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The Problem with Garland Isn't Garland -- It's the Problem of the Future DOJ
A discussion that's a few months old but still relevant, imo.
“You would think there might be some folks on the left who would say, ‘This just proved this is the guy we wanted to put in there,’ ” a former Justice Department lawyer, who served during part of the Trump administration, told me. “It’s amazing how people jump from ‘Merrick Garland, centrist hero, fair-minded judge, who was unfairly denied a chance to be on the Supreme Court’ to” accusing him of a “cover up” for Trump and Barr. “That’s what he has to struggle against.”
During a hearing in June, Democratic Sen. Patrick Leahy asked Garland about the memo and the defamation suit. “I know about the criticisms,” Garland said. “Look, the job of the Justice Department in making decisions of law is not to back any administration, previous or present. … Sometimes it means that we have to make a decision about the law that we would never have made and that we strongly disagree with as a matter of policy.”
Of course, all the criticism from the left hasn’t bought Garland any goodwill among Trumpist conservatives. In June, when Garland announced the administration’s new domestic terrorism strategy — with its finding that the top violent extremist threat comes from white supremacists — Laura Ingraham of Fox News displayed a collage portrait of Garland and the accused Capitol rioter known as the QAnon Shaman with the headline, “Who’s Really Terrorizing America?”
Later that month, after Garland announced the department was suing the state of Georgia over voting rights, Georgia Gov. Brian Kemp fumed: “The Biden administration is weaponizing the Department of Justice to serve their own partisan goals.”
The thankless predicament of any attorney general in 2021 is that it’s become the default position of partisans on both sides to see the Justice Department as a political institution. Even worse, any move to fix that perception is itself viewed with deep suspicion.
.... It isn’t yet clear whether Garland will go as far as many observers — both on the left and in the center — want him to go in pushing new institutional safeguards and reforms. When Garland invokes [Ford's AG, Edward Levi's] name in speeches, it’s usually to imply that everything will be better if the department simply rededicates itself to the norms Levi espoused. He doesn’t suggest that, after Trump, those norms might need reinforcing or updating with new standards.
It’s early in his tenure, but thus far, Garland has only tiptoed into this realm. In the wake of revelations that the Trump Justice Department had subpoenaed reporters’ phone records in leak investigations, Garland promised to prohibit the collection of reporters’ records and to work with Congress on legislation to address the issue. But beyond that, he has been vague about what he thinks needs fixing. ... When evidence of a problem emerges, he routes the matter to Inspector General Michael Horowitz. Horowitz is looking into the collection of reporters’ records and congressional accounts; whether Justice Department officials improperly tried to overturn the presidential election; and the circumstances of a U.S. attorney in Georgia abruptly resigning after Trump pressed officials there to question the vote count.
Garland’s reliance on the inspector general frustrates reform advocates who want to see a more hands-on effort by the attorney general himself. I spoke to a number of people who have proposals that they say could help build bipartisan confidence in the department.
Adam Schiff, chairman of the House Permanent Select Committee on Intelligence, is planning this summer to reintroduce the Protecting Our Democracy Act, which he co-sponsored in the fall. The original version of the bill would require, among other measures, the attorney general to keep a log of communications with the White House, and the inspector general to report to Congress any improper political interference...
...“I’m very fond of and a great admirer of Attorney General Garland,” Whitehouse added. “But he comes out of an ivory tower judgeship, far away from a lot of the political mischief. And I’m not sure how much situational awareness he has about the forces that are operating … around the department and operated through the department, it appears, during the Trump administration.”
Even supporters of Garland’s approach so far want bold action — at least in the realm of norm-building. In their book “After Trump: Reconstructing the Presidency,” Bob Bauer, a former White House counsel to Obama, and Goldsmith, the veteran of the George W. Bush administration, propose numerous ways to buck up Justice Department norms to reduce the opportunity for political meddling.
The ideas include reinforcing the so-called 60-day rule that bars disclosure of major decisions related to investigations too close to Election Day; making clear the attorney general should obey the same strictures against discussing investigations in public that line prosecutors follow; formalizing the factors that trigger counterintelligence investigations of political candidates; and adding language to internal manuals and training to ensure that improper partisan motivations do not guide actions. They also propose legislation, such as a statute clarifying the circumstances under which the department could charge a president with obstruction of justice.
“Even if we can be confident that … the administration will stay on the right path under Merrick Garland, the point here is to establish standards that other administrations are going to have to confront,” Bauer told me.
