This week on POLITICAL MOTIVES, we discuss the challenges facing the Department of Justice as multiple abuses of subpoena power come to light. The news broken by the New York Times, reports that Donald Trump used the DOJ to launch a series of supposed leak investigations into the House Intelligence Committee members, including Representative Adam Schiff (D-CA) and Representative Eric Swalwell (D-CA) and Trump General Counsel Don McGahn. Apple revealed the data requests that were fulfilled in 2018. Based on the timings its clear the Justice Department must have renewed the gag order attached to Apple for several years. It would appear that Apple was prevented from revealing the existence of the subpoenas and data collection requests. It is believed that this was part of a larger leak investigation looking into Russia investigations early in Trump’s Administration.
It was also revealed and having been referenced in the Mueller Report, that Trump in June 2017 had demanded that McGahn remove Mueller as special counsel. This isn’t the only instance of overreach as Trump also had the DOJ hunting for the source of confidential leaks after securing meta data on multiple reporters from the New York Times, CNN and the Washington Post. These abuses of power reinforce the lengths Trump was willing to go to cover up corruption and treason during the campaign and the early days of his Administration. It is clear that throughout Trump’s Administration he used the power of the state to pursue his own personal and political interests.
We discuss the unique balancing act Attorney General Merrick Garland has in upholding his oath and rooting out the rot and unethical behavior that plagues corners of the Justice Department in the post Trump era.
Last week, President Biden ordered prosecutors to cease procuring reporters phone records or emails. Calling it “simply wrong” President Biden fell far short from creating any last regulation that would enshrine stopping this practice for future Administrations. This is indicative of a larger problem that long term poses a significant threat should another President who abuses the powers of his office be elected. While many protections are afforded the free press in the United States under the First Amendment, the former guy spent considerable effort and time accusing the Press of being “Enemies of the State.” Last week Attorney General Merrick Garland weighed in supporting the role of an independent and active press whose investigations concerning “wrongdoing and error in the government” provides the American people with a level of transparency and reinforces their faith in our democracy. It was that very faith that Trump sought to erode and undermine with his repeated attacks on a free press who sought to speak truth to power.
One of the most critical aspects of investigative journalism includes the use of confidential sources who may not have the authorization to speak on the record. However, in the Trump era major news organizations were targeted with both gag orders and secret subpoenas for meta data and call records. Attorney General Merrick Garland had previously reinforced the need to ensure the protection of reporter’s sources to avoid any inhibitions on the disclosure of information that is actually in the public’s interest as journalists seek to speak truth to power.
Current Justice Departments regulations actually permit the seizure of journalists’ information that could reveal sources – it is believed that Attorney General would likely choose to ban the technique for the time being. Any memorandum of understanding could easily be overturned by successors, instead it would be preferable for legislation to ban such seizures under law thereby protecting journalists from future overreach similar to what we saw under the Trump Administration. This is consistent with a prior law Congress put in place that prohibited law enforcement from seizing a journalists’ notes in all but the most narrow of circumstances, as in when a journalist was assumed to have committed an actual crime and not having merely displeased an Administration in revealing corruption and ethical abuses of power.
The real risk remains that the press could still face the seizure of their communication records if they are suspected of crimes. However, in a less ethical administration there is nothing to prevent a corrupt Administration of falsely accusing them of crimes in an attempt to prevent the revealing of their corruption. Certainly, there is a gray area in particular around disinformation or foreign propaganda like RT, the Kremlin backed supposed news services that is a Kremlin funded purveyor of lies that abuses the rights of a free press in a democracy to spread Putin’s party line.
It was a perilous threat Trump placed the Department of Justice in when attempting to kick out the Acting Attorney General Jeffrey Rosen.
We can all remember how many times Trump ignored norms and regulations in an attempt to shield himself from investigation into either Russia, financial malfeasance or treasonous behavior that he or his cabinet engaged in. It was clear that Trump felt he was beyond the law and that while President there was no court that could hold him to account. Issues like profiting from his office or abusing his power were normative. Perhaps the most egregious behavior would of leveraging foreign aid for Ukraine to invent illegality by then candidate Biden. It is clear that Trump felt there were no constraints on him, and he held an expectation that the Department of Justice was there to protect him and do his bidding. He never perceived the DOJ as being the People’s Lawyer he saw them as his own private legal foot soldiers there to follow his orders.
Attorney General Merrick Garland must still contend with numerous Trump Admin holdovers who were embedded within the Department of Justice to be little more than early warning trip wires to alert the former President of the progress of various investigations and Inspector General reviews. It is clear that Attorney General Merrick Garland must purge these political appointees who continue to pose a genuine risk to the impartiality and independence of the Department of Justice and would seek to undermine any investigations into the former President’s illegal activities.
Trump’s numerous attempts to overturn the 2020 elections were often rebuffed by Acting Attorney General Rod Rosen. Trump even took the unprecedented step of seeking support for a Special Counsel to be called to look into non-existent election fraud. Rosen actually stood as a bulwark and risked being replaced by one of Trump’s stooges a DOJ lawyer Jeffrey Clark who indulged his fantasies of election irregularities. If it were not for White House attorney Pat Cipollone’s entreaties who indicated that any attempt to oust Rosen would result in Congressional revolt and chaos within the Department of Justice and would likely lead to public calls for investigations.
None of this even speaks to the earlier mentioned attempts by the Trump Administration to launch investigations into both those who were investigating him either House Intel Committee or multiple journalists. It was clear that Trump treated the White House like a mafia chieftain treated his capos.
We must encourage the Department of Justice and Attorney General Merrick Garland to return the DOJ to its pre-Trump aura, to secure the independence of the Department and return it to its prior role as the People’s Lawyer. With numerous attacks on LGBTQ and in particular Trans rights and the absolute onslaught on voting rights and access to the ballot we need a robust Department of Justice that is capable of defending and representing our rights and not being a pawn of President.