This Is Not The Restoration And Reform Of The DOJ That We Were Promised

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The Department of Justice is still defending the concept of the “Imperial presidency.” The more things change, the more they stay the same, apparently. It’s called “institutionalism.”

Last week, the Justice Dept. asked a judge to toss lawsuit against Trump, Barr for the violent clearing of Lafayette Square. Now the DOJ argues it should substitute for Trump as defendant in E. Jean Carroll lawsuit.

This is what the DOJ is wasting its time on rather than suing the state of Arizona for its sham “Fraudit,” which is in clear violation of federal election law? And what about the prosecutions of the leaders of the January 6 seditious insurrection in the nation’s Capitol?

You would be justified in asking “WTH is going on at the DOJ?”

Paul Butler, the Albert Brick Professor in Law at Georgetown University Law Center, and an MSNBC legal analyst writes at the Washington Post, The best way for Garland to protect the Justice Department is to stop defending his predecessor:

Attorney General Merrick Garland is not the new William P. Barr — not by a long shot. But the Justice Department is still fighting transparency and accountability in a way that must delight the former attorney general, who led the department into the abyss during the Trump administration. The Justice Department is now defending two of the most controversial acts of the previous administration — using arguments cribbed from Donald Trump himself.

DOJ lawyers are fighting to keep secret a memo that Barr cited to justify his decision not to charge Trump with obstruction of justice during the investigation by special counsel Robert S. Mueller III. In another case, Justice lawyers suggested that the gassing of lawful protesters by police last year in Washington’s Lafayette Square was appropriate for the safety of the president.

One question that kept coming up during the presidential transition was how vigorously the new administration would pursue corruption investigations against people in the former administration. Now it seems the better question may be to what lengths the Justice Department will go to defend the Trump administration’s abuse of power — with its primary concern being preserving that power for the Biden administration and beyond.

As attorney general, Barr never grasped that he was supposed to be serving the people of the United States, as opposed to acting as Trump’s defense attorney. One of Barr’s most egregious acts was trying to protect his boss from serious legal and political consequences by mischaracterizing the findings of the Mueller report before the public was allowed to see it.

Barr prepared a four-page letter purportedly describing the report’s “principal conclusions” that the Trump campaign did not collude with Russia and that Mueller would not charge Trump with obstruction of justice. Barr added that the facts contained in the report provided insufficient evidence of obstruction, and that in reaching this conclusion he had consulted with DOJ’s Office of Legal Counsel.

In response to a Freedom of Information Act lawsuit seeking the materials that Barr relied on, federal District Judge Amy Berman Jackson issued an opinion finding that Barr had been “disingenuous” when describing Mueller’s findings and ordered the release of the Office of Legal Counsel memo. Justice Department lawyers, under Barr, had objected to releasing the document on the basis of attorney-client privilege, but Jackson found that memo contained “strategic, as opposed to legal advice,” designed to support Barr’s determination to absolve Trump.

The judge characterized the Justice Department arguments against release as “so inconsistent with evidence in the record, they are not worthy of credence.” That’s actually a cogent description of the Trump administration’s approach to many issues; one might have expected the new sheriff in town to support the judge’s rebuke of the corrupt old regime. But Garland’s DOJ is standing by Barr’s DOJ — it released a heavily redacted version of the memo and is appealing Jackson’s order to provide the entire document to the public.

There is a fine line between protecting the confidentiality of important records and shielding corrupt officials. Garland is walking on the wrong side of that line. Nine Democratic senators recently wrote to him asking for the release the memo “to help rebuild the nation’s trust in DOJ’s independence after four years of turmoil.”

Instead, the Justice Department doubled down. Recently, its lawyers asked a judge to dismiss a lawsuit against Trump and Barr for their actions in clearing Black Lives Matter protesters from a park across the street from the White House. Even though the demonstrators were peaceful, military and various police agencies used smoke bombs, tear gas, batons and horses to force them to retreat from the park so Trump, Barr and other senior officials could walk to a nearby church.

Before he was president, Biden criticized this use of force, saying Trump “deployed the U.S. military, tear gassing peaceful protesters in pursuit of a photo opportunity in the service of his reelection.” But now his administration wants the case thrown out because it was necessary for presidential security — which is what Barr had said when he justified the use of force at the time (?)

