Earlier this year, various news outlets reported that then-President-Elect Joe Biden intended to nominate D.C. Circuit Chief Judge Merrick Garland as Attorney General. Judge Garland obviously authored numerous opinions during his years on the D.C. Circuit, but before Judge Garland was Judge Garland, he held various capacities in public and private practice including, notably, serving as a United States Attorney in Washington, D.C. During Judge Garland’s tenure at the Department of Justice (“DOJ”), he gathered experience in investigations and prosecutions of criminal matters. Studying the cases he handled as a prosecutor and reviewed as a Circuit Judge provides guidance on how he will direct the DOJ and which investigations he will prioritize in the years he will serve.
Judge Garland’s Experiences
When acting as a U.S. Attorney, Garland led the investigation of corrections officers in D.C.-area jails. The investigation culminated in indictments in United States v. Richardson et al., Crim. Nos. 92-117 through 92-126 (D.D.C. 1992). While the docket in each case is sealed, Judge Garland’s Senate Confirmation Questionnaire, a form he completed in preparation for his hearing on his nomination to the Supreme Court, discloses some public information about the investigation.
The investigation was detailed; it involved the use of undercover agents, wiretaps, confidential informants, and audiotaped and photographed sting operations. The confidential informants even included incarcerated individuals. Code-named “Operation Inside Track,” the investigation lasted from 1991 to 1992. By the end of the investigation, Judge Garland acquired enough evidence to indict ten corrections officers and one civilian for smuggling narcotics into D.C. jails. It appears most of the defendants agreed the evidence was sufficient to convict them. All but one pled guilty based on the evidence collected by Judge Garland’s investigation.
Judge Garland’s involvement in Richardson highlights his experience with long-term investigations, as he successfully managed a multi-year investigation involving undercover operatives and even incarcerated confidential informants. This case highlights Judge Garland’s ability to shepherd complex criminal investigations towards trial while collecting significant evidence.
Judge Garland also took cases to trial and defended them on appeal as a U.S. Attorney. For example, Judge Garland prosecuted and convicted John C. Kelley, and successfully argued the ensuing appeal in U.S. v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994).
From January 1987 through August 1990, Kelley served as the Deputy Director of Information Resources Management, and others, for the United States Agency for International Development, or “AID,” all the while leveraging his public office for personal benefit. In August of 1992, Kelley was convicted on six counts including bribery, conspiracy to commit bribery, and conspiracy to obstruct justice through witness tampering and making false statements in connection with his job duties. Judge Garland tried the case, and the jury convicted Kelley.
Kelley appealed to the D.C. Circuit in 1994. Among procedural challenges, Kelley attacked the District Court’s repeated denials of his motions for acquittal, priming the D.C. Circuit to assess the legal sufficiency of the evidence against him. The D.C. Circuit held the record that Judge Garland developed made “abundantly clear” that Kelley “suborned others to obstruct justice,” that Kelley attempted to silence witnesses under Grand Jury subpoenas, and that the sentencing guidelines supported the District Court’s sentence of 43-month imprisonment and three years’ supervised release. Kelley’s convictions were completely affirmed.
Kelley shows Judge Garland’s experience with a subset of white-collar crime involving ethics and public corruption offenses. That experience could be significant as the DOJ considers which offenses to prioritize and could signal an increase in ethics and public corruption offenses. Additionally, Kelley demonstrates Judge Garland’s experience as an accomplished trial and appellate attorney – skills any high-ranking DOJ official should possess.
Conspiracies and Objective Analysis
Judge Garland was famously nominated but not confirmed to the Supreme Court of the United States in 2016. As part of that confirmation process, Judge Garland disclosed a “Top Ten” list of his self-described most “significant” written decisions. Only one of those decisions analyzed criminal law: U.S. v. Gaskins, 690 F.3d 569 (D.C. Cir. 2012).
Gaskins is a narcotics trafficking case which also provides in-depth analysis of the law of conspiracy liability, a frequent subject of indictments in all areas of criminal law. Gaskins was indicted with 20 other defendants for operating a narcotics trafficking and distribution conspiracy spanning from Virginia, through Washington, D.C., and into Maryland. The Government’s theory was that Gaskins was one of the conspiracy’s “business managers.” The Government charged him with conspiracy to distribute and to possess with the intent to distribute certain narcotics, conspiracy to participate in a racketeer influenced corrupt organization, and four counts of using a communication facility to facilitate a drug offense. The Government’s evidence was substantial. It included wiretaps, testimony from cooperating conspirators, visual and video surveillance, and seized evidence resulting from search warrant execution. The jury convicted Gaskins of conspiracy to distribute narcotics, and he was sentenced to 262 months (22 years) in prison.
