Jurisprudence

Not Everyone Is Shocked by Merrick Garland’s Infuriating DOJ

Merrick Garland looks downward.
Merrick Garland on Capitol Hill on June 9. Stefani Reynolds/AFP via Getty Images

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Over the past week or so, the Department of Justice, under Attorney General Merrick Garland, has racked up a series of legal decisions that have mystified observers—decisions that seem designed to protect former President Donald Trump. It’s not exactly what you’d expect from a new, Democratic attorney general.

For Ankush Khardori, a lawyer who used to work at the DOJ, these recent actions have raised some questions about what exactly Merrick Garland is doing and where he’s coming from. “I’m struggling to make sense of his tenure at the moment,” Khardori said. On Monday’s episode of What Next, I spoke with Khardori about what’s really going on at the Justice Department and whether Garland can turn things around. Our conversation has been edited and condensed for clarity.

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Mary Harris: Transition in any large organization, including the Justice Department, is hard, right? It’s kind of like you’re driving a very large tanker. Once it’s moving in a direction, it’s very difficult to change directions because you have this big organization that you’re trying to move, and so it gets a little bit off course and all of a sudden you realize you’re down a different road than you thought you were.

Ankush Khardori: I think that’s exactly right. That has been an underrated feature of the transition to the Garland administration. Simply removing Bill Barr and putting in another attorney general was not going to fix all this, because beneath him, things had changed. People had risen up to certain positions. People had been appointed to certain positions. Priorities had changed. And you cannot just flip a switch in an organization that large.

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But this isn’t just standard transition stuff. In the past week or two, observers like you have looked over at the DOJ and suddenly seen all the warning lights blinking at once. In one court case after another, the agency has been taking legal positions you see as questionable, including two big ones. The first we learned about back in May, when a federal judge demanded the department release a confidential legal memo. That memo, produced for Trump Attorney General Bill Barr, allowed the then-president to duck obstruction of justice charges relating to the Mueller report. 

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The judge issued a ruling saying, “You’ve been misleading about this and you need to actually produce this memo to the people who sued for it.” And the department, under Garland, decided it was going to appeal that ruling. Now, that was the decision that first really struck my eye as a serious indicator of the way Garland thinks about legal issues and how that might lead him astray.

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Some people might say that the Department of Justice is in a Catch-22 situation here. If you release the whole memo and it says Trump can’t be charged with obstruction for X, Y, Z reasons, now that becomes a real kind of precedent. But if you release the memo and say this memo is wrong, all of a sudden you have this question of why aren’t you charging Trump right now? And even if you want to charge Trump, you might not want to charge Trump right now. And so it puts the department in this very precarious situation. What would you say to that?

So what? That’s what I say to that. This is not our problem. It’s the Department of Justice’s problem. The likely outcome, if we ever get our hands on this memo, is going to be what the judge has apparently described it as, what I thought it was from the outset, which is more or less garbage. It’s not going to be persuasive. It’s not going to be compelling. And people are going to say this is garbage. Like, should you be charging the president of the United States with obstruction? And based on what I’ve seen, that would be a question where there are serious arguments to be made on both sides. So the department should tell us: Are you going to prosecute the president? If not, why not? Is this memo a memo that you find persuasive and you want to let lie in the historical record for forever? Or do you want to repudiate it and make a decision from scratch? That’s a tough decision, but it’s a tough decision that the attorney general should make.

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Last week, there was another one of these tough calls, when the DOJ announced it would continue to defend Trump in a defamation suit brought by E. Jean Carroll. Carroll accused the former president of sexually assaulting her in a department store dressing room more than two decades ago. Back in 2019, Carroll sued Trump for saying that she’d only accused him to sell books.

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Carroll filed the lawsuit a couple of years ago, and she was on the cusp of getting crucial pretrial discovery last fall through the New York state court system. Bill Barr intervened on the president’s behalf late last year and said, “We’re going to defend the president here. The alleged defamatory comments were comments that he made as part of his job as a president. And therefore, the lawsuit probably would have to be dismissed because the federal government is immune from defamation claims.” The judge overseeing the lawsuit disagreed. The department under Trump and Barr appealed the decision to the 2nd U.S. Circuit Court of Appeals. That appeal has been pending over the course of the transition and inauguration. The question that was outstanding and that got resolved over the past week was whether the Garland Justice Department was going to maintain the same position. What we learned last week is, yes, indeed, the Garland Justice Department is maintaining the same legal position that had been initially taken under Bill Barr.

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You call this the Department of Justice’s most controversial position yet. Why?

The facts are very stark. It’s a case that has been litigated in the public and legal spheres. The media has followed it very, very closely, and I think it has resonated with a lot of people. This is one of many allegations of sexual assault against the president. It seemed to be one that actually might be fully litigable through the court system, where we might actually get clarity about what happened.

And I’m very curious about what the people who signed the brief in the E. Jean Carroll case—political and career people alike—think that they’re doing. Certainly none of them have to sign on to that brief. Do they feel strongly about the position about Carroll’s case? Do they care? Or are they quote-unquote “doing their jobs,” which is a phrase that I think is a little pernicious in this context.