[J]ustice Department lawyers also asked the judge to throw out the case because Trump is no longer president, and there is no reason to be concerned that the state violence at Lafayette Square will be repeated. But keeping important records secret, and shielding high-level officials, sounds like the same old, same old.

As a proud Justice Department alumnus, I respect that Garland is an institutionalist. The most important way he can restore confidence in the institution is not with platitudes about how much more integrity Biden has than Trump, true as that is. Garland should uphold the values of the Justice Department by exposing the misdeeds of the previous administration and ensuring accountability.

Elie Honig, CNN senior legal analyst and a former federal and state prosecutor, adds Merrick Garland has no plans to become the anti-Barr:

During his nearly two years as US Attorney General, William Barr did unprecedented damage to the Justice Department. He misled the public (about former special counsel Robert Mueller’s report, among other things), he abused the department’s power to protect former President Donald Trump and his political allies (including former National Security Adviser Michael Flynn and Trump confidante Roger Stone) and he eagerly parroted Trump’s most dangerous political talking points (on the purported risk of massive voter fraud, for example).

But to anyone hoping that Barr’s replacement, Merrick Garland, will methodically undo the deep structural harm done by his predecessor: don’t hold your breath. Garland plainly hopes to restore the Justice Department to its rightful station as a unique bulwark of independence in our government. But he has been too timid in his approach so far, and he seemingly has no plans to become the anti-Barr.

During his first three months in office, Garland already has had several opportunities to reverse the specific actions and miscalculations of his predecessor. Yet, each time, Garland has declined to directly undo Barr’s machinations, and has opted instead to take a conservative (lower-case “c”) middle path reflecting his own institutionalist approach to managing the department.

Most recently, Garland’s Justice Department declined to reverse course on one of the most egregious abuses of the department under Barr: its attempt to take on the legal defense of Trump in a defamation suit filed by magazine columnist E. Jean Carroll.

In November 2019, Carroll alleged that Trump falsely accused her of being a liar after she publicly claimed that Trump had raped her in the mid-1990s. In September 2020, after a state judge denied Trump’s motion to dismiss, the White House requested that Justice Department take over Trump’s legal defense in the Carroll case, and Barr agreed.

As Carroll herself succinctly tweeted, “TRUMP HURLS BILL BARR AT ME.” Barr’s Justice Department justified its bizarre intervention by concluding, somehow, that when Trump allegedly defamed Carroll by calling her a liar, he “was acting within the scope of his office or employment at the time of the incident out of which the claim arose.”

A federal judge firmly rejected Barr’s tortured rationale, holding that “while commenting on the operation of government is part of the regular business of the United States, commenting on sexual assault allegations unrelated to the operation of government is not.”

Barr’s Justice Department then filed an appeal. Garland now has taken up that appeal, expressly attempting to distance the department from Trump’s alleged misconduct toward Carroll but adhering to the legal position previously taken under Barr (and rejected by the district court judge).

Garland’s appeal is the latest in a string of decisions that make clear he does not intend to categorically reverse Barr’s actions. In May, for example, Judge Amy Berman Jackson, a federal judge, pointedly ruled that Barr was “disingenuous” in his public summary of the Mueller report — nothing new there, as Mueller himself and another federal judge (this one Republican-appointed) already had lambasted Barr for his dishonest public statements about Mueller’s work.

Jackson also found that department’s description of an internal legal memo that Barr purportedly consulted in concluding that Trump had not committed obstruction of justice included “incomplete explanations” intended to “obfuscate the true purpose of the memorandum.”

Garland could have let Jackson’s ruling stand and produced the disputed internal memo to the public.

Instead, the Justice Department under Garland — apparently seeking to preserve the secrecy of its internal deliberations — chose to appeal part of Jackson’s ruling. In so doing, Garland bypassed an opportunity to draw a sharp line of distinction with Barr and to make clear that he will have no part in defending the prior attorney general’s “disingenuous” representations intended to “obfuscate.”

While we can’t know everything happening behind closed doors at the Justice Department, we have seen no public indication that Garland intends to revisit other abuses that marked Barr’s tenure. Barr’s Justice Department turned a blind eye and declined even to open a criminal investigation into potential criminality by Trump, former Trump attorney Rudy Giuliani and others relating to the Ukraine scandal that resulted in Trump’s first impeachment.

