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Is Merrick Garland letting Trump’s people off the hook?

The debate over the attorney general’s reckoning with Trump’s legacy, explained.

US Attorney General Merrick Garland exits his aircraft at Midway International Airport on July 22, 2021, in Chicago.
Samuel Corum/Getty Images

Trump critics’ anxiety over Attorney General Merrick Garland is mounting.

The former federal judge has promised to restore the independence of the Justice Department after years of Trump-related controversies. But a narrative has formed that Garland is too set on moving forward, and not focused enough on bringing wrongdoers associated with the Trump administration to justice.

For instance, Washington Post columnist Jennifer Rubin switched from praising Garland in May for putting “justice” back in the Justice Department to declaring him in June the “wrong man for the job.” Many in the liberal legal community have made similar critiques, as have government ethics advocates.

The criticisms of Garland focus mainly on three different sets of issues.

First, his DOJ has made certain arguments in civil lawsuits originally aimed at President Trump and his appointees. Under Garland, for instance, the department has continued defending Trump against a defamation lawsuit from E. Jean Carroll, and they’re trying to keep Bill Barr’s deliberations over the Mueller report secret. DOJ officials argue that they’re looking out for the prerogatives of the presidency and the executive branch and correctly applying the law, but critics say they’re unreflectively defending malfeasance.

Second, Garland has taken a relatively hands-off approach to reviewing potential misconduct from Trump’s Justice Department. Rather than initiating a broad review himself, he’s left individual issues of concern to the department’s inspector general to handle.

Finally, there’s a fear that the department won’t aggressively pursue merited criminal investigations against Trump or his associates. This is the toughest to assess, since so much of this decision-making happens behind the scenes. Still, last week’s indictment of Trump campaign adviser Tom Barrack and the raids of Rudy Giuliani’s home and office in April do seem to make clear there’s no generalized amnesty for Trump-affiliated lawbreakers.

The common theme is a worry among Garland’s critics that the wrongs of the Trump administration are being unaddressed, out of a desire to move on. There may be some truth to that, but the fuller story is more complicated and nuanced.

The civil lawsuits

Because the DOJ’s decision-making on criminal cases is opaque, much of the tea-leaf reading about Garland’s priorities has focused on arguments the DOJ has made in public — in civil lawsuits. In recent months, the department has:

  • Continued defending Trump against a defamation lawsuit from E. Jean Carroll (while president, Trump had disparaged her and denied her allegation that he raped her years earlier)
  • Tried to keep Bill Barr’s deliberations over the Mueller report and government documents about Trump’s DC hotel lease secret
  • Argued that a lawsuit against Trump and Barr over the clearing of Lafayette Square during last summer’s protests should be tossed

As appalling as these arguments may seem to liberals, they’re actually quite normal as far as the Justice Department goes. That is: They’re being made in an effort to defend the powers and prerogatives of the president, the Justice Department, or the executive branch as institutions. (Keep in mind these are arguments the government has chosen to make in civil lawsuits before judges — in the end, each judge will make a call on whether those arguments are convincing.)

For instance, their intervention in Carroll’s defamation suit “concerns the purely legal question of whether a president may be subject to a private lawsuit for comments he made during an interview while in office,” George Washington University law professor Randall Eliason writes.

But Garland’s critics have been arguing that much of what happened during the Trump years was not normal. They also make the point that just because the Justice Department can and has traditionally made maximalist arguments for the executive branch, that doesn’t mean they have to do so, or should do so.

There are also signs, though, that the department is assessing each issue on its merits, rather than blindly defending everything the executive branch does. For instance, this week the department declined to argue that Rep. Mo Brooks (R-AL) should be protected from a civil lawsuit about his speech to Trump supporters on January 6 — those comments were not part of his official duties as a member of Congress, they said.

Justice officials also made clear this week that they would allow former Trump officials to give unrestricted testimony to the congressional committee investigating January 6. (In the past, they’ve often tried to set limits on such testimony, to protect executive branch deliberations.)

