Merrick Garland took the helm of the United States Justice Department three months ago, guided by a brilliant legal mind and the best of intentions. So many of us were filled with hope. His swearing-in ceremony this March signaled the end of an era during which former Attorney General William Barr targeted President Trump’s enemies and sought to protect him and his cronies from facing the consequences for criminal and corrupt behavior.
That hope is fading. In late May, Attorney General Garland chose to back several of Bill Barr’s bad faith legal moves. When publicly confronted at a Congressional hearing last week, he curiously claimed that he had no choice. The law, he said, compelled him to do so.
Then, late Thursday night came bombshell reporting from the New York Times. The paper revealed that during the Trump administration, the Justice Department secretly subpoenaed Apple for phone data from Democratic members of the House Intelligence Committee, which was investigating Trump, and also from their aides and even family members. Disturbingly, several of the attorneys involved still work for the Justice Department, and the gag order forbidding Apple from telling those targeted continued into early May, well within Garland’s term. Yet, according to Rachel Maddow, neither Garland nor Deputy Attorney General Lisa Monaco knew anything about the congressional phone record subpoenas until the news broke.
More Than a Migraine
This is Merrick Garland’s Tylenol moment, and by which I mean he has more than a headache but a poisoning on his hands. Both his legacy and our trust that no one is above the law in America are in peril. To meet the moment, Garland would do well to follow the model of James Burke, the former CEO of Johnson & Johnson.
In the 1980s, Burke handled two separate public relations crises stemming from Extra-Strength Tylenol capsules laced with cyanide. In September 1982, seven people who purchased the poisoned pain relief pills from Chicago stores died. Burke went on television to apologize and immediately pulled an estimated 31 million bottles of Tylenol capsules off the shelves nationwide, at a cost of $100 million. Within just a month of this tragedy, the FDA mandated tamper-resistant packaging for over-the-counter drugs. In 1986, when a customer in New York died after ingesting a cyanide-laced Tylenol capsule, Burke issued another recall, and J&J began only selling the pills in tablet form.
Many believed the company would never regain public trust after the poisonings, but Burke’s at-the-time unorthodox candor and concessions worked wonders.
At 68, Garland is in a similar situation, but with some distinctions. With the Tylenol scare, we still don’t know who the culprit was. With the poisoning of the Justice Department, we do know—it was an inside job. Still, the only way to restore trust is to address the public, discuss the tampering honestly, and throw out the poison, not ask us all to drink more of the Kool-Aid.
Let’s get specific about the Barr-era poison-laced positions that Garland’s DOJ is continuing to defend.
Covering Up Mueller Report Findings
Special Counsel Robert Mueller’s Report on Russian Interference in the 2016 Election was released to the public on April 18, 2019 (in redacted form). Volume II provided a clear, detailed roadmap for a post-term prosecution of Donald Trump for a variety of obstruction-of-justice offenses. The Report noted that while the Justice Department policy forbids prosecuting a president while in office, “Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”
This should have been a bombshell. But, thanks to Barr’s words and actions almost a month earlier, selling the report as an exoneration of Trump fizzled. (In a particularly egregious headline, the New York Times said that Mueller exonerated Trump, not even attributing it to Barr.) By the time we got to read the report, Barr’s characterizations had been disproved, but by then the press and public yawned.
Let’s recall what Barr did. On March 22, 2019, the Justice Department received a confidential copy of the 448-page Mueller Report. A former AG and political player for decades, Barr surely saw how damaging it was, so he did not share it. Instead, two days later, on March 24, Barr delivered a four-page letter to Congressional leaders (which was then released to the public). The letter purported to “summarize” the Mueller Report’s “principal conclusions.” But Barr did not provide a truthful summary; he concocted a cynical spin.
Regarding obstruction of justice, Barr said Mueller had concluded that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”
This was a shocking revelation. Even without seeing the whole report, I understood this left the door open to possibilities. In a Politico roundup published that day, I contended that “Barr’s conclusions are not credible.” It took reading between the lines to appreciate his hustle. But, instead of respecting Mueller’s refusal to clear Trump, Barr told Congress that this meant it was now his job to come to a legal conclusion. But, it was not. Doing so undermined the entire purpose of the Special Counsel statute, which was not to leave such a decision in the Attorney General’s hands. Barr claimed that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
Thanks to Barr, many wrongly believe Mueller exonerated Trump. Around 60 percent of Americans either thought the president had been cleared or were unsure. Only 40 percent correctly understood that Mueller did not exonerate Trump.
