Following Merrick Garland’s recent appearance before the Senate Judiciary Committee, we posted the portions of his testimony in which he answered (and sometimes evaded) the questions of Sen. Tom Cotton and Sen. Josh Hawley. In this post, I want to add Garland’s exchanges with Sen. Ted Cruz.
Cruz did his usual effective job, and the entire thing is worth watching. Towards at the end, at around the seven minute mark, Cruz raised the question of a possible conflict interest Garland had in issuing his infamous memo calling on the Feds to investigate and possibly prosecute parents whose criticism of school boards can be viewed as “harassing” or “intimidating.”
One of the main grounds on which parents are vehemently criticizing school boards relates to the teaching of Critical Race Theory (CRT) to children. Apparently, Garland’s son-in-law sells material to public schools for use in the teaching of CRT.
If parents are investigated for forcefully criticizing the teaching of CRT, or if they are deterred from making forceful criticism, the effect might well be more teaching of CRT than would otherwise occur. And the more teaching of CRT that occurs, the greater the potential for Garland’s son-in-law to make money.
Accordingly, Cruz asked Garland whether he sought an ethics opinion from the Department of Justice before issuing his memo directing federal involvement in school board/parent relations. Garland repeatedly refused to answer the question directly. But his response — to insist that there was no reason to seek ethics advice — made it clear that Garland sought none.
Garland’s basis for saying there was no need for ethics advice was his assertion that his memo would have “no predictable effect” on his son’s business. I think that’s wrong. The predictable effects of his memo are (1) a diminution of pressure on school boards to abstain from teaching CRT, leading to (2) more teaching of CRT than would occur absent Garland’s memo, leading to (3) more business for Garland’s family member.
I’m no expert on legal ethics, though. Perhaps my view of the matter is wrong. But even if it is, I think there’s enough of an ethical question here that Garland should have sought the opinion of those at the DOJ who are ethics experts and who are there to help guide DOJ lawyers on matters of potential conflicts of interest.
I doubt that Garland’s memo was motivated by a desire to help his son-in-law. Garland’s own woke leftism and that of those in the Biden administration for whom he fronts sufficiently explain why he issued the memo.
But the ethical question isn’t limited to the actual motive behind the memo. It also encompasses matters of appearance. Arguably, there is the appearance of a conflict here, which is why I believe Garland should have sought an ethics opinion.
I also wonder whether, if the administration hadn’t been in such a hurry to issue the memo — the school board association called for action in a letter on a Wednesday and Garland complied just a few days later on the following Monday — he might have sought an ethics opinion.
But maybe I’m giving Garland too much credit.
Here’s the full colloquy between Cruz and Garland:
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