Merrick Garland

© Image Copyright : Photo from Wikimedia Commons / Author of Photo: United States Court of Appeals for the District of Columbia Circuit / Source of Photo: cdn-news.wgbh.org

Background

Merrick Brian Garland was born to Jewish parents in Chicago on November 13, 1952, and grew up in Lincolnwood, Illinois. He earned a bachelor’s degree from Harvard College in 1974 and a JD from Harvard Law School in 1977. After completing his education, Garland worked as a law clerk for U.S. Second Circuit Court of Appeals Judge Henry Friendly (1977-78) and Associate Supreme Court Justice William Brennan (1978-79); special assistant to the U.S. Attorney General (1979-81); a private-practice lawyer (1981-89, 1992-93); Assistant U.S. Attorney for the District of Columbia (1989-92); Deputy Assistant U.S. Attorney in the Justice Department’s Criminal Prosecutions Division (1993-94); Principal Associate Deputy U.S. Attorney General (1994-97); and a judge in the U.S. Court of Appeals for the District of Columbia Circuit (1997-present). Garland has also taught antitrust law at Harvard Law School, and co-chaired the District of Columbia Bar’s administrative law section.

As Deputy Attorney General, Garland supervised the prosecution of “Unabomber” Ted Kaczynski in the 1990s. He also managed the investigation of the 1995 Oklahoma City bombing, a domestic terrorist truck bombing that killed at least 168 people and injured more than 680 others.

Garland and the Environmental Protection Agency

According to TheBlaze.com, “During his time on the D.C. Circuit Court of Appeals … Garland has stood with the EPA [Environmental Protection Agency] in nearly every case…. [He] not only ruled in favor of the EPA—and in some cases the environmental lobby—but he also typically wrote the court’s opinion. Further, he was occasionally the lone dissenter in rulings that went against the EPA or the environmental lobby.” Some examples:

  • In 1999, Garland sided with the EPA in a challenge to the Resource Conservation and Recovering Act, a law authorizing that Agency to fully control “the generation, transportation, treatment, storage, and disposal of hazardous waste.”
  • In Whitman v. American Trucking Association (2001), in which the trucking lobby and three U.S. states challenged the EPA’s National Ambient Air Quality Standard, Garland sided with the EPA .
  • In American Corn Growers Association v. EPA (2002), Garland dissented in a 2-1 court ruling that struck down a number of EPA “anti-haze” regulations which placed an enormously heavy burden on businesses to cut emissions. While Garland argued that the Clean Air Act expressly authorized the EPA to make judgments regarding pollution reduction, the majority held that the regulations in question required businesses to “spend millions of dollars for new technology that will have no appreciable effect” on air quality.
  • In 2003, Garland voted to uphold the federal government’s application of the Endangered Species Act to the arroyo toad, and the government’s claim that the U.S. Constitution’s Interstate Commerce Clause authorized the EPA to protect the toad even though it lived in only one state, California. Judge John Roberts, who was then serving on the same court as Garland, challenged the logic of Garland’s opinion by questioning how “a hapless toad that, for reasons of its own, lives its entire life in California” could be a legitimate concern for federal commerce regulation.
  • In Sierra Club v. EPA (2004), Garland sided with the environmental lobby against the Bush administration EPA’s effort to delay the enforcement of ozone standards in Washington, DC.
  • In National Parks Conservancy Association v. Manson (2005), Garland voted to give environmental advocacy groups standing to challenge the authorization of a new power plant.
  • In Cement Kiln Recycling Coal v. EPA (2007), Garland voted to reject an industry challenge to rules that regulated the burning of hazardous waste for fuel.

Garland & The Second Amendment

Garland has also rendered noteworthy decisions in the area of gun rights. In 2000, for instance, he voted to uphold what National Review Online (NRO) calls “an illegal Clinton-era regulation that created an improvised gun-registration requirement.” Though Congress had banned federal gun-registration mandates 32 years earlier, the Clinton administration nevertheless made it a practice to retain, for six months, the National Instant Background Check System’s (NICS) records of lawful gun buyers. “By storing these records,” says NRO, “the federal government was creating an informal gun registry that violated the 1968 law. Worse still, the Clinton program even violated the 1994 law that had created the NICS system in the first place. Congress directly forbade the government from retaining background-check records for law-abiding citizens.”

