Why is the DOJ still defending Trump?
The reasons seem noble, but there are obvious problems
Remember all the angst about "normalizing" Donald Trump?
The concern was potent back in 2016 and 2017, when Trump was running for president and then astonishingly won office. Even then, it was clear to many observers that the former reality TV star possessed unusual amounts of narcissism, indecency, and indifference to governing norms — all in quantities that could be dangerous to American democracy. The media, in particular, came under scrutiny from the so-called "resistance," and was closely examined for any hint in its reporting that it made Trump and his deeds seem, well, normal or even acceptable. To normalize Trump was to make him safe, and he was most assuredly anything but safe.
Trump is no longer president, of course. But it looks as though the Justice Department — now under Attorney General Merrick Garland — is still trying to normalize him, or at least defend some of his administration's more questionable choices. Consider what we've seen during from the department in the last few weeks:
- The government is refusing to release the full version of a memo, written up under former Attorney General William Barr, that sets out why the department concluded that Trump didn't obstruct justice during Robert Mueller's Russia investigation.
- We are learning that even after President Biden was inaugurated earlier this year, the department's lawyers sought to keep gag orders in place for controversial Trump-era leak investigations involving two Democratic congressmen, former White House counsel Don McGahn, and others.
- And last week, Justice attorneys filed a brief defending Trump from a defamation lawsuit filed last year by E. Jean Carroll, the advice columnist who has accused Trump of raping her during the 1990s — long before he became president.
As it happens, Biden was fiercely critical of Trump and his Justice Department last year during the presidential campaign, particularly when its intervention in the Carroll case first became known. "This has been the most corrupt administration in modern American history," Biden grumbled. "The Justice Department has turned into the president's private law firm."
So why is the department still defending Trump?
The short answer seems to be that it is treating him like it would any other president. As Vox's Ian Milhiser pointed out last week, the Department of Justice doesn't just enforce federal law — one of its functions is to defend the "institutional interests" of the presidency. What's more, the department tends to stick to its own precedents, in part because backing away from previous positions is bad for business. "If Justice Department lawyers get a reputation for changing their arguments every time a new president comes into office," Milhiser wrote, "judges across the country could decide that those arguments are not credible, and DOJ risks losing many, many cases."
Or, as Garland put it during a Senate hearing last week: "The essence of the rule of law ... is that like cases be treated alike, that there not be one rule for Democrats and another for Republicans, that there not be one rule for friends and another for foes."
Sounds noble, but the problems are obvious. First, the department's commitment to presidential prerogatives itself means that it will often justify and defend maximalist assertions of executive authority, no matter if they are unwarranted or unwise. (Think back to the Bush administration, when Justice attorneys wrote official memos justifying the torture of terror suspects despite laws banning the practice.) And having propounded an extreme or wrongheaded — or partisan — interpretation of the law, the department's commitment to precedent means it can be hesitant to back down in future similar cases, even if it should.
Maybe this approach makes a certain amount of sense when it comes to normal presidencies. But Trump wasn't close to normal. He saw no limits on his presidential authority, and was eager to use the powers of government against his perceived enemies. The danger, then, is that the Justice Department's institutional habits could end up enshrining some of Trump's excesses in policy and law — "normalizing" him and his terrible administration in the worst possible way.
That's not to say that Garland is running the Justice Department in Trumpist fashion. He appears to be more independent from Biden than Barr or Jeff Sessions were from Trump, reducing the chance of political interference in legal decisions. (The White House made it very clear that it wasn't consulted on the Carroll decision.) And he vowed last week to step up federal enforcement of voting rights laws, a priority for Democrats. If you're running the Justice Department independently, though, your political allies are probably going to be disappointed in you from time to time. That might even be a good thing.
Given the evidence so far, though, Garland's critics are right to be cautious.
"He wants to make the transition from Trump to Biden as small as possible in the Justice Department. And so across an extremely wide array of issue areas, the Garland Justice Department is reaching legal conclusions which are incongruous for the Biden administration and for where the vast majority of center-left and more progressive lawyers and legal scholars are," said Jeff Hauser, director of the Revolving Door Project, a watchdog group. "The question I have for Garland is what would we have to learn about Jeff Sessions and Bill Barr for them to lose the benefit of the doubt with you?" Right now, we don't have a clear answer to that question.