Who Needs Bill Barr When You Have Merrick Garland? The New Banana Republic AG Does Trump's Bidding
David Shasha
Why is Merrick Garland Defending Donald Trump?
By: Jeff Houser and Max Moran
Monday night, Merrick Garland’s Justice Department shocked a lot of people by filing a brief in federal court effectively shielding Donald Trump from justice in a defamation suit over credible allegations that Trump may have raped writer E. Jean Carroll in the mid-1990s. Bill Barr, Trump’s attorney general, had come up with the argument that as a federal employee, Trump could not be sued for defamation. Observers had widely expected Biden’s department to reject that claim, so the announcement left Carroll’s lawyers and many observers slack-jawed.
It shouldn’t have. On several key matters, Garland’s DOJ has concealed the full extent of Trump’s wrongdoing; it has kept thousands of immigrants from obtaining green cards, while flooding the immigration system with Trump-selected judges; expanded the scope of police power; ensured oil and gas profits for decades to come; and explicitly protected one of Trump’s most hated Cabinet secretaries from accountability. Indeed, Garland has quietly emerged as Donald Trump’s unwitting hatchet man, doing almost everything in his power to protect the lawless former president’s legacy.
On May 24, Garland committed the DOJ to keep much of the so-called “Barr memo”—through which Garland’s predecessor almost unilaterally decided that no part of the Mueller probe would result in criminal charges—secret. Even Trump enemies who scoffed at the Russia probe should be disturbed by Garland’s other decisions, though. He has committed the DOJ to defending a Trump-era policy slashing the number of legal immigrants who qualify for green cards. He’s hiring dozens of new immigration court judges who received their initial offers during the Trump era, and codified Trump-era rules restricting immigrants’ options to prevent their own deportations. Garland’s Civil Rights Division also remains perilously understaffed, enormously hampering its ability to conduct oversight of municipal police departments. It also pursued private chat logs between government employees and reporters, a censorious case that began in the last 15 days of the Trump administration.
Late last month, the Justice Department urged a federal judge to dismiss lawsuits against Trump and former Attorney General Bill Barr over their decision to tear-gas Black Lives Matter protesters near the White House last summer so that the president would be able to take a photo near a church, holding the Bible upside-down. While Garland repeated throughout his confirmation process that he’d prioritize tackling white supremacy, almost six months into the administration, no part of the federal government has a plan for rooting out white supremacists who serve in federal law enforcement roles.
Meanwhile, Garland’s DOJ is actively defending a new oil project in Alaska that was cleared under Trump’s shams of environmental tests and may generate new oil for 30 years. In its filing, the DOJ explicitly said that the Trump administration adequately considered the new site’s effect on wildlife and greenhouse gas emissions. Garland is also maintaining support for a new oil pipeline in New Jersey and isn’t rescinding Trump-era briefs that made it harder for states to sue Big Oil over downplaying the risks of climate change.
And some of Garland’s lieutenants are almost as hackish and corporate as any Trump appointee. His acting assistant attorney general for the civil division, Brian Boynton, represented Google, Eli Lilly, and the notorious for-profit University of Phoenix just one year before entering the department—where Boynton wrote a legal brief protecting Trump Education Secretary Betsy DeVos from testifying about for-profit schools defrauding indebted students. (The courts, thankfully, ruled against Boynton’s position.) Acting Solicitor General Elizabeth Prelogar likewise represented Big Tech (Facebook, Uber, Snap, Twitter) and Big Pharma (Amgen, Lumos, Syneos) just months before revolving into the department.
Oh, and Garland’s still shielding Trump’s tax returns from Congress.
Why is Garland doing all of this? To be clear, he is not secretly a devout Trumpist who’s wiggled his way into the highest levels of the Democratic Party. Rather, Garland is doing exactly what his most ardent supporters said he would upon his nomination: leading the Department of Justice the way he remembers it from his first DOJ stint in the 1990s.
Garland, in other words, is trying to treat Donald Trump as if he was a normal president, and his policies as if they were normal policies. It is long-standing practice at the DOJ mostly to maintain the legal positions established by the previous administration, so that the department looks like a singular, consistent entity insulated from political manipulation. That’s arguably a generally sensible policy, if a bit of a legal fiction. The problem comes, as we’re seeing, when a new administration inherits a DOJ that actually was subject to political manipulation—more than that, a DOJ that was run like a personal protection unit for a cartoonishly corrupt, fascistic president.
