After roughly half a year on the job so far, Attorney General Merrick Garland is acting like a relatively normal attorney general. He hasn’t yet made moves that suggest he’s a fervent partisan ideologue or a staunch loyalist for whoever happens to be the current president, a sharp change from his immediate predecessors. For some progressives and supporters of President Joe Biden, however, “relatively normal” isn’t good enough.
Consider the public blowback that Garland’s team has received for some of its recent decisions. Late last month the Justice Department announced it would appeal a federal judge’s order to release a memo prepared for former Attorney General Bill Barr in the Russia investigation. The memo addresses a central legal question in the Mueller report: whether former president Donald Trump could be charged with obstruction of justice. Trump’s critics had hoped Garland would shed more light on his predecessor’s refusal to prosecute Trump, but to no avail.
The Barr memo case isn’t the only one that’s drawn criticism from progressives in recent weeks. My colleague Melissa Gira Grant questioned whether the Biden administration was committed to defending LGBTQ rights after the Justice Department’s moves in a Title IX case involving Christian higher-ed schools. Climate activists have taken issue with the department’s stance in cases involving pipeline construction. And those who’ve criticized Trump on anti-corruption grounds are frustrated that Garland hasn’t yet handed over Trump’s tax returns to the House Ways and Means Committee, which first subpoenaed them more than two years ago.
To many, these actions may be jarring, especially given the damage caused by Trump’s corruption and those who enabled it at the DOJ. Surely the priority for the new administration would be to reverse the errors of the last four years with a series of assertive, public decisions. But this would be far out of character for Garland. His actions are much more consistent with a leader who wants to retrench the DOJ in its traditional, institutional role as the semi-independent defender of the executive branch. Garland may believe that, in the long run, this will undo the damage Trump and his cronies wrought in the department over the last four years. But that will be cold comfort for those who want to put the Trump era more firmly in the rearview mirror.
In perhaps a sign that it is aware of the growing criticism, the White House made the unusual move of announcing that the department would not be changing its stance in United States v. Vaello-Madero—and that Biden was personally opposed to that decision. In that lawsuit, the department is trying to overturn lower-court rulings that would allow Social Security disability insurance to be collected in Puerto Rico, one of the few places in the United States where Congress has prevented Americans from lawfully accessing the program.
The case is a vivid example of how the federal government still treats Puerto Rico as a second-class part of the U.S., a tradition with deep roots in the island’s colonial history. After the Supreme Court announced it would take up the case earlier this spring, progressives and local leaders pressured Biden to intervene and stop the litigation. Biden declined, deferring instead to the department’s legal judgment while insisting he personally opposed its decision.
In theory, this deference isn’t that much of a change from Biden’s overall stance toward the Justice Department. He campaigned on the notion that he, unlike Trump, would not meddle in the department’s inner workings. Part of this can be chalked up to self-preservation. Trump’s habitual demands that the Justice Department serve his personal interests contributed to multiple scandals throughout his term, most notably the Russia investigation. Biden’s hands-off strategy could avoid similar pitfalls for his own presidency, especially with his son Hunter reportedly under federal investigation.
But there are also deeper rule-of-law principles at play here, ones that Biden saw as necessary to restore after the Trump era. In a fateful coincidence, he announced Garland’s nomination less than 24 hours after a Trump-incited mob stormed the Capitol building to attack Congress. During his remarks, he listed off many of Trump’s offenses against democracy and the Constitution. One of them was that Trump often “[treated] the attorney general as his personal lawyer and the department as his personal law firm,” Biden noted on January 7. “Through it all, we would hear the same thing from this president: ‘my generals, my judges, my attorney general.’”
Progressives have also won their share of victories over the past six months. Since Biden took office, the Justice Department has changed its stance in multiple cases pending before the Supreme Court, including major disputes involving the Affordable Care Act and the Voting Rights Act. In other instances, the department has withdrawn from legal stances taken under Barr and his predecessor, Jeff Sessions, because the Biden White House has revised or reversed some of Trump’s most controversial policy decisions, such as the public charge rule. Not all of these changes have been front-page news, such as the Justice Department’s decision to change course in a Supreme Court case involving labor organizing among California farmworkers.
But some maneuvers can easily overshadow the others. Perhaps the most incendiary move by DOJ in recent weeks came in the lawsuit against Trump by E. Jean Carroll, who accused him of rape in 2019. After Trump publicly denied her claims and called her a liar, Carroll filed a defamation lawsuit against him in New York state court. Last September, the Barr Justice Department intervened and sought to move the case to the federal courts, substituting the United States as a defendant. The department justified the move by noting that Trump made the denials while he was president, thus implicating the executive branch itself. Under Garland, DOJ is declining to change course.
If the department’s position prevails in court, most legal experts believe that it is exceedingly unlikely that Carroll’s lawsuit will succeed. The move drew the ire of Trump critics who expressed horror at the prospect of the Biden administration formally defending a former president over one of his accusers. Carroll herself strongly criticized Garland for the decision. “They argue that Trump was doing his job when he repeatedly slandered me and told the world that I was too ugly for him to rape,” she wrote in her newsletter. (Emphasis hers.) “Biden’s DOJ turns out to be run by someone who may be more interested in protecting his vision of the DOJ ‘institution’ than in cleaning up its corruption.”
Other observers noted that Garland’s stance in the Carroll case reflects the department’s broader goal of defending the executive branch and the presidency itself, no matter who happens to hold the White House. “The issue is whether a president’s duties include answering questions during an interview given in his official capacity—including questions about his earlier private life that may reflect on his fitness for office,” Randall Eliason, a George Washington University law professor, wrote in a Washington Post op-ed this week. “Assuming they do, then federal law provides that he can’t be sued for what he said.” Eliason said that the alternative was that any federal employee could face lawsuits for their on-the-job remarks if opposing lawyers are clever or tenacious enough.
Eliason said the same long-term reasoning also appeared to be guiding Garland’s actions in the Barr memo case. “As for the Mueller investigation memo, if Garland simply agreed to release it, he creates another precedent,” he wrote. “Future senior advisers to the attorney general—or to other government officials—might be reluctant to offer their candid views in controversial cases out of fear of disclosure if the political winds shift. That’s why the law has long recognized legal privileges for such internal communications.” He added that he expected the department to prevail in both cases.
In short, Biden promised an attorney general who would run the Justice Department as it operated before Trump—and for better or for worse, that’s what he did. A back to normal approach is hard to argue against when the status quo is a Justice Department whose leaders intervene in criminal cases on behalf of the president’s allies and reflexively defend even his most legally dubious actions in court. But when “normal” means a strong deference to executive power in general and a business-as-usual attitude everywhere else, it’s natural that progressives would be frustrated by the outcome. If Biden had wanted an attorney general who would do whatever he wanted, he wouldn’t have chosen Merrick Garland for the job.
