June 08, 2021
The New Republic
Monday night, Merrick Garland’s Justice Department shocked a lot of people by filing a brief in federal court effectively shielding Donald Trump from justice in a defamation suit over credible allegations that Trump may have raped writer E. Jean Carroll in the mid-1990s. Bill Barr, Trump’s attorney general, had come up with the argument that as a federal employee, Trump could not be sued for defamation. Observers had widely expected Biden’s department to reject that claim, so the announcement left Carroll’s lawyers and many observers slack-jawed.
It shouldn’t have. On several key matters, Garland’s DOJ has concealed the full extent of Trump’s wrongdoing; it has kept thousands of immigrants from obtaining green cards, while flooding the immigration system with Trump-selected judges; expanded the scope of police power; ensured oil and gas profits for decades to come; and explicitly protected one of Trump’s most hated Cabinet secretaries from accountability. Indeed, Garland has quietly emerged as Donald Trump’s unwitting hatchet man, doing almost everything in his power to protect the lawless former president’s legacy.
On May 24, Garland committed the DOJ to keep much of the so-called “Barr memo”—through which Garland’s predecessor almost unilaterally decided that no part of the Mueller probe would result in criminal charges—secret. Even Trump enemies who scoffed at the Russia probe should be disturbed by Garland’s other decisions, though. He has committed the DOJ to defending a Trump-era policy slashing the number of legal immigrants who qualify for green cards. He’s hiring dozens of new immigration court judges who received their initial offers during the Trump era, and codified Trump-era rules restricting immigrants’ options to prevent their own deportations. Garland’s Civil Rights Division also remains perilously understaffed, enormously hampering its ability to conduct oversight of municipal police departments. It also pursued private chat logs between government employees and reporters, a censorious case that began in the last 15 days of the Trump administration.
Late last month, the Justice Department urged a federal judge to dismiss lawsuits against Trump and former Attorney General Bill Barr over their decision to tear-gas Black Lives Matter protesters near the White House last summer so that the president would be able to take a photo near a church, holding the Bible upside-down. While Garland repeated throughout his confirmation process that he’d prioritize tackling white supremacy, almost six months into the administration, no part of the federal government has a plan for rooting out white supremacists who serve in federal law enforcement roles.
Meanwhile, Garland’s DOJ is actively defending a new oil project in Alaska that was cleared under Trump’s shams of environmental tests and may generate new oil for 30 years. In its filing, the DOJ explicitly said that the Trump administration adequately considered the new site’s effect on wildlife and greenhouse gas emissions. Garland is also maintaining support for a new oil pipeline in New Jersey and isn’t rescinding Trump-era briefs that made it harder for states to sue Big Oil over downplaying the risks of climate change.
And some of Garland’s lieutenants are almost as hackish and corporate as any Trump appointee. His acting assistant attorney general for the civil division, Brian Boynton, represented Google, Eli Lilly, and the notorious for-profit University of Phoenix just one year before entering the department—where Boynton wrote a legal brief protecting Trump Education Secretary Betsy DeVos from testifying about for-profit schools defrauding indebted students. (The courts, thankfully, ruled against Boynton’s position.) Acting Solicitor General Elizabeth Prelogar likewise represented Big Tech (Facebook, Uber, Snap, Twitter) and Big Pharma (Amgen, Lumos, Syneos) just months before revolving into the department.
Oh, and Garland’s still shielding Trump’s tax returns from Congress.
Why is Garland doing all of this? To be clear, he is not secretly a devout Trumpist who’s wiggled his way into the highest levels of the Democratic Party. Rather, Garland is doing exactly what his most ardent supporters said he would upon his nomination: leading the Department of Justice the way he remembers it from his first DOJ stint in the 1990s.
Garland, in other words, is trying to treat Donald Trump as if he was a normal president, and his policies as if they were normal policies. It is long-standing practice at the DOJ mostly to maintain the legal positions established by the previous administration, so that the department looks like a singular, consistent entity insulated from political manipulation. That’s arguably a generally sensible policy, if a bit of a legal fiction. The problem comes, as we’re seeing, when a new administration inherits a DOJ that actually was subject to political manipulation—more than that, a DOJ that was run like a personal protection unit for a cartoonishly corrupt, fascistic president.
