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What the Garland memo really means for investigating Trump

Attorney General Merrick Garland participates in an interview with The Washington Post at his offices at the Justice Department in May. (Jabin Botsford/The Washington Post)
7 min

If there’s a powerful Democrat who has given his party as much heartburn as Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.), it might well be Attorney General Merrick Garland. A party base anxious for Jan. 6, 2021-related criminal charges against former president Donald Trump has long been suspicious of the moderate attorney general. And the limited peeks they’ve gotten behind the Justice Department curtain have often left them wholly unsatisfied, at best, and suspicious of Garland’s fortitude, at worst.

The most recent episode in the saga is a newly reported memo that Garland signed in May. But the memo probably doesn’t warrant nearly the kind of consternation it has engendered.

MSNBC’s Rachel Maddow broke the news of the May 25 memo on her show Monday night. The crux is that Garland has left in place a policy first instituted by his Trump-appointed predecessor, William P. Barr. The policy requires the attorney general to sign off on investigations involving presidential candidates and their staff.

There are some obvious reasons this has triggered the amount of fretting that it has.

One is that Trump happens to be sending increasing signals that he’ll launch his 2024 presidential campaign very early, possibly even before the midterm elections. The thinking is apparently that Trump is doing this because he might see some legal advantage in being a formally declared candidate. That’s an advantage allegedly driven home by Garland’s memo, which places investigating such a candidate in a special class, requiring sign-off from the highest levels.

The other big reason is, of course, that this policy originated with Barr.

We’ll tackle the latter first.

Barr certainly earned his reputation as an exceedingly political attorney general, and it’s understandable to balk at doubling down on a policy he forged. But those facts alone do not a bad policy make. Nor do they mean that this policy, even if it might have been prone to abuse under the wrong attorney general, would necessarily have any impact on the crucial matter at hand now that Barr is out of office.

As Maddow rightly noted, much of Garland’s May 25 memo and Barr’s Feb. 5, 2020, memo aligned with long-standing Justice Department policy across not just the Trump administration, but the Obama and George W. Bush administrations as well. The department has long required additional steps to protect against politicized investigations, especially close to an election. Officials must check with the public integrity section of the department’s criminal division when taking any potentially problematic actions, including overt investigative steps and filing criminal charges.

Barr’s memo went beyond that, in requiring the attorney general’s authorization for new investigations involving presidential or vice-presidential candidates or their senior staff. It also required lower-level consultation when launching investigations involving House and Senate candidates or “illegal contributions, donations or expenditures by foreign nationals to a presidential or congressional campaign.”

His move was viewed with some skepticism in light of Barr’s own skepticism of the Russia investigation and its origins — along with his efforts to run interference for Trump on it and related matters. Barr’s memo came shortly after Justice Department Inspector General Michael Horowitz issued a more than 400-page report faulting FBI officials for how they handled their surveillance of former Trump campaign adviser Carter Page.

In his report, Horowitz said he was “concerned” that no existing Justice Department policies “contain[ed] a provision requiring Department consultation before opening an investigation such as the one here involving the alleged conduct of individuals associated with a major party presidential campaign.”

Barr acted on this concern — a concern lodged by an inspector general originally appointed by President Barack Obama, no less. Garland was then put in the position of continuing that policy or nixing it, with the latter decision probably likely to make bigger waves than the former. Imagine if Garland had reopened the door to the FBI investigating a candidate Trump without his sign-off?

And notably, such policies might once have been something Democrats could very much get behind; after all, many of them blamed Hillary Clinton’s 2016 loss to Trump on FBI Director James B. Comey’s unorthodox disclosures in the Clinton investigation. Whether these guardrails were the correct response to that and to the inspector general report, new guardrails of some kind seemed to be in order.

Former senator Doug Jones (D-Ala.), who once vied against Garland to be Biden’s attorney general, endorsed the decision late Monday.

“And, guys: It’s what we want,” Jones said. “We do not want, under any administration, for the Department of Justice to open an investigation and start a criminal investigation to affect an election.”

Then there’s the question of what this would even mean, practically speaking, for a Jan. 6-related investigation of Trump. The Justice Department is already investigating Jan. 6 and has taking some very overt steps involving Trump aides and advisers — including since the memo was issued. That’s not equivalent to a formal investigation into Trump. But about the only way this memo would matter is if investigators wanted to investigate Trump, asked Garland, and he said no.

Some Trump critics will fear that an allegedly reluctant Garland might use this policy as an excuse to stifle such an investigation. But Garland will have to contend with extensive public evidence from the congressional Jan. 6 investigation and the Justice Department’s own investigations of related matters that would certainly make that difficult to justify.

Garland’s top deputy, Lisa Monaco, was asked Tuesday whether Trump getting into the race would have any impact on the investigation, and she suggested it wouldn’t.

“We’re going to continue to do our job, to follow the facts wherever they go, no matter where they lead, no matter to what level,” she said at a cybersecurity conference at Fordham University in New York. “We’re going to continue to investigate what was fundamentally an attack on our democracy.”

The question Monaco answered wasn’t specifically about Garland’s memo, of course, and no Justice Department is going to say that Trump running would change their calculus. But their investigations related to Jan. 6 are well underway; it’s not really analogous to a hypothetical scenario in which, for instance, Barr would use the policy to prevent prosecutors from investigating Trump on the eve of the 2020 election.

There are also plenty of other reasons for Trump to want to announce a run for president earlier. One is that Florida Gov. Ron DeSantis (R) is gaining on him and looking like he could make the 2024 GOP primary into a real race.

Another is that Trump might indeed see some benefit in the Jan. 6 investigation — but not by exploiting this particular Justice Department policy. Rather, it might be by marshaling public support from the GOP and making a decision to investigate and prosecute him more politically arduous. Trump has proved adept at casting such investigations as witch hunts for political gain; what better way to launch your campaign than by doing so when the Jan. 6 probes are really ramping up, then casting their ultimate outcome — whatever it may be — as an effort to bring you down, just when you’re embarking on your comeback tour?

That certainly seems like the most obvious and likeliest reason.

People can take issue with what Garland is doing for many reasons; Jan. 6 committee member Adam B. Schiff (D-Calif.), among other Democrats, appears increasingly wary of the rate of progress the Justice Department is making. But this particular step isn’t necessarily symptomatic of Garland’s alleged shortcomings on that front.

Ellen Nakashima contributed to this report from New York.