When Merrick Garland was sworn in as attorney general in March, Democrats couldn’t wait for him to overhaul a Department of Justice that had started acting like former President Donald Trump’s personal law office.
But three months into his tenure, many Democrats aren’t exactly seeing a turn of the page. While they have largely praised Garland’s first steps on key issues like voting rights, the attorney general has also presided over a series of decisions that have lawmakers frustrated or downright angry.
“I am very concerned by what I had hoped would be a departure from some of the worst behaviors of the Trump administration,” said Rep. Mondaire Jones (D-NY), a House Judiciary member, who mentioned a number of issues Garland has been weak on in the eyes of progressives.
ADVERTISEMENT
Among those continued Trump policies, the DOJ has kept seizing land near the southern border that would be necessary to construct more of the border wall. It has defended in court a Trump-era posture of denying green cards to certain immigrants living legally in the U.S. And the Justice Department has stood behind Trump-era policies friendly to the fossil fuel industry.
In June, DOJ lawyers continued their defense of former President Trump in a defamation suit lodged by E. Jean Carroll, who accused him of raping her in the 1990s. It outraged Democrats when former Attorney General Bill Barr justified such a use of official resources last year. It shocked them that Garland’s department decided to go along with his argument.
While virtually all Democratic lawmakers have been inclined to give Garland the benefit of the doubt, several key figures in the party are signaling that their patience is wearing thin.
“The Department of Justice has a very long to-do list,” said Sen. Elizabeth Warren (D-MA). “I would strongly urge the Department to prioritize the civil rights work, voting protection, antitrust, and not the initiatives begun during the Trump era that undermine justice in this country.”
Warren—who some Democrats hoped might run Joe Biden’s DOJ herself—cautioned that “limited time, limited resources, mean that this Justice department needs to be focused on the protection of our democracy and our economy, not on the protection of Donald Trump.”
Rep. Pramila Jayapal (D-WA), the chairwoman of the Congressional Progressive Caucus and a member of the House Judiciary Committee, noted that it wasn’t the volume but the timing of certain DOJ moves that is “really troubling” her and colleagues—so much so that they are planning to send a letter to Garland outlining their concerns.
“They came so close together, and they make no sense to so many of us,” she said.
The concern from Democrats comes as Garland confronts mounting crises. Last week, The New York Times revealed that Trump’s DOJ obtained subpoenas for the records of Democratic lawmakers and those of his own White House counsel. The next day, Garland gave a major address outlining his plans to ratchet up federal enforcement of voting rights laws in the face of state-level bills pushed by Republicans—bills that would curtail access to the ballot box and establish “audits” of the 2020 election results, both pushed by Trump’s conspiracies.
The challenges facing the Justice Department reflect a broader dilemma for Democrats in the Biden era: how to grapple with Trump and his legacy. For many, Trump’s Justice Department is Exhibit A of his thirst for power and his disdain for the norms of governing. In choosing Garland to run the DOJ—a former federal judge with a strong reputation on both sides—Biden aimed to restore the kind of independent fair-mindedness traditionally expected from the Justice Department.
But there’s a sense among congressional Democrats that the new administration might be too willing to accept the abuses of the last one—and, perhaps, too willing to countenance its worst policies, too.
“It is not enough to just return the Department of Justice to some sort of pre-Trump norm,” said Jayapal. “You actually have to have public accountability for all the things that have happened, and I think that if you don’t have that, you cannot restore faith of the American people in the Department of Justice.”
The White House pushed back on the notion that the Department of Justice is failing to correct for the oversteps of the previous administration, noting that Biden campaigned on restoring its independence after years of meddling by Trump and his top aides.
“The president promised the American people and the hardworking, apolitical career professionals at the Department of Justice that he would restore the independence of the department. And he has delivered,” said White House deputy press secretary Andrew Bates. “He’s proud of standing up for the institution and for protecting the rule of law from political interference. When he named Merrick Garland as his nominee for attorney general, he said, ‘You don’t work for me. Your loyalty isn’t to me. It is to the law.’”
Historically, changes in administration have brought with them only occasional changes in the Justice Department’s participation in ongoing cases and support for memoranda issued by previous administrations, primarily on constitutional grounds. The Biden administration has been no exception.
In January, for example, shortly after Biden was inaugurated, the acting attorney general rescinded the Trump administration’s “zero tolerance” policy, which required the DOJ to criminally prosecute all people suspected of crossing the border illegally. The acting attorney general also reversed a Trump-era policy requiring prosecutors to charge accused criminals with the most serious offenses available.
