After days of tumult following revelations that the Trump administration deployed warrants to investigate news reporters and members of Congress in leak investigations, Attorney General Merrick Garland issued a tepid response on Monday.

“There are important questions that must be resolved in connection with an effort by the department to obtain records related to Members of Congress and Congressional staff,” he said. “I have accordingly directed that the matter be referred to the Inspector General and have full confidence that he will conduct a thorough and independent investigation. If at any time as the investigation proceeds action related to the matter in question is warranted, I will not hesitate to move swiftly.” He also directed Deputy Attorney General Lisa Monaco, whom he noted is “already working on surfacing potentially problematic matters deserving high level review,” to evaluate existing policies for obtaining congressional records.

Meanwhile, John Demers, head of the Justice Department’s National Security Division and the most senior carry-over from the previous administration, announced he would be stepping down.

While it is common for the Justice Department to try to find out who shared classified information with the media, it is highly unusual to secretly gather records from the press and lawmakers. The prosecutors also prevented the lawyers and executives of The Times and CNN from disclosing that records had been taken, even to their newsroom leaders, another highly aggressive step.
Such moves require signoff by the attorney general. But Mr. Demers and his top counterintelligence deputies in the division would typically be briefed and updated on those efforts.

Former attorneys general Jeff Sessions and William P. Barr, as well as former deputy attorney general Rod J. Rosenstein, deny knowledge of the subpoenas. Demers’s departure was reportedly planned and unrelated to the controversy, but the Times reports that “Justice Department officials say that all appropriate approvals were given for those orders, meaning that the attorney general at the time, not Mr. Demers, signed off.”

Last week, the inspector general announced he would be looking into the matter. As former federal prosecutor Barbara McQuade writes for MSNBC: “The grand jury subpoenas were used to obtain records of members of Congress whom Trump directly criticized — Reps. Adam Schiff and Eric Swalwell, both of them Democrats from California who were vocal critics of Trump. Subpoenas were also used to obtain records of media outlets that Trump has criticized. On their face, these facts create the impression that Trump was simply going after a sort of enemies list.” McQuade raises doubt that Justice Department policies were followed. In any case, she writes, “the receipt of such sensitive information should have immediately triggered a briefing to Justice Department leadership. No government leader wants to learn about such potentially explosive news from a reporter.”

Garland’s Monday remarks were the first we have heard of a high-level review to be conducted by Monaco. Garland’s revelation raises a number of questions:

  • Does this cover conduct by former attorneys general?
  • Does this go beyond subpoenas?
  • Is the department reviewing professional violations and sanctionable conduct (e.g., misrepresentations to courts) by those who assisted Barr in hyperpoliticization of the department?
  • Is she looking at issues such as obstruction of justice?
  • Is she examining the circumstances surrounding pardons?

These questions and a host of others remain because Garland entered office without a clear commitment to investigate all problematic conduct in the prior administration. As a result, hope has evaporated that he would clean house and fire attorneys whose conduct was not in keeping with internal and ethical guidelines.

He has also never indicated as to whether, now that former president Donald Trump is out of office, the department would follow up on alleged illegal conduct examined by special counsel Robert S. Mueller III (e.g., obstruction of justice, perjury, witness tampering). Is he relying on the premise that Trump cannot be prosecuted for any conduct in office — even incitement to insurrection?

Garland seems to be operating as though we had not undergone four years of the Justice Department running afoul of ethical standards and department policy — or worse, of the law. Are we simply to ignore the department’s meddling in the prosecution of former national security adviser Michael Flynn, Barr’s ignoring of potential illegality in connection with the former president’s attempt to extort Ukraine, or Barr’s fanning doubt about mail-in ballots? And I suppose we are expected to forget signs that Barr tried to politicize election fraud investigations?

Garland has adopted his predecessors’ positions in many cases (e.g., withholding release of all the internal memos relating to the Mueller report; the Justice Department standing in Trump’s shoes in a defamation case against a rape victim). And it seems the attorney general has done so apparently without thoroughly examining whether these positions were part of a broader pattern of illegality, corruption or unethical conduct.

As a result, Garland seems fated to play catch-up as these issues pop up one by one. Perhaps he needs to appoint a special counsel to conduct a top-to-bottom review of what went wrong and who did what (or didn’t do what was expected) in the last four years. Without a thorough review, there can be no accountability for past Justice officials or the president; without accountability the department cannot implement appropriate reforms and deter future misconduct.

The attorney general is chief prosecutor for the American people. When he walked into Main Justice, he may have entered a crime scene — or at least a scene of corruption and misconduct. He has had ample reason to look at the full gamut of behavior that proceeded him. Unfortunately, the problem with selecting a judge as attorney general is that judges want to avoid looking political at all costs. And worse: They only consider cases before them.

What we need in the post-Trump years is someone to uncover wrongdoing, make tough prosecutorial decisions and restore confidence that the current stable of Justice Department lawyers is ethical and competent.

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