My subject is Merrick Garland’s Department of Justice and our frustrations with its silence and its actions, but I’m worried, y’all. I’m worried that an observation turned into an article, and then it got dreary. I’m even more worried that I’m going to commit the worst crime within my reach: I’m going to bore you. (Other crimes are more difficult. Baudelaire said of fornication, for example, that the worst part is that it is a crime one cannot commit without an accomplice.) I’m going to try to organize well and give warning. Feel free to jump around (to keep your blood flowing, and jump around in the essay whenever I’m being obvious).
Table of contents
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INTRODUCTION |
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pART oNE |
The Saturday Night Massacre Is a Duet! |
The fear of resignations and resigning |
part two |
The Institutional Deference/Institutional
Independence of Our Dreams
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Why “institutionalism” works when it does, and why there is deference to departments |
part three |
Why Defense of Institutions After Abuse
Is “Where Law Ends”
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The reason “institutionalism” does not anticipate diversion of purpose or structure |
part four |
Defending the Presidency and Deference Ensures
the Death of Both
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Why the current practices by DOJ are destroying it in the name of preservation |
Introduction
Merrick Garland’s role in perpetuating the Department of Justice’s two most controversial revenants from the Trump administration is unknown. He is the Attorney General, and it’s always easier to complain about the man at the top than sort through all of the people beneath him to find out who is affecting press announcements and decisions — especially when those decisions can look like cowardice, inertia, or a repeat of past mistakes from the Gonzales/Yoo period.
No matter the person to blame, two Justice department actions have really alarmed Democrats:
- Appealing federal judge Amy Berman Jackson’s thundering order to declassify and publish the Office of Legal Counsel (OLC) memo William Barr cited as the reasoning for declaring, days after receiving the +400 pages of the Mueller Report, that Mueller had not reached a prosecutorial decision and thus had “failed” his duty, that it was entirely up to him to decide whether or not there was sufficient evidence to indict Trump then or in the future for obstruction of justice or conspiracy with a foreign power to corrupt the election, and that there wasn’t evidence in the report for such a decision. Judge Jackson has agreed to stay her decision while Justice’s appeal goes forward, even though the plaintiff, CREW, thinks there is little chance of success on facts.
- Appealing a federal court’s decision not to allow a change of venue and defendant in the E. Jean Carroll defamation lawsuit by claiming “Westfall (Act)” immunity for Donald Trump.
- Suggesting that issuing warrants for journalists’ phone records would continue in leak investigations, but in comportment with established Justice Department policy. (This has now been reversed.)
Garland hasn’t spoken about the two cases, and journalists have speculated on why he would make these moves. They’re not in keeping with the federal judge he was, but they may reflect an attempt to “reset” Justice, to send a message to “rank and file prosecutors” that they won’t be thrown to the wolves every time the presidency changes. Marcy Wheeler, at Empty Wheel blog, speculates that the person most likely, by temperament experience, to have made the determinations in these cases is Lisa Monaco, the new Deputy Attorney General.
Regardless, pundits and journalists have scratched their heads and beards (where appropriate) to explain these things. They have asserted two explanations so consistently that they start to sound sourced. First, the AG and DAG are “institutionalists” “resetting” the department to its status before Barr; they are therefore trying to protect the “institutions” from the courts, the press, and the general entropy of mad leaders.
If this is true, then Garland and Monaco are doing the worst possible thing. “Protecting the institutions” as an abstract entity and reassuring “the career prosecutors” by shielding them actually destroys the institution and the prosecutors.
Whenever an administration “protects the institution” as an abstract noun (“protect the presidency”), it actually corrupts the institution by putting it above all correction, all reproach, and all investigation. Whenever a new administration “protects the institution” by insisting upon “traditional deference,” it undermines the possibility of the institution ever having been abused, perverted, or broken, and it applies plasters over abusers with the good will created by the ethical work of the past. Finally, whenever a new administration seeks a “reset,” it ensures that no one will ever be able to demonstrate the interruptions in government function caused by corruption and that no government will ever be able to heal itself through the fire alarm of resignations again.
