6 Takeaways From Merrick Garland’s Senate Testimony on Activist Parents and Other Issues

Attorney General Merrick Garland stood firm at a Senate hearing Wednesday on his memo directing the FBI to look into parents who speak out at local school board meetings. 

Garland faced some tough questions from Republican senators, mostly on treating dissenting parents as “domestic terrorists” but also on FBI abuses in the past and on investigating the Jan. 6 riot at the Capitol. 

Garland, picked by President Joe Biden to run a Justice Department that he promised would be independent of politics, insisted repeatedly at the hearing that federal law enforcement has a responsibility to pursue “threats of violence” and “other criminal conduct” directed against local school officials.

“I don’t think it’s reasonable to read this memo and think it’s chilling anyone’s rights,” he said at one point.

“This shameful politicization of the Department of Justice to harass and threaten parents who are simply speaking out on behalf of their children is unacceptable and casts a dark cloud over the entire department,” Heritage Foundation President Kay C. James said in a statement issued after Garland’s appearance at the Senate hearing.

The Heritage Foundation, James said, calls on Congress to take specific steps to “use every constitutional tool available” to force the Justice Department to “stop this unprecedented, dangerous abuse.” (The Daily Signal is Heritage’s multimedia news organization.)

Here are six key topics of Garland’s testimony before the Senate Judiciary Committee. 

1. Defending His Schools Memo

Testifying to the House Judiciary Committee last week, Garland defended his memo directing the FBI and Justice Department personnel to investigate parents who speak out at school board meetings as a response to a letter to Biden from the National School Boards Association.

The NSBA apologized, however, following a public row over the letter in which multiple state chapters of the group representing school board members distanced themselves from language calling for use of the Patriot Act and other anti-terrorism laws to act against angry parents.

“Last week, the organization disavowed it,” Sen. Charles Grassley, R-Iowa, ranking member of the Judiciary Committee, told Garland. “Since you and the White House based your memo on this delegitimized letter, I assume you’re going to revoke your extremely divisive memo that you said was instigated because of that memo.”

Garland, who testified about the issue last week before a similar House panel, responded that the development would not affect Justice Department policy. 

“The memo you refer to is one page. It responds to concerns about violence, threats of violence, other criminal conduct,” the attorney general said. “That’s all it’s about. And all [the memo] asks is for federal law enforcement to consult with, meet with, local law enforcement to assess the circumstances, strategize about what may or may not be necessary, provide federal assistance if it is necessary.”

Garland said the apology by the National School Boards Association was about the language in the letter, but the organization continued to express concern about threats of violence against school board members and other school officials. 

“The language which they disavow was never included in my memo,” Garland said. “It never would have been. I did not adopt every concern they had in their letter. I adopted only the concerns about violence and threats of violence.” 

Sen. John Cornyn, R-Texas, asked Garland about the potential to chill free speech among parents concerned about their children’s education. 

“Did you consider the chilling impact your memorandum would have on parents exercising their constitutional rights?” Cornyn asked. 

After some back and forth, Garland responded: “I don’t think it’s reasonable to read this memo and think it’s chilling anyone’s rights.”

At one point, Sen. Ben Sasse, R-Neb., pressed Garland about the state school board associations that withdrew from the National School Boards Association because of the letter. 

“Why did the Ohio School Boards Association sever their relationship with the National School Boards Association?” Sasse asked. 

Garland replied, “I don’t know.”

Sasse followed with questions that he didn’t give Garland a chance to answer.  

“Why did the Missouri School Boards Association sever their relationship with the National School Boards Association? Why did the Pennsylvania School Boards Association sever their relationship with the National School Boards Association?” Sasse asked. 

The Nebraska Republican answered his own question: “Because this was political hackery, the kind of stuff you told us, when you were seeking confirmation, that you would be against.”

Judiciary Chairman Dick Durbin, D-Ill., defended the Garland memo and talked about incidents in California, Ohio, Illinois, and Pennsylvania where someone assaulted or threatened school officials, which he compared to the Jan. 6 rioters at the Capitol.

“These are not routine people, incensed or angry. These are people who are acting out their feelings in a violent manner, over and over again,” Durbin said. “The same people we see on airplanes and other places, the same people, some of whom we saw here on Jan. 6.”

Durbin asked the attorney general: “When you responded as quickly as you did to that school board [association] request, did you have second thoughts after they sent a follow-up letter saying they didn’t agree with their original premise in their first letter?”

Garland responded: “All of us have seen reports of violence and threats of violence. That is what the Justice Department is concerned about.”

2. ‘Thank God You’re Not on Supreme Court’

Sen. Tom Cotton, R-Ark., unloaded on Garland. 

“When you crafted that memo, did you consult with senior leadership at the FBI?” Cotton asked about the instructions on working with local school officials and law enforcement. 

“My understanding was that it had been discussed with the FBI before,” Garland answered. 

“Did anyone at the FBI express any doubt, disagreement, or hesitation with your decision to issue that memo?” Cotton asked. 

“No one expressed that to me,” Garland answered. 

“No one? Because a lot of them contacted us [and] they said they did, Judge,” Cotton said to Garland, a former federal appeals court judge on the D.C. circuit. “A lot of FBI officials contacted my office and said they oppose this decision.”

“Well, I doubt any of them spoke to me about it because I didn’t—no one made that point to me,” Garland said. 

In 2016, President Barack Obama nominated Garland to fill a vacancy on the Supreme Court, but the Republican-led Senate at the time never held a hearing or a vote on his nomination. 

Cotton also brought up the rape in May of a ninth-grade girl in a high school restroom in Loudoun County, Virginia, by a boy described as having worn a skirt. 

