Garland faces minefield left behind by Trump

Justice Department is up against legal hurdles

- Kevin Johnson Contributi­ng: Kristine Phillips

In the three months since his confirmati­on, Attorney General Merrick Garland has moved to uncouple the Justice Department from the tumult of the Trump administra­tion.

The former federal judge has rolled back Trump policies that had shielded local police department­s from federal scrutiny in the face of social justice protests, launching wide-ranging civil rights investigat­ions into law enforcemen­t in Minneapoli­s and Louisville.

He has repeatedly vowed to reaffirm standards that “protect the independen­ce of the department from partisan influence in law enforcemen­t investigat­ions; that strictly regulate communicat­ions with the White House” – all of which were tested mightily during the previous administra­tion.

Yet moving on from the long shadow cast by Trump administra­tion is proving to be a complicate­d legal exercise sometimes limited by institutio­nal norms the former president regularly shattered.

In recent days, Justice Department lawyers have taken positions in politicall­y charged court battles that have left some Democrats shaking their heads. The Biden Justice Department has appealed a judge’s order to release the full contents of a 2019 memorandum that recommende­d Trump not be charged with obstructio­n during the investigat­ion of Russian interferen­ce in the 2016 election. And in court documents filed late Monday in New York, the Justice Department signaled it would continue to defend Trump in a defamation lawsuit brought by writer E. Jean Carroll, who has accused the former president of sexually assaulting her in the 1990s.

In both cases, Justice Department lawyers offered tempered support for their positions – referring to Trump’s language in the Carroll case as “crude and disrespect­ful” – citing legal and institutio­nal precedent for the actions.

A break from partisan politics?

While the Justice Department’s moves brought recriminat­ions from Carroll’s representa­tives and countered some Democratic lawmakers who urged it to clear the way for the release of the long-sought obstructio­n memo, some legal analysts suggested that the decisions had reaffirmed Garland’s early vow to distance the department from partisan politics.

“If you didn’t know that Merrick Garland was a straight-shooting attorney general before, you sure as heck know it now,” said Donald Ayer, a deputy attorney general in the George H.W. Bush administra­tion.

Inherent in the transition to any new administra­tion is the challenge of navigating a thicket of leftover litigation, said Matthew Miller, a Justice Department spokesman in the Obama administra­tion. “There is a strong institutio­nal pressure (at Justice) to preserve the executive branch,” Miller said. “Sometimes that’s the right position to take; sometimes it’s not.”

On Wednesday, Garland confronted the controvers­y in a Senate hearing, telling lawmakers that the decisions are a matter of law – not policy.

“The essence of the rule of law” is that “there not be one rule for Democrats and another for Republican­s, that there not be one rule for friends and another for foes,” Garland said.

In the heat of the presidenti­al campaign, then-candidate Joe Biden often called out the sitting president for exerting undue influence on the Justice Department, suggesting at times that Trump used the department as his personal law firm.

The candidate’s criticism is one of the reasons the Biden Justice Department drew so much notice for seeking to defend Trump in Carroll’s pending lawsuit. Justice Department attorneys argued in a court brief filed Monday night that Trump acted in his official capacity when he said in 2019 that Carroll lied about being raped to boost the sales of her memoir.

At issue, the attorneys said, is not whether Carroll’s allegation­s were true or whether Trump’s response to them were appropriat­e, but whether the United

States is liable for actions federal employees made within the scope of their employment, the attorneys argued.

“Speaking to the public and the press on matters of public concern is undoubtedl­y part of an elected official’s job. 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 statements were prompted by press inquiries about the official’s private life,” the attorneys wrote.

White House spokesman Andrew Bates said Biden was not consulted by the Justice Department “on the decision to file this brief or its contents.”

“And while we are not going to comment on this ongoing litigation, the American people know well that President Biden and his team have utterly different standards from their predecesso­rs for what qualify as acceptable statements,” Bates said.

The reasoning for the Justice Department filing, however, brought condemnati­on from Carroll’s representa­tives. “It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago,” said attorney Roberta Kaplan. “But it is truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thereby depriving our client of her day in court.”

