Joe Biden has told aides and outside advisers that Attorney General Merrick Garland did not do enough to rein in a special counsel report stating that the president had diminished mental faculties, according to two people close to the president, as White House frustration with the head of the Justice Department grows.
The report from special counsel Robert Hur ultimately cleared Biden of any charges stemming from his handling of classified documents that were found at Biden’s think tank and his home. But Hur’s explanation for not bringing charges — that Biden would have persuaded the jury that he was a forgetful old man — upended the presidential campaign and infuriated the White House.
Biden and his closest advisers believe Hur went well beyond his purview and was gratuitous and misleading in his descriptions, according to those two people, who were granted anonymity to speak freely. And they put part of the blame on Garland, who they say should have demanded edits to Hur’s report, including around the descriptions of Biden’s faltering memory.
In White House meetings, aides have questioned why Garland felt the need to appoint a special counsel in the first place, though Biden has publicly said he supported the decision.
While Biden himself has not weighed in on Garland’s future, most of the president’s senior advisers do not believe that the attorney general would remain in his post for a possible second term, according to the two people.
“This has been building for a while,” said one of those people. “No one is happy”
Frustration within the White House at Garland has been growing steadily.
Last year, Biden privately denounced how long the probe into his son was taking, telling aides and outside allies that he believed the stress could send Hunter Biden spiraling back into addiction, according to the same two people. And the elder Biden, the people said, told those confidants that Garland should not have eventually empowered a special counsel to look into his son, believing that he again was caving to outside pressure.
In recent weeks, President Biden has grumbled to aides and advisers that had Garland moved sooner in his investigation into former President Donald Trump’s election interference, a trial may already be underway or even have concluded, according to two people granted anonymity to discuss private matters. That trial still could take place before the election and much of the delay is owed not to Garland but to deliberate resistance put up by the former president and his team.
A spokesperson for the Department of Justice declined to comment. But one former senior Justice Department official noted that some of the frustrations being directed at Garland are better directed toward the White House. The president’s team had the option to exert executive privilege over elements of Hur’s report but declined to do so. And had Garland made edits to the report, he would have had to explain those redactions to Congress.
Beyond that, Garland felt the need to appoint a special counsel in the classified documents case in part because the president’s team bungled when the first documents were discovered.
“The way in which the White House story kept changing at the outset made it much more difficult for the Justice Department to resist having a special counsel,” said the former official, who spoke on condition of anonymity. “Had there been a very clear story at the beginning, it would have been easier.”
Biden picked Garland as his attorney general with the stated desire to restore a semblance of independence at the Department of Justice that he and others believed was lost under Donald Trump. He announced the nomination the day after the Jan. 6 attacks at the Capital — a backdrop that Biden offered up as proof that someone of Garland’s stature and temperament was needed in the post.
“Your loyalty is not to me,” Biden said. “You won’t work for me. You are not the president or the vice president’s lawyer.”
Democrats close to Biden fear Garland has become too consumed by that instruction to appear impartial.
“What Democrats do is they bend over backwards not to look partisan, and then they end up hiring people that are partisan but in the other direction,” said a Biden donor, granted anonymity to speak freely about the top law enforcement official in the country. “There’s no question in my mind that the villain here is Merrick Garland.”
Justice Department officials say Garland has delivered on a number of fronts — many of them closely identified with Biden or his priorities. Soon after arriving, he announced reorganizations and new initiatives aimed at cracking down on a wave of violent crime that beset many cities in the wake of the pandemic. There are signs those efforts are bearing fruit.
Garland and his deputies have also reinvigorated federal law enforcement in areas Republican administrations often downplay: fighting to preserve abortion access in the wake of the Dobbs Supreme Court decision, aggressively investigating claims of civil rights violations by police, and filing a flurry of often successful cases opposing mergers and alleged monopolistic practices.
But it has been his handling of the overtly political cases that has prompted Democratic agitation. And chief among those decisions now is his selection of Hur, a Trump-appointed U.S. attorney, to oversee the classified documents case.
“I had refused to criticize him but appointing Hur, who is obviously a Republican tool and who issued what I think is an irresponsible report which violates DOJ standards, was a mistake,” said Robert Shrum, a longtime consultant in the Democratic Party. “I think Garland will be criticized by historians. We’ve had some terrific attorneys general and some not so good attorneys general. And I think he’s going to rank in the not so good.”
Biden, for his part, has kept his frustrations with Garland private, even after publicly admonishing Hur in a press conference on Thursday for saying he couldn’t remember the year his son Beau died. On Friday, the White House distributed a list of quotes critical of Hur that did not mention Garland. Senate Democrats, questioned about Garland on Friday, declined to weigh in on his tenure.
“I’m not gonna get into criticizing the attorney general at all,” Sen. Tina Smith (D-Minn.) told POLITICO.
Asked on Friday whether the president had confidence in Garland, Ian Sams, a White House spokesperson for oversight and investigations, noted Biden’s comments from the day before saying he supported the appointment of a special counsel.
But even as the frictions between the White House and DOJ remain relatively contained, outside Democrats are now openly airing their disapproval with Garland’s conduct, and their fears that his selection as attorney general may end up being fatal for Biden.
“Garland is far and away Biden’s worst appointee by an order of magnitude,” Robert Kuttner, co-founder of the liberal American Prospect. “And we all pay the price. If Biden goes down the drain because Garland has mishandled the investigation of Trump and gave Republicans a weapon … then the country pays the price. It’s not just that Biden gets punished for the stupidity of appointing Garland.”
Josh Gerstein, Anthony Adragna and Hailey Fuchs contributed to this report.
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