In 2007 Garland supported a motion seeking a reconsideration of a D.C. Circuit Court of Appeals decision to strike down parts of the District of Columbia’s highly restrictive gun-control law (which prohibited city residents from even keeping guns in their homes for self-defense, and which the Court had originally deemed incompatible with the Second Amendment). Author and attorney Dave Kopel opined that Garland’s vote was “no surprise, since [he] had earlier signaled [his] strong hostility to gun-owner rights” in a previous case. Alan Gottlieb of the Second Amendment Foundation, for his part, said that “the only reason” why Garland supported the 2007 motion was because he wished “to overturn the pro-Second Amendment ruling.” A number of years later, Chris Cox, the head of the National Rifle Association’s lobbying arm, stated that “a basic analysis of Merrick Garland’s judicial record shows that he does not respect our fundamental, individual right to keep and bear arms for self-defense.”

Additional Key Rulings

Among Garland’s additional key rulings are the following:

  • In 2003, Garland joined a D.C. Circuit Court opinion prohibiting terrorist prisoners in Guantanamo Bay from appealing their cases in civilian courts—a decision that the Supreme Court would subsequently overturn.
  • In 2008, Garland authored the majority opinion overturning a Combatant Status Review Tribunal’s ruling that a particular suspect who was said to be affiliated with an Islamic terror group could be detained as an “enemy combatant” and tried in a military tribunal rather than in civilian court.
  • That same year, Garland participated in a unanimous panel opinion invalidating Federal Election Commission regulations for being insufficiently stringent in implementing the McCain-Feingold campaign-finance-reform bill, whose purpose was to: (a) put restrictions on paid advertising during the weeks just prior to political elections, and (b) tightly regulate the amount of money that political parties and candidates could accept from donors.
  • In Saleh v. Titan Corp. (2009), Garland dissented from a court panel’s decision to bar Iraqi victims of abuse at Abu Ghraib prison from suing American military contractors who had permitted and/or participated in the wrongdoing. In short, Garland rejected the notion that military and federal executive officials should have exclusive authority to adjudicate and punish, under federal law, the transgressions of personnel working for them during wartime.

Garland and Big Labor

In a March 2016 column in The Wall Street Journal, National Federation of Independent Business (NFIB) president and CEO Juanita Duggan described Garland as highly antipathetic toward small business and, conversely, extremely supportive of big labor unions. “[I]n 16 major labor decisions of Judge Garland’s that we [NFIB] examined,” said Duggan, “he ruled 16-0 in favor of the NLRB [National Labor Relations Board].” “Elsewhere in the Journal,” noted syndicated columnist Dennis Prager, “the editorial board wrote that they can’t think of a single issue on which Garland would vote differently from the four liberal Justices that already sit on the bench.”

Obama Nominates Garland for the Supreme Court

Also in March 2016, President Barack Obama nominated Garland to replace the recently deceased Justice Antonin Scalia on the U.S. Supreme Court. Because this nomination was made during the final year of Obama’s presidency, the Republican-majority Senate refused to hold a hearing or vote on it, insisting that the next elected president should fill the vacancy instead of the outgoing Obama. Garland’s nomination lasted 293 days and expired on January 3, 2017, at the end of the 114th Congress.

Garland & Abortion

On March 4, 2021, Terence Jeffrey wrote in The Daily Signal about an abortion- and immigration-related case which Garland had overseen in late 2017. It involved a 17-year-old pregnant girl who was 7 months pregnant and was caught illegally crossing the Mexican border into the United States. Wrote Jeffrey:

“The agency that arrested this pregnant teenager turned her over to the Office of Refugee Resettlement, which placed her in a shelter. She demanded an abortion. But the office, which had a policy of not facilitating abortions, declined to facilitate hers—as it sought to find her a sponsor. Once a sponsor took custody of her, moreover, she would have been free to terminate her child in the United States.

“But some lawyers took up the case of this pregnant illegal alien teen and sued the government on her behalf. The Fifth Amendment, they argued, guarantees abortions to pregnant foreign teenagers arrested while illegally trying to enter the United States. An Obama-appointed district judge agreed.

“The Department of Health and Human Services appealed to the U.S. Court of Appeals for the District of Columbia, where Merrick Garland … was chief judge. Texas was joined by eight other states in filing an amicus brief that made a simple point: This illegal alien was free to leave the United States and pursue an abortion elsewhere. A three-judge panel ruled 2-to-1 in favor of HHS. […]

“The illegal alien’s lawyers immediately asked for the full appeals court to consider the case. It did—and issued a per curiam order permitting the district court to let the teen have the abortion. Garland, whose name is inscribed at the top of that order, mutely stood behind it. […] The illegal alien’s baby was aborted the next day.”

Garland Becomes President Biden’s Attorney General

On January 20, 2021, newly inaugurated President Joe Biden nominated Garland for the position of United States Attorney General. The Senate confirmed Garland as Attorney General on March 10, 2021, in a 70-30 vote.

