WTF, DOJ?

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S1: So you you live in D.C., right?

S2: I do, yeah.

S1: Ankush Khardori is a lawyer used to work at the Department of Justice. If you were walking down the street and you ran into Attorney General Merrick Garland, I’m kind of curious what you would do

S2: at this point. The capital last week, I think I politely introduced myself and asked if I could have a chance to sit down and talk to him

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S1: when Ankush says after the last week, what he means is that the Department of Justice under Merrick Garland has started racking 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 AG.

S2: I am very curious about what his conception of this job is, what he wants to achieve in his job, what has motivated him to take the job and what his sort of guiding values are.

S1: Those are some deep questions.

S2: They are I’m sort of struggling at this point with, you know, we’re about as of this, I think Thursday or Friday, he’ll be one hundred days into his job, know sort of an arbitrary milestone. But it’s something that allows us to kind of take a step back. And I’m sort of struggling to make sense of his tenure at the moment.

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S1: As a former DOJ attorney, Ankush says One of the ways to understand these legal decisions is by looking at the Justice Department, not through the lens of regular politics, red versus blue, but through the lens of office politics.

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S2: The thing that I sort of discovered and maybe this was naive, is that the Justice Department is sort of wrapped in all of this, all of these principles and language, and it’s held up in such high regard in our country. But it’s really just another large workplace. What I mean by that is like, you know, it’s an organization with ten thousand lawyers at any given time. And like any other large organization, there are people who want to get ahead. There are people who are not very good at their jobs. There are people who are sick of this. There are people who will sort of sacrifice the their sort of moral and ethical imperatives if it will allow them to kind of get ahead. And that’s, I think, a small number, as I said. But in an organization that large, you don’t actually need a high percentage of people like that to dramatically change its.

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S1: Well, it’s not just that, it’s that when you work at a large organization, having worked at them in the past, it’s kind of like you’re driving a very large tanker, like you can’t 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.

S2: I think that’s exactly right. And I think that has been an underrated feature of the transition to the Garling administration, which is that simply removing billboard, putting in another attorney general is not going to fix all this, because beneath him, things had changed. People had risen up certain positions. People had been appointed to certain positions, priorities had changed. And you cannot just flip a switch in an organization that large investigations have been underway that maybe shouldn’t have been committed to, that investigations weren’t begun, that maybe should have been. And it’s not as easy as you say as just things changing overnight. It is a large, large organization. You’re sort of changing this huge ship in the middle of the ocean.

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S1: Today on the show, is the Justice Department lost at sea? And can Merrick Garland get the ship back on course? A Mary Harris, you’re listening to, what next? Stick around. For observers like Ankush, the last week or two has felt like looking over at the DOJ and seeing all the warning lights blinking at once in one court case after another. The agency has been taking these legal positions Ankush sees as questionable, including a couple of big ones. The first we learned about back in May, that’s when the DOJ refused to release this memo, even after a federal judge demanded that they do so. That memo produced for Trump’s attorney general, Bill Barr, allowed the then president to duck obstruction of justice charges relating to the Mueller report.

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S2: So that memo is a memo that an organization that filed the lawsuit to have the department produce, 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 Merrick Garland decided it was going to appeal that ruling. Now, that was the decision that first really struck me as sort of a serious indicator of kind of the way Gartland thinks, maybe thinks about legal issues and how that might lead them astray. From where I was, like, you might say

S1: like I was reading one legal opinion about this decision by the DOJ to release just a little bit of this memo, not the whole thing. And they were basically arguing that the Department of Justice is in a Catch 22 situation here. Like 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. And you can’t charge a whole lot of people with obstruction of justice. And so there’s that. But then you release the memo. You say this memo is wrong. We no longer agree with this memo. And 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?

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S2: So that’s what I say to that. So what? This is not our problem, right? It’s the Department of Justice’s problem. So I think the likely outcome, if we ever get our hands on this memo, it is going to be what the judge apparently described it as, what I thought it was from the outset, which is more or less garbage. Right. It’s not going to be persuasive. It’s not going to be compelling. And people are going to say this is garbage. Should you be charging the president of the United States with obstruction? And I think that based on what I seen there, again, we’re going to be that would be a question where there are arguments on both sides, serious arguments to be made on both sides. But 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 sort of 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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S1: Last week, there was another one of these tough calls, that’s when the DOJ announced it was going to continue to defend President Trump in a defamation suit brought by Egin Carol. You remember, Carol, she accused the former president of sexually assaulting her in a department store more than two decades ago. Back in twenty nineteen, Carol sued Trump because he said she’d only accused him to sell books.

