Latest Trump Defense is Nothing New for Garland’s DOJ

Newsletter 84: Here’s what you may have missed

Jun 09, 2021

When news broke Monday that Biden’s Justice Department was effectively defending Donald Trump in a defamation lawsuit brought by journalist E. Jean Carroll, many were shocked. After all, when Bill Barr intervened in the case to shield Trump from accountability last October, critics (including then-Presidential candidate Joe Biden) decried the move as extreme. Now Merrick Garland is defending it?

As it turns out, this is far from an isolated case. Over the course of the nearly five months since the inauguration, this Justice Department has adopted the prior administration’s litigation positions over and over again, no matter how sloppy, extreme, or out of step with Biden’s stated values. We’ve been raising the alarm bell about this since February. To name just a few examples, it has...

taken up a narrow reading of immigration law to deny tens of thousands of recipients of Temporary Protected Status a route to permanent status;
defended pipeline and oil drilling projects despite sloppy environmental reviews;
defended a sentencing policy that doubles prison sentences for DC residents;
shielded former Secretary of Education Betsy DeVos from accountability, including by appealing a court order that she testify in a deposition over her handling of student loan forgiveness claims;
asserted that those involved in the violent dispersal of peaceful protesters from in front of the White House last June were immune from civil lawsuits;
shielded from public view an Office of Legal Counsel memo that Barr cited as a reason for not pursuing charges following the release of the Mueller report.

What’s going on? It would appear that Garland and his team of corporate revolvers have a very narrow view of what went wrong in Jeff Sessions’ and Bill Barr’s Justice Departments (one that, we suspect, differs from most people’s). For them, the problem is not necessarily that the prior administration bent and arguably broke the law to cater to Trump’s whims, hurt the most vulnerable, and further entrench corporate power. It’s that they did all that without any pretense of high-mindedness. Hence, to restore the Department’s integrity, Garland and his associates don’t need to abandon the former administration’s abhorrent arguments. Indeed, the very act of reiterating those loathsome arguments becomes an act of “bipartisanship” so unquestionably “high minded” that somewhere, Joe Manchin smiles without even knowing why.

There’s no reason to believe this “bipartisanship” will work to restore the rule of law. Even if this single-minded adherence to standard process restores old norms for now, the next Republican President’s Attorney General will be all too eager to smash them again as soon as they get the chance. Moreover, it’s hardly self-evident that all of these norms should be restored. It was, for example, the DOJ’s default posture for years to essentially defend presidential power no matter what. Trump’s four years in power should call into question the wisdom of that approach. More broadly, “restoring norms” has led this DOJ to consistently defend elite impunity and entrench cruel policy for the country’s most vulnerable. Does anyone really believe that that will restore public trust in the Department?

(The House Judiciary Committee, for its part, is not convinced. In a highly unusual but exceedingly welcome move, it sent a letter urging Merrick Garland to change DOJ’s position in the E. Jean Carroll case).

Governance

The Biden administration wants to go on a hiring spree. Biden’s more detailed FY 2022 budget, which made it to Congress last week, includes line items for major staffing increases across nearly all executive branch departments. It’s worth pausing for a moment to acknowledge how big a shift this is. Until recently, hacking away at government capacity was a bipartisan activity. Full-throated endorsements of government growth were vanishingly rare. After Trump’s destructive four years in office, however, that spell appears to finally have been broken (at least for now).

As important as that change is, however, we should not lose sight of the fact that these requests are still not enough. For the federal government to have the capacity to truly safeguard and advance the public interest, Biden and/or Congress will need to think even bigger. For example, Biden’s budget request includes funding sufficient to hire 6000 people at the IRS in 2022. That is undoubtedly a sizable increase, but it doesn’t come close to replacing the nearly 30,000 IRS employees who left the agency over the last decade. Similarly, Biden is asking Congress for the money to hire 4000 people at the Department of the Interior to offset losses under Trump. But, as Mariko Lewis and Mariama Eversley detailed for Truthout earlier this year, staffing levels at the Interior Department prior to Trump were far from sufficient and left the agency unable to fulfill critical aspects of its mission. They calculated that the agency would need to almost double in size in order to effectively manage all of its responsibilities.

Biden’s budget request also doesn’t cover every agency that is in need of more staff. One notable omission is the Federal Trade Commission which has long struggled to keep up with a growing workload and is presently drowning amid a new wave of mergers. Our Andrea Beaty and Henry Burke dove into the FTC’s capacity constraints on our blog last week and made the case that increasing the agency’s funding will be critical to fulfilling the Biden administration’s promises on anti-monopoly policy.