Part One: The Saturday Night Massacre Is a Duet!
This May and early June, we had a lot to digest about the Justice Department and law enforcement at the highest level. We saw the failure of law through lawfare when we finally got Don McGahn’s testimony before the House Judiciary Committee, from a subpoena issued in 2019. The only flash of new material in the recitation of the Mueller Report testimony was that McGahn failed to deliver Trump’s command to Rod Rosenstein to fire Robert Mueller because he might be prosecuted if he did. Since his client was the presidency, and not a particular president, he could not obey Trump.
The old news, contained in the Mueller Report volume II, is that he didn’t deliver the command because it would have resulted in a Saturday Night Massacre at Justice. Fear of a Saturday Night Massacre recurs throughout McGahn’s testimony. As just one example in volume II:
That weekend,the President called McGahn and directed him to have the Special Counsel removed because of asserted conflicts of interest. McGahn did not carry out the instruction for fear of being seen as triggering another Saturday Night Massacre and instead prepared to resign. McGahn ultimately did not quit and the President did not follow up with McGahn on his request to have the Special Counsel removed.
However, McGahn wasn’t the only one to invoke the Saturday Night Massacre as a reason to disobey Trump. Rod Rosenstein, too, referred to it. Heck, “Saturday Night Massacre” kept Rosenstein employed. When Trump was talking about firing him on Twitter, public talk (and White House panic talk) of a S.N.M. kept Rosenstein in charge of the Mueller Report. Repeatedly, pundits warned that there would be a massive walk-out if Rosenstein were fired while Trump harangued and harried.
However, the “Saturday Night Massacre” is two things. It is a President or other top executive overriding norms and ethics and showing contempt for the good order and practice of an institution by firing someone important, but then it is a mass resignation of principled personnel whom the President does not find inconvenient — people whose departures hamper the President’s capacity to function and who shine a light on corruption.
In 2017 and 2018, warnings of a Saturday Night Massacre limited Trump, but, after Democrats won the House, Adam Schiff pointed out that a “slow-moving” Saturday Night Massacre began. The earlier one, with Comey, Sally Yates, and Sessions, had not prompted mass resignations, but, after the losses in 2018, Trump blamed everyone (particularly at Justice), and the firing-by-Twitter began. It apparently only took staggering the firings by a week to prevent public awareness. Obviously Trump wasn’t bothered by the “massacre” part; he was only worried about the other people quitting, the ones he hadn’t given permission to quit to.
1. B. The Singing Partner, William P. Barr, Arrives: The Unheard Duets Begin
William P. Barr genuinely believes that the U.S. President has full control of the Justice Department. He has the most radical Theory of the Unitary Executive ever seen in office. Although he didn’t argue it, he would likely support the position one of Trump’s lawyers argued before the Supreme Court that, as top law enforcement officer in the country, if Trump shot someone on 5th Avenue, no policeman could even investigate the shooting without his permission, much less make an arrest. Barr also does not believe that the Article II branch (Congress) can investigate a President. It may impeach, because that is in the Constitution, but it cannot investigate, because that is an Article I power.
We shouldn’t be as shocked as we are, then, that he did exactly what Donald Trump wanted, including reviving insupportable warrants on reporters over the “Russia witch hunt” material (in 2019, Barr announced that “National Security” leak investigations had not been handled properly before him, and he reinvigorated the warrants on reporters; whether this is causal or not is unknown), walking hand in hand with John Durham to revive lapsed investigations of journalists who revealed Sessions’s talks with Kislyak, Flynn’s talks with Kislyak and fete with RT and Putin, and the intelligence community’s assessments of Russia’s coordination with the Trump campaign. Trump twittered that Adam Schiff was a leaker in 2018, and Bill Barr moved a gang/terrorism prosecutor down to Main Justice to look at his and Swawell’s phone and e-mail records as soon as he could, in 2019, and even redefined “spying” to justify the warrants as investigating “spying” on Donald Trump.