S2: Jean 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. Bilborough intervened on the president’s behalf late last year, transfer the case to federal court, said, you know, 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, federal judge overseeing the lawsuit disagreed, wrote a 60 page opinion laying out why he thought the government’s position was wrong. The department under Trump and Barr appealed that decision to the Second Circuit Court of Appeals. So that appeal has been pending over the course of the transition and inauguration. And so the question that was sort of outstanding and that got resolved over the past week was what is the Garland Justice Department going to maintain the same position? And so 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 part.

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S1: And the argument here is basically the president is our employee. And so we’re intervening on his behalf.

S2: Right. He’s a federal employee and we’re going to represent him as a federal employee. His comments were made in the course of his federal employment. And therefore, at some point, if we prevail the case against the department, the government would need to be dismissed.

S1: You call this the Department of Justice’s most controversial position yet, why?

S2: The facts are very stark, it’s a case that has been litigated really in the public and legal spheres and lost of the media has followed very, very closely and I think has resonated with a lot of people and in throughout the public. I mean, this is one of many allegations of sexual assault against the president. It seemed to be one that actually might be fully litigated all through the court system where we might actually get sort of clarity about what happened. And I’m very curious about what the people who signed the brief in that Eugene Carroll case, political and career people alike think that they’re doing think that they’re doing in that case with their lives, why they’re doing it. Certainly none of them have to sign on to that brief. Do they feel strongly about the position about Miss Carroll’s case? Do they care

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S1: or are they just doing their jobs

S2: or are they, quote unquote, doing their jobs, which is like a phrase that. I think it’s a little pernicious in this context. There’s no such thing as kind of just doing your job in the Department of Justice. You’re not supposed to just do your job. You’re supposed to just do what people tell you, whether whether it’s Bill Barr or Merrick Garland or anyone else. You’re supposed to exercise independent, ethical and moral agencies. Now, I don’t see this so much as an ethical problem in the case, as a more of sort of a moral, moral and political one. But at the same time, I think these people have ever predicted that they would find themselves defending the president, maybe the worst president in history. His ability to defame a woman who accused him of sexual assault is that’s something these people envisioned or they’re thinking of themselves. It’s like a tolerable thing.

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S1: Hmm, I mean, look at all these cases and I see the federal government protecting its power, like 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.

S2: I do. I think the way Baalen and his defenders would put it would be slightly different. Let me try to put actually my best face on what they have done. I think what they would say is, look, the Department of Justice has institutional interest, long term institutional interests. It’s not good for the public. It’s in our society. The administration is changing legal positions from presidency to presidency. The principle value that Garland and the Justice Department are concerned with is the rule of law, quote unquote, rule of law. And the rule of law is a great thing. It’s extraordinarily important. But what does it mean? What? Well, this is that is the question. What does it mean and what does it mean to him? Basically what it means, at least the way we use it in our political system and in the history of the term in our society is that 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 your person on the street or person be on the street, know the jaywalking rules apply to you both, irrespective of what your name is, what you look like,

S1: and what 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. The government can’t defame someone.

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S2: That is exactly right. Which is one reason why this defense is so bad. Right. Because on that very thin account of what the rule of law is doing here. Right. It has a superficial appeal. So Garland saying, look, I’ve got to look at the law. 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 and value that our political and social culture tries to uphold. There sometimes competing conflicting values, including justice, including equality. But you can have laws and activities that comply with the rule of law on the sort of sketchy account that I provided, that what I think is consistent with how Garland thinks about it, that are unjust laws. These are there are other principles at stake in this case, not just the rule of law, which is why I find it offensive. This decision and frankly, an indication of a lot slightly maddening at this point. And I say that if someone who feels strongly about is 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 descriptively. It’s just not.

S1: When we come back, how Merrick Garland himself is influencing the Justice Department or not? Let’s talk about Merrick Garland, because a lot of people were surprised by these legal decisions over the last 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?

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S2: I do, because I was actually quite taken aback by what I wrote about. I wrote a piece about it for another site. I was taken aback by because I just saw someone who just seemed to be very. Set in his orientation as a judge and again, this conception of the rule of law that I think is laudable but not the exclusive value that our legal system tries to uphold.

S1: You said he didn’t get enough scrutiny from liberals. What made you say that?