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There’s no such thing as just doing your job in the Department of Justice. You’re not supposed to just do your job. You’re not supposed to just do what people tell you, whether it’s Bill Barr or Merrick Garland or anyone else. You’re supposed to exercise independent ethical and moral agencies.

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I look at all these cases and I see the federal government protecting its power—making it clear that they can issue secret legal memos and make sure that our leader is not exposed legally or financially for his actions in office. It feels a little bit like the government operating the way a corporation might. And I wondered if you saw it that way too.

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I do. I think the way Garland and his defenders would put it would be slightly different. Let me try to put my best face on what they have done. I think what they would say is, “Look, the Department of Justice has long-term institutional interests. It’s not good for the public if in our society, the administration is changing legal positions from presidency to presidency.” The principal value that Garland and the Justice Department are concerned with is the rule of law. And the rule of law is a great thing. It’s extraordinarily important.

 But what does it mean?

Well, that is the question. What does it mean, and what does it mean to him? It basically means the law should apply in a general way. The law should be publicly accessible, meaning we all know what the law is and it applies to everyone, regardless of their individual characteristics. So the fact that you are a Person A on the street or Person B on the street, the jaywalking rules apply to you both, irrespective of what your name is, what you look like.

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Isn’t that the opposite of the argument they’re making, though, in some of these cases, which is the law doesn’t apply to us because it’s the president and he can’t defame someone.

That is exactly right, which is one reason why this defense is so maddening. On that very thin account of what the rule of law is doing here, it has a superficial appeal. So Garland is saying, “We took a hard look at the law, and this is ordinarily the way it would be handled.” But the problem is the rule of law is not the only ideal that our political and social culture tries to uphold. There are sometimes conflicting values, including justice, including equality. There are other principles at stake in this case, not just the rule of law, which is why I find his defense of this decision and constant invocation of the rule of law slightly maddening at this point. And I say that as someone who feels strongly about it. I’ve thought a lot about. I’ve written about it. But it’s just simply not the only value in our legal system that we care about.

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Let’s talk about Merrick Garland, because a lot of people were surprised by these legal decisions over the past few weeks, and you weren’t, and your lack of surprise really seems to come down to Merrick Garland as a leader and someone who regards himself as very much an institutionalist, someone who believes in the institution of the Department of Justice. Do you remember watching his confirmation hearing and what stood out for you when you did?

I do, because I was actually quite taken aback by it because I saw someone who seemed to be very set in his orientation as a judge and, again, in this conception of the rule of law that is laudable but not the exclusive value that our legal system tries to uphold.

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You said he didn’t get enough scrutiny from liberals. What made you say that? 

Merrick Garland, obviously, rose to public prominence as the nominee to fill Justice Scalia’s seat in 2016, and he was prevented from taking that seat by Mitch McConnell and Republicans in Congress. And so when he was nominated by Joe Biden to be attorney general, there was this dramatic come up. And a lot of people thought, great, we’re going to have this reckoning and we’re going to try to unwind the harms of the Trump years. We’re going have this guy who was unjustly prevented from taking a seat he should have gotten, and we’re going to put him sort of in the second best legal position in the country. And isn’t this wonderful?

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It’s like a movie

It has a very nice, dramatic arc to it. But some very simple questions didn’t get aired out that probably should have. Like, for instance, does it make sense for the department to be led by someone who hasn’t worked there in a quarter-century?

It’s almost like Garland and his senior officials are just passive observers to these events unfolding around them. It’s very odd to me, because it’s like, no, you actually really run the place. You can decide, like, I want to go back and try to figure out whether we really know everything and if not, how we should produce this information to the public who probably deserves to know. But they don’t have a plan. I would be much more forgiving of their posture here if it were the case that they had some sort of plan in place or some sort of intellectual framework that they seem to be bringing to bear to think about this problem. If they do have a plan to effect some sort of institutional organizational culture, that is something it would be very helpful to tell the public to provide some confidence into what’s going on in the Justice Department and whether or not they’re doing anything to really uncover the worst excesses.

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This is our department. It’s not his. And if they’re abusing their power, we deserve to know it.

I have read some legal analysts who’ve straight out said Merrick Garland himself is beyond saving at this point. Do you agree or disagree with that?

I wouldn’t go that far. What I’m sincerely hoping is that we’ll see a course correction. I do think one thing we can tell from his public appearances is that he’s a sincere person, an honest person. I think that this past week was a serious inflection point. One of the things people say about Garland is that he’s very attuned to elite narratives. What that means in practice is he cares about his self-image, not as an egomaniac necessarily, but he’s interested in what people think about him and say about him, and I am told he will be responsive to how these elite narratives develop over time.

So now you know how to nudge him.

Look, I’m hopeful. I am hopeful that we’ve seen a little bit of a sea change in the public discussion, and that he will be responsive to it. One of the reasons why he coasted through the confirmation process is not just because he’s very well qualified and very likable, but it is partly because he has this network of friends and boosters throughout the D.C. legal community. It’s substantially eased his path. You didn’t have people coming out complaining about him. To the contrary, everything you heard in real time from people who knew him was that he was such a great guy, polite, nice, generous, kind, so on and so forth. What you heard much less about was whether he actually has a vision of justice—a conception of what the attorney general should be doing generally and in this particular moment of time, beyond giving us undergraduate lectures about the rule of law.

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