It underscored the tension between two essential goals for the Justice Department under Attorney General Merrick Garland: how to depoliticize a department that effectively became an arm of the White House under Trump without evading the imperative of requiring a lawless presidency to answer for its abuses.
Garland has faced criticism for recent Justice Department decisions that, in defending the institution of the presidency, also served Trump’s interests.
But the disclosures about previously secret Justice Department efforts under Attorneys General Jeff Sessions and William P. Barr to obtain the phone records of two California Democrats, Reps. Adam B. Schiff and Eric Swalwell, raised an uncomfortable but fundamental question: Does fighting against using the justice system for political purposes require a new administration to expose and, if appropriate, prosecute a previous administration for the very violation the responsible newcomers are trying to avoid?
To many Democratic members of Congress, the answer is clear.
“Merrick Garland is a very good lawyer, and lawyers are process-oriented,” said Rep. Jim Himes (D-Conn.), who is also a member of the Intelligence Committee. “But this is about the separation of powers and issues that go to the heart of our democracy. The American people need to know everything, even if it runs afoul of traditional investigative concerns.”
On Friday, the Justice Department took the first step toward responding to these worries. The department’s inspector general, Michael Horowitz, announced a probe of whether investigations of both journalists and Trump’s critics “were based upon improper considerations.”
In the meantime, Senate Majority Leader Charles E. Schumer (D-N.Y.) joined Judiciary Committee Chairman Richard J. Durbin (D-Ill.) in calling on Sessions and Barr to testify before Durbin’s committee. They threatened subpoenas if the two former attorneys general refuse, and they called the secret records searches “a gross abuse of power and an assault on the separation of powers.” And House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said the department “has a very short window to make a clean break from the Trump era on this matter.”
May these actions mark the beginning of the end of Trump impunity.
Garland’s Democratic critics should be a bit more empathetic because he faces a genuine dilemma. A good man trying to resurrect his department’s best traditions, he wants to prove that the new sheriff in town is categorically and incontestably different from the old one.
This explains his willingness to make decisions that risk offending members of his own party. Even as he shifts the department’s policies on issues such as voting rights, he’s determined to show he’ll resist using the law or his office for narrow political purposes.
And lest anyone doubt that Garland is charting a more progressive direction for the department, he announced a new campaign against voter suppression on Friday. It is a big deal. He is doubling the legal staff devoted to enforcing voting rights and pledged to challenge the proliferation of state laws inhibiting the ability of voters to cast ballots.
But Trump is a different, and thornier, problem, because he was not like any of his predecessors. Consider his repeated norm-breaking, his indifference to legal limits on presidential power, and his contempt for the very values that Garland is trying to uphold. Actions that might have seemed reasonable when applied to just about any other previous administration seem inadequate to the quandaries created by Trump’s tenure.
“Pre-Trump, I was always of the belief that any new administration should be focused on the future, and against the idea of investigating the previous administration,” Rep. Brendan Boyle (D-Pa.) told me. “But this is yet another norm Trump has ruined."
“Given the rampant criminality that we already know took place in the Trump administration, it would be dangerous to just look away and pretend like it didn’t happen,” Boyle continued. “To do so would only increase the likelihood that such law-breaking one day happens again.”
My hunch is that President Biden hoped that legal accountability for at least some of Trump’s abuses would be enforced by state and local prosecutors, saving his Justice Department from having to take the sorts of steps against a predecessor that friends of constitutional democracy try to avoid.
But as the flare-up over the investigation into Schiff and Swalwell made clear, the Biden administration may not have this luxury. Garland is right to do all he can to keep his department out of politics. Unfortunately, the nature of Trump’s presidency will complicate any path back to the old ways and the old rules. It’s Trump’s poisoned chalice.