We shouldn’t be shocked at what he did. We can’t be surprised that he will stand up, put his hand on a Bible (perhaps upside down), and swear that he never issued warrants on Congress for leaks (because he was looking into spying on Trump).
Instead, we should be shocked that he was confirmed. We should be shocked that we were so numbed by venal and corrupt appointees, by the dullness of Whitaker, that we couldn’t make his nomination more of a cause of the public than Clarence Thomas’s was to the Supreme Court. We should be mortally offended that “liberal think tanks” like Brookings called him an “institutionalist” and a breath of fresh air.
After a DeVos, a Price, a Zinke, an Andy Pudzner, a Wilbur Ross, and the lovely Mnuchins, the air was pretty fetid. We had been insulted so often and so deeply that the public could only respond to those few who warned about Barr’s prior work in pardons and presidential power, “Oh, a wolf? Well, how big is this one?”
Huge, as it turns out, but man did he have sheep’s clothing from the press.
What else is surprising is the venom with which Barr pursued his mission. He hates us.
In February 2020, more than 2000 career Justice prosecutors had to sign a letter telling him to resign. His response would be the Lafayette Square clearing with Bureau of Prisons staff. It would be using CBP snipers in Portland. It would be using Marshals Service sharp shooters to “protect federal facilities” that weren’t in danger in order to work up a “wild in the streets” political campaign for Trump.
Barr’s only, and I mean ONLY, distancing from Trump concerned the Big Lie. First, he did not publicize a Delaware investigation into Hunter Biden’s taxes. Second, he didn’t support seizing the voting machines or the claim that there was fraud everywhere. (Hence the Jeffrey Clark infernus ex machina attempt at Justice that failed.)
During Barr’s time, his actions prompted several resignations of career prosecutors. Most did not write public letters about it. Philip Halpern did. The most senior resignations occurred when Barr replaced the Flynn prosecutors and substituted a stooge and when he changed the government’s sentencing request for Roger Stone. That one prompted two resignations, and they were clearly designed to stymie Barr’s efforts, since Barr initially couldn’t find anyone to sign the sentencing recommendation and had to airlift someone who was unfamiliar with the case. The judge (Amy Berman Jackson) noticed this and was not happy.
When a career prosecutor resigns, it is the last act of protest.
It means that this is a person who has tried to tolerate what is tolerable and tried to change what appears corrupt through every institutional means. When there is a resignation it is supposed to be a signal — to the bosses, to the highest boss, and, at last, to the public — that the institution itself is broken, that the mechanisms for addressing abuse are not working, that something deeply unethical is taking place, something worth more than a person’s livelihood.
Prosecutors are not known for being squishy bleeding hearts. They are not “woke,” in the latest Republican catchphrase. Nor do they tend, like defense and personal injury trial lawyers, to be Democrats.
Both Peter Strzok, in Compromised, and Andrew Weissman, in Where Law Ends, indicate that the culture of Justice and FBI is conservative but non-partisan. When it is partisan, it’s Republican-by-default. Strzok himself was a Kasick supporter. Thus, the career DOJ prosecutors who resign are sending pretty desperate signals when they resign.
The fact is, the Saturday Night Massacre happened, multiple times. Barr and Trump survived by already horrifying every ethical prosecutor, terrifying conservative law enforcement and Justice employees not in their cult, exhausting the press, and frustrating all attempts at avoiding a corrupt outcome.
These resignations were the screams of a DYING Justice Department, not the whines of disgruntled former employees or office seekers.
Part Two: The Institutional Deference/Institutional
Independence of Our Dreams
Putatively, the Garland Justice Department is committed to a reset and the protection of the “good, career prosecutors” who do all the work. Lisa Monaco is the new Deputy Attorney General (what Rod Rosenstein was), and, in her confirmation hearing, she said that her job was to protect these unpartisan workers and to let them do their jobs.
In her confirmation hearing, Lisa Monaco said to Senator Amy Kloubechar,
the career men and women of the Justice Department are its backbone. They’re the people that enforce the law independently, faithfully, fairly, impartially, without any consideration of improper motive. I think they simply want to do their job. They want to do their job with the resources and the tools to keep the American people safe, to prosecute violent crime, to administer justice with compassion, and with humility, as Judge Garland talked about before this committee. . . . And so I think my role is to ensure that they’ve got the tools and resources to do their job and to protect them from improper influence, any partisan motive, because I think they just want to do their job.
