Since late January, I’ve published a number of articles on Daily Kos about the Department of Justice, calling them out for their tepid defense of democracy and the rule of law. While Attorney General Merrick Garland tells us that they will do the right thing, following the facts and the law, it is clear that both the facts and the law demand more action than we’ve seen.
This Series
In the first article, Resuscitating Democracy, Kirsten Sinema and Joe Manchin had just walked into the Senate and shot democracy by requiring Republican votes to stop Republican anti-voting laws in the states. With democracy expiring on the floor, I called on dear old dad, Justice, to come resuscitate democracy before she expired.
The jury is still out on whether Justice will show up, but it don’t look good.
84% of voters on the poll favored "Yes, the DOJ needs to be much more aggressive with legal action against states taking away voting rights.”
In the second article, The DOJ Is Becoming a Problem To Solve, we review reasons why the DOJ might cower away from taking on voting rights cases. Legal fights now become political fights. Republicans in the states are openly hostile to democracy. Republicans have fought hard to make even enforcing the right to vote political. And the SCOTUS has been purchased whole with loot piled high by politics.
So, I can understand why DOJ would cower away from enforcing voting rights.
This time, 90% of voters on the poll favored, “Yes, the DOJ needs to be much more aggressive with legal action against states taking away voting rights.”
In the third article, Reforming the Department of Justice, we looked at the DOJ’s lack of will. This is a significant problem with the DOJ. Another significant problem is the development of limiting beliefs.
The DOJ just doesn’t seem to be interested in pursuing justice if the perpetrators of injustice are too big and scary. So, they only follow the facts and enforce the law in the blindest and dullest fashion possible.
Will has to come, ultimately, from the President. There needs to be a firm directive from the President to go fix the problem. As I say in the article:
We hear the DOJ should be independent of the Oval Office, but I suggest that this is a limiting belief when the interpretation is overly broad. The President needs to give the DOJ direction, and the DOJ should act on that direction. The President is ultimately responsible for the performance of the Executive Branch. He cannot abdicate responsibility for the DOJ. In this case, that directive should be to investigate any credible evidence of official wrongdoing in the federal administration and file appropriate charges for all serious crimes found.
The DOJ on its own should have long since taken on certain investigations and we should already be seeing charges brought. They should have investigated and filed charges in court or publicly reported clearance on at least the following, publicly well-documented items:
- Alleged crimes exposed by the Mueller Report. (See the article for the list.)
- Potential crimes within the DOJ where the Department covered up for Trump, such as AG Barr trying to deceive the public about the Mueller Report. (Some of these appear to be covered in the Mueller Report itself.)
- Illegal attempts to obstruct justice either within the DOJ or with Congress (especially as pertains to the impeachment trials). This would include using the power of the presidency to deter witnesses from coming forward or testifying. Retaliatory actions, such as dismissal from a federal job without relevant cause, should also have been long since investigated.
- Wire fraud stemming from the big lie. Both criminal and civil lawsuits are warranted. I’ve discussed this on Daily Kos in The Con Man.
- Failure to comply with the emoluments clauses (which should result in a civil suit to recover the people’s money). I think this could also be initiated by the Treasury Department, since it is the Treasury that likely should have received this money.
It’s not credible to claim that by now an investigation in any of these areas should not have produced a criminal case, a civil case, or a report that someone had been cleared of wrongdoing, or other evidence of action. The most likely explanation is that the DOJ hasn’t done anything on any of this.
This is not an exhaustive list, by the way. Trump’s attorney, Michael Cohen, was convicted of helping Trump use campaign money to pay off a porn star. What about individual 1 in his indictment?
This time around, 93% of voters on the poll favored, “Yes, the DOJ needs to be much more aggressive with legal action against states taking away voting rights.”
In the forth article, Is Merrick Garland the Problem?, we examine the Wednesday 5 January 2022 speech by Attorney General Merrick Garland, and look at whether the DOJ is doing its job according to its chief’s own standards.
Here are four points about that speech:
Point 1: Garland says the DOJ “will do everything in [its] power to defend the American people and American democracy.” It’s hard to justify this statement in the face of repeated failures. Going back to 2008, there were numerous charges of Republican attempts to suppress votes, including disenfranchising voters by the hundreds of thousands at a time. An aggressive campaign by DOJ to stop voter suppression would have taken both the moral underpinning and much of the funding away from the voter ID movement. It also would have blunted the 2013 Shelby County v. Holder decision, which gutted pre-clearance.
