The Political, Legal, and Moral Minefield That Donald Trump Left for Merrick Garland
Steps away from the Attorney General’s office, in the Justice Department headquarters, in Washington, there is a ceremonial anteroom. The stately chamber is octagonal, and across the top of its walls are fifteen words in capital letters, carved in wood, with stars interspersed between them: “THE UNITED STATES WINS ITS POINT WHENEVER JUSTICE IS DONE ITS CITIZENS IN THE COURTS.” The question of who coined the dictum is a mystery—the leading theory is that it’s the work of an early twentieth-century Prussian-American Solicitor General—but its meaning is clear. The duty of an Attorney General is to pursue the interests of the country’s citizens, not the personal vendettas of its politicians. Three months after taking office, Merrick Garland is finding that mission treacherous, thanks to a political, legal, and moral minefield left behind by the Trump Administration. Not since Watergate has an Attorney General faced such a collection of politically charged decisions regarding the actions of a President.
Last month, it emerged that the Justice Department under Donald Trump’s second Attorney General, William Barr, had obtained the phone records of journalists from the Times, the Washington Post, and CNN. Last week, the Times reported that the department under Barr’s predecessor, Jeff Sessions, had issued subpoenas to obtain from Apple the metadata of two Democratic members of the House Intelligence Committee, Adam Schiff and Eric Swalwell. The department also seized the metadata of the congressmen’s aides and family members, including one who was a minor. The legal pretense behind the actions appears to have been a probe into whether classified information regarding contacts between Trump associates and Russia had been leaked to reporters, but the political goal was clear.
In a tactic reminiscent of surveillance techniques employed by authoritarian regimes around the world, Trump tried to use the country’s most powerful law-enforcement agency—and the tech sector’s data-collecting—to smear both journalists and his political enemies. And, in an extraordinary step, Justice Department officials persuaded federal judges to issue gag orders, which kept the government’s effort secret: lawyers for tech companies and news organizations were barred from telling the politicians and the journalists that the government had obtained their information. On Sunday, the Times reported that, in 2018, the Trump Justice Department had also obtained account information from Apple that belonged to the former White House counsel Don McGahn and his wife. McGahn was only told of the seizure last month.
President Joe Biden condemned the seizure of journalists’ phone records as “simply, simply wrong,” and Swalwell called for the firing of those who had subpoenaed his and Schiff’s data. “I hope every prosecutor who was involved in this is thrown out of the department,” he said. Garland has asked the Justice Department’s inspector general to investigate the issuing of the subpoenas and said that he opposes the seizure of such records from members of Congress and reporters for political gain. “Political or other improper considerations must play no role in any investigative or prosecutorial decisions,” Garland said in a statement. “These principles that have long been held as sacrosanct by the DOJ career workforce will be vigorously guarded on my watch.”
A former federal judge who grew up in the Midwest, Garland has a decades-long reputation for centrism. His goal, a senior Justice Department official told me recently, is to demonstrate to Americans that the D.O.J. can act quietly, effectively, and impartially. To avoid any hint of political considerations impacting the department’s prosecutions, “there has to be a wall,” the official said. “He has made that abundantly clear.” Garland also believes that the D.O.J. “is not a place to be performative,” the official added—that one should speak only when it serves an “aim of the department.” But, in an era when being performative and partisan won Trump the White House, some officials question whether Garland’s approach is antiquated. A spate of recent Trump-related decisions that he has made has angered Democrats and led some to question whether a cautious institutionalist and former judge with a passionate belief in the need for fairness and neutrality can effectively counter Trump; some progressives are even calling for Garland’s ouster. “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,” Jeff Hauser and Max Moran, of the Revolving Door Project, which tracks executive-branch abuse, recently wrote in The New Republic. “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.”
In recent weeks, Garland has opposed the full release of a classified department memo that Barr had used to distort the findings of the Mueller investigation; had D.O.J. lawyers continue to defend Trump in a defamation suit filed by E. Jean Carroll, a journalist who has accused him of rape; and asked a judge to throw out civil lawsuits against Trump and Barr, which argue that the men are personally liable for the violent removal of protesters from Lafayette Square last summer. Legal experts say that Garland is simply trying to uphold past Justice Department precedents, such as government officials being immune from civil lawsuits regarding law-enforcement actions intended to secure a President’s movements. But Garland’s decision in the Carroll case prompted a rebuke from a White House spokesperson, who said that “President Biden and his team have utterly different standards from their predecessors for what qualify as acceptable statements.”
Meanwhile, Trump and his allies in Congress have been claiming that they are the victims of federal-law-enforcement abuse, a tactic that conservatives have employed against every Democratic President since Bill Clinton. At a recent House hearing on the January 6th insurrection, Representative Paul Gosar, Republican of Arizona, said that supporters of the former President were being victimized. “Outright propaganda and lies are being used to unleash the national-security state against law-abiding U.S. citizens, especially Trump voters,” Gosar said. “The D.O.J. is harassing peaceful patriots across the country.”
Legal experts say that Garland will have a tougher time restoring public faith in federal law enforcement, on both the right and the left, than any Attorney General since Watergate. Jack Goldsmith, who served in the Justice Department during the George W. Bush Administration, said that Garland faces an even greater challenge than his predecessors did after Nixon’s resignation. “That was in a much less partisan and politicized time,” Goldsmith said. “We’re so deeply divided now in ways we weren’t after Watergate.” He also predicted that Garland’s job will only grow more difficult. “It’s just much harder for Garland to operate in ways that bring bipartisan political support,” Goldsmith said. “Everything he does is going to be criticized by half the country.”
The array of politically sensitive Trump-related cases currently before the Garland Justice Department is startling. The Attorney General is overseeing the prosecution of the more than four hundred Trump supporters who were arrested in connection with the January 6th Capitol riot; the department’s response to a Republican-led recount of 2020 election returns in Arizona; its response to Republican-led efforts to restrict voting, based on Trump’s false claims of election fraud; the reinstatement of consent decrees designed to prevent police abuses; the criminal investigation of Trump’s personal lawyer and confidant Rudy Giuliani, for illegal lobbying; and a criminal investigation of Hunter Biden, the current President’s son, which was launched under Barr. Hanging over all these cases are demands from Democrats that Garland investigate whether Trump committed federal crimes while in office. “He’s going to have to make some very hard calls,” Goldsmith said.
Garland seems to be counting on a belief that most Americans, exhausted by the Trump years, will welcome his neutrality, probity, and reticence. He is betting that the dictum inscribed in the stately anteroom about pursuing justice will resonate with ordinary Americans. Trump is betting that his lies will.