Garland on Immigration Policy

During Garland’s Senate confirmation hearing on February 22, 2021, he was highly critical of the “zero-tolerance” immigration policy that former Attorney General Jeff Sessions had adopted in the early days of the Trump administration. “I think that the policy was shameful,” said Garland. “I can’t imagine anything worse than tearing parents from their children, and we will provide all the cooperation that we possibly can.”

During the same confirmation hearing, Republican Senator Josh Hawley Hawley asked Garland if he believed that “illegal entry” into the United States should remain a crime. Garland replied: “I haven’t thought about that question. I just haven’t thought about that question. I think the president has made clear that we are a country with borders and with a concern about national security. I don’t know if a proposal to decriminalize but still make it unlawful to re-enter. I just don’t know the answer to that question. I haven’t thought about it.”

Hawley then asked Garland if he would “continue to prosecute unlawful border crossings” if confirmed as Attorney General. “This is, again, a question of allocation of resources,” Garland replied. “The department will prevent unlawful crossing. I don’t know. I have to admit, I just don’t know exactly what the conditions are and how this is done. I don’t know what the current program even is with respect to this. I assume the answer would be yes, but I don’t know what the issues surrounding it are.”

Garland Declines to Label Antifa & BLM Violence As “Terrorism”

During his Senate confirmation hearing as well, Garland emphasized the Justice Department’s responsibility to “battl[e] extremist attacks on our democratic institutions” and described the January 6, 2021 storming of the U.S. Capitol by several hundred people claiming to be Trump supporters as “the most heinous attack on the democratic process” that he had ever seen. Republican Senator Josh Hawley — referring to the numerous, much-more-violent attacks that leftists affiliated with Antifa and Black Lives Matter had carried out against federal courthouses in Portland and Seattle during 2020 — asked Garland: “Do you regard assaults on federal courthouses or other federal property as attacks of domestic extremism, domestic terrorism?” In his reply, Garland suggested that the leftist violence did not rise to the level of “terrorism” because it mostly occurred at night:

“Well senator, my own definition, which is about the same as the statutory definition, is the use of violence or threats of violence in an attempt to disrupt the democratic processes. So an attack on a courthouse while in operation, trying to prevent judges from actually deciding cases, that plainly is domestic extremism, domestic terrorism. An attack simply on a government property at night or any other circumstances is a clear crime and a serious one and should be punished. I don’t know enough about the facts of the example you’re talking about, but that’s where I draw the line. One is—both are criminal, one is a core attack on our democratic institutions.”

Garland and Consent Decrees Involving Local Police Departments

On April 16, 2021, Attorney General Garland reversed a Trump-era policy limiting the number of consent decrees that the Department of Justice could use in pushing for changes at police departments and other agencies charged with abuse or misconduct. As Newsmax.com explains: “Consent decrees are court-approved legal agreements reached without litigation,” that allow judges to “keep tabs on a police department to make sure it is complying with court orders.” In a memo he wrote to all U.S. attorneys and DOJ leaders, Garland stated that the agency would ”return to the traditional process that allows the heads of litigating components to approve most settlement agreements, consent decrees, and the use of monitors in cases involving state and local governmental entities.”

Investigating the Minneapolis Police Department after George Floyd’s Death

At a press conference on April 21, 2021 — the day after a jury had found former police officer Derek Chauvin guilty of murder for killing a black Minneapolis man named George Floyd 11 months earlier — Garland announced that the Justice Department would be conducting a “fully comprehensive review” examining whether the Minneapolis Police Department had engaged in a “pattern or practice of unconstitutional or unlawful policing” — meaning “discriminatory conduct,” “using excessive force,” and “unlawful” “treatment of those with behavioral health disabilities.” Garland also issued the following statement: “While the state’s prosecution was successful, I know that nothing can fill the void that the loved ones of George Floyd have felt since his death. The Justice Department has previously announced a federal civil rights investigation into the death of George Floyd. This investigation is ongoing.”

Garland on Election Audits, Voting Rights, & Election Laws

On June 11, 2021, Garland announced that the Department of Justice was “applying scrutiny” to various battleground states’ post-election audits of the hotly disputed 2020 races and was offering “guidance” vis-a-vis those audits. That is, the DOJ might consider placing roadblocks in the way of the audits if the Department felt that they ran afoul of federal laws meant to protect voting records and prevent voter intimidation. Added Garland: “We are scrutinizing new laws that seek to curb voter access and where we see violations we will not hesitate to act. We are also scrutinizing current laws and practices in order to determine whether they discredit against black voters and other voters of color. Particularly concerning with in this regard are several studies showing that in some jurisdictions nonwhite voters must wait in line substantially longer than white voters to cast their ballots.”

