There’s an old legal adage that hard cases make bad law. But Attorney General Merrick Garland — in defending a string of Justice Department moves backing troublesome Trump administration legal positions — is proving that even much easier cases, coupled with fraught politics, make for terrible policy.
Here’s a lesson that Garland should have learned from former FBI director James Comey: Sometimes when you try too hard to look apolitical, you end up causing more problems than you prevent. And for Garland, the stakes couldn’t be higher as he is tasked with reforming a Justice Department that, for four years, was turned into the personal law firm of a president who refused to let democracy stand in the way of his personal interests.
Garland’s tenure got off to an auspicious start. He quickly displayed a commitment to robustly protecting Americans’ civil rights while pressing police departments to be more accountable and transparent when it came to use of force. The DOJ has aggressively investigated and charged hundreds in the probe of the Jan. 6 insurrection, and refocused the department’s efforts on prosecuting hate crimes.
And then things seemed to go off the rails.
The department backed a number of troubling legal positions taken during the Trump administration. Those include opposing the release of memos regarding former attorney general Bill Barr’s decision not to charge Donald Trump with obstructing special counsel Robert Mueller’s investigation, and continuing the Justice Department’s effort to defend Trump in a defamation suit brought by E. Jean Carroll, who accused him of sexual assault — a move even the Biden White House distanced itself from.
Garland was pressed Wednesday during his Senate testimony about the DOJ’s budget request to explain what was going on. He replied that it is important not to let politics stand in the way of the rule of law.
“The job of the Justice Department in making decisions of law is not to back any administration, previous or present,” Garland explained. He added that there should not be “one rule for Democrats and another for Republicans.
“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,” Garland said. “But in every case, the job of the Justice Department is to make the best judgment it can as to what the law requires.”
Garland is correct that the need to avoid even the appearance of political bias, particularly when it comes to an American institution as important as the Department of Justice, is vital. But that task only works when done in the context of the political realities of the time. As Comey did then, Garland seems now to be missing that last part.
For example, there is absolutely no rule of law — or anything else — that requires the continuing defense of Trump in a case where Trump claims that his alleged defamatory statements were made as part of his presidential duties. That’s nonsensical, and would create a dangerous legal and political precedent.
Yes, it is true that institutional norms of the DOJ discourage making hairpin-turn changes on legal positions in ongoing court cases just because of an administration change. Those policies further the very principles Garland spoke of — underscoring that the DOJ is not a political entity. But those institutional norms must be tempered by common sense and the goal of advancing, not impeding, justice.
The case to protect Barr’s Mueller memos is more difficult, given that the Justice Department of any administration would be wary of making information about legal work product public. But here, the scales of justice, when dealing with a potential effort to shield a president from criminal consequences, lean toward disclosure. Nothing in the rule of law prevented Garland from complying with, rather than appealing, a federal judge’s order that those memos be released. As Judge Amy Berman Jackson wrote, “It is time for the public to see.”
Comey recently called the fallout from his fateful decision to publicly announce a renewed probe of Hillary Clinton’s emails while keeping a probe of Trump’s campaign under wraps on the eve of the 2016 election “a nightmare I can’t awaken from.”
Garland’s efforts to stay out of politics could, even if unwittingly, come at a greater cost. The rule of law is weakened if the American people can’t believe in it. One of Garland’s responsibilities is assuring us that we can.