Attorney General Merrick Garland’s effort to restore public trust in the Justice Department quietly may be turning into one progressive Democrats like, after months of handwringing among some critics on the left that he would block accountability for Trump-era abuses.
In a court filing Tuesday, the Justice Department rejected pro-Trump Republican Rep. Mo Brooks’s request to be shielded from a lawsuit related to his incendiary comments before the January 6 Capitol attack. The decision, which Justice officials said Garland was deeply involved in finalizing, followed a move Monday to waive executive privilege for former Trump Justice officials and pave the way for them to testify about events that led to the insurrection.
Two memos issued Wednesday showed a more muscular effort on civil rights law enforcement, an issue Garland said was a priority upon taking office. The memos were a signal to states that the department was closely watching efforts to curtail voting access and to use post-election “audits” to intimidate voters.
From civil rights enforcement to an antitrust lawsuit blocking one of the biggest Wall Street mergers of 2020 to reversals on Trump-era immigration court guidelines, Garland appears to be rewriting the early narrative portrayed by critics mostly on the political left.
His first weeks in office were decidedly rocky with some of President Joe Biden’s supporters, who interpreted Garland’s reverence for the Justice Department’s institution as a sign that Garland wants to sweep aside alleged abuses of the Trump era.
Two decisions early in his tenure set the tone for critics: Garland continued the department’s Trump-era defense of the former President in a lawsuit brought by writer E. Jean Carroll, and the department sought to block release of an internal memo related to former Attorney General William Barr’s handling of special counsel Robert Mueller’s Russia investigation.
Opinion columns and cable news hosts argued that maybe Biden erred by tapping a judge after 24 years on the bench to serve as attorney general.
People close to Garland say the criticism was exaggerated and that the attorney general has tried to hold true to his promise to avoid the taint of politics in his decisions.
Amid the criticism, Garland also announced lawsuits against Louisville over police practices following the killing of Breonna Taylor and against Georgia for voting law changes that followed Trump criticism of the 2020 election results.
Even if the string of recent decisions are more likely to please progressives, aides say, that’s not his goal.
Instead, some Justice officials say that even on decisions that sided with the former administration: “this is what restoring norms look like.”
After decades on the bench, Garland’s instinct is to project an air divorced from politics, which itself presents difficulties in a hyper-partisan era during which everything from public health advice to national security is seen through a political lens.
Denied a Supreme Court seat under President Barack Obama — many Republicans refused even to meet with him — Garland described walking into the Justice Department after his attorney general confirmation in March as “coming home.”
In his first public remarks after becoming attorney general, Garland spoke about his goal to try to turn the page after four years during which the former president regularly publicly attacked the department and raised questions about the fairness of the department’s work.
“The only way we can succeed and retain the trust of the American people is to adhere to the norms that have become part of the DNA of every Justice Department employee,” Garland said.
In contrast to Barr who last year compared career Justice Department employees to Montessori pre-schoolers, Garland has gone out of his way to hail the work of career officials. Some critics saw that instinct in some of his earlier decisions on the Carroll lawsuit and refusing to release internal documents on the Mueller probe.
But Garland has also shown a willingness to tangle with some career officials. In recent months one of those struggles behind the scenes has focused on the department’s National Security Division, where career lawyers vehemently opposed Garland’s decision to broadly prohibit prosecutors from seeking reporters’ communications records in leak investigations. The change came after the department disclosed that as part of national security investigations seeking to uncover sources for reporters’ stories on Russia, a top source of annoyance to the former president, prosecutors had obtained communications of reporters from CNN, The New York Times and The Washington Post. They also seized records of two Democratic members of Congress who were prominent Trump critics.
At an internal ceremony earlier this summer with Garland in attendance, one career national security lawyer joked that he expected comments in the room to be leaked to reporters, especially since “we can’t go after their records anymore,” according to a person in attendance. Garland didn’t crack a smile as laughter filled the room.
Garland told reporters that he was motivated in part because he believed that targeting reporters in leak investigations was having an impact on the ability of reporters to do the type of reporting to hold government officials accountable, an important part of US democracy.
Justice officials note that the department is still prosecuting government officials for illegal leaks. In recent days, Justice lawyers argued for a stiff sentence against a former US Air Force intelligence analyst for disclosing to a reporter documents on the US drone program.
People close to the attorney general describe a former judge very much learning his new role. He’s known to ask lots of questions while being briefed and wants time to read every memorandum presented to him. He has been slow to make decisions — a sharp change for career lawyers who were used to rapid-fire decision-making from Barr.
Some officials complain that there’s a bottleneck at the attorney general’s office, with major and politically sensitive decisions being delayed while they wait for the attorney general. Some also complain about a sometimes risk-averse climate, with top officials attuned to “winning” cases and trying to avoid close calls.
Defenders of the attorney general say that he’s aware of the political pendulum swings that come with the job.
“He is going to disappoint progressives” again, one Justice official said. “But people should know he is serious about sticking with the law.”
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