When Justice Should Rest
Terry H. Schwadron
Dec. 7, 2020
This week, we’re expecting to hear about a new nominee from Joe Biden as attorney general, with more than average attention on the candidate’s ethnicity and leaning towards turning the attention away from protecting the Oval Office and more towards public justice.
We know the outlines of the bigger issues — there will be more emphasis from the Joe Biden administration to pursue civil rights and policing changes than on restoring firing squad executions and attacking so-called sanctuary cities.
What faces any new candidate for the Justice job is a long list of challenges towards re-balancing what the department is there to do and restoring any sense of public trust in an agency that has been openly dismissive — even lying in public and in court on cases that have had perceived bearing on Donald Trump’s political fortunes — about the work of its professional legal staff and the work of the FBI.
And even in having lied publicly to mislead the public about the findings of the Mueller Report, to help in the defense of Trump’s impeachment, to turn 360 degrees to argue against existing law to denounce Obamacare in federal suits, Atty. Gen. William P. Barr may be tossed from his job for failing to find legal grounds to make criminal filings about Trump’s fantasies about election fraud.
The new appointment will force public attention on all that.
What attracts my attention today are actions that new Justice leadership can take towards righting the listing shop by simply standing down.
Just Stand Down
Here are several examples, that don’t involve some giant legislative or prosecutorial shift:
— Against all legal (or political) logic, Barr decided to commit the Justice Department to intervene in the New York state civil suit over charges of defamation from columnist E. Jean Carroll, in which she alleged that Trump had raped her in a Bergdorf Goodman department store long before he was president.
This is a civil complaint that in calling her out, Trump had defamed her — since she claims truth of the original details, and is seeking both a Trump deposition and DNA. Barr decided that it was the business of the Justice Department to protect the president — despite the fact that this is not in federal court and happened before Trump was in office.
The judge in the case has refused to throw out the complaint, as Trump and Justice had asked. But a new attorney general should simply stop — and butt out of the case.
— The same is true for New York State demands for tax returns from Trump and his companies — all from years preceding the presidency. The new attorney general should simply get out of the way and let the state courts operate. Those tax returns would seem evidence for schemes to avoid paying taxes both to the federal government and to the state.
There are other lawsuits pending as well — all of which should proceed without involvement of the Justice department.
Just doing nothing to insist that the White House disregard for law here would be an action worth note. It applies to policies as well.
— The decision in a federal court in Brooklyn ordering the Trump administration to fully restore the DACA Dreamers (Deferred Action against Childhood Arrivals) case would be appealed immediately under Barr. An incoming attorney general can simply let it exist and follow the law.
— Likewise, the incoming attorney general should halt the efforts of the Justice Department in a case accepted for argument before the U.S. Supreme court over interpreting the Medicare and Medicaid statutes into tools to require efforts to get work — during a pandemic and widespread joblessness — in return for health benefits. The timing is such that the case likely will proceed, of course, but the point is that the federal Solicitor General who argues these cases can stand down in the name of making Trumpism into law.
Attitudes on Political Prosecution
The Washington Post editorial board pointed at another such case. Under Trump, the administration “has thwarted justice at every turn for Bijan Ghaisar, the unarmed 25-year-old accountant shot to death in 2017 by two U.S. Park Police officers following a fender bender near D.C. despite the fact that he posed no threat.” The editorial advised that the Biden administration could send an early signal that it is committed to accountability when police wrongly kill civilians — even or especially if the police happen to be federal officers — by dropping the case for a negotiated settlement.
Biden himself has said he has little personal interest in pursuing prosecution of Trump administration officials, even while saying forcefully that Trump is abusing pardon powers by protecting his own campaign associates and friends, as illustrated by the pardon for former National Security Adviser Michael T. Flynn.
Yet, in a note of special obsession, Barr has extended the term of U.S. Attorney John Durham by making him a special counsel in continuing to investigate the origins of the Russia investigations growing out of Trump’s 2016 campaign. That effort is aimed, of course, right at Barack Obama and Joe Biden, James Comey and the FBI.
What one side sees as political prosecution apparently doesn’t apply to the other side.
Today’s homily: Maybe doing nothing in these politically tinged cases is sufficient at this point.