Trump did near-fatal damage to the rule of law through his abuse of the Department of Justice. Let’s not forget that in the waning days of the Trump administration, DOJ lawyers hatched a harebrained, treasonous plan with the president to deny certification of the election and maintain Trump’s presidency. It was Trump’s Deputy Attorney General Rod Rosenstein, another onetime center-left icon, who gave direct orders to separate migrant children from their parents in order to try their parents in immigration court. Meanwhile, the Trump era saw all-time lows for white-collar crime enforcement, allowing the wealthy and well-connected to do with the nation as they pleased.
Garland ought to be undoing all of that damage—that is what Biden promised to do throughout his presidential campaign. But this is in deep tension with institutional norms at the DOJ which Garland, and many other elite lawyers, hold in high regard. If Garland sees his primary duty as reasserting the norms of the DOJ itself, rather than actually enacting justice, then he must treat Trump as if he was any other president, by definition. That’s what the DOJ does.
We’re seeing a scary example of how liberalism’s belief in process itself, rather than the ideals that processes are supposed to help execute, can be easily manipulated by bad-faith, far-right actors. When standard procedure is sacrosanct, all that the right needs to do is make it standard procedure never to hold it accountable. Notably, Garland consistently promised “that politics would play no role in his decisions” during his confirmation hearing, after numerous prompts by Senate Republicans. That’s intentional. The GOP was framing it as wrongfully partisan to reverse course from the most wrongful, partisan, and most importantly, anti-democratic president in history.
Garland, of all people, should be aware of this: It was a similar idolatry of process itself that robbed him of a Supreme Court seat in 2016. There was nothing technically illegal about then–Senate Majority Leader Mitch McConnell denying Garland so much as a confirmation hearing; it was just clearly wrong, violating the spirit of representative democracy. Despite the fact that some legal theories held that the Senate was granting Garland consent through its inaction, Democrats—believing that responding in tit-for-tat fashion to the GOP’s norm-breaking would be intolerably ignoble—did not play a card in opposition. One would think that Garland would have learned that following norms matters less than actually doing the right thing, but here we are.
At this point, Garland himself is beyond saving. If a man robbed of a Supreme Court seat by far-right ideologues still carries water for an even further-right former president, he is simply not going to wake up and care about the actual effects of his actions. The question is where this leaves President Biden.
On some issues, particularly within domestic policy, Biden has proven willing to break business as usual in order to achieve his goals. He nominated anti-monopolist Lina Khan, who cut her teeth calling for a total overthrow of current antitrust doctrine, to the Federal Trade Commission. He supports eliminating the core of the filibuster, the single most damaging example of fixating on process at the expense of results.
Yet his core persona on the campaign trail was of a consummate deal-maker who could bring Republicans to the table (he hasn’t and won’t). Recently, Biden has cowered at Republican obstruction of his infrastructure bill, preemptively lowering its price tag. This self-defeating self-negotiation is the exact same trick that crushed Barack Obama’s legislative agenda, and it again rests on Republicans exploiting Democratic love of process (getting likely nonexistent bipartisan votes on a major bill) over outcomes (actually getting a major bill passed).
Biden’s presidency will not succeed in its (hopeful) central goal of improving people’s lives unless he reverses this trend and simply “gets things done.” One way to ensure that doesn’t happen is to keep an attorney general hindering that goal at every step, whose dogma of following the rules has already undercut the administration on everything from democracy reform to climate change. An attorney general who doesn’t treat Trump like the unique threat he was, and doesn’t wake up every day raring to neutralize his influence on society, isn’t an attorney general Biden can afford. Every day Biden keeps Garland in charge of his legal agenda is a day Trumpism is normalized, and the inevitable battle against it in 2024 gets that much harder.