That’s a shocking departure from the respect for the separation of powers that prevented even President Richard M. Nixon, with his list of enemies, from investigating members of Congress. We don’t know the story behind the subpoenas — who ordered them or whether the White House was involved. It’s possible that this was incidental collection in the course of a properly predicated leak investigation. But there’s an awful lot of coincidence. The subpoenas just happened to home in on two opponents of President Donald Trump, Reps. Adam B. Schiff (D-Calif.) and Eric Swalwell (D-Calif.), and these or others also retrieved information about James B. Comey, the FBI director Trump fired, and Trump’s own White House Counsel Donald McGahn, rumored around that time to have been cooperating with the Mueller investigation. It’s also odd that a prosecutor from New Jersey, without much experience in leak investigations, was brought in by Attorney General William P. Barr in 2020 to resuscitate the probe, which hadn’t produced enough evidence to charge a crime in the three years since it began under Barr’s predecessor, Jeff Sessions.
What’s less shocking is that Garland didn’t know about this case sooner — and may yet not know if there are other Trump-era investigations that were subject to improper White House influence, such as those involving subpoenas for reporters’ communications, for example. The problem cases don’t identify themselves. Files don’t come with bright yellow stickers that say “Warning!” or “Danger!” It will take a top-to-bottom review of the Justice Department to root them out. And it has to happen fast.
The sheer scope of that review will be daunting. The Justice Department has an enormous docket of pending investigations and cases. In 2020, U.S. attorneys’ offices alone indicted in more than 57,000 criminal cases and handled 92,860 civil matters. That doesn’t include the work in the Justice Department’s seven Washington-based litigation divisions: criminal, civil, national security, civil rights, antitrust, tax, and environment and natural resources. There are lawyers in other components of the department as well, such as the pardon attorney’s office, the office of professional responsibility and the Bureau of Prisons. And there are lawyers in the department’s four law enforcement agencies — the FBI, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the U.S. Marshals Service — while agents work on matters that have yet to be referred to a prosecutor. To complicate things further, investigations can be international in scope.
It’s an enormous portfolio for a new attorney general to take control of, especially without his full team in place. The Senate Judiciary Committee hearing for the head of Garland’s criminal division was only held late last month. There isn’t a single Senate-confirmed U.S. attorney nominated by President Biden in any of the 94 offices across the country.
Garland has tasked his deputy attorney general, Lisa Monaco, with “surfacing potentially problematic matters deserving high level review,” and he has enlisted the department’s inspector general to investigate the subpoena incident. But he will have to go well beyond that, ensuring a comprehensive, painstaking review, if he wants to find any other land mines before they, too, explode on the front pages of the nation’s newspapers — and if he wants to have a hope of restoring trust in the institution.
The inspector general’s investigation is an important step toward understanding whether and how the Justice Department was twisted into a weapon for use against Americans whom the former president viewed as his enemies. But IG probes take time, and this department doesn’t have a lot of it. The longer questions and concerns go unaddressed, the more difficult the department’s mission becomes. It’s not just this most recent disclosure. Everything awful is additive, and Americans’ reservoir of trust for the Justice Department is running low. The process of replenishing it can’t be shunted aside while the new team assesses the damage. This is a moment for rebuilding the airplane while you’re flying it.
How will that be possible? One critical step is for Garland to commit to transparency. He can depart from the Justice Department’s culture of reserve, a culture that avoids much in the way of public explanation. The department can’t publicize the details of investigations in progress because it could compromise them, endanger witnesses or smear the reputations of people who are never charged. Disclosure of grand jury proceedings is prohibited by law. But the department can be transparent about the way it works and its decision-making process. It can openly discuss why it takes certain legal positions, especially when institutional interests are at stake. It can make sure the country learns about any additional problems the department uncovers and how it is fixing them from the attorney general himself, not from investigative reporters. And Garland can be candid about what information he may not share and why. Justice needs a trusted voice that can explain complicated issues and share even bad news with openness and honesty. Garland could take on that role.
Many Americans have emerged from the Trump presidency with new interest in how our government and our legal system work. Garland can further the understanding of the rule of law. He can explain why positions he advocates for are in the country’s best interests, instead of allowing them to be written off as “institutionalism” and letting that become a dirty word. Not everyone will agree all the time, but people who are trusted with the truth will better understand the complicated web of nuance and consequences that surrounds legal decision-making.
The Justice Department cannot be — and cannot permit itself to be perceived as — a political tool. Trump’s attorneys general, Sessions and Barr, have denied that they were briefed on the subpoenas, as did former deputy attorney general Rod J. Rosenstein. That’s surprising, because Justice Department rules require notification to the highest levels in cases that involve national security and classified information, like a leak investigation. There are also high-level notification rules for matters involving members of Congress or the media. Even if lawmakers weren’t targets of the investigation, and their information was collected merely because they had contact with someone who was, that would ordinarily be briefed to department leaders. If nothing else, no prosecutor wants to be the one without a chair to sit in when the music stops; it’s hard to believe that when prosecutors first saw the name of a member of Congress crop up, they didn’t tell their bosses, if only to prevent the responsibility from resting on their shoulders alone. Garland can make clear to the public that these processes are in place, even when he can’t disclose details that would compromise cases.
The Justice Department has difficult decisions ahead, ones that will not please everyone. Garland will have to treat people with trust if he hopes to earn their trust in return. This may not be the traditional way things are done at the Justice Department, but it is the right way for this troubling moment.