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US It’s complicated: Moving on from Trump at DOJ not easy for 'straight-shooting' AG Garland

19:11  09 june  2021
19:11  09 june  2021 Source:   usatoday.com

Justice faces pressure for action on civil rights post-Trump

  Justice faces pressure for action on civil rights post-Trump The Biden Justice Department is facing mounting pressure to address civil rights challenges and rework the agency's priorities in the wake of the Trump administration now that it has a full slate of civil rights leaders at the helm.The top DOJ officials who have been confirmed in recent months have pledged a renewed commitment to enforcing voting rights protections and tackling police misconduct across the country, reinvigorating legal tools that critics say went underutilized during the Trump era.

In the three months since his confirmation, Attorney General Merrick Garland has moved to uncouple the Justice Department from the tumult of the Trump administration.

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Merrick Garland wearing a suit and tie: It’s complicated: Moving on from Trump at DOJ not always a clean break © Illustration: Andrea Brunty, USA TODAY Network, and Getty Images, AP It’s complicated: Moving on from Trump at DOJ not always a clean break

The former federal judge has rolled back Trump policies that had shielded local police departments from federal scrutiny in the face of social justice protests, launching wide-ranging civil rights investigations into law enforcement operations in Minneapolis and Louisville.

He has repeatedly vowed to reaffirm standards that "protect the independence of the department from partisan influence in law enforcement investigations; that strictly regulate communications with the White House" — all of which were tested mightily during the previous administration.

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a man wearing a suit and tie: Attorney General Merrick Garland leaves the podium after making an announcement at the Department of Justice on April 26, 2021 in Washington, DC. © Mandel Ngan, Getty Images Attorney General Merrick Garland leaves the podium after making an announcement at the Department of Justice on April 26, 2021 in Washington, DC.

Yet moving on from the long shadow cast by Trump administration is also proving to be a complicated legal exercise sometimes limited by institutional norms that the former president regularly shattered.

In recent days, Justice lawyers have taken positions in politically-charged court battles that have left some Democrats shaking their heads. The Biden Justice Department has appealed a judge's order to release the full contents of a 2019 memorandum that recommended Trump not be charged with obstruction during the Russia investigation.

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Donald Trump, Elisabeth Schwarzkopf are posing for a picture: President Donald Trump, E. Jean Carroll and Attorney General William Barr are shown in this combo photo. © AP President Donald Trump, E. Jean Carroll and Attorney General William Barr are shown in this combo photo.
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And in court documents filed late Monday in New York, Justice signaled it would continue to defend Trump in a defamation lawsuit brought by writer E.Jean Carroll who has accused the former president of sexually assaulting her in the 1990s. In both cases, Justice lawyers offered tempered support for their positions — referring to Trump’s language in the Carroll case as “crude and disrespectful” — citing legal and institutional precedent for taking the actions.

While the Justice moves brought recriminations from Carroll's representatives and countered some Democratic lawmakers who urged the department to clear the way for the release of the long-sought obstruction memo, some legal analysts suggested that the decisions had reaffirmed Garland's early vow to distance the department from partisan politics.

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"If you didn't know that Merrick Garland was a straight-shooting attorney general before, you sure as heck know it now," said Donald Ayer, a former deputy attorney general in the George H.W. Bush administration.

Inherent in the transition to any new administration is the challenge of navigating a thicket of leftover litigation, said Matthew Miller, a former Justice spokesman in the Obama administration.

"There is a strong institutional pressure (at Justice) to preserve the executive branch," Miller said. "Sometimes that's the right position to take; sometimes it's not."

‘Truly shocking’

In the heat of the presidential campaign, then-candidate Joe Biden often called out the sitting president for exerting undue influence on the Justice Department, suggesting at times that Trump used the department as his personal law firm.

The candidate's criticism is one of the reasons why the Biden Justice Department drew so much notice for seeking to defend Trump in the pending lawsuit.

a sign lit up at night: President Donald Trump, left, and Democratic presidential candidate Joe Biden participate in the second and final presidential debate on Oct. 22. © Julio Cortez, AP President Donald Trump, left, and Democratic presidential candidate Joe Biden participate in the second and final presidential debate on Oct. 22.

Justice attorneys argued in a court brief filed Monday night that Trump acted in his official capacity when he said in 2019 that Carroll lied about being raped to boost the sales of her memoir.

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At issue, the attorneys said, is not whether Carroll's allegations were true or if Trump's response to them were appropriate, but whether the United States is liable for actions federal employees made within the scope of their employment, the attorneys argued.

"Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official's job. Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials' employment — including when statements were prompted by press inquiries about the official's private life," the attorneys wrote.

White House spokesman Andrew Bates said Biden was not consulted by the Justice Department "on the decision to file this brief or its contents."

"And while we are not going to comment on this ongoing litigation, the American people know well that President Biden and his team have utterly different standards from their predecessors for what qualify as acceptable statements," Bates said.

The legal reasoning for the Justice filing, however, brought condemnation from Carroll's representatives who blasted the department for falling short of its legal and "moral" obligations.

“It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago," said attorney Roberta Kaplan. "But it is truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thereby depriving our client of her day in court.