Point 2: Garland said, “Those involved [in the Capitol attack] must be held accountable, and there is no higher priority for us at the Department of Justice.” It’s pretty clear from internal communications by Republicans at the time of the January 6th attack that much of the Republican leadership in Congress and much of the Republican leadership in the White House were responsible for the attack. Has DOJ actually put the resources into moving up the chain of command from the puppets to the puppeteers?
Point 3: Garland also said, “We have all seen that Americans who serve and interact with the public at every level … have been unlawfully targeted with threats of violence and actual violence.” He is correct that there are a lot of attacks on election officials and others who conduct the actual mechanics of democracy, but there are few responses from the DOJ against this lawless onslaught.
Point 4: And finally, he says, “The Department of Justice will continue to do all it can to protect voting rights with the enforcement powers we have. It is essential that Congress act to give the department the powers we need to ensure that every eligible voter can cast a vote that counts.” This probably explains why the DOJ has not been more aggressive. They have the misapprehension that they need more legislation. This is likely because they only operate off statutory law, not constitutional law.
But that’s silly. These are constitutional questions. Amendments 13, 14, and 15 give the federal government a lot of power to stomp out racism at the state level. And the Constitution itself calls for equal justice. If I had to point to one place causing the most trouble for democracy this might be it. If you are unwilling to use THE CONSTITUTION to enforce democracy, you’ve essentially abandoned the field before the fight.
Hence, “What we need is a DOJ with gumption.”
89% favored “Yes, the DOJ needs to be much more aggressive with legal action against states taking away voting rights."
In the fifth article, Department of Justice Performance Evaluation, we use Six Sigma to evaluate the performance of the DOJ. One of the criticisms of earlier articles was the accusation I was too impatient. But with Six Sigma, we can take a lot of the opinion out of the equation and just look at the statistics.
Using data from Voting Rights Lab, there were about 15 anti-voting laws passed in 2021 that significantly impact voting rights. According to the DOJ website, they launched challenges to two of these. This gives a yield of 0.133. That yield is below a 1 sigma level. It’s less than a typical operation that takes no interest in quality.
Again, 89% favored “Yes, the DOJ needs to be much more aggressive with legal action against states taking away voting rights.”
In the sixth article, The Department of Justice Should Relitigate Shelby, we examined whether the DOJ should go back to the SCOTUS for reconsideration of their decision in Shelby County v. Holder, which invalidly held that states don’t need preclearance for laws that affect voting.
We can tell this was invalid because the states are still passing laws intended to discriminate against Black voters (and other minority voters), as seen in the laws cited above. It’s completely silly to hold that preclearance isn’t needed when we have evidence from over a dozen states that it is.
In essence, Roberts and the majority of Justices seem to object to the way jurisdictions are selected for preclearance. But the reality is that this doesn’t actually matter. All those jurisdictions could “bail out” by simply not proposing discriminatory election laws.
The Department of Justice needs to go back and relitigate Shelby. The new voting restrictions passed in the many states give the DOJ sufficient justification to demand the Court hear arguments to reinstate preclearance. The Court was precipitous, if not disingenuous, in finding that section 4(b) was unconstitutional. If the Court is not just looking for justifications for racism, then it will take a new and genuine look at preclearance.
As for the poll, 92%: “Yes, the DOJ needs to be much more aggressive with legal action against states taking away voting rights.”
In the seventh article, Will the Department of Justice Indict Trump?, I discussed a sample prosecution memo published on Just Security by Barbara McQuade, evaluating whether Donald Trump should be charged with breaking federal law.
McQuade lists two charges:
- The first charge is conspiracy to defraud the United States. “Title 18, United States Code, Section 371, makes it a crime for two or more persons to conspire to defraud the United States.”
- The second charge is obstruction of official proceedings. “Title 18, United States Code, Section 1512(c)(2) makes it a crime to corruptly obstruct, influence or impede an official proceeding or attempt to do so”.
She presents compelling evidence that Trump should be prosecuted on both charges.
I concur. Failing to prosecute Trump would be a serious dereliction of duty. Not charging Trump means not doing everything possible to support democracy. And it would be failing to follow the facts and the law.
