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Attorney General Garland defends memo in school speech maelstrom

The Biden administration's top lawyer appeared before lawmakers Wednesday as Republicans clamor for his resignation

Rejecting assertions from Republican lawmakers that he is trampling conservative speech, Attorney General Merrick Garland is doubling down on his efforts to protect school board members as division over critical race theory and mask mandates usher violent threats. 

The Senate Judiciary Committee summoned the attorney general to a hearing Wednesday focused on the memo he disseminated earlier this month that suggests the FBI and U.S. attorneys should hold meetings with local leaders to discuss strategies for addressing the rise in threats against education officials.

“The memo is only about violence and threats of violence,” Garland said. “It makes absolutely clear in the first paragraph that spirited debate about policy matters is protected under our Constitution. That includes debate by parents criticizing school boards. That is welcome. The Justice Department protects that kind of debate.”

Garland's meeting with senators Wednesday follows one on the same issue last week with the House Judiciary Committee. In the interim, 19 Republicans from the House committee wrote in a Monday letter to the Justice Department that they were troubled by Garland's testimony.

"Parents have an undisputed right to direct the upbringing and education of their children, especially as school boards attempt to install controversial curricula," they wrote. "Local law enforcement — and not the FBI — are the appropriate authorities to address any local threats or violence."

Senator Richard Durbin, an Illinois Democrat, told his colleagues Wednesday that those who are arguing that school board meetings haven’t become more violent are “ignoring reality.”

“Free speech does not involve threats and violence,” Durbin said.

To this, however, Utah Senator Mike Lee, a Republican, pointed out that his staff found zero “explicit” death threats after going through every news source raised by the National School Board Association. 

“Not every outburst or expression of concern by neighbors, among neighbors, at a local school board meeting warrants an investigation,” Lee said. “It certainly doesn’t warrant the involvement of 94 U.S. attorneys in a way that threatens, intimidates and intends — inevitably — to chill First Amendment activity.”

Across the country, as public health orders for mask wearing and vaccinations in a pandemic have driven a political wedge, school boards have also had to grapple with angry parents about an academic framework from higher education known as critical race theory. While not a fixture of K-12 instruction, the theory of studying U.S. history through the lens of institutional racism is sometimes applied broadly to any efforts toward inclusion.

Garland came under fire at Wednesday's hearing from every Republican on the committee, but perhaps most notably from Senator Tom Cotton of Arkansas, who stormed out of the room after a pointed reference to Garland's Supreme Court nomination that never came to pass because of Republican log-jamming during the Obama administration. 

"This testimony, your directive, your performance is shameful," Cotton said. "Thank God you're not on the Supreme Court. You should resign in disgrace, judge."

Missouri Senator Josh Hawley echoed the call for Garland to resign. 

“You have weaponized the FBI and the DOJ,” Hawley said. “It's wrong, it's unprecedented to my knowledge in the history of this country, and I call on you to resign."

During the five-hour hearing, Garland also answered questions about probe into the attempted coup by Republican Trump supporters on Jan. 6, why sexual assault allegations against former USA Gymnastics doctor Larry Nassar went unresolved for years, and the investigation by special counsel John Durham into how the FBI handled its probe of Trump's suspected involvement with Russia on U.S. election meddling.

Garland told lawmakers that the Justice Department is in no way constraining the Jan. 6 investigation. 

"All investigative techniques of which you're familiar and some you're not familiar… are all being pursued in this matter,” Garland said.

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Zachary Hupp/DHS

Attorney General Merrick Garland (left) and Ken Salazar, U.S. Ambassador to Mexico, attend a joint high-level security dialogue in Mexico City on October 8, 2021.