Disappointingly, Merrick Garland’s Justice Department chose to continue the cover-up. Here’s a little background to explain how this happened and the alternative path Garland could have taken.
Back in April of 2019, Barr said that he relied on advice from the Justice Department’s Office of Legal Counsel before drafting his March 24 communication to Congress about the Mueller Report. In response, the non-partisan, public interest organization Citizens for Responsibility and Ethics in Washington (CREW) sued the Department under the Freedom of Information Act (FOIA), requesting all related documents.
By late 2020, while Barr was still Attorney General, the CREW case was at the summary judgment stage. This is when both parties ask the judge to rule in their favor without the need for a trial. At the time, the Department told the judge that one of the documents that CREW wanted was protected from public disclosure under the FOIA law under the “deliberative process privilege.” They argued this particular March 24, 2019 memo from the Office of Legal Counsel to Barr was “pre-decisional” as they claimed it was given to Barr before he made his final decision on whether Trump obstructed justice. And they claimed that it was “deliberative” because it was provided to aid him in his decision-making process.”
On May 4 of this year, Judge Amy Berman Jackson called bullshit on those claims, to put it mildly. In a stinging opinion, she ruled in favor of CREW and ordered Garland’s Justice Department to hand over the memo. She called Barr “disingenuous” and said that the sworn statements provided to her about the memo prior to her own examination of it turned out to be “so inconsistent with evidence in the record, they are not worthy of credence.” Berman Jackson wrote that “there was no decision actually being made as to whether the then-President should be prosecuted.” She saw the DOJ as “girding for a preemptive strike on the Mueller report.” The memo was not shielded as pre-decisional legal advice.
As I wrote in the Washington Monthly at the time, this was Garland’s inflection point. It would have been so very easy to decide not to appeal and to allow the memo to be released. Instead, Garland’s DOJ lawyers doubled down on the deception.
On May 25, Garland had his team ask Judge Jackson to stay her order (put it on hold) so they could keep the memo hidden while they appealed her decision. In response, CREW accused Garland’s DOJ of continuing to mischaracterize as legal advice Barr’s efforts to vindicate Trump. “In truth, as this Court implicitly recognized, DOJ seeks to manufacture a decision-making process to hide from the public Attorney General Barr’s use of the powers of his office to protect the President.”
Garland’s decision shocked and disappointed many experts. Former Solicitor General Neal Katyal penned an opinion piece arguing that “the American people have a right to see the memo. Then they can decide whether Mr. Barr used his power as the nation’s chief law enforcement officer as a shield to protect the president.” As Katyal wisely noted, if the Department was worried about precedent, it could voluntarily release the memo without conceding that FOIA compelled this.
Garland, who served on the D.C. Circuit Court of Appeals from 1997 to 2021, might have additionally justified releasing the memo to the public on principle. Anyone with eyes could see that both Barr and Justice Department lawyers (still employed by Garland) misled a federal judge. A strong manager would make it clear that dishonesty would no longer be tolerated under his leadership. As a former DOJ prosecutor—after the Oklahoma City bombing Garland left private practice to prosecute domestic terrorism—Garland should have been incensed. As Bob Dole used to say, “Where’s the outrage?”
Joe Biden refreshingly revealed his anger on day one. On January 20, during a virtual swearing-in ceremony for his new appointees, Biden drew a clear distinction between the past administration. Under him, he insisted, everyone would be “entitled to be treated with decency and dignity. That’s been missing in a big way the last four years.” He said, “I’m not joking when I say this: If you’re ever working with me and I hear you treat another colleague with disrespect, talk down to someone, I promise you I will fire you on the spot. On the spot. No ifs or buts.” Where’s the respect for the public and the judge who federal prosecutors misled?
While still reeling from this, two weeks later came news of another bad decision.
Taking Trump’s Side Against a Rape Victim
On June 7, in a brief filed by the Department of Justice in federal court, Garland extended Barr’s battle to block alleged Trump rape victim, E. Jean Carroll, from pursuing a defamation case against him.