Who can argue with that?
In a properly functioning department, what she is proposing is important. Good order means:
- Policy comes from the top, and prosecutors follow it
- Legal counsel/analysis comes from a fully independent OLC stocked with Justice’s best legal minds, who do not get their hands on particular cases
- Prosecutors and US Attorneys who pursue policy from the AG and abide by OLC guidance do so ethically and as well as they can
- If they perceive a contradiction in law or an unethical practice, they bring their concerns up the chain or, at worst, ask to be removed from a case
- They write a memo to file of significant problems that are unresolved, and they continue to do their jobs.
Such a department should not see the individual prosecutors fired or harassed. Furthermore, having their work thrown away because of a change in the political leadership is tantamount to Presidential interference in the Justice Department. I.e. it is wrong for a President Tsvnq to tell Justice to tap a phone, but it is therefore just as wrong for a change to President Bjefo to result in abandoning such a tap, once begun.
That’s the perfect world.
Furthermore, judges should trust this Panglossian institution. If they don’t, then they will be inserting themselves into an Article I power. They will be saying, “I don’t like your OLC thinking. I demand that I get in there and make my own legal analysis.” A judge should keep out of OLC and give it “deference” on constitutional grounds.
Finally, Attorneys General are not the attorneys of a president, but of a nation. In the well-structured and functioning DOJ, no president sticks his nose into Justice, and Justice never argues or engages for the person of a president. Instead, it looks out for, say, The Government. Therefore, it would be proper for Justice, no matter how the past DOJ ran, to say, “We are protecting all presidents everywhere when we say that a president sliming a woman is performing his official duties” (or, really, “We’ll say he was performing his duties even though we don’t believe it because what we really think is that The Presidency cannot be sued for defamation”).
Part 3: Why Defense of Institutions After Abuse
Is “Where Law Ends”
You don’t have to go far into Locke’s Second Treatise on Civil Government (the one the British crown banned) to find the phrase engraved on the Department of Justice (sect. 202: “Where law ends, there tyranny begins”). The Justice Department in January 2021 was not and is not in good order or under good direction. Therefore, defense of it (or any non-ordered, misdirected occupant of a defended position) is the beginning of tyrannical power.
First, I am not going to catalog all of William P. Barr’s abuses. Instead, I want to concentrate on two categories of abuse that render the “institution” no longer itself. These are abuses of process/operation and abuses of purpose/function.
Second, I want to argue that these abuses made the the institution neither proper in its actions nor in its presentation to courts or the public.
Barr only had a year and a half to do a great deal of damage, but he was very effective. (It is always easier to knock down a wall in a house than to build one.) The way Barr changed DOJ that was most obvious to the public was that he made it the president’s advocate and instrument. Instead of having the people of the United States as his client, he had the President of the United States as his client. As such, he changed the purpose and the function of the Department of Justice. Note that this was a logical extension of his theory of the unified executive.
The most explicit recent example of Barr’s shift of function and purpose came in his making DOJ, and his personal office, an adjunct to Donald Trump’s re-election effort. While Barr refused to endorse the Big Lie of a stolen election (and was pleased to let the public think it caused his resignation), he did two things more ostentatious in their corruption:
- He was in charge of “clearing” Lafayette Square in June 2020 so that Trump could waddle across and hold “a Bible” upside down for some photographs that were, to Trump’s campaign, easily worth the bruises, lung scarring, and journalist assaults it took to snap them. In pursuit of a campaign event, and not a legal prosecution, he brought in Bureau of Prisons riot busters. (The legal justification had been established in the 1980’s, when Barr had been AG previously. He boasted in an interview between time in office of how he and his staff went searching through the legal code for anything they could find to remove some people occupying a federal space, and they found a law protecting federal function. After Lafayette Square, Barr used that otherwise little known law to justify sending Border Patrol to Portland to ‘protect’ a courthouse.) There was no danger to a federal building at the time, and there was no need for force, as even the anemic Park IG report, with its bizarro non sequiturs, concludes.