  • Referencing a recount effort of millions of votes which was in-progress in Maricopa County, Arizona, Garland stated further: “Some jurisdictions, based on disinformation, have utilized abnormal post-election audit methodologies that may put the integrity of the voting process at risk and may undermine public confidence in our democracy. The Justice Department will do everything its power to prevent election fraud and to vigorously prosecute it. But many of the justifications proffered in support of these post-election audits and restrictions on voting have relied on assertions on material vote fraud in the 2020 election that have been refuted by law enforcement and intelligence agencies … [M]any of the changes are not even calibrated to address the kinds of voter fraud that are alleged as justification.”
  • Garland also announced that within the next 30 days, the DoJ’s Civil Rights Division would double the number of staff members whom it assigned to voting-rights enforcement.

Eleven days later, on June 22, 2021, Senate Republicans used a filibuster to kill the For The People Act, a radical “election reform” bill supported by nearly every Democrat in both the House and Senate. Three days after that, on June 25, Garland announced that the Justice Department was suing Georgia over the state’s Election Integrity Act (SB 202), which had been signed into law in late March. The aim of Garland and the Democrats was to use the DOJ lawsuit to achieve the same objectives as they had sought, but failed, to gain via the legislative process with the For The People Act. Said Garland in his announcement:

“Today, the Department of Justice is suing the state of Georgia,” Garland said. “Our complaint alleges that recent changes to Georgia’s election laws were enacted with the purpose of denying or abridging the right of Black Georgians to vote on account of their race or color, in violation of Section 2 of the Voting Rights Act. Several studies show that Georgia experienced record voter turnout and participation rates in the 2020 election cycle. Approximately 2/3 of eligible voters in the state cast a ballot in the November election, just over the national average. This is cause for celebration. But then, in March of 2021, Georgia’s legislature passed SB202. Many of that law’s provisions make it harder for people to vote. The complaint alleges that the state enacted those restrictions with the purpose of denying or abridging the right to vote on account of race or color.”

Contrary to Garland’s assertion, however, SB 202 simply sought to restore some of the same election-integrity measures — e.g., voter ID requirements — that had been in place prior to the changes that were made to the state’s election laws as a result of the 2020 COVID-19 pandemic. In fact, the provisions of SB 202 actually made it easier to vote in Georgia, than had been the case prior to 2020.

Garland Says “Domestic Terrorism” by “White Supremacists” Are Among America’s Leading Problems

On June 15, 2021, Garland announced the unveiling of the Biden administration’s new “First National Strategy for Countering Domestic Terrorism,” an initiative designed to combat what Garland viewed as one of America’s most serious problems: “domestic terrorism” carried out mostly by conservative adherents to a doctrine of “white supremacism.” Below are some of Garland’s remarks from that day, remarks in which he: (a) cast the Trump supporters who had breached the U.S. Capitol on January 6 as uniquely evil; (b) warned of the allegedly enormous threat posed by violent white supremacists; (c) likened such people to genocidal Islamic terrorists; and (d) gave anecdotal examples of past terrorist incidents that had been perpetrated exclusively by whites:

  • “Our current effort comes on the heels of another large and heinous attack, this time the January 6th assault on our nation’s capital…. Over the 160 days since the attack, we have arrested over 480 individuals and brought hundreds of charges against those who attacked law enforcement officers and obstructed justice and used deadly and dangerous weapons to those ends.”
  • “In March, [America’s intelligence and law-enforcement agencies] concluded that domestic violent extremists posed an elevated threat to the homeland in 2021. Our experience on the ground confirms this; the number of open FBI domestic terrorism investigations this year has increased significantly. According to an unclassified summary of the March Intelligence Assessment, the two most lethal elements of the domestic violence extremist threat are racially or ethnically motivated violent extremists and militia violent extremists. In the FBI’s view, the top domestic violent extremist threat comes from racially or ethnically motivated violent extremists, specifically those who advocate for the superiority of the white race.”
  • “[E]ven as we augment our efforts against domestic terrorism, we remain relentless in our focus on international terrorism perpetrated by foreign terrorist organizations like Al Qaeda and ISIS.”
  • “I’m personally struck by three events that occurred not far from each other at different points in the last 100 years. When I visited the Greenwood District in April of this year, where Black Wall Street once thrived in Tulsa, Oklahoma, I was struck by the failure to do justice after the 1921 Tulsa Race Massacre…. Almost seventy-five years later, just over a hundred miles Southwest of Tulsa in Oklahoma City, after an attack that resulted in the deaths of 168 people, the Justice Department successfully apprehended, prosecuted, and convicted the men responsible for the bombing of the Murrah Federal Building. And five years ago across Oklahoma’s Northern border, in Kansas, federal authorities disrupted a plot to bomb an apartment complex and its mosque and to kill its residents, immigrants from Somalia, working with joint terrorism, task force partners, the government prevented the bombing, no one died, and those who sought to commit it were convicted of their crimes.”

