Opinion: E. Jean Carroll by Merrick Garland


But to all those who are hoping that Barr’s replacement Merrick Garland methodically mends the deep structural damage done by his predecessor: don’t hold your breath. Garland clearly hopes to restore the Department of Justice to its rightful place as the unique bulwark of our government’s independence. But he’s been too shy in his approach so far, and he apparently has no plans to become the anti-Barr.

During his first three months in office, Garland already had several opportunities to reverse the specific actions and miscalculations of his predecessor. Yet each time, Garland refused to directly undo Barr’s machinations and instead opted for a conservative middle course (a lowercase “c”) reflecting his own institutionalist approach to the management of the department.

More recently, Garland’s Justice Department refused to reverse one of the department’s most egregious abuses under Barr: his attempt to defend Trump’s legal defense in a libel suit filed by magazine columnist E. Jean Carroll.
In November 2019, Carroll alleged that Trump falsely accused her of being a liar after publicly claiming that Trump raped her in the mid-1990s. In September 2020, after a state judge rejected Trump’s request for no -place, the White House request for the Justice Department to take on Trump’s legal defense in the Carroll case, and Barr agreed.
Like Carroll herself succinctly tweeted, “TRUMP LEAVE BILL BARR WITH ME.” Barr Justice Department justified her bizarre intervention in concluding, one way or another, that when Trump allegedly defamed Carroll by calling her a liar, he was “acting within the scope of his duty or employment at the time of the incident at the origin of the complaint ”.
A federal judge strongly rejected Barr’s tortured reasoning, saying that “while commenting on the workings of government is part of the day-to-day business of the United States, commenting on allegations of sexual assault unrelated to the workings of government is not. not”.
Barr’s Justice Department then filed a call. Garland has now answered that call, expressly tempting to steer the department away from Trump’s alleged misconduct towards Carroll but by adhering to the legal position previously taken under Barr (and rejected by the district court judge).
Garland’s appeal is the latest in a series of decisions that make it clear that he does not intend to categorically overturn Barr’s actions. In May, for example, Judge Amy Berman Jackson, Federal Judge, clearly governed that Barr was “dishonest” in his public summary of the Mueller report – nothing new there, as Mueller himself and another federal judge (this one appointed by the Republicans) had previously lambasted Barr for his dishonest public statements about Mueller’s work.

Jackson also found that the department’s description of an internal legal note that Barr allegedly consulted to conclude that Trump had not obstructed justice included “incomplete explanations” intended to “obscure the true purpose of the note.” .

Garland could have let Jackson’s decision stand and produce the disputed internal memo to the public.

Instead, the Justice Department under Garland – apparently seeking to keep its internal deliberations a secret – chose to appeal part of Jackson’s decision. In doing so, Garland missed the opportunity to draw a sharp line with Barr and make it clear that he will not participate in the defense of “false” statements by the previous Attorney General intended to “obscure”.
While we can’t find out everything that’s going on behind closed doors at the Justice Department, we haven’t seen any public indication that Garland intends to revisit other abuses that have marked Barr’s tenure. Barr’s Justice Department turned a blind eye and decreases even open a criminal investigation into the potential criminality of Trump, former Trump attorney Rudy Giuliani, and others into the Ukraine scandal that resulted in Trump’s first impeachment.
Bill Barr's indefensible defense against Trump doesn't fool this federal judge
There is no indication that Garland has taken up the torch. There is also no public indication that Garland has sought to reconsider or update the old and maligned Department of Justice policy against the indictment of a sitting president. Garland also offered no public sign that he would revisit the precarious ethical determination that kept Barr from recusing himself from the investigation into Russian interference in the 2016 election, even though Barr had previously felt that the Mueller’s theory of obstruction of justice was “fatally ill-conceived.”
One of Garland’s most important decisions lies ahead: what to do with Mueller’s conclusions about Trump’s potential obstruction of justice? Former White House lawyer Don McGahn on Friday testified behind closed doors to the House Judiciary Committee. According to Mueller Report, McGahn was a key witness to one of Trump’s most egregious acts of obstruction: In June 2017, Trump ordered McGahn to fire Mueller, while Mueller’s investigation was ongoing (an incident the former president denies having happened).
Months later, when the media reported on Trump’s efforts to send Mueller, Trump would have called McGahn in the Oval Office and told him to deny the story and create a false document to substantiate the denial. Asset deny telling McGahn to fire Mueller, “even though I had the legal right to do so.”

The Mueller Report has now largely faded into public memory, and the chances that Trump will ever face the consequences of his myriad of alleged abuses of power are diminishing. It will be up to Garland to decide whether the Department of Justice meaningfully considers the obstruction charges. All of Trump’s potentially obstructive conduct detailed in the Mueller Report – and the McGahn incident is just one of many – are still within the five-year statute of limitations. A charge of obstruction, or any charge, against a former president would undoubtedly be extremely difficult and controversial; but then the prosecutors do not do the job to choose the easiest solution.

When he took office, Garland clearly understood the intimidating nature of the rehab work that lay ahead. In his opening statement at his confirmation hearing in February 2021, Garland noted accurately (and correctly) this “[t]The president appoints the attorney general to be the advocate – not for any individual, but for the people of the United States. ”Garland engaged to pursue “[p]policies that protect the independence of the ministry from partisan influence in law enforcement investigations.

Yet, until now, Garland has been reluctant to pursue these policies. He could have taken one or the other of two paths to put the Department of Justice back on its legitimate bases: affirmatively cancel Barr’s numerous abuses, or take the conventional and institutionalist path of the middle and hope for the best. Garland chose the latter approach. But that may not be enough to undo the serious damage inflicted by its predecessor.


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