- He ensured the flow of disinformation into the 2020 election. It is that clear, although explaining it isn’t:
- When SDNY indicted Lev Parnas and Igor Fruman, it also got a warrant for Rudy Giuliani’s iCloud account. William Barr swooped in to “coordinate” with SDNY, and Giuliani was not indicted. Parnas immediately began talking to the press about how there was preferential prosecution going on, because he worked with Rudy on everything. He also said that he and Igor and Rudy were meeting with Andrei Derkach in Ukraine.
- Members of Congress were given warnings by the FBI as the first impeachment was going on that Derkach was a Russian agent and that he was giving out disinformation designed to interfere with our election. However, Rudy Giuliani was prevented from getting this official warning by Barr, just as he was getting on a plane to go meet with Derkach to make a “documentary special” for OAN about how Ukraine, not Russia, attacked the US in 2016 and how Hunter Biden is a crook and Joe Biden is corrupt. NBC News said this was “because it would “complicate” what NBC called “the criminal investigation” into Rudy.” There was no such investigation at the time.
- When Fruman and Parnas presented materials, corroborated by many others, that they worked with Giuliani to oust Ambassador Yanokovitch, Barr separated that investigation from SDNY and put it under the control of a protegee, John Donoghue, at EDNY.
- Barr personally ordered the AUSA from Western Pennsylvania to make an official report based on Rudy’s “evidence” of Biden “Crime Family” corruption.
- Donoghue was replaced by Seth DuCharme, who was, if anything, more loyal to Barr and Trump. He announced that the EDNY investigation into the efforts to oust Yanokovitch did not have Giuliani as a subject. This left Rudy Giuliani free to pass on Derkach’s avowed disinformation into the right wing airwaves up to January 6, 2021.
The Attorney General worked for Donald Trump, and for his re-election, and the Department of Justice was subordinated to the political ends of the president’s benefit and, most importantly, against the interests of the American people. The citizens were the ones assaulted in Lafayette Square, and they were the ones lied to by Russian disinformation. The Department of Justice of January 2021 (Rosen made no changes) was not the same institution that had built good will and respect through “unpartisan” “career prosecutors.” Treating it as such concretizes presidential power to manipulate law, and that is one of the definitions of tyranny.
In terms of abusing the formal operation of the Department of Justice, Barr was busy there, too. When, later, we talk about “deference” due to OLC, we have to keep in mind that the procedures of Justice were just as distorted by Barr as the purpose of Justice had been.
Marcy Wheeler mentions that one of Barr’s tactics (legal but a complete disordering of operation) was to uproot US Attorneys from their districts and their specialties and have them assigned to reach conclusions that he preferred. First, when John Durham, who had never touched counter-intelligence, was given the job of proving that the Carter Page FISA warrant was wrong, his prosecution of Kevin Clinesmith showed only that Durham didn’t actually understand Crossfire Hurricane (and yet he was supposed to prove it had no predicate). Then, Barr got Jeffrey Jensen, whose experience was solely in gun crimes, to question the Department of Justice’s inspector general to force some conclusions that the IG never reached, but the questions he and his team asked only revealed ignorance of the task they were assigned and the report they were supposed to be puncturing. And, of course, after some unnamed leak investigators tried to find out the source of the information on Flynn and Kislyak by searching House staff phone records and found nothing, he brought in a New Jersey health care fraud investigator who would find the “spying” that he had defined.
This is not regular order, and it’s not good order. Justice prosecutors — the “line prosecutors” that Garland and Monaco want to protect — are dedicated to arriving at truth and investigating without FAVOR or bias. Barr’s process was designed specifically to disallow a lack of bias and to frustrate an ability to arrive at truth.
