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Op-Ed | Talking Points Memo | August 5, 2021

Institutionalism Can’t Save Us Now

Department of JusticeEthics in GovernmentExecutive Branch
Institutionalism Can’t Save Us Now

We have no shortage of information about how historically bad an Attorney General William Barr was.  His tenure was marked by attacks on LGBTQ rights, immigrants, and peaceful protestors. His overt politicization of the investigations into Russian interference in the election, the Mueller report, and Roger Stone’s sentencing are well-documented, and in a continuing headache for the Biden Administration’s DOJ, Barr’s Justice Department’s intervened to protect Trump against E. Jean Carroll’s defamation lawsuit against him just two months before the election. And yet, as we saw this week following revelations that his DOJ declined to prosecute Commerce Department officials for lying about the provenance of the Census citizenship question, what we know merely scratches the surface. 

 How is it that the Justice Department reached this decision? And why has it remained a secret for over a year? These are questions for which the public deserves answers. Attorney General Merrick Garland, however, has repeatedly emphasized his ambivalence towards the project of seeking them out. His refusal to look squarely at the damage of the past four years will make it hard not to speculate that his Department will repeat them.

In 2019, following a request from lawmakers, the Commerce Department’s Inspector General, Peggy Gustafson, opened an investigation to determine if Secretary Wilbur Ross and others had lied to Congress about the origin and intent of the proposed Census citizenship question. The evidence pointing to wrongdoing was public and overwhelming; in 2019, voting rights advocates publicized evidence that Wilbur Ross’ advisor Mark Neuman, former DOJ official John Gore, and Commerce Department General Counsel Peter Davidson repeatedly lied in their testimony regarding the census question.

This month, Gustafson disclosed that her office had determined that the officials had provided false testimony and referred the case to the Public Integrity Section of the DOJ’s Criminal Division. It declined to prosecute, despite the clear evidence of wrongdoing and persistent harm. In a letter to the House Committee on Oversight and Reform dated July 15, Gustafson noted that the inspector general investigation began in June of 2019 but it does not say when the investigation concluded, nor, for what it’s worth, when the Justice Department declined prosecution. Ross’ tenure at Commerce and political interference in the 2020 census had clear impacts. Biden’s census nominee Robert Santos acknowledged “a lot of morale issues” and a “harrowing” couple of years in his confirmation hearing earlier this month. 

The incident also directly implicated several Justice Department attorneys in the plot to add a racist question, with illegal roots, to the 2020 Census. The Justice Department formally requested the addition of a citizenship question to the Census in 2017, at the request of Commerce Secretary Ross — a request he later lied about making. Trump’s DOJ also continued, in multiple court battles, to defend the question even as its illegality was made clear. The entire incident sheds light on a key problem with AG Garland’s tenure: by pretending wrongdoing didn’t occur in his own department, he is brushing illegal offenses under the rug and failing to hold those responsible accountable.

Although Garland’s actions are in line with some previous attorneys general — operating under the precedent to protect the DOJ as an institution, regardless of who is in power; a precedent at least initially established to keep the DOJ apolitical —  the Trump administration changed things. And the behaviors of Barr’s DOJ should not be legitimized. 

It’s notable, albeit not surprising, that the public is learning of this from the Commerce Inspector General and not from the Justice Department. Attorney General Merrick Garland, as we’ve heard time and time again, is an institutionalist. A recent Washington Post profile offers some limited insight into Garland’s thinking, that by steering clear of politically-charged or even politically-adjacent investigations, he can restore career officials’ independence and faith in the Department and hopefully “right the ship.” But neither Garland’s record thus far, nor recent history from the Obama-era, provide any reason to believe that this approach will succeed in reckoning with the concrete damages Donald Trump, Bill Barr, and Jeff Sessions left behind and restoring public trust in the Department. 

It is Garland’s fundamental refusal to treat Trump’s Justice Department as an aberration that has paved the way for his Department to adopt and defend his predecessor’s often radical legal positions. On the environment, Garland’s DOJ is continuing the Trump position on defending the permitting process for the controversial Enbridge’s Line 3 pipeline and arguing on behalf of the incredibly damaging ConocoPhillips’ Willow oil project in Alaska. On civil rights, the Garland DOJ has failed to defend the Voting Rights Act, shielded Trump officials from accountability for attacking peaceful protestors and upheld Trump’s politicization of the immigration process. Garland is treating the Trump Administration as a fair precedent for his own Department, even as evidence mounts that they drove the DOJ to fascist and oligarchic positions. In less than half a year, this approach has engendered widespread disillusionment and pessimism about the Justice Department’s ability to serve as the people’s lawyer. 

History has shown us that granting impunity to administrations and government officials who break the laws has long-lasting consequences for our democracy and our institutions. Garland’s quote in early June, “I am not going to look backward,” called to mind Barack Obama’s infamous statement in 2009 that the United States should “look forward as opposed to looking backwards” when examining the Bush administration’s illegal use of torture. Similar to our current political moment, President Obama came to power after an administration that acted outside the law to violate human rights, and his refusal to prosecute or even fully investigate wrongdoing for the sake of “moving forward” allowed former government officials to remain above the law. This helped pave the way for CIA operative Gina Haspel, who oversaw a black site where at least one detainee was tortured, to be nominated and confirmed as CIA director.

The Obama administration also had to contend with its predecessor’s politicization of the Department of Justice. The speed at which the  DOJ crumbled again under Trump should call into doubt the efficacy of its chosen approach. An Inspector General report released in 2008 found that White House officials were actively involved in some DOJ hiring decisions, and department officials screened for politics, religion, and sexuality (obscenely shortened to “god, guns, + gays”). The politicization of the hiring process, which impacted career applicants as well as political appointees, resulted in a shrinking of key divisions of the Justice Department, and a weakening of their ability and commitment to aggressively pursue wrongdoing. The Obama administration worked to bring back the Department with new hiring but it did not tackle the consequences of these problems head on, nor establish resilient systems to ensure similar abuses were not repeated. 

We’ve already seen what a lawless administration dedicated to undoing oversight can accomplish in four years. Garland cannot “move on” from the Trump Administration without reckoning with their legacy on the Department of Justice, their dismantling of any significant oversight, and their damage to core aspects of our democracy. Institutionalism can’t save us, and we need to act aggressively to prosecute wrongdoing and strengthen internal checks against future administrations. Garland should learn from the Obama administration and ensure that government officials can’t act outside the law to benefit themselves and their party. The future of our democracy could depend on it.

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PHOTO: “US Senator Chuck Schumer Meets With US Supreme Court Nominee Merrick Garland At United States Capitol” by Senate Democrats is licensed under CC GA 2.0.

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