve democracy … lies with every elected official and with every American.
All Americans are entitled to free, fair, and secure elections that ensure they can select the representatives of their choice. All Americans are entitled to live in a country in which their public servants can go about their jobs of serving the public free from violence and unlawful threats of violence. And all Americans are entitled to live in a country in which the transition from one elected administration to the next is accomplished peacefully.
The Justice Department will never stop working to defend the democracy to which all Americans are entitled.
[I quoted at length from this transcript, which is a public document on the Department of Justice website.]
I appreciate the sentiments in Garland’s remarks, but they fall short. They fall short in gumption.
It’s a Nice Speech, But…
Point 1
He says the DOJ “will do everything in [their] power to defend the American people and American democracy.” Oh? A bunch of states have passed laws that intend to restrict the right of eligible voters to vote. If the DOJ was doing everything in its power to defend democracy, there would be a federal lawsuit filed over each of those laws. That’s patently not true.
And, frankly, this is a long-standing failure. In 2008, when Barack Obama was elected President, many groups used voter suppression against Democratic candidates.
For example, according to the 2008 Ohio Election Protection Report by the Columbus Institute for Contemporary Journalism, Election Integrity, and the Green Party of Ohio (16 November 2009) in Free Press, “The Republican Party attempted to disenfranchise some 600,000 long-time voters by purging them from Ohio voting rolls”. They apparently did this through caging (using a non-response from someone they mail to request the election officials purge that voter from the roles) and classifying voters as “inactive” (if they didn’t vote in the last two elections).
An additional 200,000 were targeted for “discrepancies” between their voter registration forms and other official databases. There were also reports of voter intimidation (such as photographing their license plates when they came for early voting). Plus there was a significant increase in provisional ballots, which get low priority in counting (or might never be counted).
That’s just in Ohio, but there were reports of voter suppression efforts across the country.
Then, in 2009, there was the take down of ACORN, which Republicans hated because the organization had been extremely effective at registering voters who largely voted for Democrats. Agents of right-wing extremist organization Project Veritas faked videos of ACORN personnel where they reported to find criminal activity. Republicans and right-wing groups then used this fake evidence to attack the organization, which didn’t recover and went out of business in the U.S.
But one of the first attacks on ACORN was charges of possible fraud by the organization which were under investigation by the FBI during the 2008 presidential campaign. The Obama campaign called for those investigations to be transferred to a special counsel. (See Obama camp calls for special prosecutor in fraud investigation at CNN.)
At the time, I urged the Attorney General Eric Holder to pursue cases regarding voter suppression and election fraud (activities such as caging, not voter fraud, which largely doesn’t exist). To my knowledge, the DOJ didn’t even investigate claims of voter suppression.
This was a huge strategic error. This was before much of the push for voter ID was prevalent. An aggressive campaign by DOJ to stop voter suppression would have taken both the moral underpinning and much of the funding away from the voter ID movement. It also would have blunted the 2013 Shelby County v. Holder decision, which gutted pre-clearance. In fact, a thorough investigation of voter suppression might have provided additional evidence of the effects of racism in voting that the SCOTUS ignored in that decision.
The DOJ has not done everything it can to defend democracy, and I have little faith that it will do so now.
In any case, it’s obvious the DOJ is suffering from a limiting belief. Which I’ll get to.
Point 2
He says, “Those involved [in the Capitol attack] must be held accountable, and there is no higher priority for us at the Department of Justice.”
According to this speech, about 140 prosecutors have been working on bringing these people to account. That’s out of a staff he reports as about 115,000 employees. Yeah, not everyone on staff is a prosecutor, but I don’t agree this shows there’s no higher priority. How many prosecutors do they have working on drug crimes? Why? When the defense of democracy is at stake, isn’t it possible more resources could be shifted to this effort?
And, for that matter, how many of these prosecutors are experienced with white collar crimes? In other words, if this effort is the highest priority, then there should be a very big effort to trace this back to the people who funded and sponsored the attacks. I’m curious. Do they have sufficient resources dedicated to that?
Point 3
He said, “We have all seen that Americans who serve and interact with the public at every level … have been unlawfully targeted with threats of violence and actual violence.” He said they would continue to investigate and press charges, but all Americans share the responsibility to bring an end to this violence.
His appeal to the public for help is entirely appropriate. However, I have not seen swift and effective action by the DOJ over the last year to put a stop to this. How many people have been investigated? How many have been charged? Based on the frequency with which I hear about these incidents, there ought to have been hundreds if not thousands of investigations and dozens of people charged. Even the various reports in Garland’s speech show that this is a frequent occurrence. So, why were we not seeing frequent actions in the spring and why haven’t we had convictions, or at least charges?
At least this threat to democracy is on their radar. But there are a lot of blips and not much flak.
Point 4
He says, “The Department of Justice will continue to do all it can to protect voting rights with the enforcement powers we have. It is essential that Congress act to give the department the powers we need to ensure that every eligible voter can cast a vote that counts.”
This is where I part company with Garland. He does not need Congress to act to give them more powers. He cited the powers he needs in the early part of the speech:
In the midst of Reconstruction following the Civil War, the department’s first principal task was to secure the civil rights promised by the 13th, 14th and 15th Amendments.
These amendments to the Constitution explicitly give every adult a right to vote. And they are explicit about who gets that right.
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
[Amendment XIII, Section 1]
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[Amendment XIV, Section 1]
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
[Amendment XV, Section 1]
You might take a close look at Amendment XIII. It says the states may not deprive any person of equal protection of the laws. This means that every state must give each person an equal right to vote. That isn’t just what’s in the Voting Rights Act of 1965. That’s a much broader guarantee.
It means, for example, that if you make it possible for someone in one precinct to vote within an hour, you must make it possible for people in all precincts within that state to vote within one hour.
It means, for example, that if you give one voter the right to vote by mail, you must give all voters the right to vote by mail.
If you require any voter to show ID to vote, then you must make it possible for every voter to get an ID sufficient to vote with equal protection of the law.
Equal means equal.
That’s the law of the land.
The objection you will hear from the DOJ is that they can only enforce something if there’s a statute. That’s not true. According to Wikipedia:
The United States Department of Justice (DOJ), also known as the Justice Department, is a federal executive department of the United States government tasked with the enforcement of federal law and administration of justice in the United States.
[United States Department of Justice]
The DOJ is supposed to “enforce federal law”. The Constitution is law. But even if you gave the DOJ the benefit of the doubt on this, there are quite a lot of statutes in support of voting rights. I will come to that in the next installment.
So, Mr. Garland, no excuses. No whining. No shirking. Go do your job. Enforce the law. Take every one of these states to court that is not living up to the letter of the law. We don’t need more legislation from Congress. What we need is a DOJ with gumption.
Articles in This Series
Intro to this series: Resuscitating Democracy
Installment 1: The DOJ Is Becoming a Problem To Solve
Installment 2: Reforming the Department of Justice
