Merrick Garland fights efforts to hold Trump accountable
The Justice Department is opposing the full release of a memo related to former AG William Barr clearing Trump of obstruction. After Special Counsel Robert Mueller wrapped up his investigation, the DOJ’s Office of Legal Counsel (OLC) provided Barr with an argument – serving as political cover – that Mueller’s report “could not, as a matter of law, support an obstruction charge” against former president Trump. Barr wrote a letter to Congress hours later misrepresenting Mueller’s findings and proceeded to withhold the report for three weeks.
U.S. District Judge Amy Berman Jackson ordered the OLC memo released last month, criticizing Barr for being “disingenuous” and misleading the court about the true purpose of the memo (PDF):
…the redacted portions of Section I reveal that both the authors and the recipient of the memorandum had a shared understanding concerning whether prosecuting the President was a matter to be considered at all. In other words, the review of the document reveals that the Attorney General was not then engaged in making a decision about whether the President should be charged with obstruction of justice; the fact that he would not be prosecuted was a given…
A close review of the communications reveals that the March 24 letter to Congress describing the Special Counsel’s report…and the “predecisional” March 24 memo…are being written by the very same people at the very same time. The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first…
And of even greater importance to this decision, the affidavits are so inconsistent with evidence in the record, they are not worthy of credence…not only was the Attorney General being disingenuous then, but DOJ has been disingenuous to this Court with respect to the existence of a decision-making process that should be shielded by the deliberative process privilege. The agency’s redactions and incomplete explanations obfuscate the true purpose of the memorandum, and the excised portions belie the notion that it fell to the Attorney General to make a prosecution decision or that any such decision was on the table at any time…
So why did the Attorney General’s advisors, at his request, create a memorandum that evaluated the prosecutive merit of the facts amassed by the Special Counsel? Lifting the curtain reveals the answer to that too: getting a jump on public relations.
In a court filing last week, Merrick Garland’s DOJ took up the fight started by Barr, appealing Jackson’s ruling that the memo must be released in full. Department lawyers apologized for its previous assertions but maintained that it had not set out to deceive the court (PDF):
In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused. But the government’s counsel and declarants did not intend to mislead the Court, and the government respectfully submits that imprecision in its characterization of the decisional process did not warrant the conclusion that [the OLC memo] was unprotected by the deliberative process privilege. Nor does it warrant the conclusion here that the distinct deliberative material in Section II of that document is unprotected.
The government’s case to keep the memo secret relies on the argument that the material is covered by deliberative process privilege. In other words, the DOJ continues to contend that Barr relied on the OLC memo in his decision-making, despite Jackson’s evidence that the OLC memo was written in cooperation with Barr as part of a “public relations” operation to protect Trump.
Why is Garland fighting in court to seemingly shield Barr and Trump from scrutiny? The answer is not about Trump or Barr, actually, but about the Department of Justice itself. Garland is an institutionalist who seeks to protect the power of the Department. The institution does not lie, it does not look backward, it does not question itself. A similar line of thinking is seen in Congress, where Sen. Kyrsten Sinema believes institutional procedures like the filibuster are necessary and “behavior” should be changed instead.
This kind of institutionalist response is, of course, precisely what Barr and Trump and the rest of the GOP always banks on. They know they can commit crimes with impunity while in power because they know that Democrats will never go after them when their party is back in control. They know they can destroy whatever institution they run because they know that Democrats will waste all their time trying to rebuild the institution instead of capitalizing on their power. They know they can deface the country because the Democrats will always be there trying to wash away the mess instead of prosecuting the vandals.
Further reading: “Senate Judiciary Dems Press DOJ To Not Appeal Federal Court Decision Ordering Release Of Key Memo Related To Mueller Report,” Sens. Durbin and Whitehouse press release. “DOJ watchdog urged to investigate lawyers behind Barr memo redactions,” The Hill.
The DOJ is also asking a federal judge to dismiss multiple lawsuits filed against Trump and Barr for violently clearing Lafayette Square of protesters last summer. The crowd of 1,000 largely peaceful racial justice demonstrators were cleared from the space with stun grenades, pepper balls, and tear gas to make way for Trump to walk from the White House and hold a photo-op in front of St. John’s Episcopal Church. The ACLU and Black Lives Matter filed suit against Trump, Barr, and other officials for depriving protestors of their civil rights (PDF):
Defendants’ actions to shut down the Lafayette Square demonstration is the manifestation of the very despotism against which the First Amendment was intended to protect. This action seeks to uphold, against uncivil, unwarranted, unjust, and blatantly unlawful attack, cherished rights enshrined in the First and Fourth Amendment to the Constitution and foundational to our Democracy: the rights to peaceful assembly, petition for redress of grievances, freedom of speech, freedom of the press, and freedom from unwarranted seizures by the government.
Officials are immune from civil lawsuits over actions taken to protect a president, DOJ lawyers argued in court, pointing to a 2004 Supreme Court ruling that Secret Service agents could not be sued for moving protestors two blocks away from then-president George W. Bush.
Lawyers for the ACLU said that despite legal precedents, the government’s defense would “authorize brutality with impunity” in the heart of Washington at one of the most symbolic spaces within the seat of the federal government.
If their defense was upheld, U.S. authorities “could have used live ammunition to clear the park, and nobody would have a claim against that as an assault on their constitutional rights,” said Scott Michelman, legal director for ACLU-D.C.
Biden’s administration has so far refused to hand Trump’s tax returns over to the House Ways and Means Committee, worrying Democrats that the DOJ will fight the release to the end. CNN reports that the Justice Department wants a return to normalcy, which to Garland includes “refraining from using the department to relitigate controversies from the previous administration.”
It’s “a return to business as usual for DOJ — and not DOJ swinging as frantically to an anti-Trump agenda as it did to the pro-Trump one that I and many other observers abhorred,” said Norm Eisen, a former Obama administration ethics official and House Judiciary Committee consultant in 2019, when the panel first subpoenaed McGahn, and a CNN legal analyst.
“I appreciate the independence. I don’t always agree with the positions,” said Eisen, who would like to see more released by the Justice Department. “They’re going to act with that same independence in defense of what they perceive to be in the long-term interests of the executive branch.”
Opinion: Far from bringing about a sense of normalcy, hiding corruption and abuse under Trump will prevent the return of normalcy. Transparency is key to regaining trust and to reforming government so another Trump cannot occur. By concealing the former administration’s crimes and misdeeds, Garland is only making it easier for a future Trump to do the same – or worse.
And finally, some good news:
After weeks of negotiation, the Justice Department finally reached an agreement to allow former White House lawyer Don McGahn to testify before Congress. McGahn is set to provide testimony about his role in the Russia investigation to the House Judiciary Committee behind closed doors today. Some may believe that the hearing is going to blow the case open, but it seems more likely that it simply confirms what we already knew.
Also in question is how to balance executive privilege with the right of Americans to know of governmental abuses. As Steve Vladeck, a professor of law at the University of Texas, explains:
“In order to actually get what it wanted, Congress basically had to abandon its wins” in court. “That’s the big lesson here: these compromises aren’t really compromises; they’re Congress believing that something is better than nothing.”
“A ‘win’ at the end of the day . . . is not getting a favorable court ruling, it’s getting information in a timely manner,” [Josh Chafetz, a law professor at Georgetown University, added].