Opinion by
Randall D. Eliason
Contributing columnist
June 10, 2021 at 7:00 a.m. CDT
For two years, many people were justifiably angry when William P. Barr, as attorney general in the Trump administration, seemed to use his office to pursue political goals rather than simply enforce the law without regard to politics. Now, many of those same people are angry at Attorney General Merrick Garland for apparently refusing to do the same thing.
The latest controversy relates to a defamation lawsuit filed against then-President Donald Trump by E. Jean Carroll, who alleges that Trump raped her during the 1990s. During an Oval Office interview in 2019, Trump denied knowing Carroll and said she was lying in an effort to sell books. When Carroll sued for defamation, the Justice Department, led by Barr, moved to intervene, arguing that the president was immune from the suit under federal law.
Last year, the trial judge rejected that argument, and the Justice Department appealed. On Monday, the Garland-led Justice Department filed a brief taking up that defense and agreeing that Trump could not be sued.
ADVERTISING
Another controversy involves Garland’s decision to appeal a court order to release an internal Justice Department memorandum to then-Attorney General Barr concerning the report by special counsel Robert S. Mueller III. The department says the memo is protected because it contains advice from senior Justice Department officials about how to respond to Mueller’s report on the issue of whether Trump may have obstructed justice during the special counsel’s investigation.
Last month, U.S. District Judge Amy Berman Jackson issued a scathing opinion accusing the department of being “disingenuous” about the purpose of the memo. Rather than agreeing and releasing the full memo, the Justice Department released only a portion of it and announced it would appeal Jackson’s decision.
These Garland actions and others have outraged many Trump critics. They accuse the attorney general of defending Trump’s abuses of power, covering up for the prior administration and seeking to preserve executive power at all costs. They insist that if there is any reasonable argument on the other side, the department should reverse its position because, well — it’s Trump.
But that kind of results-based approach to justice is exactly what was rightly condemned when practiced by Barr. Garland, by contrast, appears to be behaving the way an attorney general is supposed to behave: doing his best to apply the law without regard to the political consequences.
It would be easy for Garland to avoid the heat he is taking by reflexively abandoning positions the Trump administration held. But he doesn’t have that luxury. In our legal system, cases usually aren’t one-offs; they create precedents that can apply in future cases. Garland needs to be conscious of taking positions that could affect presidents — indeed, all public employees — for years to come, regardless of their political party.
Consider the Carroll case. Many people are justifiably upset over the prospect that she might be denied her day in court on the defamation suit. (This case does not involve defending Trump against the rape claim.) In their brief, the lawyers at Biden’s Justice Department go out of their way to condemn Trump’s remarks as crude and disrespectful. But they also point out, correctly, that “this case does not concern whether Mr. Trump’s remarks were appropriate. Nor does it turn on the truthfulness of Ms. Carroll’s allegations.” Rather, it concerns the purely legal question of whether a president may be subject to a private lawsuit for comments he made during an interview while in office.
Some critics claim the government is arguing, in effect, that a president’s duties can include defaming a woman he allegedly assaulted. But that isn’t the proper frame. 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. Assuming they do, then federal law provides that he can’t be sued for what he said. The alternative rule would mean any federal employee speaking in the course of his or her duties would have to fear being sued for damages if a creative lawyer can later allege a particular comment somehow strayed from the official into the personal.
As for the Mueller investigation memo, if Garland simply agreed to release it, he creates another precedent. 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.
The Justice Department’s position in these cases is far from frivolous; I expect it may well prevail in both. It is defending established legal standards that are in the best long-term interests of the presidency and the executive branch. That reality doesn’t change simply because the Trump administration also took the same positions. The outrages of the Trump administration make it tempting to bend the rules in response. But Garland’s responsibility is to ensure that the courts get the law right — not that they get Trump.
Randall D. Eliason
Contributing columnist
June 10, 2021 at 7:00 a.m. CDT
For two years, many people were justifiably angry when William P. Barr, as attorney general in the Trump administration, seemed to use his office to pursue political goals rather than simply enforce the law without regard to politics. Now, many of those same people are angry at Attorney General Merrick Garland for apparently refusing to do the same thing.
The latest controversy relates to a defamation lawsuit filed against then-President Donald Trump by E. Jean Carroll, who alleges that Trump raped her during the 1990s. During an Oval Office interview in 2019, Trump denied knowing Carroll and said she was lying in an effort to sell books. When Carroll sued for defamation, the Justice Department, led by Barr, moved to intervene, arguing that the president was immune from the suit under federal law.
Last year, the trial judge rejected that argument, and the Justice Department appealed. On Monday, the Garland-led Justice Department filed a brief taking up that defense and agreeing that Trump could not be sued.
ADVERTISING
Another controversy involves Garland’s decision to appeal a court order to release an internal Justice Department memorandum to then-Attorney General Barr concerning the report by special counsel Robert S. Mueller III. The department says the memo is protected because it contains advice from senior Justice Department officials about how to respond to Mueller’s report on the issue of whether Trump may have obstructed justice during the special counsel’s investigation.
Last month, U.S. District Judge Amy Berman Jackson issued a scathing opinion accusing the department of being “disingenuous” about the purpose of the memo. Rather than agreeing and releasing the full memo, the Justice Department released only a portion of it and announced it would appeal Jackson’s decision.
These Garland actions and others have outraged many Trump critics. They accuse the attorney general of defending Trump’s abuses of power, covering up for the prior administration and seeking to preserve executive power at all costs. They insist that if there is any reasonable argument on the other side, the department should reverse its position because, well — it’s Trump.
But that kind of results-based approach to justice is exactly what was rightly condemned when practiced by Barr. Garland, by contrast, appears to be behaving the way an attorney general is supposed to behave: doing his best to apply the law without regard to the political consequences.
It would be easy for Garland to avoid the heat he is taking by reflexively abandoning positions the Trump administration held. But he doesn’t have that luxury. In our legal system, cases usually aren’t one-offs; they create precedents that can apply in future cases. Garland needs to be conscious of taking positions that could affect presidents — indeed, all public employees — for years to come, regardless of their political party.
Consider the Carroll case. Many people are justifiably upset over the prospect that she might be denied her day in court on the defamation suit. (This case does not involve defending Trump against the rape claim.) In their brief, the lawyers at Biden’s Justice Department go out of their way to condemn Trump’s remarks as crude and disrespectful. But they also point out, correctly, that “this case does not concern whether Mr. Trump’s remarks were appropriate. Nor does it turn on the truthfulness of Ms. Carroll’s allegations.” Rather, it concerns the purely legal question of whether a president may be subject to a private lawsuit for comments he made during an interview while in office.
Some critics claim the government is arguing, in effect, that a president’s duties can include defaming a woman he allegedly assaulted. But that isn’t the proper frame. 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. Assuming they do, then federal law provides that he can’t be sued for what he said. The alternative rule would mean any federal employee speaking in the course of his or her duties would have to fear being sued for damages if a creative lawyer can later allege a particular comment somehow strayed from the official into the personal.
As for the Mueller investigation memo, if Garland simply agreed to release it, he creates another precedent. 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.
The Justice Department’s position in these cases is far from frivolous; I expect it may well prevail in both. It is defending established legal standards that are in the best long-term interests of the presidency and the executive branch. That reality doesn’t change simply because the Trump administration also took the same positions. The outrages of the Trump administration make it tempting to bend the rules in response. But Garland’s responsibility is to ensure that the courts get the law right — not that they get Trump.
