Merrick, Miscast (with Jennifer Taub)

Garland as AG is Affleck as Batman.

During his appearance before the Senate Judiciary Committee last week, Merrick Garland was excoriated by Republicans Ted Cruz and Josh Hawley; Tom Cotton said he should “resign in disgrace.” The beleaguered Attorney General has also been a veritable piñata for fed-up Democrats who want to see Donald John Trump pay for his many crimes; the cry for President Biden to fire Garland grows louder with each indictment-free day.

So: the pro-Trump Republicans want Garland to resign; the anti-Trump Democrats want Garland fired. Is this the dreaded horseshoe theory at work? Or one of those rare instances where both sides are right?

First off, let’s be clear about one thing: Merrick Garland is by all accounts a kind, decent, and impressive guy. He is not corrupt. He is not a “cover-up general” like his predecessor Bill Barr. He cares deeply about the country, and about the Department of Justice over which he presides. And unlike some of Trump’s choices for cabinet positions—Betsy DeVos is only the most egregious example—he is eminently qualified for the job. There is no question of that.

But there are hundreds, perhaps thousands, of Americans who are kind, decent, impressive, honest, patriotic, fans of the DOJ, and qualified to be Attorney General. That doesn’t mean they should get the job, or that they would be good at it if they did.

Consider the Batman movie franchise. For several recent films, Ben Affleck played the Caped Crusader. Now, I happen to like Ben Affleck. He’s a legit movie star. He’s a good actor, much better than he’s generally given credit for. He’s tall, dark, and handsome, as Bruce Wayne should be, and he looks dashing in black. He’s mysterious enough that the idea of him being a night owl and spending his free time alone in a cave does not strain credulity. There is no reason, at least on paper, that Ben Affleck should not have been cast in those movies. And yet, the D.C. Comics fanboys on Twitter denouncing the casting choice as soon as it was announced were right: Affleck was not a very good Batman. And that’s not his fault. He didn’t do anything wrong. He tried his best. He put in the work. He even had a few nice moments. But ultimately, he just wasn’t right for the part.

I feel the same way about Merrick Garland as AG: He’s not right for the part. We need motherfucking Batman running the Justice Department, and we’re stuck with O’Bannion from Dazed & Confused.

Yes, the DOJ is getting shit done. Yes, January 6 besiegers of the Capitol have been indicted, tried, convicted. Yes, Tom Barrack was charged. But the leprous Steve Bannon remains free. Worse, Garland seems to have zero appetite for bagging the Former Guy—despite the blueprint for criminal indictment handed to him on a silver platter by Robert Mueller. In this vacuum of justice, special counsel John Durham has indicted an individual who was a source for Christopher Steele, muddying the public’s understanding of Trump-Russia, and making possible bullshit narratives like this:

Our democracy is hanging on by a thread, and Garland’s shuffling memos around his desk, like he’s back on the D.C. Circuit, like he’s got all the time in the world to get everything just so. He is quiet while the enemies of democracy shout. There is no urgency.

One of the problems is that Garland thinks like a judge, not a prosecutor.1 It’s a subtle distinction, but an important one. Prosecutors are Batman. They fight crimes. Judges are umpires. They call balls and strikes. At the DOJ, we want capes, not robes.

The law professor Jennifer Taub, author of Big Dirty Money and today’s guest on the PREVAIL podcast, suggests that the reason Garland has not yet arrested the subpoena scoffer Steve Bannon is because the AG wants to meticulously research both sides of the legal argument, in the event that it goes to trial. “He’s acting like a judge,” she tells me. “And he’s probably treating the Department of Justice employees like clerks, and trying to hunt down every possible defense. But that’s not your job in law enforcement.”

For months, on my own podcast and on “Narativ,” I’ve suggested that Garland spent so long on the D.C. Circuit that he’s forgotten what the real world is like. He’s the judicial equivalent of George H.W. Bush going into a supermarket during his 1992 re-election campaign and being baffled by the scanner. Garland confirmed my hypothesis himself, explaining that he’d been “insulated in the monastery of the judiciary.”

There is a political component to the job that the AG seems completely unaware of. He cannot read the room. “I don’t know how Merrick Garland sleeps at night,” Taub says. “I think he’s a good man, but did he have an emotional and political lobotomy somewhere along the way?”

Respectfully, we don’t have time to wait for the Owens Corning to be stripped off the AG. We need him to be front-and-center right now. We need him—and his direct report, the apparently-corrupt FBI Director Christopher Wray—to talk to us. Not to reveal details that will confound ongoing investigations, obviously, but to assure us that he’s got this. You know, like FDR did in his fireside chats during the Second World War.

But Garland doesn’t have that in him. He doesn’t perceive the urgency. And he’s a nervous, uninspiring public speaker besides. In a word, he’s miscast.

That doesn’t mean he won’t eventually bust the evil-doers. Ben Affleck’s Batman nailed the bad guys just like Michael Keaton’s did. It just won’t be as satisfying to watch. And the longer he waits, the more damage will be done to the republic.



S2 E11: Merrick Garland and the Soup of Despair (with Jennifer Taub)

Greg Olear talks to Jennifer Taub, author of BIG DIRTY MONEY, about the lessons of Election Day, the Merrick Garland situation, Lisa Monaco bringing the hammer on white-collar criminals, the power of art, and “Always Look on the Bright Side of Life.” Plus: Greg’s DAME magazine “Theory of Everything,” and footage from a meeting of the Texas Republican Oversight of Literature League (TROLL).

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I first heard this suggested by LB on Kimberley Johnson’s Start Me Up! podcast.