I had to hear from Apple and not the Justice Department about what had gone on in the last four years. The inspector general is doing an investigation. I talked with the attorney general about going beyond that. I think he really 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.The direct intervention by the president and the attorney general in specific criminal cases implicating the president, like that of Roger Stone, one of his aides whose sentence was reduced before he was pardoned, [and] Mike Flynn, another presidential national security adviser whose case was made to completely go away. 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.
Several points deserve emphasis. First, we do not know what other victims of Justice Department abuse are out there because we do not know the full scope of the previous administration’s “national security” witch hunts. Second, we do not know who within the Justice Department objected to any direction they found unethical or illegal or who complied with directions they knew were wrong. We therefore lack a full picture of events and have no way of knowing whether any attorney deserves censure, termination or even prosecution. Third, we do not know whether Justice Department attorneys made intentional misrepresentations to courts, which must at least be corrected and would likely require disciplinary action or legal accountability.
Schiff is right to urge Garland, who fancied himself as the person to restore the credibility of the department, to undertake the effort to offer clarity. Garland could task the inspector general with a wide-ranging investigation or could appoint a special counsel.
If Garland does not rise to the occasion, however, Congress is not off the hook. Members have a constitutional obligation to conduct oversight. The department’s past conduct is not past if those who participated in wrongdoing remain or if others have absorbed the wrong lessons. A congressional investigation might take place under the auspices of the House and Senate judiciary committees; alternatively, a select committee could be formed to undertake the task.
Congress could decide to break its investigation into parts: Interference with specific prosecutorial decisions; refusal to seriously investigate the whistleblower’s complaint about the former president’s extortion of Ukraine; the Justice Department’s participation or advice in stonewalling congressional investigations; the complete account of the department’s interaction with the president concerning phony allegations of election fraud; decisions by department attorneys to sign onto briefs that had no basis in law or fact; the full story on former attorney general William P. Barr’s misleading spin of the Mueller report; abuse of the subpoena power; and the department’s willingness to overlook massive misappropriation of government property and personnel for political use (e.g., converting the White House into a stage for the Republican National Convention).
Certainly, I may have forgotten a few. The difficulty in even recalling all questionable actions may explain Garland’s reticence to start digging. The department could conceivably do nothing but self-examination. However, the number of potential areas of misconduct should also tell us that it is impossible to let bygones be bygones.
If only a fraction of these issues turn up evidence of misconduct, we might be confronted with a slew of department attorneys who are tainted by their participation in wrongdoing or who have violated their oaths. In refusing to hold them accountable, Congress and the current Justice Department leadership will have condoned their conduct and lowered the standard of conduct we expect from the American people’s lawyers.
As President Biden has said about history, refusing to learn about the facts does not make it disappear. The problem is worse in the case of the Justice Department: Refusing to learn about the events of the past four years amounts to endorsement of their misdeeds. We cannot restore the department to its former stature by giving miscreants a pass.