The NSBA’s letter to Biden referred to the father of the rape victim, who became angry at a school board meeting and was arrested while trying to tell the board about what happened. 

Garland said the examples included in the National School Boards Association’s letter were not part of the Justice Department’s consideration.   

“Anyone whose child was raped is the most horrific crime I can imagine and is certainly entitled by the First Amendment to protest to their school board about this,” Garland said. 

Cotton seemed to become frustrated. 

“Judge, this is shameful. This testimony, your directive, your performance is shameful,” Cotton said. “Thank God you are not on the Supreme Court. You should resign in disgrace, Judge.”

Durbin asked whether Garland wanted to respond. 

“I wasn’t sure there was a question there, but let me be clear: The news reports I’m talking about were not the news reports in that letter,” Garland said. “There were other news reports that everybody here has heard about, subsequent reports that everyone has heard about. … This memorandum is not about parents being able to object [to] their school boards.”

3. ‘Multimillion-Dollar Bill’ for FBI’s McCabe

Grassley asked why the Justice Department settled with former FBI Deputy Director Andrew McCabe, who was fired in 2018 for repeatedly lying under oath, according to the Justice Department’s Office of Inspector General and its Office of Professional Responsibility. 

Despite that, the Justice Department reached a settlement with McCabe in his lawsuit to overturn his firing, and allowed him to retire and keep his taxpayer-funded pension. 

“Do you agree with the taxpayer picking up a multimillion-dollar bill for someone that lied under oath to government officials?” Grassley asked the attorney general. 

Garland said the Justice Department was not disputing the finding of the Office of Inspector General, nor condoning McCabe’s conduct. But lawyers, he said, determined that it was cheaper to settle. 

“The assessment made by the litigators was that the bill to the taxpayers would be higher if we didn’t resolve the matter as it was resolved,” Garland said. 

4. ‘Not Constrained’ From Pursuing Conservatives

Garland said the Justice Department is “not constrained” from investigating multiple conservative organizations such as the Republican Attorneys General Association, the Honest Elections Project, and others as part of the investigation into the Capitol riot. 

Sen. Sheldon Whitehouse, D-R.I., known for colorful theories on assorted conservative groups, suggested that conservative “dark money” organizations might have pushed the Jan. 6 riot. 

“We’ve learned that there was a lot of money sloshing around the background behind the Jan. 6 rally and behind the raid, the riot, in the Capitol,” Whitehouse said. “We know the Bradley Foundation, which is a big funder, gave money to Turning Point USA and to Public Interest Legal Foundation.”

Whitehouse went on to name several other conservative organizations, including the Judicial Crisis Network, that he loosely connected with others that could have led indirectly to supporting the Jan. 6 rioters. 

He said the Judicial Crisis Network, which monitors judicial nominations and favors conservative nominees, “is the same thing from a corporate network” as the Honest Elections Project, which advocates clean elections. 

Whitehouse accused the Republican Attorney Generals Association, which raises money for state-level GOP candidates, of “making robocalls to get people to come to the riot.”

“I don’t know what is going on behind all of that,” Whitehouse said, adding:

But I am hoping that the due diligence of the FBI is being deployed not just to the characters who trespassed in the Capitol that day, who engaged in violent acts, but that you are taking the look you would properly take at any case involving players behind the scenes, funders of the enterprise and so forth. And there has been no decision to say we are limiting this case just to the people in the building that day. 

“I am very limited as to what I can say,” Garland replied. “We have a criminal investigation going forward.”

Whitehouse asked: “Please tell me it has not been constrained only to people in the Capitol.”

Garland: “The investigation is being conducted by prosecutors in the U.S. Attorney’s Office and FBI field office. We have not constrained them in any way.” 

Whitehouse: “Great.”

The Rhode Island Democrat then asked: “And the old doctrine of ‘follow the money’—which is a well-established principle of prosecution—is alive and well?”

Garland replied, “It’s fair to say that all investigative techniques of which you are familiar—and some maybe you are not familiar with because they postdate your time—are all being pursued in this matter.”

5. Need for Ethics Opinion on Son-in-Law’s Job

Sen. Ted Cruz, R-Texas, noted that Garland’s son-in-law, Alexander Tanner, is an executive with Panorama Education, a company that makes money off the use of critical race theory in schools.

The teaching of critical race theory, or using it to frame lessons, is a major issue that parents protest at local school board meetings. 

“Did you seek and receive a decision from an ethics adviser at DOJ before you carried out an action that would have a predictable financial benefit to your son-in-law?” Cruz asked Garland.

Garland seemed to dodge the question a bit before answering: “This has no predictable effect on what we are talking about.”

When Cruz pressed, Garland said of his instructions to the FBI and other Justice Department personnel: “This memorandum has nothing to do with critical race theory.”

Garland did not directly answer no as Cruz kept asking: “Did you seek an ethics opinion?”

“I’m telling you if I thought there was a reason to believe there was a conflict of interest, I would do that,” Garland said.   

6. Protecting Durham Investigation

Sen. Marsha Blackburn, R-Tenn., asked whether the report from special counsel John Durham, who is investigating the origins of various probes of Donald Trump’s ties to Russia, would be made public. 

“His budget has been approved, as I have already announced,” Garland said, “and with respect to the report, I would like as much as possible to be made public. I have to be concerned about Privacy Act concerns and declassification. But other than that, our commitment is to provide a public report, yes.”

Blackburn followed up by asking: “Can you guarantee this committee that Special Counsel Durham has free rein to proceed wherever his investigation takes him, without any political or otherwise undue influence or interference?”

The attorney general answered succinctly. 

“There will be no political or undue interference,” he said.

Ken McIntyre contributed to this report.

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