Garland's 'Domestic Terrorism' Memo Is Post-2022 GOP's Hill to Die On

Attorney General Merrick Garland’s utterly transparent threat to invoke the full power of the FBI against parents who dare challenge public school indoctrination of their children in critical race theory (CRT) is the proverbial Hill Republicans should be eager to die on if they hope to preserve the Constitution.

Garland’s infamous threat came in a memorandum issued in response to a letter from the National School Boards Association (NSBA) to President Joe Biden that warned of acts of “domestic terrorism” being committed by parents protesting CRT and related left-wing oppression in the public schools.

Consider Garland’s answer to an October 6 letter he received from Sen. Tom Cotton (R-AR) in which the Arkansas Republican said:

“It is never appropriate to use violence or threats of violence to achieve political goals. However, NSBA went much further by suggesting that concerned parents, who are merely exercising their constitutionally protected rights to speak freely and protect their children, should be treated as domestic terrorists.

“Your memo, issued just five days after the NSBA letter and copying some of its recommendations, certainly appears to be a response to and tacit approval of that letter. The Department of Justice’ s endorsement of such outlandish allegations threatens to intimidate parents, chill free speech, and discourage lawful assemblies.”

Cotton then asked Garland for answers to the following seven questions and requested that the AG do so by October 15:

“Did the NSBA letter prompt you to issue the aforementioned memorandum? If not, what considerations prompted you to issue the memorandum?

“Have any state or local authorities or other organizations besides the NSBA requested or encouraged the Biden administration to take action against this alleged rise in violence and intimidation against school officials? If so, which organizations?

“Please provide all sources to support your claim in the memorandum that ‘there has been a disturbing spike in harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff.’

4. Please document any cases of physical violence committed against school district officials in recent protests against school policies and curriculum.

5. When, according to your analysis, did this purported spike in harassment, intimidation, and threats of violence occur? Do you agree with the NSBA’s claim that the alleged spike is fomented by mask mandates and curricula teaching critical race theory?

6. Do you agree with the NSBA’s assessment that protests against school district policies and curricular instruction may amount to domestic terrorism?

7. The NSBA requested that you invoke specific authorities to prosecute as “domestic extremists” parents who disagree with the positions of their school Please explain whether you believe any of the following federal laws could be used to prosecute those who protest against local school board policies and their members:

Gun-Free School Zones Act
PATRIOT Act
Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act
Violent Interference with Federally Protected Rights statute
Conspiracy Against Rights statute

All of those questions are reasonable and logical, given the facts of the situation, and, even more to the point, exactly the kind of questions that should be asked by the first branch of the republican government the Constitution established in 1787.

And Garland’s response as of today, November 2?

Zero. Zilch. Silence.

That silence speaks louder than any words and it conveys yet another middle finger raised by an AG to Congress. Whether you are a Democrat or a Republican, if you believe in republican government, you should be outraged.

Here’s why: For decades as the federal bureaucracy has grown ever larger and more pervasive in American daily life, Congress under majorities of both parties has steadily ceded its authority and power as the law-originating body in the government to the executive branch.

Do that long enough and the day eventually arrives when senators and representatives are little more than figureheads because the ultimate power to decide what is lawful in America has been handed over to unelected bureaucrats and the power-hungry politicians they willingly serve.

That day arrived in 2012 when then-AG Eric Holder was held in contempt by the House of Representatives for his refusal to turn over to Congress executive branch documents related to the Fast and Furious scandal.

That was the Obama administration scandal in which federal agents let more than 2,000 firearms be sold to individuals they thought were fronts for Mexican drug cartels.

The idea was to trace the weapons after their sale so they could be linked to powerful cartel figures. Instead, the cartels turned the guns against U.S. law enforcement, killing U.S. Border Patrol Agent Brian Terry in an Arizona gun battle.

When Congress began demanding documents to determine who was responsible for the scandal, Holder refused all requests and defied a lawfully issued congressional subpoena.

The House Republican majority under then-Speaker John Boehner passed the contempt citation because, Boehner explained, “no Justice Department is above the law and no Justice Department is above the Constitution, which each of us has sworn to uphold.”

So what does that have to do nearly a decade later with the Cotton-Garland exchange? Boehner was exactly right–the Justice Department is not above the law. But when Holder gave Boehner the middle finger, the speaker and his Republican majority slinked away.

What they should have done instead was loudly threaten to defund all Obama administration political appointees in Holder’s department, and then concretely followed through on the threat, precisely because it would precipitate a showdown with the White House and potentially a government shutdown.

It was exactly that prospect of a showdown with Obama and a possible shutdown that intimidated Boehner and the House GOP majority, which was made possible by the Tea Party movement in 2010. Put otherwise, they chickened out.

But now, here we are with another Democratic administration’s AG giving Congress the finger. If Republicans regain the majority in both houses of Congress next November, they should make it the first order of business to do what Cotton threatened — hold up presidential appointments.

And they should not stop there. They must do whatever else is required to force the issue that the executive branch must respect congressional demands for documents and explanations, even to the point of daring Biden to shut down the government because he has no problem with his AG giving the finger to the elected representatives of the American people.

As I and others far smarter than me have argued for decades (for example, here), the Founders made Congress the first branch because they intended it to be supreme in any contest with either of the other two branches.

They gave Congress all of the “ultimate weapons,” including the sole authority to authorize, create, and abolish departments, programs, and positions, as well as deciding how each and every tax dollar collected by the government is spent.

If it chooses to enforce its will, Congress can do so as long as majorities of both the Senate and House agree and make it clear they will have their way. In other words, the coming Republican majority, if it materializes, had better display some big brass ones.

Otherwise, executive branch officials won’t even bother to raise their middle finger any more.