By Joshua Larkin, Staff Writer
Attorney General Merrick Garland came under fire for a recent memorandum he sent to the Federal Bureau of Investigation and the U.S. attorney’s offices on October 4, 2021.[1] In his memo, the Attorney General ordered federal law enforcement authorities to meet with “federal, state, local, tribal, and territorial leaders in each federal judicial district” within thirty days of the memorandum’s issuance, to discuss the “strategies for addressing threats against school administrators, board members, teachers, and staff.” [2]
This move has sparked a strong political reaction in a system already deeply divided. Conservative voices, such as talk-show host Mark Levin and House Minority Leader Kevin McCarthy, have spoken out against the memorandum.[3]Levin called the move by Garland “an attempt by the Biden administration to bully parents from exercising their First Amendment rights.”[4] Congressman McCarthy also stated that instruction from the Attorney General “is not the role of the Department of Justice.”[5] While this is an important topic for the education of our nation’s youth and the rights of parents, it begs the question, does the Department of Justice have jurisdiction over local school board meetings?
Former federal prosecutor, Andrew McCarthy, claims the Department of Justice has no jurisdiction over the issue.[6] In the National Review, McCarthy stated that the First Amendment protects speech “unless it unambiguously calls for the use of force that the speaker clearly intends, under circumstances in which the likelihood of violence is real and imminent.”[7] McCarthy claimed that this was an issue that “Garland well knows, as he and Clinton officials stressed to me nearly 30 years ago.”[8] McCarthy continued by adding, “[a]s long as such speech does not constitute a clear and imminent threat to do violence … there is no incitement, and hence no [federal] law-enforcement interest to vindicate.” [9] McCarthy cites 18 U.S. Code § 373 to support his claim, and writes that under § 373, “even an actual threat of violence is not actionable unless the speaker has called for ‘physical force against property or against the person of another in violation of the laws of the United States.”[10]
The focus for McCarthy’s claim is the fact that § 373 relies upon illegal action against another “in violation of the laws of the United States.” McCarthy states that lack of federal interest over school board meetings, along with no U.S. laws being violated, means the federal government cannot interfere.[11] Accordingly, McCarthy states that the federal government’s lack of police power prohibits it from carrying out the Attorney General’s instruction. [12] McCarthy reinforces his claim by comparing the role of federal and state jurisdictions in a situation where violence did occur against a school board member. McCarthy wrote, “If I threaten to punch my local school-board president in the nose there is a possibility … that I have violated state law, but there is no possibility whatsoever that the matter is a concern for the Justice Department.”[13] McCarthy notes that Garland’s specific instruction for federal authorities to work with state and local officials shows that the “DOJ has no jurisdiction here.”[14]
Supporting McCarthy’s position is a conservative legal group created by former Senior Advisor to President Trump, Stephen Miller, who requested the Department of Justice’s Office of the Inspector General “investigate the circumstances surrounding Attorney General Merrick Garland’s memo.”[15] Miller claimed that this investigation by the Inspector General is necessary because it can “engage in the kinds of investigations that can lead to an internal disciplinary action.”[16]
Joining in opposition to the Attorney General’s instruction are Republican members of the Senate Judiciary Committee.[17] The lawmakers have requested that the Attorney General explain “how any of this rises to the definition of criminal harassment” and “to make very clear to the American public that the Department of Justice will not interfere with the rights of parents to come before school boards and speak with educators about their concerns.”[18]
While this is a new issue regarding the role of the federal government, it appears that it may be an issue of intense debate in the coming weeks as the rights of our nation’s youth and parents are further discussed.
[1] https://www.justice.gov/ag/page/file/1438986/download
[2] Id.
[3] Id.
[4] https://www.foxnews.com/media/mark-levin-garland-school-board-memo
[5] https://wchstv.com/news/nation-world/fact-check-team-will-the-doj-investigate-local-school-incidents
[6] https://www.foxnews.com/politics/andy-mccarthy-doj-no-jurisdiction-school-board-meetings-ag-memo
[7] https://www.nationalreview.com/2021/10/the-biden-justice-departments-lawless-threat-against-american-parents/
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] https://news.yahoo.com/andy-mccarthy-doj-apos-no-135036962.html?guccounter=1&guce_referrer=aHR0cHM6Ly9kdWNrZHVja2dvLmNvbS8&guce_referrer_sig=AQAAANikQkqW9-0Q74AiZkSNZxbbhJIuuponsPPVqxha4JjtlGNuJ30wFr0mUIp1iTzK3IAYn2ybGK1l8SaTtN4_aSKe80-bKUA178x0G8d4rZQTO4yc4MeyEheTBMhrafU0oNkoGJXPshCqXWkdfjgPuommv3YjxSJUWRGxUF8L6Y_Y
[15] https://www.foxnews.com/politics/stephen-miller-oig-merrick-garland-fbi-parents-crt-schools
[16] Id.
[17] https://www.washingtonexaminer.com/politics/sen-grassley-joins-republican-senators-demands-of-ag-garland-following-threats-memo
[18] Id.