Garland on Immigration & Asylum Policy

On June 16, 2021, Garland struck down two immigration opinions written by Jeff Sessions and William Barr, his predecessors as Attorneys General under the Trump administration, opinions that had placed limits on asylum eligibility for victims of domestic violence and for those seeking asylum based on their ties to persecuted family members. As The Hill reported: “Both the decisions vacated by Garland limited who could qualify for asylum as a persecuted member of a ‘particular social group,’ setting a precedent in immigration courtrooms across the country where such cases are weighed. In one case, Barr blocked asylum claims for those who sought it based on a family member’s persecution.” But in Garland’s calculus, Barr’s decision was “inconsistent with the decisions of several courts of appeals that have recognized families as particular social groups.” Garland also reversed a Sessions decision with regard to domestic violence victims that, according to Garland, “threatens to create confusion and discourage careful case-by-case adjudication of asylum claims.”

In late July 2021, Garland wrote a letter challenging Texas Republican Gov. Greg Abbott’s executive order that — in an effort to prevent any further spread of the coronavirus pandemic — restricted the ground transportation of illegal migrants, most of whom were unvaccinated, to various locations across the state by the Biden Administration. The migrants in question had either been detained by Customs and Border Protection (CBP), or ordered deported under the Title 42 authority of the Centers for Disease Control (CDC). Some excerpts from Garland’s letter:

“I urge you to immediately rescind Executive Order GA 3 7, entitled Relating to the transportation of migrants during the COVID-19 disaster. The Order purports to mandate that ‘[n]o person, other than a federal, state, or local law-enforcement official, shall provide ground transportation to a group of migrants who have been detained by [U.S. Customs and Border Protection] for crossing the border illegally or who would have been subject to expulsion under the Title 42 order.’ As explained below, the Order is both dangerous and unlawful. […]

“Moreover, Texas has no authority to interfere with the United States’ ‘broad, un-doubted power over the subject of immigration” by impairing the United States’ release of individuals and the ability of those individuals to comply with federal immigration law. To the extent the Order interferes with immigration enforcement, the Order is unconstitutional.

“In short, the Order is contrary to federal law and cannot be enforced. Accordingly, consistent with its authorities under federal law, the United States will continue its noncitizen transportation operations unabated. I urge you to immediately rescind the Order. If you do not do so, I am providing notice consistent with Section 1-10 .100 of the Justice Department’s Justice Manual that the United States intends to pursue all appropriate legal remedies to ensure that Texas does not interfere with the functions of the federal government.”

On July 30, 2021, Garland’s DOJ filed a lawsuit against the state of Texas, as a challenge to Gov. Abbott’s aforementioned executive order. The lawsuit argued that:  “The executive order violates the Supremacy Clause and causes injury to the United States and to individuals whom the United States is charged to protect, jeopardizing the health and safety of noncitizens in federal custody, risking the safety of federal law enforcement personnel and their families, and exacerbating the spread of COVID-19 in our communities.” Further, the suit claimed that the governor’s order obstructed Congress from performing its duty to craft and enforce immigration laws. The lawsuit also warned: “If CBP (Customs and Border Protection) is unable to transfer noncitizens out of CBP facilities, CBP detention numbers and the average time individuals are in custody will rise, conditions will deteriorate, and there will be a greater risk of COVID-19 transmission to noncitizens and staff.”

DOJ Orders the U.S. Treasury to Deliver Former President Donald Trump’s Tax Returns to Congress

In a letter dated July 30, 2021 and written by Acting Assistant Attorney General Dawn Johnsen, Garland’s DOJ ordered the U.S. Treasury to deliver former President Donald Trump’s tax returns to Congress. Wrote Johnsen: “The statute at issue here is unambiguous: ‘Upon written request’ of the chairman of one of the three congressional tax committees, the Secretary ‘shall furnish’ the requested tax information to the Committee,” Johnsen wrote. “Applying the proper degree of deference due the Committee, we believe that there is ample basis to conclude that its June 2021 Request for former President Trump’s tax information would further the Committee’s principal stated objective of assessing the IRS’s presidential audit program—a plainly legitimate area for congressional inquiry and possible legislation.” As the Daily Caller noted: “The Ways and Means Committee originally requested Trump’s returns in mid-June. Democrats in Congress have long tried to obtain Trump’s tax returns by force, subpoenaing Trump’s Treasury Secretary, Steve Mnuchin, and his IRS Commissioner Charles Rettig, to deliver the returns to Congress in 2019. Mnuchin held up the process, however, and Trump’s DOJ at the time released a memo arguing that ‘the Constitution requires the Committee to demonstrate a legitimate legislative purpose,’” according to The Hill.

