Three months into his new job, judge-turned-attorney-general Merrick Garland, who inherited a demoralized and politicized Justice Department, is facing criticism from some Democrats that he is not doing enough to quickly expunge Trump-era policies and practices.
How he charts his way through the current controversies and still-unresolved politically sensitive cases is likely to determine how much of a long-term impact the Trump presidency has on the Justice Department.
“It’s a difficult situation to navigate. The Department of Justice is an institution like an ocean liner — it doesn’t turn around easily,” said Ronald Weich, who served as an assistant attorney general in the early days of the Obama administration.
Within that big ship, there are thousands of career prosecutors and lawyers toiling away on a host of cases that have political implications. During the Trump era, current and former Justice Department lawyers decried what they saw as the politicization of legal decisions.
Twenty-two House Democrats, led by House Judiciary Committee Chairman Jerrold E. Nadler (N.Y.), recently wrote that Garland’s department made a “profoundly misguided” decision “with deeply problematic implications” when it continued to defend Trump in a defamation lawsuit, and they urged the attorney general to reconsider.
Questions about the integrity of the department flared again this month, as internal emails were released showing the extent to which Trump and his advisers had urged Justice Department leadership in late 2020 and early 2021 to pursue false claims of voter fraud in hopes of negating Joe Biden’s victory at the polls.
As a longtime federal judge, Garland had a reputation as a moderate and a consensus-builder, but bare-knuckle politics have played a decisive role in his career. After he was nominated to the Supreme Court in 2016 by President Barack Obama, Republicans refused to hold a confirmation hearing for Garland, and Trump eventually filled the empty seat with a conservative.
Five years later, Garland is the nation’s top law enforcement official, one whose cautious judicial temperament was a selling point to a new president looking to bring stability and independence to the Justice Department as it resolves the thorny issues left over from the Trump era.
“It’s not going to happen overnight, and it’s not going to happen in bulk,” said Weich, now the dean of the law school at the University of Baltimore. “Judge Garland is a very careful lawyer, and he is going to proceed very carefully.”
At a June 10 congressional hearing, Garland tried to assure members of the president’s party that he is restoring the department to its traditional, independent role.
“I know about the criticisms,” Garland said. “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.”
Doing so, he added, “is not always easy,” particularly when it comes to decisions that involve both legal interpretations and policy differences.
Others in the Justice Department said that Garland and his team have always known some decisions they make will be unpopular with certain political factions and constituencies, but that the attorney general aims to ensure that the rule of law is followed and that any improper considerations are kept out of the decision-making process.
“That is something fundamental that supersedes anyone’s unhappiness over a particular decision,” said a senior Justice Department official, who spoke on the condition of anonymity to discuss the decision-making process. “We hopped on a train moving at full speed, and that poses many challenges,” the person added.
Last week, Garland met with senior executives from three news organizations — CNN, The Washington Post and the New York Times — to address their concerns that the Trump Justice Department had secretly subpoenaed their reporters’ phone records to try to identify alleged leakers of classified information.
As the news organizations were notified, the Justice Department initially defended the practice as having followed “the established procedures within its media guidelines policy.”
But then President Biden overruled the department. “It’s simply, simply wrong,” the president declared of the practice of seizing reporters’ phone or email records. “I will not let that happen.”
Just as that controversy seemed to ebb, fresh revelations that the department last year sought subscriber information and metadata of email or phone accounts used by two Democratic lawmakers on the House Intelligence Committee — Rep. Adam B. Schiff (Calif.), then the panel’s ranking Democrat and now its chairman, and Rep. Eric Swalwell (Calif.) — stoked further anger.
Garland is now working on revisions to Justice Department regulations on how to pursue leak investigations involving reporters or elected officials.
Schiff told CBS’s “Face the Nation” on Sunday that Garland “needs to do a wholesale review of all of the politicization of the department over the last four years. What happened to our committee, what happened to members of the press, that’s just a subset.”