In this poll, I asked: “Is the Department of Justice acting too slowly to prosecute Donald Trump for trying to stop the Electoral Vote count?” A total of 92% responded either “Yes, the DOJ should much more aggressively support democracy, including prosecuting any crimes by Trump” or “Yes, there’s ample evidence Trump committed crimes, and the DOJ should be on it”.
In the eighth article, When Will the DOJ Catch Up?, we took a close look at the ways the states have been trying to subvert elections. The 15 laws presented earlier that seek to disenfranchise voters fall into several categories:
- Limitations
- Restrictions
- Intimidation
- Attacks (on specific groups)
- Power Grabs
- Suppression of Votes
I believe these categories show where Republicans are trying to rig the political system in their favor.
Even with the DOJ challenging a couple of these laws, there are several slipping through the cracks:
- Law adds presumptions of criminal behavior for third parties handling ballots in certain circumstances. (AR H 1715)
- Law forces prior felons to make their addresses public to register to vote. (FL S 90)
- Law forces voters, third parties, or election officials to sign statements they are following the procedures and the laws. (KS H 2183)
- Law provides additional tools for removing voters from voting rolls. (TX S 1111)
- Law requires residences that can be “occupied” to qualify for voter registration. (KS H 2332)
- Law restricts political organizations campaigning on campuses (blocked by judge on procedural grounds). (MT S 319)
- Law restricts help from third parties by requiring they be domestic to the state or by empowering individuals to sue them. (KS H 2332)
These are laws in Arkansas, Florida, Kansas, Montana, and Texas. At a minimum, the Department of Justice should file suits against these states for these laws. It should also add, as defendants, the other states violating the same categories as the ones in the cases where it has already brought suit.
It is particularly bad to leave unchallenged KS H 2332. Demanding a citizen live in an “occupiable” space will just blatantly discriminate against homeless and other poor people, who will be disenfranchised simply because they are too poor to afford standard housing. On top of the hardship of living without suitable accommodations, they will be cast off the voting registry, too.
In the poll, 96% of respondents thought either “Yes, the DOJ should much more aggressively support democracy, including prosecuting any crimes by Trump” or “Yes, there’s ample evidence Trump committed crimes, and the DOJ should be on it”.
What Does This Mean?
What does it take to get the DOJ to take action? We’ve seen dozens of instances where Trump allegedly violated the law and dozens of states that attacked voting rights, but very little response from the Department of Justice.
And what about the other attacks on constitutional rights of citizens?
Where is the DOJ on abortion rights? States are trying to interfere in abortions long before the fetus becomes a sentient being. Under what legal theory does a fetus have legal rights before it becomes sentient? Republicans keep saying they are protecting “unborn children”, but these aren’t children. Republicans are lying to the public to get money and votes. This is just a fraud on the public.
Where is the DOJ on legislation in the states attacking the constitutional rights of the LGBTQ+ community? What happened to equal rights under the law?
What about the attacks on the public schools? Aren’t restrictions on what can be taught in the schools also attacks on constitutional rights? How is it legal for a state to restrict education about racial history?
Since late January, I’ve repeatedly demanded on Daily Kos that the Department of Justice step up its efforts to support democracy. In each article, I’ve asked whether the DOJ should do more. Around 90% of respondents consistently say “Yes”, the DOJ should.
Out of eight polls, the lowest percentage of people voting for the DOJ to do more was 84%.
The consensus on Daily Kos is clear. The DOJ isn’t doing its job to protect democracy. It’s time for that to change.
Take Action
I’m going to next turn my attention to the Republicans and how to defeat them. But please don’t let up on Democratic politicians (like the Manchins in the Senate—remember to Unfriend Joe Manchin) and the people they’ve put in power (like Merrick Garland). These people ought to be on the side of the American people.
Articles in This Series
Intro to this series: Resuscitating Democracy
Installment 1: The DOJ Is Becoming a Problem To Solve
Installment 2: Reforming the Department of Justice
Installment 3: Is Merrick Garland the Problem?
Installment 4: Department of Justice Performance Evaluation
Installment 5: The Department of Justice Should Relitigate Shelby
Installment 6: Will the Department of Justice Indict Trump?
Installment 7: When Will the DOJ Catch Up?