Government

Merrick Garland Promises To Fix The Justice Department. Behind Closed Doors, With No Help From Congress.

Just take his word for it, okay?

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(Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

“As I stated during my confirmation hearing, political or other improper considerations must play no role in any investigative or prosecutorial decisions,” Attorney General Merrick Garland said this morning. “These principles that have long been held as sacrosanct by the DOJ career workforce will be vigorously guarded on my watch, and any failure to live up to them will be met with strict accountability.”

Have they, though? CNN reports that career prosecutor Jocelyn Ballantine requested and was granted a subpoena on Apple for metadata on 73 phone numbers and 36 email addresses associated with Democratic members of congress, their staffers, and their families in February of 2018. So perhaps “sacrosanct” is not the right word.

Particularly in light of recent reports that the Department obtained subpoenas for communications data on journalists during the tenures of both Bill Barr and Jeff Sessions, and renewed the gag orders on those subpoenas during all four years of the Trump presidency. Clearly this wasn’t a one-off.

Sessions, Barr, and former Deputy AG Rod Rosenstein all deny knowing about the subpoenas, despite reporting from the New York Times that Sessions and Barr took a personal interest in the probes. Similarly, Microsoft and Apple protest that they had no idea they were handing over data on sitting members of congress and their staff. Which … lacks indicia of credibility.

“I have accordingly directed that the matter be referred to the Inspector General and have full confidence that he will conduct a thorough and independent investigation,” Garland promised. “If at any time as the investigation proceeds action related to the matter in question is warranted, I will not hesitate to move swiftly.”

Which is hardly likely to put the matter to bed, with congressional Democrats champing at the bit to depose Barr, Sessions, and Rod Rosenstein about the secret surveillance of members of congress.

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“A gross abuse of power. An assault on the separation of powers,” Senate Leader Chuck Schumer tweeted Friday. “Barr, Sessions, and other officials involved must testify before the Senate Judiciary Committee under oath. If they refuse—they are subject to being subpoenaed and compelled to testify.”

Republicans, who screamed bloody murder about supposed spying on Trump and badly predicated FISA warrants for Russiagate character actor Carter Page are strangely silent about this issue. And even though they’re the minority party, the GOP will be still be able to block subpoenas in the senate — so investigation may fall to the House, where Democrats hold the majority.

But despite his pledge to go forth and sin no more, there’s no indication that Garland will cooperate with congressional oversight in any house of congress. We’ve just watched the DOJ appeal an order to disclose a memo related to the Mueller Report which reflects badly on Bill Barr, appeal the designation of Trump as a private citizen for the purpose of the E. Jean Carroll case, and leap in to assert executive privilege for everything outside the Mueller Report when former White House Counsel Don McGahn finally testified to the House Oversight Committee.

Clearly Garland’s plan to put the Justice Department’s house in order does not include disinfecting it with the sunlight of congressional oversight. Indeed, even as he committed to get to the bottom of the issue, Garland mentioned “separation-of-powers concerns” and referred solely to internal DOJ investigations.

“In addition, and while that review is pending, I have instructed the Deputy Attorney General, who is already working on surfacing potentially problematic matters deserving high level review, to evaluate and strengthen the department’s existing policies and procedures for obtaining records of the Legislative branch,” he said. “Consistent with our commitment to the rule of law, we must ensure that full weight is accorded to separation-of-powers concerns moving forward.”

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Not exactly a commitment to cooperate with congress to get to the bottom of what went wrong under his predecessor. And speaking of cooperation, it looks like National Security Division head John Demers, whom the Times says was involved in the leak hunt that swept up members of congress, is about to nope out of the FBI. According to the New York Times, the timing of Demers’ departure has nothing to do with the recent revelations. But it’s a lot easier for a civilian to blow off the DOJ’s Inspector General than it is to defy a congressional subpoena.

What are the odds that Garland protects the rights and privileges of the DOJ by blocking a subpoena for Demers and his cohort, and the same crew pay him back by blowing off the DOJ IG?

¯\_(ツ)_/¯

Justice Department requested data on 73 phone numbers and 36 email addresses from Apple [CNN]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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