UPDATED: 01 MAR 2023 03:05 PM EST
Attorney General Merrick Garland pledged Wednesday that the U.S. Attorney pursuing a criminal probe of President Joe Biden's son Hunter Biden has broad independence to pursue appropriate charges, including bringing a case outside of the prosecutor's base in Delaware if that's necessary.
Testifying at a Senate oversight hearing that lasted just over four hours, Garland was pressed by Sen. Charles Grassley (R-Iowa) to promise that U.S. Attorney for Delaware David Weiss won't face bureaucratic obstacles if he decides that Hunter Biden should be prosecuted outside his home state.
"The U.S. attorney has been advised that he has full authority to make those referrals you’re talking about or to bring cases in other districts if he needs to do that," Garland said. "He has been advised that he should get anything he needs….I have not heard anything from that office that suggests they are not able to do anything that the U.S. attorney wants them to do."
When Garland was nominated as attorney general, he agreed to leave Weiss — an appointee of former President Donald Trump — in place to complete the Hunter Biden investigation.
While offering those assurances about independence, Garland did not share any substantive update on the investigation into the president's son. The probe is reportedly focused on Hunter Biden's failure for years to pay a federal income tax bill that eventually amounted to about $1 million and a false statement Hunter Biden allegedly made about his drug use when purchasing a gun in 2018. Hunter Biden has said he is confident the investigation will clear him of wrongdoing.
Sen. Ted Cruz (R-Texas) urged Garland to also consider allegations that Hunter Biden's business dealings abroad involved efforts to trade on his influence over his father. Garland didn't say if that was part of what Weiss is reviewing, but reaffirmed that no limits have been placed on the prosecutor's work.
"He's not restricted in his investigation in any way," Garland said.
While the Hunter Biden questions were the most politically explosive issues aired during Wednesday's hearing, questioning from senators was a potpourri, spanning concerns ranging from violent crime to drugs to guns to the impact of social media platforms on American society.
Several senators challenged Garland about federal law enforcement's handling of protests that broke out at the homes of some Supreme Court justices after POLITICO reported last May on a draft Supreme Court opinion that would overturn the federal constitutional right to abortion established in 1973 in Roe v. Wade. The protests intensified after the court formally issued its ruling the next month in Dobbs v. Jackson Women's Health Organization, with the opinion in much the same form as the earlier draft.
Sen. Mike Lee (R-Utah), a former law clerk to the author of Justice Samuel Alito, who wrote Dobbs, pressed Garland on why no one has been arrested under a federal statute that prohibits trying to influence the administration of justice by picketing or parading near the homes of federal judges.
"It’s very clear they’re tying to influence in one way or another that those serving on the United States Supreme Court," Lee said of the protesters. "Yet, not one person to my knowledge has been prosecuted for such things."
Cruz, who served as a law clerk to the late Chief Justice William Rehnquist, later thundered at Garland over the department's failure to act against what the senator called "rioters" at the justices' homes.
"You're perfectly content with justices being afraid for their children’s lives," the Texas Republican shouted.
Garland stressed that he responded rapidly to the leak and the protests by assigning more than 70 deputy U.S. Marshals to guard the justices and their families around the clock. "As soon as the Dobbs draft leaked, I ordered the marshals to do something that the marshals had never done in United States history before, which was to protect the justices and their families, 24-7."
The attorney general eventually conceded that no protester has been charged under the federal law, but he said the "priority" of the marshals is keeping the justices and their families safe, not policing the demonstrators. Garland insisted, however, that no directive has been given to the marshals to ignore that law.
"They have full authority to arrest people under any federal statute, including that statute," Garland said.
But Sen. Tom Cotton (R-Ark.) rejected Garland's suggestion that marshals involved in the justices' security details would have to be involved in any arrests of demonstrators. Cotton noted that the Justice Department has used videos to charge hundreds of people for crimes related to the Jan. 6, 2021, Capitol riot and said similar evidence could be used against the protesters who target justices at home.
"These people were not criminal masterminds. They posted pictures and videos of themselves protesting. You could probably go and arrest them today from a cold start," Cotton said. "It’s a simple black-letter legal violation."
Some experts have said the federal law could be open to a First Amendment challenge, although the attorney general noted that the Supreme Court marshal wrote to local law enforcement in Maryland and Virginia last year urging them to enforce similar local ordinances.
Sen. Josh Hawley (R-Mo.) also challenged Garland on abortion-related issues, grilling him over alleged "anti-Catholic bias" at the Justice Department. Hawley pointed to an intelligence memo prepared by the FBI's Richmond, Va., field office and dated in January that warned of the potential for violence from "radical-traditionalist Catholics," particularly among those who favor the Latin mass.
"It's appalling. It's appalling. I'm in complete agreement with you," Garland replied. "I understand that the FBI has withdrawn it and is now looking into how this would ever have happened....It does not reflect the methods the FBI is supposed to be using."
"Are you cultivating sources and spies in Latin-mass parishes and other Catholic parishes around the country?...How many informants do you have in Catholic churches across America?" Hawley asked.
"I don't think we have any informants," Garland said, pointing to longstanding Justice Department policies.
Democrats also used the hearing to cajole Garland for support for their key issues, with Senate Judiciary Committee Chair Dick Durbin (D-Ill.) railing against social media companies for enabling drug trafficking and dangerous behavior by teenagers.
"This is out of hand," Durbin told the attorney general. The chair also bemoaned the influence of the 1996 law known as Section 230, which gives online platforms broad immunity from being sued over content third parties post online and from being sued over the adequacy of their efforts to police that content.
"I think Section 230 has become a suicide pact. We are basically saying you are absolved from liability, make money and deaths result from it," Durbin said.
Garland called the situation Durbin described "horrible," but was careful to limit his specific criticism to the role social media plays in drug dealing.
"We do have to do something to force them to provide information to search their own platforms for drugs," the attorney general said.
One moment of rare agreement between Garland and Republicans on the panel came as Sen. John Cornyn of Texas deplored the practice of many news outlets to mention which president appointed a particular judge when reporting on one of the judge's rulings.
Garland said he fought against that practice when he joined the D.C. Circuit Court of Appeals a quarter-century ago, but made no headway.
"When I first got on the judiciary, I and several of my colleagues pounded our heads against the wall trying to get the reporters to stop — this is more than 25 years ago — to stop reporting the name of the president who appointed us and — or the party. Unfortunately, this is a battle that has not been won," Garland said. "And I don't think, given the authority the First Amendment, its importance — it's one that we're not going to be able to win."
"I come from a kinder and gentler era and a kinder and gentler court, even in terms of the way the members of the court treat themselves," Garland added. "My moral authority is against divisiveness from all sides and all quarters and for all arguments to be made on the merits."