The obstructio­n case

Last month, the Justice Department’s appeal of a judge’s order to release the so-called obstructio­n memo came despite the opposition leveled by Democratic senators who urged a clean break with the Trump era.

Sens. Sheldon Whitehouse, D-R.I., and Dick Durbin, D-Ill., had urged Garland not to appeal the judge’s ruling.

“DOJ’s actions in this case, and in another recent Freedom of Informatio­n Act case seeking informatio­n about President Trump’s activities, have raised doubts about DOJ’s candor when characteri­zing potential evidence of President Trump’s misconduct to courts,” the senators wrote. “To be clear, these misreprese­ntations preceded your confirmati­on as Attorney General, but the Department you now lead bears responsibi­lity for redressing them.”

The memo had been requested by the group Citizens for Responsibi­lity and Ethics in Washington under the Freedom of Informatio­n Act.

“The Department of Justice had an opportunit­y to come clean, turn over the

memo, and close the book on the politiciza­tion and dishonesty of the past four years,” said Noah Bookbinder, president of the government accountabi­lity group, asserting at the time that the department’s action “undercuts efforts to move past the abuses of the last administra­tion.”

‘Institutio­nal interests at stake’

Although Garland’s Justice Department has drawn some early fire, William Yeomans, a department veteran who served under five Republican and Democratic presidents, said the department has long been reluctant to abandon a position in the face of political pressures.

“It is worth rememberin­g that DOJ has institutio­nal interests at stake in both of these situations that carry over from administra­tion to administra­tion,” Yeomans said. “DOJ represents the office of the presidency in court, as well as government officials who are sued in their official capacities.

“What made DOJ’s defense of Trump’s behavior ... so unpalatabl­e was often less that it was representi­ng the president than the substance of what the president had done in his official capacity,” the former official said. “I would add that DOJ is always reluctant – and properly so – to change its position in court for no reason other than an election.”

It won’t get easier

And there are more difficult decisions on the horizon.

A Trump-era investigat­ion into the origins of the Russia inquiry is continuing. Connecticu­t U.S. Attorney John Durham, first appointed by former Attorney General William Barr, is leading the inquiry, which has so far resulted in the conviction of an FBI lawyer who pleaded guilty to altering an email used to justify the surveillan­ce of former Trump campaign adviser Carter Page.

Federal prosecutor­s in Delaware also have been pursuing a tax investigat­ion involving the president’s son Hunter Biden that began during the Trump administra­tion. David Weiss, the chief federal prosecutor in Delaware, was left in place by the Biden administra­tion to complete the inquiry.

Garland also could face the prospect of determinin­g whether Trump should face charges after he was accused of inciting the Jan. 6 Capitol riot.

Michael Sherwin, who oversaw the sprawling riot investigat­ion before departing the Justice Department earlier this year, said federal authoritie­s were reviewing “everything” during an interview with CBS in March.

“Any decision the Department of Justice makes should be based on an unbiased, nonpartisa­n interpreta­tion of the law,” said University of Notre Dame law professor Jimmy Gurule, a Justice Department official in the George H.W. Bush administra­tion.

“As long as the Justice Department can justify a position on the merits, that’s fine. And I think that’s what you are seeing with Garland. He’s calling balls and strikes as he sees them and drawing criticism from both sides. I would be more concerned if I saw an en masse flipping of positions that were in line with Democratic policies.”

 ?? CARLOS BARRIA/POOL VIA AP ?? Attorney General Merrick Garland has vowed to reaffirm standards that protect the independen­ce of the Justice Department.
CARLOS BARRIA/POOL VIA AP Attorney General Merrick Garland has vowed to reaffirm standards that protect the independen­ce of the Justice Department.
 ?? BOB CHILD/AP ?? John Durham is looking into the origins of the FBI’s investigat­ion into Russian election interferen­ce.
BOB CHILD/AP John Durham is looking into the origins of the FBI’s investigat­ion into Russian election interferen­ce.

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