Garland and Abortion: The Texas “Heartbeat Act”

On September 6, 2021, Garland released a statement on how the Department of Justice would respond to the state of Texas’ recently passed “Heartbeat Act,” which placed restrictions on the performance of abortions after a baby’s heartbeat could be detected, generally around six weeks after conception. The law did not authorize law-enforcement to enforce the statute, but instead permitted individual citizens to report on those who chose to facilitate or perform abortions after the six-week period. When the Supreme Court, in a 5-4 vote, declined a request that it issue an emergency order to stop the bill, Garland said the DOJ would “provide support from federal law enforcement when an abortion clinic or reproductive health center is under attack.” “We have reached out to US attorneys’ offices and FBI field offices in Texas and across the country to discuss our enforcement authorities,” he added. “We will not tolerate violence against those seeking to obtain or provide reproductive health services, physical obstruction or property damage in violation of the FACE Act.” (He was referring to the 1994 Freedom of Access to Clinic Entrances Act, which prohibited anyone from “intentionally injuring, intimidating, or interfering with” any person in order to prevent them from “obtaining or providing reproductive health services.”)

On September 8, 2021, Garland announced that the Biden administration was suing Texas over the Heartbeat Act. “The Department of Justice has a duty to defend the constitution of the United States and to uphold the rule of law,” said Garland. “Today we fulfill that duty by filing the lawsuit I have just described.”

On October 18, 2021, Garland’s DOJ asked the Supreme Court to block enforcement of the Texas Heartbeat Act, even though the Court had refused in September to issue an injunction against the law.

Garland, Colluding with the National School Boards Association, Orders the FBI to Investigate Alleged “Harassment, Intimidation, and Threats of Violence” by Parents Against School Administrators Who Promote Critical Race Theory & Radical Transgender Ideology

The summer of 2021 saw many school board meetings where parents and community members vocally challenged local school officials over the inclusion of Critical Race Theory and other controversial topics — such as sexually explicit content, radical transgender ideology, and coronavirus mask mandates — in school curricula. On September 29, 2021, the National School Boards Association (NSBA), a leftist organization representing local school boards, sent a letter to President Biden saying that the federal government should investigate reports of violence and threats against school board members to see if they violate federal laws against domestic terrorism and hate crimes. Statutes like the Gun-Free School Zones Act and the USA PATRIOT Act, said NSBA, should be used to thwart crimes and violence targeting K-12 officials, on the premise that such acts could be classified as “the equivalent to a form of domestic terrorism and hate crimes.” Citing anger about Critical Race Theory as a major factor fueling disruptions and antipathy toward educators, the letter stated: “These threats or actual acts of violence against our school districts are impacting the delivery of educational services to students and families.” “These incidents are beyond random acts,” said NSBA interim Executive Director and CEO Chip Slaven in an email. “What we are now seeing is a pattern of threats and violence occurring across state lines and via online platforms, which is why we need the federal government’s assistance.”

During a September 30 press conference, White House Press Secretary Jen Psaki, addressing the subject of the NSBA letter, characterized the targeting of school board officials as “horrible,” adding: “We’d encourage individuals to report any threats they face to local and state law enforcement agencies.”

On October 4, 2021, Attorney General Garland, in an effort to federalize local school boards nationwide, ordered the FBI to begin investigating what he described as a recent spike in “harassment, intimidation, and threats of violence” against school administrators. In a memo, Garland directed U.S. attorneys and the FBI to collaborate with local officials to identify and prosecute any perceived threats to such administrators. Said the memo: “In recent months, there has been a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff who participate in the vital work of running our nation’s public schools. While spirited debate about policy matters is protected under our Constitution, the protection does not extend to threats of violence or efforts to intimidate individuals based on their views. Threats against public servants are not only illegal, they run counter to our nation’s core values. Those who dedicate their time and energy to ensuring that our children receive a proper education in a safe environment deserve to be able to do their work without fear for their safety.”