The pattern here is disturbingly similar to the Mueller Report cover-up. A federal judge called the Barr Justice Department’s arguments garbage. Garland had the perfect opportunity to break from Barr but chose instead to double down.
Here’s the background. On June 21, 2019, before the release of her memoir, What Do We Need Men For, advice columnist E. Jean Carroll published an excerpt in New York magazine in which she accused Donald Trump of raping her in a Bergdorf Goodman dressing room in the mid-1990s. She confided in two close friends after the assault: one advised her to go to the police, and the other urged caution because Trump could ruin her career. She says she remained silent for decades.
That June, Trump immediately lashed out first by voluntarily issuing a statement to media outlets, then responding the following day to a White House reporter. He claimed, “I never met this person in my life,” and that people like her “should pay dearly for such false accusations.” When a photo surfaced of them together at a social event from the late 1980s, he reiterated, “I have no idea who she is,” and added that “it’s a total false accusation.” In an exclusive interview, he also told a Hill reporter, “Number one, she’s not my type. Number two, it never happened. It never happened, OK?”
Based on these statements about her, in November 2019, Carroll sued Trump in his personal capacity for defamation in New York state court, an avenue that ironically was opened to her by the Rehnquist Court in the Paula Jones case when Republicans sought to bring down a Democratic president. A month later, Elle magazine, where Carroll had an advice column for 26 years, terminated her well before her contract was to end. In January 2020, she sought Trump’s DNA to determine whether unidentified male genetic material found on the dress she was wearing was his. For nearly a year, her lawyers Roberta Kaplan and Joshua Matz of Kaplan Hecker & Fink won battle after battle. And Trump’s personal counsel used every tactic to stall.
Then on September 8, 2020, Barr stepped in, literally making a federal case out of it. He had one of the top Department of Justice career attorneys certify that Trump was “acting within the scope of his office as President of the United States when he publicly denied as false” Carroll’s allegations. And, he asked a federal court in New York to substitute the United States government for Donald Trump as the sole defendant, which would then ultimately result in the case being dismissed entirely if the court also agreed that Trump was acting in his scope of employment. Barr claimed this “was a normal application of the law. The law is clear.” But it was not normal, and the law is not clear. In fact, the Justice Department lawyers did not even have the courage to appear before the judge at the scheduled oral argument, leaving the judge to rely on written briefs alone.
On October 27, Judge Lewis Kaplan told Barr’s Justice Department to take a hike. The 61-page opinion exquisitely sets out the legal basis for his ruling. He concluded that a president is not an employee under the relevant federal statute and that even if he were, the statements Trump made about Carroll were not within the scope of his employment. Therefore, the proper defendant in the case, according to Judge Kaplan, is Donald Trump, not the U.S. Government. The DOJ appealed.
That’s where the case stood until June 7. Garland could have dropped the case, thereby allowing E. Jean the DNA she sought and her day in court—but he didn’t.
Represent the American People
On Wednesday, June 9, during a Senate subcommittee hearing, Sen. Patrick Leahy (D-Vt.) asked Garland, “In the past few weeks your department has endorsed some highly controversial positions taken by the former president’s Justice Department. How is this coming about?”
Garland replied, “Our job at the Justice Department in making decisions of law is not to back any administration previous or present. Our job is to represent the American people.” He added, “And our job in doing so is to ensure adherence to the rule of law, which is the fundamental requirement of a democracy.”
Representing the American people involves being honest about the policy decisions being made. Defenders of Garland, including Washington Post columnist Eugene Robinson, said he is right to be cautious before reversing “positions taken by the Justice Department during the Trump era.” But, this points to policy, not law. Robinson wrote that the policy here is that “The meaning of the law does not change depending on who is in power. We should all swallow hard and accept Garland’s general commitment to some measure of continuity because the alternative can be much worse.” With great respect to Robinson, I could not disagree more. I refuse to swallow this Kool-Aid. We expect rogue AGs to be overruled.
The job of this Attorney General is to be open and honest about the poison-laced positions taken by Bill Barr, not to pretend otherwise. A world in which Republican Attorneys General play loose with the law and Democrats feel obliged to defend them out of a misguided sense of institutional integrity is one placing comity over justice and precedent over truth. This is a cult-like adherence to falsehood for some greater good. When it comes to avoiding cyanide poisoning, we need a James Burke, not a Jim Jones.