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Garland defends recent Justice Department moves to back Trump-era legal positions

Attorney General Merrick Garland testifies before a Senate Appropriations Subcommittee on Wednesday, June 9, 2021.
Attorney General Merrick Garland testifies before a Senate Appropriations Subcommittee on Wednesday, June 9, 2021. (Pool/Reuters)
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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.

Appearing at a hearing on the department’s budget request before a Senate Appropriations subcommittee, Garland was asked by Sen. Patrick J. Leahy (D-Vt.) what he had to say about recent criticism, especially from the left, the department has faced as it has stood by legal arguments advanced when Donald Trump was president.

Leahy cited in particular the department’s recent court filing defending its bid to intervene on the former president’s behalf in a defamation lawsuit brought by author E. Jean Carroll — who has accused Trump of sexually assaulting her in the 1990s. He also referred to the department’s decision to resist releasing most of a key internal document used in 2019 to justify not charging Trump with obstruction of justice in the special counsel investigation of his campaign’s possible ties to Russia.

Justice Dept. continues appeal on behalf of Trump in defamation case brought by sexual assault accuser

“I know about the criticisms,” Garland said 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.”

Democrats and left-leaning legal commentators have in recent days been sharply critical of the department’s decision in the Carroll case, suggesting Justice Department lawyers had made moral and legal errors in backing a maneuver that almost certainly would short circuit her bid to sue Trump.

The Justice Department first intervened in the case last year to substitute the U.S. government in place of Trump as the defendant on the grounds that he was acting within his official duties as president when he denied Carroll’s claims — a denial she asserts was defamatory. That probably would have ended the case because the notion of sovereign immunity grants the government broad protection from civil lawsuits.

A federal judge in Manhattan had rejected the Justice Department’s request, but the department appealed. Though the Biden Justice Department could have backed off, it instead continued to press the appeal, arguing precedent was on its side and the issue could have consequences for the current or future sitting presidents.

In the wake of the Justice Department’s filing, Democrats on the House Judiciary Committee wrote to Garland urging him to reverse his position and requesting an immediate briefing. Carroll and her attorney also decried the move.

“Survivors of sexual assault, among other victims, deserve better,” the Democrats wrote.

During the Trump administration, Attorney General William P. Barr had also faced criticism for intervening in the case, and he, too, pointed to legal precedent.

“This is a normal application of the law, the law is clear, it is done frequently, and the little tempest that’s going on is largely because of the bizarre political environment in which we live,” Barr said.

Garland had similarly faced criticism when the department recently signaled it would appeal a judge’s order to release a March 2019 memo written by two senior Justice Department officials about special counsel Robert S. Mueller III’s investigation.

In the memo, the officials argued that aside from important constitutional reasons not to accuse the president of a crime, the evidence gathered by Mueller’s team did not rise to the level of a prosecutable case, even if Trump were not president. The watchdog group Citizens For Responsibility and Ethics had sued to get access to the entire memo, and a judge ordered its release, but so far, the government has kept most of it redacted.

Garland noted to Leahy that his department had revoked several Trump-era policy decisions but sought to differentiate that from basic application of the law.

Julie Tate contributed to this report.

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