But that isn’t the only illustration. The other is pretty well known: the resign/firing of Geoffrey Berman, head of SDNY. Remember how that happened, because it has everything you want in an illustration of William P. Barr: he announced that Berman had resigned. That was news to Berman. Barr had a friend he wanted to take over at SDNY — someone who shared Barr’s views about the extreme unified executive. Having found this friend, and Berman having a line on Giuliani, Barr thought that, being a good and loyal employee, Berman would go.
Berman said that he had not resigned and that he would not resign. Barr then said that Trump was going to fire him. Trump couldn’t . . . for reasons having to do with naming the friend. Berman negotiated to ensure that his #2 took over.
I can add to this list Barr inserting himself into the sentencing of Roger Stone and rejecting the formula prosecutors use. I can also add Aaron Zelinsky’s statement to Congress about Barr’s politicizing of the Justice Department (in Andrew Weissman’s Where Law Ends, Zelinsky is portrayed as the milquetoast — the Mueller team member most willing to give up without a fight). I can add Barr personally calling for/forcing the dropping of charges against Flynn (which the judge refused).
Why don’t we remember how much of the day-to-day process of Justice Barr monkeyed with? It’s because we had too much evidence. It was more “censorship by noise.”
So, Barr, in only 18 months or so, managed to corrupt the purpose of the DOJ and the internal order of the DOJ.
Part 4: Defending the Presidency and Deference Ensures
the Death of Both
Lisa Monaco is sterling, and her qualifications are impeccable. She was one of the Enron prosecutors (along with Andrew Weissman) and one of Robert Mueller’s top prosecutors (along with Weissman). During the Obama years, she worked on national security matters. She worked in FISA and was one of the top cyber officials in the White House. In fact, she was the person Mike Flynn met with to get information before he met Kislyak in 2016 to warn about the upcoming sanctions. It is possible that she feels strongly about the institution of the presidency as a legal entity divorced from the occupant of the White House.
Whether she does or not, the picking up of the misbegotten Barr gesture of arguing Westfall immunity to Donald Trump for calling E. Jean Carroll a liar could be done because Justice wants to assert that a president insulting women is a presidential function and not a personal one, or because Justice wants to argue that The Presidency cannot be liable in civil court for defamation.
Any Democrat with imagination and memory can imagine wanting to argue that, lest we get ten thousand frivolous cases bankrolled by bilious millionaires designed to paralyze the top executive. (Imagine a President Hillary Clinton suffering the slander suits for “deplorables.”) It’s a worthy goal. It’s a horrific instrument.
One cannot defend “the presidency” by means of a non-president. Remember, “Anybody can act ‘presidential.’ It’s easy, see?” Donald Trump didn’t “do” presidential. He screamed (a lot). He destroyed treaties so that he could get personal “deals.” He put his family on the payroll. He had most of his government in “acting” positions because of the contempt he felt for Congress. He despised both parties. He also stole money. He was impeached twice, and he encouraged political violence from his first day campaigning. The specific speech act in question is not any speech act, but a vile dismissing of the meaning of rape. He said that Carroll was a liar because she wasn’t his type.
If Justice were to defend the presidency this way, it would be establishing that criminal behavior is part of our presidency. Since the “career prosecutors” who picked up the Westfall immunity argument were led to this position by some deliberative influence outside of themselves (if they are honest, it seems unlikely that they would fall upon a position advocated by Trump’s personal lawyers on their own), not appealing would not be failing to defend them. It would be, simply, listening to the bench.
The OLC memos are another matter altogether. Appealing Amy Berman Jackson’s order took action, and the government’s argument was that the OLC was due deference. If deference is granted to an irregular, out of order, OLC, then it will be stolen honor. The Nixon era OLC’s wisdom will be taken by an improperly written, improperly argued, misfiled OLC opinion. It is not a defense of OLC to argue for protecting it, but an injury to it.
The Barr memo was argued with a non-Justice Department purpose (to serve the political aims of an office holder) and a non-Justice Department function in a department that would trigger resignations in protest of career prosecutors. These women and men announced that the institution was not amenable to reform, that it had ceased to be itself. Protecting that with a “reset” only seals the evil it did into the flesh of the Department and vitiates every courageous act of protest.