Garland inherited a booby-trapped DOJ. Here's why it won't be easy to fix.

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Perspective
Garland inherited a booby-trapped DOJ. Here’s why it won’t be easy to fix.
No Biden U.S. attorneys have been confirmed yet, and there are tens of thousands of investigations to sift through, none of which come with warning stickers.

https://www.washingtonpost.com/outlook/2021/06/16/merrick-garland-apple-schiff-justice/


Joyce White Vance, a former U.S. attorney in Alabama, is a professor at the University of Alabama School of Law.


June 16, 2021 at 2:55 p.m. CDT

Attorney General Merrick Garland knew he’d inherit some ticking time bombs when he took charge of the Justice Department. What he didn’t know, apparently, until the New York Times reported it last week, was that one of them was this: The department under the Trump administration had subpoenaed Apple for information that included accounts belonging to Democratic members of Congress and their staff and families, and concealed the fact from them for almost four years.


That’s a shocking departure from the respect for the separation of powers that prevented even President Richard M. Nixon, with his list of enemies, from investigating members of Congress. We don’t know the story behind the subpoenas — who ordered them or whether the White House was involved. It’s possible that this was incidental collection in the course of a properly predicated leak investigation. But there’s an awful lot of coincidence. The subpoenas just happened to home in on two opponents of President Donald Trump, Reps. Adam B. Schiff (D-Calif.) and Eric Swalwell (D-Calif.), as well as James B. Comey, the FBI director Trump fired, and Trump’s own White House Counsel Donald McGahn, rumored around that time to have been cooperating with the Mueller investigation. It’s also odd that a prosecutor from New Jersey, someone without experience in leak investigations, was brought in by Attorney General William P. Barr in 2020 to resuscitate the investigation, which hadn’t produced evidence to charge a crime in the three years since it began under Barr’s predecessor, Jeff Sessions, in 2017.

What’s less shocking is that Garland didn’t know about this case sooner — and may yet not know about other Trump-era projects, especially considering the widespread concerns about the politicization of the department. The problem cases don’t identify themselves. Files don’t come with bright yellow stickers that say “Warning!” and “Danger!” It will take a top-to-bottom review of the Justice Department to root them out. And it has to happen fast.
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The Justice Department cannot be — and cannot permit itself to be perceived as — a political tool. Trump’s attorneys general, Sessions and Barr, denied that they were briefed on the subpoenas, as did former Deputy Attorney General Rod J. Rosenstein. That’s surprising, because the Justice Department has rules that require notification to the highest levels of the department in cases that involve national security and classified information, like a leak investigation. There are also high-level notification rules for cases involving members of Congress or the media. Even if members of Congress weren’t targets of the investigation, and their information was collected merely because they had contact with someone who was, that would be briefed to department leaders. If nothing else, no prosecutor wants to be the one without a chair to sit in when the music stops; it’s hard to believe that when prosecutors first saw the name of a member of Congress crop up, and also when they extended the nondisclosure period, they didn’t brief upstream, if only to prevent the responsibility from resting on their shoulders alone. Garland can make clear to the public that these processes are in place, even when he can’t disclose details that would compromise cases.