There is nothing to indicate Garland has picked up the mantle. Nor is there any public indication that Garland has sought to reconsider or update the longstanding, much-maligned Justice Department policy against indicting a sitting president. Garland has also offered no public sign that he will revisit the shaky ethics determination that permitted Barr not to recuse himself from the investigation of Russian interference in the 2016 election, even though Barr already had opined that Mueller’s theory on obstruction of justice was “fatally misconceived.”

One of Garland’s most consequential decisions lies ahead: what to do about Mueller’s findings regarding Trump’s potential obstruction of justice? On Friday, former White House counsel Don McGahn testified behind closed doors to the House Judiciary Committee. According to the Mueller report, McGahn was a key witness to one of Trump’s most flagrant acts of obstruction: in June 2017, Trump instructed McGahn to fire Mueller, during the pendency of Mueller’s investigation (an incident which the former president denies happened).

Months later, when the media reported on Trump’s effort to dispatch Mueller, Trump allegedly called McGahn into the Oval Office and told him to deny the story and to create a false document to support the denial. Trump denies telling McGahn to fire Mueller, “even though I had the legal right to do so.”

The Mueller report has now largely receded in the public memory, and the chances of Trump ever facing consequences for his myriad alleged abuses of power are dwindling. It will fall to Garland to decide whether the Justice Department meaningfully considers criminal obstruction of justice charges. All of Trump’s potentially obstructive conduct laid out in detail in the Mueller report — and the McGahn incident is just one among many — is still within the five-year statute of limitations. An obstruction charge, or any charge, against a former president undoubtedly would be enormously difficult and controversial; but then, prosecutors don’t do the job to take the easiest way out.

When he took office, Garland plainly understood the daunting nature of the rehabilitation job that awaited him. In his opening statement at his February 2021 confirmation hearing, Garland pointedly (and correctly) noted that “[t]he president nominates the attorney general to be the lawyer — not for any individual, but for the people of the United States.” Garland committed to pursue “[p]olicies that protect the independence of the department from partisan influence in law enforcement investigations.”

Yet, thus far, Garland has been reticent in his pursuit of those policies. He could have gone either of two routes to get the Justice Department back on its rightful footing: affirmatively undo Barr’s many abuses, or take the conventional, institutionalist middle path and hope for the best. Garland has chosen the latter approach. But that may not be enough to fix the grievous damage inflicted by his predecessor.

As you might imagine, a blog post at Daily Kos is already calling on Merrick Garland to resign. Merrick Garland Has Failed the Nation and Must Resign (excerpt):

We did not vote so our tax dollars would be spent defending Trump from the consequences of his actions. We did not vote so the President of the United States would be above the law. President Biden promised exactly the opposite — that no no one, not even the President, would be above the law.

Either Biden was lying when he said that, or he needs to demand Garland’s resignation and replace him with someone who truly will do the People’s work and pursue Trump to the fullest extent of the law instead of defending his ass at every odious turn.

At this point I’m almost glad he’s not on the Supreme Court. Garland’s feckless cowardice would have served our country poorly.

Resign, Garland. You’re not the man for this moment.

I’m finding it hard to argue with this sentiment.




7 thoughts on “This Is Not The Restoration And Reform Of The DOJ That We Were Promised”

  1. On Wednesday, Merrick Garland defended the actions of the DOJ. “Garland defends recent Justice Department moves to back Trump-era legal positions”, https://www.washingtonpost.com/national-security/merrick-garland-trump-jean-carroll/2021/06/09/be448bd8-c978-11eb-afd0-9726f7ec0ba6_story.html

    Attorney General Merrick Garland on Wednesday broadly defended the Justice Department’s recent decisions to stand by controversial legal positions it took during the Trump administration — asserting that officials were merely trying to follow the law, even if they personally disagreed with the result it required.

    “I know about the criticisms,” Garland testified somberly. “The job of a Justice Department in making decisions of law is not to back any administration, previous or present. Our job is to represent the American people. And our job, in doing so, is to ensure adherence to the rule of law.”