The D.C. Circuit reversed with Judge Garland writing for the unanimous panel. Judge Garland’s decision begins with foundational principles of conspiracy law: that, to convict a defendant, the Government must prove that the defendant entered into the conspiracy knowingly and that the defendant acted with the specific intent to further the conspiracy’s objectives. Judge Garland observed there was “no affirmative evidence that Gaskins” committed either element of the offense. Judge Garland observed “none [of the conspirators] testified about any connection between Gaskins and a narcotics conspiracy,” “none of th[e] [seized] evidence connected Gaskins to the conspiracy,” and “[n]o [wiretapped] call in which Gaskins participated mentioned drugs or drug transactions at all, in code or otherwise . . . .” Instead, Gaskins’ evidence suggested he worked as a “gofer,” running errands for a licensed private investigator, and his activities were related to that business endeavor, not an illegal objective. Judge Garland held no reasonable juror could convict Gaskins and reversed the conviction.
Gaskins demonstrates Judge Garland’s objective analysis. As a former member of the DOJ, one might expect Judge Garland to give deference to the DOJ’s prosecution of the narcotics conspiracy. That deference was absent from the Gaskins decision. Thus, the Gaskins decision shows us that Judge Garland can call on his objective analytical skills to overcome any perceived subjective biases he may possess.
Predicting Effects on DOJ Tactics and Analyses
Judge Garland’s experiences indicate how the DOJ could spend its investigatory and adversarial resources. President Biden has signaled a “hands off” approach to overseeing the DOJ. Therefore, Judge Garland will have a heavy hand in directing the DOJ’s tactics and analyses.
Starting with investigations, expect Judge Garland to use his experience overseeing long-term investigations, potentially involving undercover work, to investigate and collect evidence of complex crimes. Between Judge Garland’s work on the Kelley and Richardson matters, Judge Garland has significant experience overseeing detailed investigations of complex, and even multi-state conspiracies. We have already seen how the DOJ is currently using long-term undercover operations in the Southern District of Ohio to collect evidence of alleged white-collar offenses. There is no reason to believe Judge Garland will shy away from using these tried-and-true methods of investigation to collect potentially significant evidence against subjects of each investigation. Expect the DOJ to recruit confidential informants and cooperating coconspirators to team up with undercover agents to carry out detailed, potentially multi-year investigations.
The DOJ will continue to prosecute complex and multi-state conspiracies. The Richardson investigation and Kelley decisions show Judge Garland’s experience developing a theory against and prosecuting complex conspiracies. From the other side of the bench, Judge Garland analyzed the Government’s burden to prove the existence of a conspiracy and a citizen’s participation in the conspiracy in Gaskins. Therefore, between the cases highlighted here, Judge Garland has significant experience in conspiracy prosecutions. Expect the DOJ to continue to prosecute these types of cases.
Finally, Judge Garland’s measured analysis could “depoliticize” the DOJ, like President Biden has requested. Gaskins showcases this ability. Notably, the Gaskins case has been cited as an outlier among Judge Garland’s criminal appellate jurisprudence because Judge Garland usually sides with the Government on these types of appeals. However, the Gaskins case demonstrates Judge Garland is unafraid to tell the Government they got a case wrong, or, at least, did not have enough evidence to convict a citizen. That requires a conviction to justice. Additionally, Judge Garland has a reputation as a centrist jurist who rarely dissents and who comes to reasoned conclusions. Expect Judge Garland to implement processes to ensure he succeeds in Biden’s depoliticization of the DOJ.
Predicting Effects on DOJ Areas of Focus
The COVID-19 pandemic and legislation enacted as a result will undoubtedly remain a priority for the DOJ. It is imperative that companies who have taken federal funds take care to keep detailed records of their lawful use of those funds. Corporations and individuals in the healthcare industry should keep scrupulous records evidencing lawful activities. If suspected of a crime, Judge Garland’s DOJ will not be afraid to implement undercover and sting operations to discover evidence of illegal conduct. A subject could be investigated without ever knowing it.
Judge Garland also has experience with ethics-type violations for public employees like in the Kelley case. That experience coupled with President Biden’s heightened ethics pledge suggests it could become an area of focus for the DOJ. Therefore, federal employees should conduct themselves carefully to ensure they are complying with all public ethics laws, rules, and guidelines to avoid investigation.
Finally, Judge Garland has experience prosecuting and reviewing drug offenses as well in the Gaskins case as well as others noted in his Senate Confirmation Questionnaire. Expect the DOJ to maintain its priority to investigate and prosecute these types of offenses and conspiracies.
Admittedly, these predications are just that – predictions. But before Judge Garland accepts any appointment to the Office of the Attorney General, his previous decisions and cases hint at his policies and what we can expect out of the DOJ. We think Judge Garland’s deep investigatory experience with the DOJ will empower the DOJ to undertake these investigations, much like it already has in some Districts, to uncover healthcare, COVID-19, and ethics-related fraud cases in addition to large scale conspiracies and drug offenses.