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With seven months to go until the 2024 elections, former President Donald Trump’s legal troubles continue to mount. Showing his typical disregard for the rule of law, Trump has argued that he can’t be prosecuted in the midst of his campaign. It’s a bogus claim, but it prompts a valid question: Why didn’t Merrick Garland’s Justice Department launch legal cases against Trump sooner?
As our colleague Jeff Hauser previously argued, Biden’s DOJ should have made holding Trump and his co-conspirators accountable for their attempts to steal the 2020 election one of their first orders of business. Garland even seemed to agree. Just hours after being sworn in, he promised his highest priority would be “bringing to justice those responsible for the attack on the U.S. Capitol on Jan. 6, 2021.” But an entire year passed before prosecutors formally probed the Trump White House for trying to subvert the democratic will, as The Washington Post reported. It then took these prosecutors an additional year and a half to charge Trump with election interference. Now, in April 2024, more than three years after Garland’s promise, justice looks far off as the Supreme Court mulls whether to hear Trump’s claim of presidential immunity from criminal prosecution.
There was ample opportunity for Garland to quickly get this case going—along with the other federal case on Trump’s mishandling of classified documents—well ahead of election season. His commitment to a “dysfunctional and maddeningly slow” investigation endangered and complicated the charges Trump is now finally facing. In a word, the Department of Justice’s actions under Garland’s watch have been, at best, sluggish.
The excessively careful approach to Trump is, sadly, not an anomaly. “Sluggish” could also describe the Garland DOJ’s approach to the rest of its mission. With the notable exception of the Antitrust Division under Assistant Attorney General Jonathan Kanter’s helm, the DOJ has failed to rein in elite misconduct on all fronts. We can lay the blame at the feet of Garland and his deputy attorney general Lisa Monaco (whose corporate ties we’ve pointed out before), for an apparent aversion to prioritizing actions to protect the majority of Americans from the actions of wealthy and powerful people accustomed to acting with impunity.
NEXT TO GARLAND, MONACO HAS THE MOST SIGNIFICANT INFLUENCE over the DOJ’s agenda. As part of her duties as deputy attorney general, Monaco represents the DOJ to the White House on national-security issues and criminal matters; manages personnel matters for the department’s top staff attorneys; and makes recommendations to the AG on seeking the death penalty and recommendations to the White House on presidential pardons. Informally, it is said that the deputy AG runs the building at the Justice Department.
Perhaps one of Monaco’s most consequential responsibilities, and the core of the DOJ’s day-to-day work, is to “set enforcement priorities, in consultation with the Attorney General, to address key priorities.” In our view, holding Trump accountable for his crimes is one such enforcement action Monaco should have prioritized. But the DOJ, under the right leadership, is also capable of simultaneously pursuing other enforcement priorities that could protect Americans from corporate abuses in their workplaces, environments, and everyday lives.
As the Prospect reported earlier this week, Public Citizen recently found that, following a quarter-century low in federal prosecutions of corporations, the Department of Justice only modestly increased the number of corporate prosecutions it pursued in 2023. For context, the George W. Bush administration pursued 139 more corporate criminal prosecutions in 2002 than the Biden administration did last year.
Despite Monaco’s encouragement to “be bold,” the DOJ continues to rely upon leniency agreements that defer or even forgo prosecution, instead of lawsuits to resolve cases. These agreements have been used to exonerate corporations in cases that have involved the loss of numerous lives.
There is a legal maxim that justice deferred is justice denied; it’s one the DOJ should embrace. Rather than permit companies to dodge legal consequences for violating the law, a Biden DOJ should be firing on all cylinders to keep corporations in check and protect Americans from the many faces of corporate exploitation. It’s simply good governance and good politics to do so.
Government contracting is another area where the DOJ’s permissive approach toward corporate misdeeds is conspicuous. Even when federal government agencies were the victims of corporate fraud, the department chose toothlessness over real enforcement. One instance of this was a $377 million settlement last year between the Justice Department and military contractor Booz Allen Hamilton for overbilling the U.S. government for its defense and national-security contracts. The key whistleblower in the case estimated that the amount of the overbilling was close to $500 million, making the DOJ’s “punishment” neither an appropriate meting out of justice nor a likely effective deterrent to potential fraudsters. If the DOJ is truly interested in ending this culture of “overbilling, underdelivering on contracted services, and abuses of workers,” it must enforce the laws on the books and fully deter bad behavior by enacting significant settlements.
Garland and Monaco’s tentative approach to values-driven enforcement priorities has had far-ranging consequences for people and the planet, beyond failing to treat a literal insurrection with the seriousness it should demand. For instance, the DOJ’s Environment and Natural Resources Division (ENRD) enforces around 150 federal environmental and natural resource laws, including the bedrock Clean Air and Clean Water Acts. As our colleague Hannah Story Brown noted last year, “The public cannot afford the nation’s environmental law firm backing down from the good fight.” It must be a top priority for the DOJ to hold polluters and other corporations harming the environment criminally responsible for their actions. (The Revolving Door Project’s report on a Climate Corporate Crackdown offers further recommendations for the DOJ on this front.)
Monaco’s duties also include overseeing budget matters for the DOJ. As the Prospect thoroughly reported last month, the DOJ failed to protect the Antitrust Division from a drastic 20 percent budget cut that threatens one of the only aggressive divisions in the Justice Department with the capacity to enforce antitrust laws that protect Americans from monopolistic companies. To what degree (and what ends) Monaco influenced the budget cut is unclear, but the funding debacle fell within responsibilities within the DOJ, as the attorney general’s duties do not appear to include budget matters.
If the blame rests with the Office of Management and Budget (OMB) or the White House, or even appropriators in Congress, they should also be held to (public) account. And as we’ve previously explored in the Prospect, the budget cut would be a boon for Big Tech companies looking to pump the brakes on a revitalized antitrust enforcement, in particular for Monaco’s former client, Apple.
In an ideal world, the Department of Justice would play a lasting role in rebuilding the public’s trust in our institutions. Unfortunately, Garland and Monaco’s clear hesitation to ruffle feathers, including by holding anti-democratic figures to account, signals a DOJ currently positioned to take a diminished role. But it also shouldn’t take such an egregious, treasonous display of disregard for democratic ideals to spur the DOJ to act.
More broadly, after years of lax and unenthusiastic approaches to holding corporations accountable for flouting the law, the DOJ also has a responsibility to earn back the public’s trust. They can do this by taking robust action to protect the public from corporations and wealthy executives who seek to dodge accountability and undermine the ability of the government to pursue such accountability, like backing more class action lawsuits, following Kanter’s lead in tackling big names in powerful industries, and pursuing way (way, way) fewer leniency agreements. It’s a big task, one that Monaco and her boss Garland should take seriously in the final months before the election, if they have any interest in stopping the alleged election-stealer from gaining back power.