Notable not just for the suggestion, but also from the source. Senator Mike Lee (R-UT), who demanded enforcement of the Biden Rule to keep the Senate from acting on Merrick Garland’s appointment to the Supreme Court in 2016, now suggests giving him a confirmation hearing after all. This time, though, it’s to replace FBI Director James Comey, and to calm the waters in Washington. Lee also wants to head off any appointment of a special prosecutor:
Instead of a special prosecutor, @realDonaldTrump should nominate Merrick Garland to replace James Comey.
— Mike Lee (@SenMikeLee) May 11, 2017
Lotsa luck on convincing his colleagues across the aisle on the latter, via Allahpundit:
— Amy Klobuchar (@amyklobuchar) May 11, 2017
Let’s look at this practically. The most pressing question to ask is whether Garland would even consider the job. As reader Alan Windham noted on Twitter, Garland has a lifetime appointment to the DC Circuit Court of Appeals, the most influential circuit of them all, where he can work independently of the Trump administration. Would Garland really trade that for a ten-year term (mayyyybe) at the FBI with Trump as his boss? This week especially, that looks less appealing than ever.
The only way to convince Garland to accept it would be as an appeal to his sense of duty to country to assuage a nation in crisis. Given his experience in Washington last year — rightly or wrongly — I’d expect Garland to have a somewhat skeptical view of that argument. If he could be persuaded, Garland has an excellent background for the job. Garland has had two significant tours of duty at the Department of Justice, and worked on high-profile terrorism cases such as Oklahoma City, Unabomber, and the Atlanta Olympics cases as a prosecutor. He knows his way around federal investigations, even if he doesn’t have rank-and-file experience within the FBI.
Politically, a Garland appointment would be a two-edged sword for Trump. He’d get a nominee that would sail through the Senate, plus pick up some desperately needed credibility after his Comey tantrum and knee-jerk removal. The problem with Garland as FBI director is that credibility would give Garland a political shield that Comey had forfeited over the past year, making him all but untouchable. Technically, Trump could still fire Garland, but politically he’d be buying his own impeachment — and Republicans might be inclined to go with it at that point. That may be true no matter who Trump appoints, but other nominees would likely have more loyalty and investment in Trump than Garland would.
The appointment might give Democrats a sense of restorative justice regarding Garland’s treatment last year, too, but … that might not necessarily close the deal either. Appointing Garland to run the FBI would open up his seat on the DC Circuit, which would give Trump an opportunity to fill it with a conservative. Kevin Daley at the Daily Caller notes that the circuit has a 7-4 Democratic tilt now, thanks to Barack Obama’s rush of nominations in 2013 after Harry Reid ended the filibuster on presidential appointments. Trump could bring it back to 6-5, and Democrats might not be so eager to see that happen.
In the end, though, Trump might want someone who looks more independent than actually is, and he’s got no real dog in the Merrick Garland fight anyway. Picking Garland hands a lot of power off to Chuck Schumer and Democrats on Capitol Hill while peeling off whatever flank protection Republicans can provide politically if he and Garland ended up at an impasse. Trump’s not likely to take Lee’s advice, and Garland is less likely to take the offer.