Garland ought to be undoing all of that damage—that is what Biden promised to do throughout his presidential campaign. But this is in deep tension with institutional norms at the DOJ which Garland, and many other elite lawyers, hold in high regard. If Garland sees his primary duty as reasserting the norms of the DOJ itself, rather than actually enacting justice, then he must treat Trump as if he was any other president, by definition. That’s what the DOJ does.
We’re seeing a scary example of how liberalism’s belief in process itself, rather than the ideals that processes are supposed to help execute, can be easily manipulated by bad-faith, far-right actors. When standard procedure is sacrosanct, all that the right needs to do is make it standard procedure never to hold it accountable. Notably, Garland consistently promised “that politics would play no role in his decisions” during his confirmation hearing, after numerous prompts by Senate Republicans. That’s intentional. The GOP was framing it as wrongfully partisan to reverse course from the most wrongful, partisan, and most importantly, anti-democratic president in history.
Garland, of all people, should be aware of this: It was a similar idolatry of process itself that robbed him of a Supreme Court seat in 2016. There was nothing technically illegal about then–Senate Majority Leader Mitch McConnell denying Garland so much as a confirmation hearing; it was just clearly wrong, violating the spirit of representative democracy. Despite the fact that some legal theories held that the Senate was granting Garland consent through its inaction, Democrats—believing that responding in tit-for-tat fashion to the GOP’s norm-breaking would be intolerably ignoble—did not play a card in opposition. One would think that Garland would have learned that following norms matters less than actually doing the right thing, but here we are.