Following Levi's example of engaging the public in the discussion could also help. “The reason for him to speak publicly to these issues at some point in adopting some of these measures is to underscore that this is institutional reform,” Bauer continued. “It’s not just a moment of shift in policy at the Department of Justice, it’s an institutional moment in which a marker is laid down and other administrations are going to have to confront it in the future.”
During a hearing in June, Democratic Sen. Patrick Leahy asked Garland about the memo and the defamation suit. “I know about the criticisms,” Garland said. “Look, the job of the Justice Department in making decisions of law is not to back any administration, previous or present. … Sometimes it means that we have to make a decision about the law that we would never have made and that we strongly disagree with as a matter of policy.”
Of course, all the criticism from the left hasn’t bought Garland any goodwill among Trumpist conservatives. In June, when Garland announced the administration’s new domestic terrorism strategy — with its finding that the top violent extremist threat comes from white supremacists — Laura Ingraham of Fox News displayed a collage portrait of Garland and the accused Capitol rioter known as the QAnon Shaman with the headline, “Who’s Really Terrorizing America?”
Later that month, after Garland announced the department was suing the state of Georgia over voting rights, Georgia Gov. Brian Kemp fumed: “The Biden administration is weaponizing the Department of Justice to serve their own partisan goals.”
The thankless predicament of any attorney general in 2021 is that it’s become the default position of partisans on both sides to see the Justice Department as a political institution. Even worse, any move to fix that perception is itself viewed with deep suspicion.
.... It isn’t yet clear whether Garland will go as far as many observers — both on the left and in the center — want him to go in pushing new institutional safeguards and reforms. When Garland invokes [Ford's AG, Edward Levi's] name in speeches, it’s usually to imply that everything will be better if the department simply rededicates itself to the norms Levi espoused. He doesn’t suggest that, after Trump, those norms might need reinforcing or updating with new standards.
It’s early in his tenure, but thus far, Garland has only tiptoed into this realm. In the wake of revelations that the Trump Justice Department had subpoenaed reporters’ phone records in leak investigations, Garland promised to prohibit the collection of reporters’ records and to work with Congress on legislation to address the issue. But beyond that, he has been vague about what he thinks needs fixing. ... When evidence of a problem emerges, he routes the matter to Inspector General Michael Horowitz. Horowitz is looking into the collection of reporters’ records and congressional accounts; whether Justice Department officials improperly tried to overturn the presidential election; and the circumstances of a U.S. attorney in Georgia abruptly resigning after Trump pressed officials there to question the vote count.
Garland’s reliance on the inspector general frustrates reform advocates who want to see a more hands-on effort by the attorney general himself. I spoke to a number of people who have proposals that they say could help build bipartisan confidence in the department.
Adam Schiff, chairman of the House Permanent Select Committee on Intelligence, is planning this summer to reintroduce the Protecting Our Democracy Act, which he co-sponsored in the fall. The original version of the bill would require, among other measures, the attorney general to keep a log of communications with the White House, and the inspector general to report to Congress any improper political interference...
...“I’m very fond of and a great admirer of Attorney General Garland,” Whitehouse added. “But he comes out of an ivory tower judgeship, far away from a lot of the political mischief. And I’m not sure how much situational awareness he has about the forces that are operating … around the department and operated through the department, it appears, during the Trump administration.”
Even supporters of Garland’s approach so far want bold action — at least in the realm of norm-building. In their book “After Trump: Reconstructing the Presidency,” Bob Bauer, a former White House counsel to Obama, and Goldsmith, the veteran of the George W. Bush administration, propose numerous ways to buck up Justice Department norms to reduce the opportunity for political meddling.
The ideas include reinforcing the so-called 60-day rule that bars disclosure of major decisions related to investigations too close to Election Day; making clear the attorney general should obey the same strictures against discussing investigations in public that line prosecutors follow; formalizing the factors that trigger counterintelligence investigations of political candidates; and adding language to internal manuals and training to ensure that improper partisan motivations do not guide actions. They also propose legislation, such as a statute clarifying the circumstances under which the department could charge a president with obstruction of justice.
“Even if we can be confident that … the administration will stay on the right path under Merrick Garland, the point here is to establish standards that other administrations are going to have to confront,” Bauer told me.
Following Levi's example of engaging the public in the discussion could also help. “The reason for him to speak publicly to these issues at some point in adopting some of these measures is to underscore that this is institutional reform,” Bauer continued. “It’s not just a moment of shift in policy at the Department of Justice, it’s an institutional moment in which a marker is laid down and other administrations are going to have to confront it in the future.”
https://www.washingtonpost.com/magazine/2021/07/19/merrick-garland-justice-department-catharsis/
https://www.washingtonpost.com/wp-apps/imrs.php?src=
2 replies
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