    Garland suggested that department officials agonized over the recent decisions, asserting, “it is not always easy to apply that rule.”

    “Sometimes it means that we have to make a decision about the law that we would never have made — and that we strongly disagree with — as a matter of policy,” he said. “But in every case, the job of the Justice Department is to make the best judgment it can as to what the law requires.”

    Ruth Marcus of the Washington Post has some sound advice for the Attorney General, “Attorney General Garland, please stop digging”, https://www.washingtonpost.com/opinions/2021/06/08/attorney-general-garland-please-stop-digging/

    Everyone knows the Rule of Holes: If you find yourself in one, stop digging. Here is a corollary that Attorney General Merrick Garland would do well to heed: If former president Donald Trump and his allies have put you in a hole, drop the shovel and try to climb out, fast.

    [So] many actions that the Trump DOJ took were repugnant to the rule of law and the fundamental values of the United States. Garland’s experience in the department and on the federal appeals court makes him especially well-suited to the repair job.

    And yet: Recent weeks have seen repeated instances in which the department has chosen to press questionable positions taken under Trump.

    [In] each of these matters, the Justice Department has some arguments for staying the Trumpian course. As a general matter — and this is a proposition put sorely to the test by the extreme nature of the prior administration — it’s not healthy for the Justice Department to engage in a wholesale shifting of positions when a new administration arrives.

    After the Barr Justice Department was accused, with reason, of letting itself be politicized, the last thing the country needs is a department that looks like it is trying to punish its adversaries. There may be momentous decisions ahead for Garland when it comes to potential prosecution of Trump or his kind; perhaps the better part of valor is proceeding with caution in other cases involving the previous administration to avoid appearing vindictive.

    In addition, the department has strong and continuing institutional interests in defending the conduct of officials, up to and including the president, no matter who is president. The powers vested in the office are at stake. So when a federal official is sued, when a group demands access to internal documents, the reflexive response of any Justice Department, and of the nonpolitical career staff, is to resist. This is encoded in the department’s DNA.

    It’s not surprising, then, that the department would fight the release of the Mueller report memo. Every administration wants to protect its internal deliberations from public scrutiny; no administration wants to set a precedent that can be deployed against it.

    But this institutional inertia doesn’t explain — and can’t justify — some of the department’s recent actions. The decision to continue the Trump administration’s efforts to obtain reporters’ email records and phone logs was constitutionally tone-deaf and politically wrongheaded. As my colleague Paul Butler noted, candidate Joe Biden criticized Trump for “tear gassing peaceful protesters in pursuit of a photo opportunity in the service of his reelection.” Now the Justice Department is seeking to have lawsuits by those protesters dismissed.

    Then came the department’s filing Monday asserting its intention to shield Trump from being sued by Carroll. Recall: Months after Carroll filed suit in state court, and at the point at which it appeared he would have to sit for a deposition — only then did the Barr Justice Department pop up, saying that the case had to be transferred to federal court and dismissed.

    The claim, now embraced by the Garland Justice Department, was that Trump, in making the allegedly defamatory statements about Carroll, was acting “within the scope of employment” as a government worker.

    [T]he Garland Justice Department could have chosen to drop the case. After all, a lower court judge had ruled against the government. “While commenting on the operation of government is part of the regular business of the United States,” the judge noted, “commenting on sexual assault allegations unrelated to the operation of government is not.”

    Mr. Attorney General, stop digging.

  3. Your weekly reminder that in a party dominated by conspiracy theories, racists, and con men, John Kavanagh fits right in.

    And to answer Liddle’ Johnny’s question, Biden’s been in office for 4 months, sporty, it’s going to take a little bit longer than that to clean up the mess the reality TV actor and his nude model wife left.

  5. Garland is Biden’s appointee. Why are you giving Biden a pass?

    • Dude, you are using your legislative email to troll this blog? Maybe we should FOIA your emails. Remember how we got rid of your buddy John Huppenthal aka “Falcon9” and “Thucydides”? Must not be much work for you to do at the legislature if you are using government resources to troll this blog.

  6. In spite of numerous requests, he also has not withdrawn the Barr memo opposed to the ERA from the National Archivist nor withdrawn the former president’s intervention into two lawsuits against the ERA!

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