The Trump Justice Department left its successor enough holes to satisfy a colony of prairie dogs. So many actions that the department took were repugnant to the rule of law and the fundamental values of the United States. Garland’s experience in the department and on the federal appeals court makes him especially well-suited to the repair job.
And yet: Recent weeks have seen repeated instances in which the department has chosen to press questionable positions taken under Trump. It is appealing a federal judge’s order to release in full a redacted memo to then-Attorney General William P. Barr about the report by special counsel Robert S. Mueller III. It is arguing to dismiss a lawsuit against Trump and Barr for violating protesters’ civil rights during the violent clearing of Lafayette Square last June. It was, until a recent about-face in the wake of news reports, pressing the Trump administration’s misguided efforts to obtain reporters’ email records and phone logs.
Now, rather astonishingly, it is continuing the Trump administration’s efforts to shield the former president from a defamation suit filed by author E. Jean Carroll, who says that Trump sexually assaulted her in the 1990s and then slandered her when she went public with her claim in 2019, accusing her of lying, suggesting he could not have raped her because “she’s not my type,” and asserting she made up the story to increase sales of her newly published book.
On each of these, the Justice Department has some arguments for staying the Trumpian course. As a general matter — and this is a proposition put sorely to the test by the extreme nature of the prior administration — it’s not healthy for the Justice Department to engage in a wholesale shifting of positions when a new administration arrives.
After the Barr Justice Department was accused, with reason, of letting itself be politicized, the last thing the country needs is a department that looks like it is trying to punish its adversaries. There may be momentous decisions ahead for Garland when it comes to potential prosecution of Trump or his kind; perhaps the better part of valor is proceeding with caution in other cases involving the previous administration to avoid appearing vindictive.
In addition, the department has strong and continuing institutional interests in defending the conduct of officials, up to and including the president, no matter who is president. The powers vested in the office are at stake. So when a federal official is sued, when a group demands access to internal documents, the reflexive response of any Justice Department, and of the nonpolitical career staff, is to resist. This is encoded in the department’s DNA.
It’s not surprising, then, that the department would fight the release of the Mueller report memo. Every administration wants to protect its internal deliberations from public scrutiny; no administration wants to set a precedent that can be deployed against it.
But this institutional inertia doesn’t explain — and can’t justify — some of the department’s recent actions. The decision to continue the Trump administration’s efforts to obtain reporters’ email records and phone logs was constitutionally tone-deaf and politically wrongheaded. As my colleague Paul Butler noted, candidate Joe Biden criticized Trump for “tear gassing peaceful protesters in pursuit of a photo opportunity in the service of his reelection.” Now the Justice Department is seeking to have lawsuits by those protesters dismissed.
Then came the department’s filing Monday asserting its intention to shield Trump from being sued by Carroll. Recall: Months after Carroll filed suit in state court, and at the point at which it appeared he would have to sit for a deposition — only then did the Barr Justice Department pop up, saying that the case had to be transferred to federal court and dismissed.
The claim, now embraced by the Garland Justice Department, was that Trump, in making the allegedly defamatory statements about Carroll, was acting “within the scope of employment” as a government worker.
Trump’s comments were “unwarranted and disrespectful,” the government said, but it argued that answering reporters’ questions was part of Trump’s job. “Officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives,” it told the appeals court.
The Garland Justice Department could have chosen to drop the case. After all, a lower court judge had ruled against the government. “While commenting on the operation of government is part of the regular business of the United States,” the judge noted, “commenting on sexual assault allegations unrelated to the operation of government is not.”
Mr. Attorney General, stop digging.