Trump did near-fatal damage to the rule of law through his abuse of the Department of Justice. Let’s not forget that in the waning days of the Trump administration, DOJ lawyers hatched a harebrained, treasonous plan with the president to deny certification of the election and maintain Trump’s presidency. It was Trump’s Deputy Attorney General Rod Rosenstein, another onetime center-left icon, who gave direct orders to separate migrant children from their parents in order to try their parents in immigration court. Meanwhile, the Trump era saw all-time lows for white-collar crime enforcement, allowing the wealthy and well-connected to do with the nation as they pleased.
Garland ought to be undoing all of that damage—that is what Biden promised to do throughout his presidential campaign. But this is in deep tension with institutional norms at the DOJ which Garland, and many other elite lawyers, hold in high regard. If Garland sees his primary duty as reasserting the norms of the DOJ itself, rather than actually enacting justice, then he must treat Trump as if he was any other president, by definition. That’s what the DOJ does.
We’re seeing a scary example of how liberalism’s belief in process itself, rather than the ideals that processes are supposed to help execute, can be easily manipulated by bad-faith, far-right actors. When standard procedure is sacrosanct, all that the right needs to do is make it standard procedure never to hold it accountable. Notably, Garland consistently promised “that politics would play no role in his decisions” during his confirmation hearing, after numerous prompts by Senate Republicans. That’s intentional. The GOP was framing it as wrongfully partisan to reverse course from the most wrongful, partisan, and most importantly, anti-democratic president in history.
Garland, of all people, should be aware of this: It was a similar idolatry of process itself that robbed him of a Supreme Court seat in 2016. There was nothing technically illegal about then–Senate Majority Leader Mitch McConnell denying Garland so much as a confirmation hearing; it was just clearly wrong, violating the spirit of representative democracy. Despite the fact that some legal theories held that the Senate was granting Garland consent through its inaction, Democrats—believing that responding in tit-for-tat fashion to the GOP’s norm-breaking would be intolerably ignoble—did not play a card in opposition. One would think that Garland would have learned that following norms matters less than actually doing the right thing, but here we are.
At this point, Garland himself is beyond saving. If a man robbed of a Supreme Court seat by far-right ideologues still carries water for an even further-right former president, he is simply not going to wake up and care about the actual effects of his actions. The question is where this leaves President Biden.
On some issues, particularly within domestic policy, Biden has proven willing to break business as usual in order to achieve his goals. He nominated anti-monopolist Lina Khan, who cut her teeth calling for a total overthrow of current antitrust doctrine, to the Federal Trade Commission. He supports eliminating the core of the filibuster, the single most damaging example of fixating on process at the expense of results.
Yet his core persona on the campaign trail was of a consummate deal-maker who could bring Republicans to the table (he hasn’t and won’t). Recently, Biden has cowered at Republican obstruction of his infrastructure bill, preemptively lowering its price tag. This self-defeating self-negotiation is the exact same trick that crushed Barack Obama’s legislative agenda, and it again rests on Republicans exploiting Democratic love of process (getting likely nonexistent bipartisan votes on a major bill) over outcomes (actually getting a major bill passed).
Biden’s presidency will not succeed in its (hopeful) central goal of improving people’s lives unless he reverses this trend and simply “gets things done.” One way to ensure that doesn’t happen is to keep an attorney general hindering that goal at every step, whose dogma of following the rules has already undercut the administration on everything from democracy reform to climate change. An attorney general who doesn’t treat Trump like the unique threat he was, and doesn’t wake up every day raring to neutralize his influence on society, isn’t an attorney general Biden can afford. Every day Biden keeps Garland in charge of his legal agenda is a day Trumpism is normalized, and the inevitable battle against it in 2024 gets that much harder.
From The New Republic, June 8, 2021
Why Is Merrick Garland Defending Donald Trump?
By: Ankush Khardori
On Monday, the Justice Department took its most controversial position yet under Attorney General Merrick Garland, when lawyers for the department confirmed that they will continue to defend Donald Trump in the defamation suit brought by E. Jean Carroll.
Carroll sued Trump in New York state court in November 2019 after Trump publicly denied Carroll’s allegation that he had sexually assaulted her in the 1990s. Carroll was about to get some crucial discovery from Trump when, in September of last year, the department intervened on Trump’s behalf, transferred the case to federal court, and moved to substitute the government for Trump as the defendant—on the theory that Trump’s comments about Carroll were made in “the scope of his employment” as the president. The result of this maneuver (if successful) would likely be the dismissal of Carroll’s case, since the federal government cannot be sued for defamation. Last October, the presiding federal judge rejected the department’s arguments in a 59-page opinion, but the department appealed that ruling to the 2nd Circuit Court of Appeals. It was not previously clear that Garland’s Justice Department would maintain the position that the department had first taken under Bill Barr.
