Opinion by
Paul Butler
Contributing columnist
June 7, 2021 at 1:47 p.m. CDT
Attorney General Merrick Garland is not the new William P. Barr — not by a long shot. But the Justice Department is still fighting transparency and accountability in a way that must delight the former attorney general, who led the department into the abyss during the Trump administration. The Justice Department is now defending two of the most controversial acts of the previous administration — using arguments cribbed from Donald Trump himself.
DOJ lawyers are fighting to keep secret a memo that Barr cited to justify his decision not to charge Trump with obstruction of justice during the investigation by special counsel Robert S. Mueller III. In another case, Justice lawyers suggested that the gassing of lawful protesters by police last year in Washington’s Lafayette Square was appropriate for the safety of the president.
One question that kept coming up during the presidential transition was how vigorously the new administration would pursue corruption investigations against people in the former administration. Now it seems the better question may be to what lengths the Justice Department will go to defend the Trump administration’s abuse of power — with its primary concern being preserving that power for the Biden administration and beyond.
As attorney general, Barr never grasped that he was supposed to be serving the people of the United States, as opposed to acting as Trump’s defense attorney. One of Barr’s most egregious acts was trying to protect his boss from serious legal and political consequences by mischaracterizing the findings of the Mueller report before the public was allowed to see it.
Barr prepared a four-page letter purportedly describing the report’s “principal conclusions” that the Trump campaign did not collude with Russia and that Mueller would not charge Trump with obstruction of justice. Barr added that the facts contained in the report provided insufficient evidence of obstruction, and that in reaching this conclusion he had consulted with DOJ’s Office of Legal Counsel.
In response to a Freedom of Information Act lawsuit seeking the materials that Barr relied on, federal District Judge Amy Berman Jackson issued an opinion finding that Barr had been “disingenuous” when describing Mueller’s findings and ordered the release of the Office of Legal Counsel memo. Justice Department lawyers, under Barr, had objected to releasing the document on the basis of attorney-client privilege, but Jackson found that memo contained “strategic, as opposed to legal advice,” designed to support Barr’s determination to absolve Trump.
The judge characterized the Justice Department arguments against release as “so inconsistent with evidence in the record, they are not worthy of credence.” That’s actually a cogent description of the Trump administration’s approach to many issues; one might have expected the new sheriff in town to support the judge’s rebuke of the corrupt old regime. But Garland’s DOJ is standing by Barr’s DOJ — it released a heavily redacted version of the memo and is appealing Jackson’s order to provide the entire document to the public.
There is a fine line between protecting the confidentiality of important records and shielding corrupt officials. Garland is walking on the wrong side of that line. Nine Democratic senators recently wrote to him asking for the release the memo “to help rebuild the nation’s trust in DOJ’s independence after four years of turmoil.”
Instead, the Justice Department doubled down. Recently, its lawyers asked a judge to dismiss a lawsuit against Trump and Barr for their actions in clearing Black Lives Matter protesters from a park across the street from the White House. Even though the demonstrators were peaceful, military and various police agencies used smoke bombs, tear gas, batons and horses to force them to retreat from the park so Trump, Barr and other senior officials could walk to a nearby church.
Before he was president, Biden criticized this use of force, saying Trump “deployed the U.S. military, tear gassing peaceful protesters in pursuit of a photo opportunity in the service of his reelection.” But now his administration wants the case thrown out because it was necessary for presidential security — which is what Barr had said when he justified the use of force at the time.
Trump had also made it clear that the law enforcement violence was about politics, not presidential security. In response to last summer’s widespread protests following the death of George Floyd, the then-president had called on police to use “overwhelming force” to put down the “THUGS.” The day after the demonstrators at Lafayette Square were attacked, Trump tweeted: “D.C. had no problems last night. Many arrests. Great job done by all. Overwhelming force. Domination.”
Justice Department lawyers also asked the judge to throw out the case because Trump is no longer president, and there is no reason to be concerned that the state violence at Lafayette Square will be repeated. But keeping important records secret, and shielding high-level officials, sounds like the same old, same old.
As a proud Justice Department alumnus, I respect that Garland is an institutionalist. The most important way he can restore confidence in the institution is not with platitudes about how much more integrity Biden has than Trump, true as that is. Garland should uphold the values of the Justice Department by exposing the misdeeds of the previous administration and ensuring accountability.