S2: So Merrick Garland obviously rose to public prominence as the nominee to fill Justice Scalia’s seat in twenty sixteen, and he was prevented from taking that seat by Mitch McConnell. Republicans in Congress. And so when he was nominated by Joe Biden to be attorney general, I think that there was sort of this dramatic sort of arc here, the sort of dramatic comeuppance. And I think a lot of people thought, great, like we’re going to have sort of this reckoning and we’re going to try to sort of unwind the harms of the Trump years. And like, great, 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?

S1: It’s like a movie.

S2: Yeah, it’s drama. It has a very nice, dramatic arc to it. But what some very simple questions I thought really didn’t get sort of carried out in the way I think they probably should have. Like, for instance, does it make sense for the department to be led by someone who has worked there in a quarter century?

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S1: Ankush a sentiment that Merrick Garland might not be responding as aggressively as he should, was only cemented in the last few weeks. That’s when journalists and politicians started revealing that under President Trump, the department had been seeking subpoenas for their private communications, while President Biden eventually intervened, said he wouldn’t allow the department to snoop like that again to Ankush. That’s the kind of call Garland himself should have been making.

S2: These things seem to just be unfolding in a way like in a very haphazard way that he and his senior officials aren’t exercising any control over how to figure out how to detect this misconduct, whether when and how it will become public. It’s just like almost like they’re just passive observers to these events, like kind of just 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 I want to try to figure out whether we really know everything. And it’s not how we should produce this information to the public who probably deserves to know, but they don’t have a plan. So I would I would forgive them or 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 I think 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. And this is, again, I come back. This is our department. It’s not his it’s not the career employees whose feelings that we’re all like, I think overly preoccupied with what they do is in our name. And if they’re abusing their power, we deserve to know it.

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S1: I mean, I have read some legal analysts who’ve straight out said Merrick Garland himself is beyond saving at this point. I sort of wonder if you agree or disagree with that.

S2: I wouldn’t go that far. I’m sincerely hoping is that we’ll see a course correction. I don’t share that diagnosis because I do think one thing we we can tell from his public appearances is that he’s a sincere person, an honest person seems to be a good person. And here’s what’s been going on in D.C., my little space over the last month. What people have been saying is basically a couple of things. One, it’s too soon to judge him like he’s just getting situated. And you may be unhappy about some of these decisions, you beating me because I complain in my regular life to be happy about unhappy about some of these decisions. But just be patient, right? And I’ve been patient. And you know what? The bad decisions just keep coming. So what you’re what you’re hearing from me is kind of some frustration that has finally boiled over. And I think it’s frustration that a lot of people have kind of kept to themselves because Garland has a very robust network of friends, confidants, sympathetic parties in D.C. who have been expressing this view to people sincerely. And I think some of us like myself are now saying, you know, it’s been long enough. He’s there like he’s now he owns everything that’s happening. And he’s not just going to get the benefit of doubt because he’s a great guy that we all know from. I can’t even believe I’m saying it, but the cliche is true. D.C. cocktail parties

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S1: and group chats just a mess right now.

S2: I think that people have finally like thing like kind of seeing this past week because I think. Serious inflection points and the other thing people say about Garland, these are his friends and people who are like him. Is that he’s very attuned to elite narratives and what that means in practice, I think is not. As high minded as that may sound, I think it means he cares about what people have to say about. And he cares about is reading

S1: The Washington Post in The New York Times.

S2: Yes, I think he cares about his place in his self-image, not as an egomaniac necessarily, in part because maybe he does see him stay above the fray political figure as a potential. He sees himself as a potential historical figure and that he. Attends to he’s interested in what people think about him and say about him, and I am told Responsive will be responsive to sort of how these elite narratives develop over time.

S1: And you know, how to nudge Najem.

S2: Look, I’m hopeful. That’s why I say I’m hopeful that we’ve seen a little bit of a sea change in the public discussion, discussion just by regular members of the public, people like me, who are sort of observers in this space, and that he will be responsive to it and not just because he can and should be. But as I said, I mean, this is what I hear and. You know, he’s 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 kind of eased his past. You have people coming out complaining about him to the contrary. Everything you heard in real time from people who knew him was such a great guy, like polite, nice, generous, kind, so on and so forth. Well, you heard much less about 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.

S1: Ankush Khardori, thank you so much for joining me.

S2: Thanks for having me.

S1: Ankush Khardori is an attorney and former federal prosecutor and that is the show What Next is produced by Davis, Landolina, Schwartz, Carmel Delshad, Mary Wilson and Danielle Hewitt. Every day we are led by Allison Benedikte and Alicia McMurry, and I am Mary Harris. In between episodes, you can go track me down on Twitter. I’m at Mary desk. I’ll catch you back here tomorrow at.