Merrick Garland defends school board memo, says he will not retract it

Merrick Garland on Wednesday refused to retract his controversial Oct. 4 school board memo, despite pressure from Senate Judiciary Republicans who contend the attorney general’s true aim was shutting down the free speech rights of concerned parents.

Sen. Charles E. Grassley, Iowa Republican, pointed to the memo as a “case in point” example that the attorney general is politicizing the department, saying he has moved it “as far left as it can go.”

“As a result of your memo, local school officials and parents may not speak up in these meetings out of fear that the federal government will do something to them. So that’s a poisonous, chilling effect,” Mr. Grassley said.

Mr. Garland stood by his directive for federal officials to work with law enforcement to address what the memo called an increase in threats against school board members and other education staff. He said the memo has nothing to do with impinging free speech, rather, it came “in response to concerns about violence, threats of violence, other criminal conduct — that’s all it’s about.”

The memo came days after the National School Boards Association sent a letter to President Biden asking if the federal government could examine “enforceable actions” under federal laws, including the Patriot Act in regard to domestic terrorism, to address the increasing threats and violence, which it said could be “equivalent to a form of domestic terrorism and hate crimes.”

NSBA apologized for its letter last week, saying “There was no justification for some of the language included in the letter.”

Asked if he would, in turn, rescind his memo, since the association had disavowed its letter, Mr. Garland refused to budge.

“The language in the letter that they disavow is language that was never included in my memo and never would have been,” Mr. Garland said. “I did not adopt every concern that they had in their letter. I adopted only the concern about violence and threats of violence and that hasn’t changed.”

Sen. John Cornyn, Texas Republican, asked Mr. Garland why the school board confrontations “rose” to the level of a federal concern, instead of being addressed at the local and state levels.

The attorney general said he acted after “repeated” reports of threats of violence and actual violence against school board members, school officials and teachers.

“The Justice Department has two roles here: We assist state and local law enforcement in all ways and we enforce federal laws which prohibit threats of violence,” Mr. Garland said.

Sen. Tom Cotton, Arkansas Republican, sparred with Mr. Garland over the alleged violence and threats of violence that prompted the memo. 

He pointed out that the NSBA letter cited an incident in Loudoun County, Virginia, in which a father was arrested in June after speaking out at a school board meeting about school officials trying to hide that his daughter was raped by a male student who identifies as gender fluid.

He went to a school board and tried to defend his daughter’s rights [and] was condemned internationally,” Mr. Cotton said.

The senator asked Mr. Garland to apologize to the father and his daughter.

“Anyone whose child was raped is the most horrific crime I can imagine and is certainly entitled and protected by the First Amendment to protest to their school board,” Mr. Garland said.

Mr. Cotton interrupted him, saying the father’s arrest was cited by the school board association and “we now know that letter and those reports are the basis of your job.”

“This testimony, your directive, your performance is shameful,” Mr. Cotton said. “Thank God you are not on the Supreme Court. You should resign in disgrace, judge.”

In his response, Mr. Garland said “parents can object to their school boards about curriculum, about the treatment of their children, about school policies — all that is 100% protected by the First Amendment and there is nothing in this memorandum contrary to that.”

Mr. Garland was nominated to the high court by former President Obama in March 2016, but his nomination was stalled for nearly a year by Senate Republicans. After former President Trump took office in 2017, he replaced Mr. Garland‘s nomination with now-Justice Neil M. Gorsuch.

The attorney general also defended himself when Sen. Ted Cruz asked if he underwent an ethics review related to the memo because of a potential conflict of interest. 

The Texas Republican said Mr. Garland’s son-in-law co-founded a company that Mr. Cruz said sells CRT-related curriculum materials to schools, so he might benefit from a crackdown on parents at school board meetings where CRT has become a widely debated topic.

Mr. Garland reiterated that the memo is about violence and threats of violence and said that an ethics review is unnecessary.

“You asked me whether I sought an ethics opinion about something that would have a predictable effect on something,” Mr. Garland said. “This has no predictable effect in the way that you’re talking about.”

The attorney general was also pressed on the growing caravan of migrants making its way north from below the Southern Border. 

Asked what his message would be to the caravan, Mr. Garland at first said, “I would tell them not to come,” but then said that’s not a blanket answer.

“It depends on why they are coming,” he said, adding that those coming with asylum claims are different from traditional illegal immigrants.

The answer stunned Sen. Lindsey Graham, South Carolina Republican, who said when he talked to Border Patrol agents, they said they are overwhelmed with people lodging iffy asylum claims, knowing it can earn them a foothold in the U.S. for years as their claims are adjudicated.

Mr. Garland, however, said that issue was not raised when he spoke with Border Patrol Agents in Nogales, Arizona.

The attorney general also deflected questions from Republicans on whether the DOJ is investigating allegations that Dr. Anthony Fauci lied to Congress about gain-of-function research in China. He said department policy bars him from discussing potential and ongoing investigations.

Meanwhile, Democrats pushed Mr. Garland on the DOJ’s decision not to prosecute two ex-FBI agents accused of lying in the sex abuse probe of former Olympics gymnastics team doctor Larry Nassar.

Sen. Patrick Leahy, Vermont Democrat, criticized the decision, saying he has seen “many people prosecuted for lying to FBI agents.”

“Here, you had two FBI agents who lied to FBI agents. One was fired, the other resigned. No prosecutions,” Mr. Leahy said.

“We are reviewing this matter, new evidence has come to light and that is cause for review of the matters that you’re discussing,” the attorney general said.

Mr. Garland has been criticized on both sides of the aisle over the DOJ’s apparent lack of action regarding the FBI’s mishandling of the Nassar sex abuse probe.

Also during the hearing, Sen. Marsha Blackburn, Tennessee Republican, drilled the attorney general about whether special counsel John Durham’s investigation into the origins of the FBI’s Trump-Russia probe will be made public.

“With respect to the report, I would like as much as possible to be made public,” Mr. Garland said. “I have to be concerned about Privacy Act concerns and classification, but other than that, the commitment is to provide a public report, yes.”

He also agreed to ensure there would not be political interference with Mr. Durham’s probe, which former President Donald Trump has said will likely reveal a conspiracy to weaponize the FBI and DOJ against his 2016 campaign.

Mr. Garland also said the department still supports its decision to settle a lawsuit and reverse the firing of FBI Deputy Director Andrew McCabe who was ousted after the DOJ inspector general said he lied under oath during an investigation into a media leak.

Mr. Grassley said that “under your leadership, instead of punishing him, the department reinstated his retirement and expunged his records as part of the settlement.” He added that the decision was “beyond incredible.”

Mr. Garland, however, said the settlement “was the recommendation of the career lawyers litigating that case based on their prospects of success in the case.”

“The case did not involve issues about lying,” Mr. Garland said. “It involved a claim that he was not given the amount of time necessary to respond to allegations. The litigators concluded that they needed to settle the case because of the likelihood of loss on that claim.”

• Stephen Dinan and Alex Swoyer contributed to this report.

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