Schiff said the new attorney general should also review how the department handled criminal cases involving Trump associates including Roger Stone, Michael Flynn and others. “These are gross abuses of the independence of the Justice Department, and we don’t know how far they run. And our new attorney general has to find out,” he said.
As a candidate, Biden said Trump’s repeated lobbying of the Justice Department on criminal and other matters had turned it into “the Department of Trump,” and he declared that when he was president, the agency would act “totally independent of me.”
While there has long been a bright line meant to keep White House officials out of criminal investigations, there is a wide array of policy questions on which the president does influence the Justice Department, and there are also times when the Justice Department makes decisions that anger the White House.
Biden, as a candidate, also denounced a decision by the Trump Justice Department to fight a defamation suit against the president filed by writer E. Jean Carroll.
Carroll wrote in 2019 that, in the 1990s, Trump had sexually assaulted her in the dressing room of a designer clothing store. Reacting to the accusation in 2019, Trump denied doing so, calling the accusation false and saying she wasn’t his “type.”
Carroll sued Trump for defamation over those comments, and the Justice Department, then helmed by William P. Barr, sought to remove Trump as the defendant and in his place put the United States — a legal maneuver that would effectively end the case, because the law prohibits the federal government from being sued for defamation.
A district court judge sided with Carroll, but the Justice Department decided this month to continue to seek to defend Trump, infuriating many Democrats.
“President Trump’s disgusting comments about Ms. Carroll had nothing to do with his official responsibilities as President, and the whole world knows it,” Democrats on the House Judiciary Committee wrote to Garland. “Survivors of sexual assault, among other victims, deserve better.”
The White House also distanced itself from the decision, with a spokesman saying Biden’s team was unaware before the filing of the department’s position on the Carroll case. The spokesman added that the Biden administration is already delivering on its promise of an independent Justice Department.
Coming just days after another controversial move — to keep secret much of a 2019 Justice Department memo about special counsel Robert S. Mueller III’s investigation into Trump — the Carroll decision incensed many on the left.
Both decisions undercut past criticism of Barr that those positions were taken by a politicized department to shield Trump.
Several Justice Department officials said the decisions in the Carroll and Mueller memo cases, while perhaps distasteful, were the right ones because those cases are about more than just Trump — they involve bigger questions of presidential and executive branch authority.
Other recent Justice Department moves have been cheered by liberals, such as the end of a Trump-era immigration policy that significantly limited asylum for people fleeing domestic abuse or gang violence in other countries. U.S. law allows immigrants to seek asylum if they fear persecution on the basis of their race, religion, nationality, political opinions or membership in a “particular social group.” The last category is subject to debate between those who want a narrower definition of “social group” and those who assert it should include victims of gangs and domestic violence.
Separately, the department filed court papers Thursday in two cases involving transgender athletes and children. The department filed statements of interest in lawsuits brought by others challenging a West Virginia law barring transgender athletes from competing on female sports teams, and an Arkansas law prohibiting gender-affirming medical treatments for transgender minors. The Justice Department said both laws violated constitutional protections.
Those actions, however, received far less attention and debate than the department’s moves involving Trump. Even as Garland steers a course through the current controversies, two unresolved cases still loom large over the department — the investigation by special counsel John Durham into how the FBI, CIA, and other intelligence agencies pursued allegations of Russian interference in the 2016 election, and an investigation opened in 2018 into the finances of Biden’s son, Hunter Biden.
Matthew Miller, a former spokesman for Obama’s first attorney general, Eric H. Holder Jr., said a key feature of the department that is not well understood by outsiders is how often career officials make decisions based on filing deadlines in court cases. To manage political blowback from such decisions, Miller said, it’s important for new Justice Department bosses to “identify all of the cases and ongoing investigations and issues at the department that are going to become controversies” and, in cases like the Carroll lawsuit where it’s appropriate, consult the White House.
“The big mistake that we made the first year is spending so much time cleaning up the previous administration’s messes that we lost sight of what Eric Holder wanted to do as attorney general,” he said. “So you have to define your agenda and push forward as hard as you can at the same time you’re trying to wrap up these leftover controversies and not let them consume you.”