Personnel

We’re still waiting on nominees for many high profile spots, including on the Federal Trade Commission and the Federal Communications Commission and to lead the Antitrust Division and the Office of the Comptroller of the Currency (among many others). With the selection process for those roles dragging seemingly endlessly on, many have likely tuned out to focus on other priorities. And the Biden administration appears to be taking that opportunity to appoint a slate of conflicted figures, including some old colleagues and figures passed over for other slots.

One such official is Michael Connor, Biden’s nominee to lead the Army Corps of Engineers. As our Dorothy Slater detailed for the American Prospect this week, Connor was, most recently, “a partner with the [WilmerHale]’s Energy, Environment and Natural Resources practice group, which is known for defending oil and gas giants including Anadarko and BP.” Neil MacBride, Biden’s nominee for Treasury General Counsel, is another worrying recent pick. As we detailed in our response to the announcement, practically everything that you need to understand why MacBride is an unsuitable appointee is available for the world to see in his Davis & Polk bio. His past work has included defending Morgan Stanley in cases over its mortgage-backed securities, suing the Treasury Department on behalf of ExxonMobil, and overseeing charges against whistleblower Edward Snowden, among many other things.

Connor and MacBride both were originally under consideration for different roles. Connor was originally in contention for the role of Secretary of the Interior but lost out to Deb Haaland, while MacBride’s name had been floated for a senior position at the Department of Justice. In each case, progressives made clear that these picks would be unacceptable and were seemingly heeded. It is unfortunate, then, that each official was not shut out of the administration, but instead slotted into a lower profile but still powerful position. Connor, for instance, will still have tremendous power over climate policy at the head of the Army Corps, a prospect that should worry us all. And, as Treasury General Counsel, MacBride will be an extraordinarily influential figure on financial policy and much else of concern to his past (and likely future) clients.

Independent Agencies

The Biden administration still has given little indication that it is thinking about the open seat on the Federal Reserve Board of Governors, or those that are soon to be vacant. Given the rate at which Biden’s nominees are being confirmed (read: glacially), he should really be making nominations sooner rather than later. As I detail in a new working paper, with the right nominees the Federal Reserve could be a vital player on financial regulation and climate policy, in addition to an ally to working people in the ongoing economic recovery. Early nominations will ensure that the Fed can reorient and be working towards all of these priorities as soon as possible.

Last week we were treated to a lesson in the importance of nominating bold figures quickly, when the SEC announced that it had fired the Chair of the Public Company Accounting Oversight Board (PCAOB) and was taking applications for all of the board’s spots. (You may recall that we at RDP called for exactly that course of action last month). This latest move depended on two critical preconditions: a Democratic majority on the SEC and commissioners willing to take controversial but legal steps to get the government working for regular people again.

Elsewhere, the lack of nominees to commission vacancies is hampering action in the public interest. For example, environmental groups recently called on the Federal Energy Regulatory Commission (FERC) to impose stricter standards on pipeline approval, but that is unlikely to happen until there is a Democratic majority on the commission. With a Republican seat expiring at the end of this month, Biden could make that happen. Unfortunately, he has yet to nominate a successor for that role.

Democrats on the Federal Election Commission, meanwhile, are getting creative in the face of perpetual gridlock at that agency. By declining to close cases and refusing to allow the agency to defend itself in court, they are allowing advocates to sue campaigns in court rather than seeing their cases die at the dysfunctional agency. That creativity is to be admired (and hopefully replicated elsewhere in the face of other seemingly intractable problems). But we shouldn’t lose sight of the fact that Biden can offer the Commission an even better solution. By nominating an Independent (or Green, or even a non-McConnell approved Republican) who is demonstrably in favor of campaign finance laws to the expired seat on the board, Biden could give the FEC a working majority for the first time in years.

Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:

Merrick Garland Has Become Donald Trump's Legal Protector

Former Corporate Lawyer Set to Lead Army Corps of Engineers as Planet Sizzles

Justice Department Shot Through With Corporate Influence

E. Jean Carroll Decision Highlights Garland's Systemic Protection Of Trump Policies

Revolver Spotlight: Leslie Caldwell

Top Treasury Nominee Caught In A Cesspool Of Conflicts Of Interest

Working Paper: New Federal Reserve Governors Must Deploy All of the Institution's Tools to Advance the Public Interest

How the DOJ Can Federally Document Every Fatal Case of Police Misconduct

Investigating Oversight

Biden Justice Department Defends Trump-Era Plan to Drill the Arctic

Biden transition team official's consulting firm advised contractor handed millions to house migrants