In a brief filed with the 2nd Circuit on Monday, though, lawyers for the Justice Department argued that the case “does not concern” whether Trump’s response to Carroll “was appropriate” and does not “turn on the truthfulness of Ms. Carroll’s allegations.”
“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” they continued. “Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials’ employment—including when the statements were prompted by press inquiries about the official’s private life.” Typically, you would expect Garland to have been briefed on a filing like this—about a litigation position of significant public concern that was inevitably going to generate public scrutiny—and to have either affirmatively signed off on it in advance, or to have decided to leave it to other officials (perhaps career officials) to resolve, which is, in any event, the functional equivalent of being comfortable with the outcome.
The filing came as a shock to many legal observers. After all, many of them had criticized the department’s position under Barr in scathing and unambiguous terms—calling it “ludicrous,” “sheer lunacy,” “malevolence tempered by incompetence,” and questioning how the argument could even be made “in good faith.”
As a strictly legal matter (and as I have noted elsewhere), the argument was not as frivolous as it may have seemed. As the government’s lawyers wrote on Monday, “Elected public officials can—and often must—address allegations regarding personal wrongdoing that inspire doubt about their suitability for office,” and for better or worse, some federal courts have effectively immunized federal officials for statements in such contexts. The question is not so much whether the federal government can make this argument in defense of Trump—indeed it can, and the government may very well prevail on appeal—but whether it should. In other words, it is the sort of discretionary legal judgment that attorneys general often have to make.
Garland did not have to endorse Barr’s decision—and I wish he had not—but unfortunately, Monday’s filing was not entirely surprising. Garland breezed through the confirmation process with little skepticism among liberals, who mostly seemed happy to see Garland ascend to the position as the nation’s top law enforcement officer after he had been prevented from taking a seat on the Supreme Court by Sen. Mitch McConnell back in 2016. But as Garland’s confirmation hearing suggested, he appears to be inclined toward maintaining the status quo and focused on the department as an institution, even though, as I noted at the time, “a well-developed vision of how the law should operate—and a sincere commitment to the rule of law—is not the same thing as a vision of justice.”
This has become clearer still since Garland took office, perhaps most notably when the department continued Barr’s effort to withhold an Office of Legal Counsel memo that outlined the DOJ’s reasons for not alleging that Trump committed obstruction of justice following the Mueller probe. The decision to maintain that legal posture came even after the presiding judge complained that lawyers from the department had tried to mislead her. Like the decision to continue the defense in the Carroll case, it would have been eminently defensible—and eminently reasonable—if the Garland DOJ had come out the other way and simply released the OLC memo, perhaps on the theory that the situation is so unique that it does not have serious long-term implications for different cases, particularly those involving decent public servants.
At the moment, observers seem to be scrambling to make sense of Garland’s decision-making, and it remains to be seen whether the decision in Carroll’s case might finally force a more serious reckoning. Shortly before Monday’s filing, one commentator questioned “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.” Another concluded on Tuesday that Garland “seemingly has no plans to become the anti-Barr.” Others have argued that “at this point, Garland himself is beyond saving.”
I wouldn’t go that far, except to say that Garland’s decisions seem to reflect a far too cramped view of what people have taken to calling “institutionalism.” The department, for instance, generally defends federal employees in lawsuits where there is a defensible claim that the employees’ actions occurred in the course of their work; it generally takes expansive positions on questions of executive authority and power; and if you resort to a high enough level of abstraction—like, say, “speaking to the public and the press on matters of public concern”—it is often possible to argue that a decision in some particular instance should be placed in the lineage of broadly defined principles. A former judge who likes to invoke the rule of law may be particularly susceptible to these tendencies, since the concept is often associated with stability and impartiality.
The question that Garland has now placed front and center for even his most ardent supporters is whether and to what extent he will at some point identify a serious limit to this way of thinking when it comes to Trump—a truly dangerous man and former president who should not be afforded the continued luxury of being treated like any other federal official.
From Slate, June 8, 2021
The Best Way for Garland to Protect the Justice Department is to Stop Defending His Predecessor
By: Paul Butler
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.
Trump had also made it clear that the law enforcement violence was about politics, not presidential security. In response to last summer’s widespread protests following the death of George Floyd, the then-president had called on police to use “overwhelming force” to put down the “THUGS.” The day after the demonstrators at Lafayette Square were attacked, Trump tweeted: “D.C. had no problems last night. Many arrests. Great job done by all. Overwhelming force. Domination.”
Justice 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.
From The Washington Post, June 8, 2021