Notably, Garland did not provide any type of operational definition of what would constitute “harassment” and “intimidation.”

Parents Defending Education, a conservative organization, said of Garland’s memo: “This is a coordinated attempt to intimidate dissenting voices in the debates surrounding America’s underperforming K-12 education—and it will not succeed. We will not be silenced.”

Conservative broadcaster and legal scholar Mark Levin, who served as chief of staff to U.S. Attorney General Edwin Meese during the Reagan Administration, said the following about Garland’s memo on October 5, 2021:

“American Marxism is on the rise. Merrick Garland, the attorney general of the United States, is now using the Department of Justice’s Criminal Division, National Security Division, Civil Rights Division, Executive Office for U.S. Attorneys, Federal Bureau of Investigation, Community Relations Service, and Office of Justice Programs. He’s using all of them to unleash against parents and taxpayers and local communities who are protesting local school boards. I challenge anyone that tell us the federal authority that this attorney general and the rest of his band of reprobates has, to interfere in local school boards, to nationalize school board meetings, local police officers, and school board security officers are in charge of keeping the peace in township and community school board meetings. […] They have decided, ladies and gentlemen, that those of you who protest are domestic terrorists. […]

“The letter from the National School Board Association, in my view, was an inside job. They wrote this letter to the president of the United States, Joe Biden, on September 29, and five days later, including the weekend, we get a memo from the attorney general of the United States, dated yesterday, to the the director of the FBI, the director of the executive office of U.S. Attorneys, the assistant attorney general, criminal division.

“It states, ‘In recent months, there’s been a disturbing spike in harassment, intimidation and threats of violence against school administrators, board members, teachers and staff who participate in the vital work of running our nation’s public schools. While spirited debate about policy matters is protected under our Constitution, that protection does not extend to threats of violence or efforts to intimidate individuals based on their views to intimidate individuals based on their views.’

“What does that mean? It means nothing. There’s no federal law that says, quote unquote, you can’t intimidate individuals based on their views. It’s done all the time. […] If there are threats of violence, state and local law is what addresses it, not federal law. […]

“So, in other words, if any school board member, any educational bureaucrat, any teacher, anybody, any staff member thinks they’re being, quote unquote threatened, there’s going to be a hotline. And so they’ll send the FBI out to interview the parents, they’ll send the FBI out. You know what, this reminds me of the East German Stasi. […] The purpose of this is clear. It is to send fear through our communities all over the country, fear through parents, fear through taxpayers. To suppress your First Amendment right of free speech and assembly, to suppress your right to question your elected representatives. It is undermining your right to protest. And you can even yell at protests. That’s legal, too. […] The federal government has absolutely no legal authority, none, to be monitoring any of this, to be involved in any of this, period. This is totalitarianism. That is exactly what it is.”

Notably, the NSBA provided no solid evidence corroborating its claim that incidents of threats and violence against school board members had in fact been rising. When Rep. Jim Jordan asked Garland, during an October 21, 2021 House Judiciary Committee hearing, when he personally had “first review[ed] the data concerning this so-called ‘disturbing’ uptick,” the Attorney General replied: “So, I read the letter, and we have been seeing over time –” At that point, Jordan interjected: “So, you read the letter, that’s your source? Are there some studies on that or some investigation someone did that said there’s been a disturbing uptick, or did you just take the words of the National School Boards Association?” Garland replied: “When the National School Board Association, which represents thousands of school boards and school board members says that there are these kinds of threats, when we read in the newspapers reports of threats of violence, when that is in the context of threats of threats of violence against all–”  Jordan again attempted to interject at that point, but was told that his time for questioning had expired.

On October 7, 2021, the America First Legal Foundation (AFL) — which describes itself as “a national, nonprofit organization working to promote the rule of law, prevent executive overreach, [and] ensure due process and equal protection for all Americans — sent a letter to Michael E. Horowitz, Inspector General at the U.S. Department of Justice. AFL’s letter exposed the fact that the Biden Administration (through Merrick Garland and the DOJ) had secretly colluded with the National School Boards Association to create a false pretext for the unconstitutional suppression of parents’ free-speech rights regarding the education of their children — all for purely political reasons related to the effect that parental protests against leftist indoctrination in the schools might have on the 2022 midterm elections. Some key excerpts:

“The Supreme Court has repeatedly recognized American parents’ fundamental liberty interest in and Constitutional right to control and direct the education of their own children. On this basis alone, the nationwide protests by parents against public school policies and practices—regarding Critical Race Theory indoctrination; antireligious and anti-family gender ideology; and/or forced online education and mask mandates—are entitled to the most robust federal constitutional protection. Instead, in light of the Attorney General’s Memorandum of October 4, 2021, it appears the Department of Justice is committing the full weight of its federal law enforcement resources to prevent parents from exercising constitutionally-protected rights and privileges, for inappropriate partisan purposes.

