It was quite the week for Merrick Garland: On Monday, the department took a position in a pending legal case that was so controversial that many liberals are now openly asking whether he is up to the task of running the Justice Department at this unique moment in the department’s history. On Thursday, the New York Times reported that the department, under Garland’s predecessors during the Trump administration, had taken the highly unusual step of subpoenaing phone records for two Democrats on the House Intelligence Committee—along with aides and family members, including at least one minor—as part of the Trump administration’s aggressive pursuit of anti-Trump leaks. That revelation prompted outrage among Democrats on Friday as well as questions about why Garland is not being more forthcoming with information about what exactly happened.
At the time of this writing, the story exists in the classic, precarious state of a burgeoning Washington scandal—things are clear enough to make people angry but vague enough to raise legitimate questions about how bad this was, and about whether we know the material details or there are other proverbial shoes to drop. On Friday, Politico reported that William Barr—who, according to the initial Times story, had “revived” the “languishing leak investigations” after he succeeded Jeff Sessions as Trump’s attorney general—was “not aware of any congressman’s records being sought in a leak case.” The Justice Department’s inspector general has already opened an investigation at the request of Deputy Attorney General Lisa Monaco, and Senate Democrats are threatening subpoenas to compel testimony from Sessions and Barr, though that avenue may be foreclosed given the tie in numbers between Democrats and Republicans in the various committees of potential jurisdiction.
This would be a remarkable set of circumstances under any administration, but as usual, that it was happening during the Trump administration makes it even worse. The Trump DOJ’s aggressive efforts targeting Democratic members of Congress appear to have occurred at the same time that the Justice Department was fighting a congressional subpoena for Trump’s personal financial records, to say nothing of the administration stonewalling during the House’s first impeachment and the department openly flouting congressional oversight throughout Trump’s term. Rarely do we get such a stark example of the asymmetry of power between the two branches—a problem that has gotten worse across administrations of both parties.
It remains to be seen how much of a headache this will prove to be for Garland himself, but it does underscore the peculiar and ongoing liminal state in which the department exists. The Times reported that four department officials with varying levels of involvement “are still at the Justice Department” and that “[t]heir continued presence and leadership roles would seem to ensure that Mr. Biden’s appointees, including [Garland], would have a full understanding of the investigations.”
Besides Garland and a handful of others (most notably Monaco and Associate Attorney General Vanita Gupta), senior positions in the department that should be staffed by political appointees remain unfilled—including, notably in this case, the head of the department’s National Security Division, who (per the Times) is among those who were being regularly briefed on the underlying leak investigations. The administration identified a replacement several weeks ago, but there remain no nominees for the head of the department’s Antitrust Division and all 93 of the U.S. attorney positions throughout the country.
Politico reported earlier this week that Garland and the White House “have had stand-offs over senior positions … with Garland pushing to install many of his own former clerks.” Given all of the well-justified talk over the years about the Trump DOJ being one of the worst in history, the foot-dragging suggests the uncomfortable possibility that Garland and the White House do not share the serious concerns about the department’s organizational deterioration that many others do—that they are content to let holdovers and career officials who rose through the ranks of the Trump DOJ, however they managed to get there, run the department’s most sensitive offices.
The latest fracas also underscores a central tension in Garland’s management theory—that it is important to decentralize control of the department after the tumultuous tenure of Barr and his assorted flunkies, who openly embraced their ability to override the decisions of career prosecutors, and to devolve decision-making back to the department’s career workforce. It appears that Barr enlisted a career prosecutor from New Jersey to revitalize the leak investigations that led to the subpoenas concerning the House members, but that is not surprising; the same appears to have been true in the recent flurry of cases involving subpoenas for journalists’ records, which prompted so much outrage that Biden himself directed the Justice Department to change its policies in the area.
The problem is that you cannot simply turn the page on the Barr-Sessions-Trump years without asking some difficult questions about the involvement of career employees. Far from the caricature that dominated the Trump era, the career workforce is not uniformly comprised of competent, upstanding people. That may be true of the vast majority, but like any other large workplace, there are people who are bad at their jobs or indifferent to ethical and moral imperatives if they might get in the way of their career advancement. In fact, in virtually every scandal you can tick off—the effort to dismiss the prosecution of Michael Flynn, the frivolous effort to prevent the distribution of John Bolton’s book, the repeated efforts to criminally prosecute former FBI Deputy Director Andrew McCabe, the decision not to even open a criminal investigation into Trump’s effort to shake down the Ukrainian president, the deterioration of the department’s white-collar enforcement efforts, the enormously costly failure to pursue COVID-related fraud in state unemployment systems by foreign criminals, and, worst of all, the family separation policy—career employees played an integral role.
These are not people who are simply supposed to do their jobs—they have legal and ethical obligations to be competent and noncorrupt. Nor can you excuse their involvement simply by sympathizing with their plight, since I can assure you, when the shoe is on the other foot and prosecutors are pursuing misconduct within large criminal or business enterprises, most of them do not care whether someone involved needed the money or would have found it inconvenient to look for another job. There is a whole set of prosecutorial guidelines—those that govern investigations of businesses where criminal misconduct has occurred—that are premised on the methodical, surgical pursuit of everyone involved, in part because that is the best way to try to deter people from participating in such schemes in any capacity.
That does not mean that everyone should be treated harshly—in an administrative setting, simply identifying the misconduct may be sufficient to deter it in the future—but at the moment, there is an outward casualness to this issue on the part of Garland and other senior officials that is peculiar and frankly disturbing. At the moment, we are being treated to unpredictable, fortuitous revelations about previously unknown and deeply questionable conduct at the Justice Department under Trump, with no apparent control or interest on the part of Garland, Monaco, or Gupta in whether, when, or how the public learns these things; no evident plan to undertake an affirmative effort to identify similar misconduct from the past; and no discernible consequences for anyone involved. To the contrary, senior officials seem to be avoiding doing these things precisely because it might upset career officials—but these people all work for us, not the other way around.