In the months since, DOJ has voluntarily dismissed a handful of lawsuits from the Trump era, including one challenging Yale University’s consideration of race in school admissions, and another that sought to block California’s net neutrality law. The department also withdrew amicus briefs in a case filed to block participation of transgender athletes in school sports, and it abandoned the Trump administration’s assertion of absolute immunity in response to a congressional subpoena seeking testimony from former White House counsel Don McGahn.
But for every walkback of unsupportable policy or rescission of a memorandum, there are plenty of other areas where Justice Department policy and practice stands in conflict with the stated goals of the Biden administration—and his supporters on the Hill.
The Biden administration has pointed to those instances as proof that the president was telling the truth when he campaigned on restoring the independence of the Justice Department. Just last week, Biden released a statement explaining that the department would file an amicus brief in a Supreme Court case that argues against providing residents of Puerto Rico with Supplemental Security Income.
“This provision is inconsistent with my administration’s policies and values. However, the Department of Justice has a longstanding practice of defending the constitutionality of federal statutes, regardless of policy preferences,” Biden said. “This practice is critical to the Department’s mission of preserving the rule of law.”
The distinctions between Justice’s stated reasons for participating in the Puerto Rico case while withdrawing from other cases, however, aren’t so easily explainable outside of the Justice Department.
How Garland handles the probes into the Trump DOJ’s reported seizure of lawmakers’ information will be a major test of the Biden administration’s vision of independence—and its desire to move past Trump—and if that might conflict with the growing feeling among Hill Democrats that true independence requires an honest reckoning with the last four years.
The Times reported that in 2017, Justice obtained subpoenas for phone records belonging to Reps. Adam Schiff (D-CA) and Eric Swalwell (D-CA)—two leading Trump critics—as well as their staff and families, as they hunted for alleged leaks to the press. McGahn was hit with a subpoena too, and Apple confirmed that it turned over some of his data to the government.
Garland quickly referred the matter to the department’s inspector general, an internal watchdog that operates freely from the attorney general. He said he planned to move swiftly if that investigation turns up information they can act on, but he stressed that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”
Lawmakers overseeing the department, however, have not indicated a willingness to wait.
“The Department has a very short window to make a clean break from the Trump era on this matter,” said Rep. Jerry Nadler (D-NY), chairman of the House Judiciary Committee, in a Friday statement. Nadler issued a pointed warning—not missed by observers on Capitol Hill—that if DOJ didn’t make “substantial progress,” then his committee would “have no choice but to step in and do the work ourselves.”
Others were more up-front about their impatience. “Counting on Merrick Garland and the Department of Justice to do the right thing is comforting,” said Rep. Gerry Connolly (D-VA), a senior member of the House Oversight Committee. “But I want to know, well, how long will that take?”
Congress is already jumping in. On Monday, Nadler announced an investigation would begin in his committee, and that same day, the Senate Judiciary Committee sent a letter to Garland requesting a ream of records and answers related to the Trump subpoenas. Senate Majority Leader Chuck Schumer (D-NY) also called for testimony from Barr, his predecessor Jeff Sessions, and other top officials.
For the last four years, Democrats grew accustomed to Trump’s lawyers at the White House and Main Justice stiff-arming their requests for testimony as well as their subpoenas. They do not seem convinced Garland’s department would spare them similar treatment. On Saturday, Rep. Ted Lieu (D-CA), a Judiciary member, tweeted that it would be “a great day for the Garland DOJ to recognize the validity of congressional subpoenas, which DOJ continues to dispute when applied to senior executive branch officials.”
“I'm very concerned by what is shaping up to be, I think, a lack of transparency around the subpoenaing of the personal records of a number of my colleagues,” said Jones, “which was done clearly on the basis of political animus by the former president.”
Some lawmakers also said they remain in the dark about whether they were targeted by Trump’s DOJ, too. “We don’t even know which of us had records subpoenaed,” Jayapal said. “We have no way of knowing that right now.”
There’s a clear anxiety on Capitol Hill for Garland to quickly clean house and part with any current DOJ official who helped to obtain the subpoenas of Democrats. There’s also a broader anxiety about what happens if this matter doesn’t get a full accounting.
“I understand that the President and the administration want to look forward to infrastructure, and to voting rights, and I am totally on board and very sympathetic to that perspective,” said Sen. Richard Blumenthal (D-CT), a member of the Senate Judiciary Committee. “But lawbreaking by the Department of Justice is at the core of what it is supposed to do. So I think there needs to be some accountability.”
Some staunch Trump critics, however, are urging patience. Garland still commands widespread respect in the party, and nearly everyone respects the gravity of the task he is taking on.
“I am willing to give him a chance to change the damage that was done to this department over the last four years,” said Sen. Mazie Hirono (D-HI), a member of the Senate Judiciary Committee. “I do not expect him to be able to do that overnight.”