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"The DOJ’s position," Kaplan continued, "is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward."

a group of people standing around a table: Attorney General William Barr arrives to testify during a Senate Judiciary Committee hearing on Capitol Hill in Washington. © Andrew Harnik, AP Attorney General William Barr arrives to testify during a Senate Judiciary Committee hearing on Capitol Hill in Washington.

Last month, Justice's appeal of a judge's order to release the so-called obstruction memo came despite the opposition — albeit more tempered — leveled by Democratic senators who urged a clean break with the Trump era.

Sens. Sheldon Whitehouse, D-R.I., and Dick Durbin, D-Ill., had urged Garland not to appeal the judge's ruling.

“DOJ’s actions in this case, and in another recent Freedom of Information Act case seeking information about President Trump’s activities, have raised doubts about DOJ’s candor when characterizing potential evidence of President Trump’s misconduct to courts," the senators wrote. "To be clear, these misrepresentations preceded your confirmation as Attorney General, but the Department you now lead bears responsibility for redressing them."

The memo had been requested by the group Citizens for Responsibility and Ethics in Washington under the Freedom of Information Act.

"The Department of Justice had an opportunity to come clean, turn over the memo, and close the book on the politicization and dishonesty of the past four years," said Noah Bookbinder, president of the government accountability group, asserting at the time that the department's action "undercuts efforts to move past the abuses of the last administration."

Liberals Need To Stop Whining About Merrick Garland Defending Trump

  Liberals Need To Stop Whining About Merrick Garland Defending Trump Some liberals are furious with Attorney General Merrick Garland as the Department of Justice defends laws that they oppose and individuals they abhor, including Donald Trump. Some of the criticisms arise from a misunderstanding of the foundational obligations of the DOJ to defend the laws of the United States—including those at odds with the policies of the current administration. That does not mean, however, that the DOJ under Garland should defend every position taken by the Trump-era Department, which was marked by mendacity and a disregard for the rule of law.

‘Institutional interests at stake’

Although Garland's Justice Department has drawn some early fire, William Yeomans, a Justice veteran who served under five Republican and Democratic presidents, said the department has long been "reluctant" to abandon a position in the face of political pressures.

Nora Dannehy et al. posing for the camera: John Durham is looking into the origins of the FBI's investigation into Russian election interference. © Bob Child, AP John Durham is looking into the origins of the FBI's investigation into Russian election interference.

"It is worth remembering that DOJ has institutional interests at stake in both of these situations that carry over from administration to administration," said Yeomans, whose Justice service stretched from the administrations Jimmy Carter to George W. Bush. "DOJ represents the office of the presidency in court, as well as government officials who are sued in their official capacities.

"What made DOJ’s defense of Trump’s behavior ... so unpalatable was often less that it was representing the president than the substance of what the president had done in his official capacity," the former official said. "I would add that DOJ is always reluctant — and properly so — to change its position in court for no reason other than an election."

It won't get easier

And there are more difficult decisions on the horizon.

A Trump-era investigation into the origins of the Russia inquiry is continuing. Connecticut U.S. Attorney John Durham, first appointed by former Attorney General William Barr, is leading the inquiry, which has so far resulted in the conviction of an FBI lawyer who pleaded guilty to altering an email used to justify the surveillance of former Trump campaign adviser Carter Page.

Hunter Biden wearing a suit and tie: Federal prosecutors in Delaware are investigating Hunter Biden's taxes. © Pablo Martinez Monsivais, AP Federal prosecutors in Delaware are investigating Hunter Biden's taxes.

Federal prosecutors in Delaware also have been pursuing a tax investigation involving the president's son, Hunter Biden, that began during the Trump administration.

David Weiss, the chief federal prosecutor in Delaware, was left in place by the Biden administration to complete the investigation.

Garland also could face the prospect of determining whether Trump should face charges for inciting the Jan. 6 Capitol riot.

Michael Sherwin, who oversaw the sprawling riot investigation before departing the Justice Department earlier this year, said federal authorities were reviewing "everything" during an interview with CBS in March.

"Any decision the Department of Justice makes should be based on an unbiased, non-partisan interpretation of the law," said University of Notre Dame law professor Jimmy Gurule, a former Justice official in the George H.W. Bush administration.

"As long as the Justice Department can justify a position on the merits, that's fine. And I think that's what you are seeing with Garland," Gurule said. "He's calling balls and strikes as he sees them and drawing criticism from both sides. I would be more concerned if I saw an en masse flipping of positions that were in line with Democratic policies."

Contributing: Kristine Phillips

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This article originally appeared on USA TODAY: It’s complicated: Moving on from Trump at DOJ not easy for 'straight-shooting' AG Garland

Liberals Need To Stop Whining About Merrick Garland Defending Trump .
Some liberals are furious with Attorney General Merrick Garland as the Department of Justice defends laws that they oppose and individuals they abhor, including Donald Trump. Some of the criticisms arise from a misunderstanding of the foundational obligations of the DOJ to defend the laws of the United States—including those at odds with the policies of the current administration. That does not mean, however, that the DOJ under Garland should defend every position taken by the Trump-era Department, which was marked by mendacity and a disregard for the rule of law.

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