Potential misconduct in Trump’s Justice Department

Garland has also faced criticism over how he’s handled reviewing his predecessors’ actions at the Justice Department. During Bill Barr’s controversial attorney general tenure, he and his subordinates were often accused of acting to help Trump’s friends and target Trump’s enemies.

But Garland has opted not to launch a broad review of Justice Department officials’ actions during the Trump presidency. Garland has also, as far as we know, shown no inclination to reexamine criminal investigations that were closed or declined during the Trump administration. (Though if the Justice Department were doing that, they’d hardly broadcast it.)

Instead, he’s opted to let Inspector General Michael Horowitz take the lead in reviewing misconduct. Before Garland was sworn in, Horowitz had already launched investigations of Trump Justice officials’ actions regarding the 2020 election. More recently, Garland tasked Horowitz with investigating whether the department had improperly obtained data from reporters or members of Congress.

Horowitz was confirmed to the Justice Department’s IG post (an internal watchdog role) in 2012, under the Obama administration. But he was a nonpartisan figure who had deep roots in the department and had worked under presidents of both parties. And during the Trump years, he came to some rather harsh findings about the conduct of top FBI officials like James Comey and Andrew McCabe.

The case-by-case nature of Horowitz’s reviews, though, means those hoping for a sweeping reckoning with the conduct of Trump’s Justice Department leaders will be disappointed. As the Washington Post’s David Montgomery recently wrote in a deeply reported profile, “Merrick Garland will not deliver your catharsis.”

Criminal investigations

But the biggest question about how Garland’s Justice Department handles Trumpworld is what will happen with criminal investigations.

Here, there isn’t, and shouldn’t be, any one-size-fits-all answer — investigatory and charging decisions should be made based on the law and the facts in particular cases. It’s also just tough to say what is even going on here because we don’t know what is and isn’t being criminally investigated (unless it leaks). Furthermore, it would arguably be inappropriate for Garland to try to micromanage such cases — Barr got a heap of criticism when he tried to do so.

Having said that, it’s certainly possible that Garland could appoint a politically cautious team more likely to shy away from bringing controversial cases, even if the facts merit them. But is that happening?

The main known federal investigation looming over Trumpworld has been the one into Rudy Giuliani’s foreign activities. This probe was launched back in 2019, but the searches of Giuliani’s home and office by federal agents this April make clear it’s very much alive.

Then, last week, another long-dormant investigation — one into Trump ally and former campaign adviser Tom Barrack — burst into public view when Barrack was charged with acting as an agent of the United Arab Emirates.

Notably, there were reports that both the Giuliani and Barrack investigations faced some resistance from Trump Justice Department appointees last year. But now both investigations are moving forward under Garland. And as Marcy Wheeler writes, this is an encouraging sign that Garland’s DOJ will not shy away from controversial cases due to fear of political backlash.

So there are some active investigations we do know about. The tricky thing, though, is that we don’t know what we don’t know. Officials could have opted against investigating some matters based on reasonable factual or legal judgments. There could be politics-driven hesitation. Or there could be other investigations that haven’t yet leaked out into public view.

For instance, there is no known federal investigation that is currently believed to place Donald Trump at serious risk of criminal charges. There’s been much speculation that he could be investigated for either his business practices or his attempt to overturn the 2020 election result. New York state prosecutors have filed charges regarding the former, and Fulton County prosecutors in Georgia are investigating the latter, but there’s been no sign yet that the feds are investigating either.

There are also various investigations that Barr’s Justice Department closed or affirmatively declined to open in the first place — into Trump for obstruction of justice, into Trump regarding hush money payments, or into Cabinet officials like Elaine Chao or Wilbur Ross. So far, there has been no sign that Garland’s DOJ is revisiting those decisions (though if they were, they wouldn’t necessarily rush to tell the media). Arguably, it would be inappropriate to reopen those decisions without a very good reason.

Overall, the unsatisfying answer is that we don’t know what will happen here. Garland may have declared that he is “not going to look backward.” But his prosecutors could well feel differently.

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