Terry H. Schwadron
June 13, 2021
The already weirdly protective actions by the Joe Biden-Merrick Garland Justice Department on behalf of a legally beleaguered Donald Trump has exploded last this week into renewed belief about abuse of presidential power.
The disclosures that the Donald Trump-Jeff Sessions-Bill Barr Justice Department obtained and aggressively pursued secret subpoenas and gag orders against sitting members of Congress and political opponents has proved a step too far even for Garland, who has clearly been trying to keep his department from appearing to be sucked into our political eddies.
As a result, Garland is coming under criticism for leaning over backwards to protect Trump’s efforts, the department seems lethargic about enforcing basic tenets of protocol and fairness, internal and congressional investigations suddenly loom and lots of people are just scratching their heads about why Garland didn’t just call a temporary halt to all things in his department that involve Trump.
In his attempt to keep the department from being seen as politically vindictive and mean towards The Former Guy, Garland has let the department come under criticism for politics that protect efforts he likely sees as wrong-headed.
Make no mistake: The new disclosures show Trump and Barr, who escalated the pursuit, have much for which to answer legally. What Trump did amounts to abuse of his office; what Sessions and Barr did raises questions of legal ethics, if not law.
The New Sheriff
For the moment, however, the question is what Garland has been muscular in taking over the department in other areas, but dainty in areas touching Trump.
It’s a little weird in a department in which words like “clean-up” and “turnaround” were being thrown about with dispatch upon confirmation of a legal straight-shooter like longtime Judge Garland. Garland insists he cares a lot more about protecting the law than about who’s affected by its sweep.
By itself, that attitude has been welcomed as a return to some sanity from a Justice Department weaponized by predecessor Barr and Trump to mostly appear to interpret law as a way to promote whatever Trump needed at the moment.
In each recent decision from Justice about Trump’s own legal misfortunes, there seems a kernel of understandable legal thinking. But together, they suggest an attitude that seems way too concerned with continuing special presidential protections for the Oval Office, even when the specifics involve personal behaviors by Trump before, during or after taking office.
Equal protection under the law should mean that personally breaking the law should expose even Donald Trump to criminal or civil liability for acts outside the White House. If not now — as the presidential shield no longer applies — when does Justice look at Trump wrong-doings?
In recent days:
— Justice says it will continue to defend Trump who, while president, was accused of defaming columnist E. Jean Carroll, who says Trump raped her before he was president. Effectively, deciding that the allegedly defaming remarks while Trump was president means the case will close, because Trump will be protected by a presidential shield. The and ugly charges by a private person who was not president are being cut off at the knees.
— Justice is fighting to keep secret a memo that Barr cited to justify his decision not to charge Trump with obstruction of justice during the investigation by special counsel Robert S. Mueller III. Again, that kernel of truth is about protecting pre-decision memos circulating internally in the Justice Department — without a judgment that Barr and Trump intentionally misled the public about the contents of the Mueller Report.
— In another case, Justice lawyers suggested that the gassing of lawful protesters by police last year in Washington’s Lafayette Square was appropriate for the safety of the president. It was for a photo op, for Pete’s sake, despite a narrow internal Park Police report this week by its inspector general thought it about building a fence without talking to the other agencies involved. The timetable, video with Barr, behavior by Secret Service and others, and tear gas tell a different story.
Justice is looking at but has not publicly done anything to pursue issues with any Trump role in assembling, instructing, inciting the Jan. 6 insurrection at the Capitol or delaying the arrival of National Guards troops to quell rioting.
The Garland Justice Department has not formally entered into the legal campaign in New York courts where a grand jury is now considering criminal charges relating to operations of The Trump Organization family business.
And now, under Garland, Justice also has continued to press Barr-originated campaigns to get access to phone and email records of at least two Democratic congressmen and a minor family member, plus staff, as well as the records for reporters from multiple organizations. All those subpoenas suddenly are being dropped, Biden has promised they have no place in his administration, and we have another mess on our hands — with Donald Trump at the center of things once again.
Where’s Personal Responsibility?
The current dustup shows Trump once again to be someone who cares nothing of Constitutional limits, unless they can prove to be of personal gain, like keeping Justice from charging him with crimes as president or former president.
Through all of it, Trump himself continued to howl about being the victim of a “witch hunt” from the political Left, insists that he was defrauded of national election and owns nothing of the various activities that may have skirted legal or ethical concerns that have benefited him personally.
Trump will skate through all of it, just as he skated through two impeachment efforts, and actually is emerging through the muck and murk of legally questionable elections “audits” to threaten to offer himself as a candidate for President all over again in 2024.
Justice has been more appropriate in overturning selected policy changes under Trump that have to do with government generally. But still, Garland has surprised many by choosing to back legal interpretations that support some of the more charged cultural challenges that mark the deep political divisions.
The Justice Department said in a court filing last week, for example, that it can “vigorously” defend a religious exemption from federal civil rights law that allows federally funded religious schools to discriminate against LGBTQ students, a move that surprised some LGBTQ advocates who said the wording went further than just an obligation to defend an existing law.
But it is the cases that touch Trump personally that are rankling. In its court brief about the defamation suit, Justice acknowledged that Trump’s remarks about Carroll were “crude and disrespectful,” but that the Trump administration’s arguments were legally correct. There clearly is a lot of disagreement about this latter point, and it strikes me weird that my tax dollars are being spent to protect Trump’s personal misogynistic behavior.
As former Justice prosecutor Paul Butler described it in a Washington Post essay, “One question that kept coming up during the presidential transition was how vigorously the new administration would pursue corruption investigations against people in the former administration. Now it seems the better question may be to what lengths the Justice Department will go to defend the Trump administration’s abuse of power — with its primary concern being preserving that power for the Biden administration and beyond.”
The most important way Garland can restore confidence in the institution is by exposing the misdeeds of the previous administration and ensuring accountability.