Attorney General Merrick Garland has angered Trump critics and the Biden administration's most ardent supporters in his first three months of office, as his Department of Justice (DOJ) has shown an increased willingness to side in court with the Trump administration.
The early signs from Garland’s DOJ are worrying for those who are hoping that the new administration will provide transparency and accountability around what many saw as the department's misuse of power during the Trump administration.
Earlier this week, the Justice Department told a federal appeals court that it would continue its efforts to represent Trump against his alleged rape victim, the writer E. Jean Carroll, in a defamation suit she filed in 2019 following comments he made about her while in office.
The new DOJ’s stance in the case has surprised and disappointed critics who were outraged last year when the department first moved to bring its considerable resources to Trump’s defense in the case.
Last month, after a federal judge in D.C. castigated former Attorney General William Barr and ordered the DOJ to release an internal legal memo that essentially cleared Trump of wrongdoing from the investigation led by former special counsel Robert Mueller, the department appealed to keep significant portions of the memo under wraps.
Even though the Biden administration inherited leak investigations that included subpoenas for the records of reporters and Democratic lawmakers, the team continued fighting in court to keep gag orders in place barring communications companies from alerting those whose data was seized.
The progressive watchdog group Revolving Door Project is tracking court cases that the Biden DOJ inherited from Barr and former Attorney General Jeff Sessions. Among those cases, which are largely lawsuits filed by advocacy groups and congressional committees, the new administration has sided with the previous one in about a dozen.
Jeff Hauser, the project’s founder and executive director, says that Garland should not be so willing to side with an administration that so many believe damaged the public confidence in the department.
“Garland’s approach seems to be to minimize as much as possible any discontinuity in position after the election,” Hauser said. “He wants to make the transition from Trump to Biden as small as possible in the Justice Department. And so across an extremely wide array of issue areas, the Garland Justice Department is reaching legal conclusions which are incongruous for the Biden administration and for where the vast majority of center-left and more progressive lawyers and legal scholars are.”
“The question I have for Garland is what would we have to learn about Jeff Sessions and Bill Barr for them to lose the benefit of the doubt with you?” Hauser added.
Garland’s Justice Department has been backing his predecessor in court in a growing number of cases as more revelations emerge showing how the previous administration wielded the department in attempts to surveil journalists, lawmakers and others as part of leak investigations.
This week it was revealed that the DOJ under Trump had subpoenaed phone and electronic records of at least two Democratic lawmakers on the House Intelligence Committee and those close to them. The Trump administration’s effort to spy on elected officials from the opposition party represented an extraordinary step from the executive branch, and has Democratic leaders demanding answers from the agency.
"The Department has a very short window to make a clean break from the Trump era on this matter," warned House Judiciary Chairman Jerry Nadler (D-N.Y.) in a statement Friday. "We expect the Department to provide a full accounting of these cases, and we expect the Attorney General to hold the relevant personnel accountable for their conduct. If the Department does not make substantial progress towards these two goals, then we on the Judiciary Committee will have no choice but to step in and do the work ourselves."
The news has fueled the desire among Trump critics for the DOJ to undergo a serious reckoning of how the institution may have been abused over the past four years.
“This saga is just another reminder that much of what occurs in government is due to institutional practice, and that a mere shift in political power doesn’t immediately halt all ongoing executive branch actions,” Bradley Moss, a national security lawyer, said, noting that Trump expanded leak investigation practices used under the George W. Bush and Obama administrations.
“Just like with the ongoing fight over the DOJ Mueller memo, the current leadership under AG Garland is trying to sort out particular actions they believe warrant continuing for institutional and legal reasons, as opposed to those – such as the surveillance of reporters’ communications – they no longer view as necessary or appropriate,” he said.
On Friday, the Justice Department’s inspector general’s office announced it would be launching an investigation into the agency’s use of subpoenas in the leak investigations as top Senate Democrats were threatening Barr and Sessions with subpoenas if they do not agree to testify about the scandal.
But many see the current DOJ’s moves to side with the previous administration’s legal arguments as a worrying sign that Garland may have little appetite for reckoning with the Trump administration’s actions.
“So far we've seen some good signs from DOJ but also signs it’s trying to be the same institution that protects itself, protects its power, protects executive power,” Jake Laperruque, senior counsel for The Constitution Project at the Project on Government Oversight, said. “And I think we’ve seen the potential abuse that can stem from that.”
During a Senate hearing this week, Garland was dismissive when asked about criticisms of the department’s positions in the Carroll and Mueller legal memo cases, saying that he and the rest of the DOJ are solely focused on promoting the rule of law.
“The job of the Justice Department in making decisions in law is not to back any administration, previous or present; our job is to represent the American people,” he told lawmakers. “Our job in doing so is to ensure adherence to the rule of law, which is a fundamental requirement of a democracy.”
But Bruce Green, a former federal prosecutor and law professor at Fordham University, said there’s no way for the department to completely tease out political pressures, or even institutional ones.
“Sometimes DOJ wants to project that it’s like a court in the sense that it's not making partisan judgments or even political judgments in nonpartisan way but [is instead making] legal judgments determined by law and fact. And which administration it's in and the identity of the particular attorney general isn't so significant,” he said.
“But of course we know that is not really true or entirely true. It’s an aspiration or a self image the department likes to project,” he added.
Critics say that the department’s own institutional interests in preserving the executive branch’s legal authority is driving Garland’s DOJ to side with Barr, even in instances where the previous administration’s actions horrified Democrats and ethics advocates.
Kristy Parker, who served in the DOJ’s civil rights division for 15 years before joining the progressive group Protect Democracy, said that the post-Trump era is an opportune time for the department to reexamine its priorities when it faces legal challenges to the privileges and authorities that the executive branch is afforded in court.
“What we've really seen over time is lawyers inside the Department of Justice reflexively defaulting toward protecting the use of executive power and protecting everything associated with it,” Parker said.
“When Joe Biden says, 'It's not my department, it's the people's department,' when AG Garland says the same thing, that's all well and good, but you have to have that be the emphasis within the department,” she added. “Every decision that the department makes with respect to the powers exercised by the other branches of government really should not be 'Well, our job is to argue that the President wins and the executive wins.' I think that's gone too far and we need to unspool it.”
Parker added that Garland should take on a full accounting of what may have gone wrong during the previous administration and take measures to ensure that career DOJ attorneys are equipped in the future to push back against political misuse of the department.
“There are many people [in the DOJ] who think about that, but there really never was in the entirety of my time there real training on what is the role of a department lawyer vis-à-vis the political leadership of the government, when it comes to ensuring that we are all upholding our oaths of office,” she said. “And what are we as career staff supposed to do if someone in the political leadership tries to tell us to do something that isn't right?”