Our understanding of the facts is as follows:

• Parents nationwide have protested public school policies and practices associated with, inter alia, the teaching or indoctrination of K-12 students in certain principles of Critical Race Theory and gender-related ideology.

• Key Biden Administration stakeholders, including the National Education Association, the American Federation of Teachers, and others, have combined to oppress, threaten, and intimidate parents to chill and prevent them from exercising the rights or privileges secured by the Constitution. To date these efforts, though extensive, have generally proven ineffectual.

• In early September, Biden Administration stakeholders held discussions regarding avenues for potential federal action against parents with a key Biden Domestic Policy Council official (Jane Doe #1) and White House staff (John Doe #1). Stakeholders also held discussions with senior department officials, including at least one political appointee in the department’s Civil Rights Division (Jane Doe #2). Jane Doe #1, John Doe #1, and others in the White House separately expressed concern regarding the potential partisan political impact of parent mobilization and organization around school issues
in the upcoming midterm elections.

• Upon information and belief, at the express direction of or with the express consent of Jane Doe #1, Jane Doe #2 and other Biden Administration officials developed a plan to use a letter from an outside group (“not the usual suspects”) as pretext for federal action to chill, deter, and discourage parents from exercising their constitutional rights and privileges.

Upon information and belief, in or about mid-September work began on development of what became the Attorney General’s Memorandum. Concerns expressed by department staff included (1) the absence of federal law enforcement nexus and authority, and (2) the constitutionally protected nature of parent protests. However, Jane Doe #2 made it clear this was a White House priority and a deliverable would be created.

• On or about September 29, citing legal authorities including the Patriot Act, the “National School Boards Association” made public a letter demanding federal action against parents citing authorities including the Patriot Act. The justification for federal action included, inter alia, parents were “posting watchlists against school boards and spreading misinformation (sic) that boards are adopting critical race theory curriculum and working to maintain online learning by haphazardly attributing it to COVID-19.” It is not yet clear whether and to what extent drafts of this letter were shared with Biden Administration officials, including Jane Doe #1 and Jane Doe #2, and whether changes were suggested or made by them, prior to the ostensible public release date.

• On October 4, the Attorney General’s Memorandum was made public. The short time frame between the September 29 letter and the Attorney General’s Memorandum suggests that either the entire matter was precoordinated and the September 29 but pretext, or that the normal clearance process and standard order both within the department (including legal sufficiency review by the Office of Legal Counsel, the Civil Rights Division, the Criminal Division, the Office of Legal Policy, and other components), and between the department and the White House Counsel’s Office and the Office of Management and Budget, were bypassed or corrupted.

• On October 5, there was a follow up call involving, inter alia, the White House Counsel’s Office, Jane Doe # 2, and many other Biden Administration political and career officials. The briefing included how to talk about “equity” initiatives, avoid liability for violating discrimination laws, and hide “equity” measures, initiatives, and action from Freedom of Information Act disclosure.

Accordingly, we request your Office investigate whether the Attorney General’s Memorandum was formulated and issued based on improper considerations. At this point, the dangers inherent in the undue politicization of the department’s criminal and civil law enforcement authorities, and in the corruption of the department’s standard order and process, should be evident.”

Garland’s Ties to Mark Zuckerberg-Supported Education Consultancy

Garland’s memo clamping down on parents who objected to the teaching of critical race theory in public school classrooms, sparked additional controversy when it was reported, on October 6, 2021, that Garland’s son-in-law was Xan Tanner, co-founder of Panorama Education, a Boston-based education company that: (a) earns many millions of dollars annually by collecting social and emotional data from K-12 students; (b) is funded by Facebook CEO Mark Zuckerberg; and (c) promotes critical race theory under the deceptive banners of “social and emotional learning” and “culturally responsive training.”

Asra Nomani, the vice president of investigations and strategy of Parents Defending Education, tweeted the following about Garland’s ties to Panorama: “Merrick Garland has declared a war on parents. His daughter is married to the cofounder of @PanoramaEd which is under fire for its multimillion contracts with school boards. At @DefendingEd, parents sent us tips. We raised the alarm. Now Garland is trying to silence parents.” “Panorama Education will profit from Garland’s outrageous silencing of parents who are challenging its data mining of K-12 students,” Nomani wrote on her organization’s website.

Further Reading: “Merrick Garland” (Ballotpedia.com).

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