In a move that surprised absolutely no one and thrilled only the most ardent fans of procedural rigor, Merrick Garland has returned to Arnold & Porter as a partner in their Appellate & Supreme Court practice group. The former Attorney General who — depending on who you ask — exemplified judicious restraint or the Democratic Party’s lingering commitment to bringing pointy sticks to gun fights is back in the private sector.
Presumably Arnold & Porter will get a nasty executive order by the end of next week.
Garland’s career arc is the stuff of centrist dreams: Harvard summa cum laude, clerkships with Judge Friendly and Justice Brennan, a stint at Arnold & Porter, and then a long tenure on the D.C. Circuit Court of Appeals. President Obama nominated Garland to the Supreme Court to replace Antonin Scalia as a concession to Senate Republicans who spent the preceding several years dragging Democratic nominees for not being Merrick Garland. When presented with the opportunity to confirm their paradigmatic example of a judge, Republicans opted to shirk their constitutional duty to even hold a vote — turning “advice and consent” into “ignore.”
As Attorney General under President Biden, Garland was tasked with restoring the Department of Justice’s reputation for impartiality and independence. In a historic instance of overcorrection, he approached this mission with the fervor of a man meticulously organizing his sock drawer while the house burned down.
Garland gets more flack than he should for failing to address criminality in the prior administration. Prosecuting Donald Trump for January 6 might have satisfied a lot of people, but would’ve stretched the bounds of criminal incitement. I’m not sure people want to see what happens when politicians get prosecuted every time someone commits a crime in their name. When Garland stepped into the role, there wasn’t much to suggest Trump did anything more than whip up his followers and then sit on his ass hoping they pulled off the insurrection. Despicable, but not criminal.
That said, under Garland’s watch antitrust efforts moved slower than many hoped and he didn’t reverse the Trump DOJ’s effort to derail the E. Jean Carroll case. Garland’s DOJ also went to the Supreme Court and asked to functionally eliminate Miranda rights. So… not great.
But when something arose that actually DID speak to Trump’s criminality — hiding classified documents in a pool locker and having his lawyers lie and say those documents didn’t exist — Garland appropriately appointed special counsel. Should the DOJ done more to fast track that case? Yes. Should it have moved forward to mandamus Judge Aileen Cannon while she auditioned for a future Republican promotion by playing constitutional law Mad Libs? Definitely… especially since the Eleventh Circuit had already expressed its opinion that Cannon was a clown.
While prosecutorial zeal often overshadows prudent judgment, the pendulum can swing too far. If Garland was right not to act earlier, he whiffed in not flooring it once he did.
“It is an honor to return to Arnold & Porter, where I first learned how to be a lawyer and about the important role lawyers can play in ensuring the rule of law,” Garland said of his return while other law firms take a hammer to the rule of law.
For Arnold & Porter, Garland’s return is a coup not unlike January 6 itself. His deep experience in appellate litigation and his intimate knowledge of the inner workings of the DOJ will be invaluable assets for clients navigating complex legal challenges.
Or would be if the Department of Justice still has anyone competent on staff.
Earlier: Stop Blaming Merrick Garland For Donald Trump Still Being A Free Man
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
