It All Lands on Merrick Garland's Doorstep

 

The incomparable Michael Schmidt interviewed Alex Aronson, a young attorney who's expert on judicial ethics and so-called "dark money" in politics, asking for his analysis of how Trump managed to skate away from legal accountability for his biggest apparent crimes. 

Aronson put his finger on the exact problem that too frequently characterizes Democrats in a political crisis -- their timidity, their evident afraidness of what people will say, what reprisals will come if they take bold and appropriate action. Democrats seem sometimes to be burdened by a debilitating self-consciousness. How many campaign tribunals have I sat in and heard a candidate say about a proposed bold message, "But that might upset so-and-so!" when upsetting said Mr. So-and-So is exactly what needs to happen. Show some courage of your convictions. Take a lesson from Donald Jethro Trump.

Aronson's analysis:

The repeated failures by Democrats and the Justice Department to hold Mr. Trump accountable — whether that was during his first term or when he was indicted twice when he was out of office — [those failures created a bigger monster] .... Biden should have clearly signaled on his first day in office that his administration would aggressively pursue accountability for wrongdoing .... Biden and the rest of his administration, including Merrick B. Garland, ... were far too focused on restoring norms than trying to hold Mr. Trump and his administration accountable .... “Garland’s hesitation to pursue accountability out of fear of Trump’s inevitable baseless accusations ultimately helped Trump delay accountability until he escaped it altogether.”

 O hindsight, you are so magical and always right.

One Wrong Man for a Right Important Job

“He brought 'norms' to a trump fight and democracy suffered.”

--Democratic lawyer Marc Elias describing why Biden's A.G. Merrick Garland was the “wrong man for the job” 

Trump’s nominee for Attorney General Pam Bondi testified at her Senate confirmation hearing that the Justice Department’s prosecutors had in her opinion targeted what she identified as "political opponents" by whom she meant trump. “That’s what we’ve seen for the last four years in this Administration,” she said.

So we know what's coming. Pam Bondi will conduct the first purge of trump2.0, the first of several, we would guess, as cabinet departments important for allowing the loot to leave the building will be firing or sidelining any career lawyers/scientists/experts who seem likely to resist dictatorship, question lies, or refuse unlawful orders. He intends to clear out the Justice Department, the CIA and other intelligence agencies, law enforcement itself, and foreign service, as he tightens his grip on anyone who can oppose him in a meaningful way.

Merrick Garland was a crucial misfire. Garland actually lived the famous moral dilemma -- would you kill the baby Hitler in his cradle if you could? He could have killed the future of trump during the last four years, and saved the world the pain and the disgrace. Instead, we're to be ruled by Colonel Blimp, the convicted felon of enormous appetite and zero ethics or moral qualms. 

Merrick Garland may have single-handedly let the dictator loose when he could still have been confined.

The "Smart Advocacy" of DOJ in The Case of the Purloined Papers

 

Yesterday, Attorney General Merrick Garland did not appeal to a higher court Judge Aileen Cannon's ridiculous order regarding Trump's stolen docs ... no, not yet. What he did yesterday was file a request that Judge Cannon "revisit her opinion," with an implicit warning that if she does not revisit its most absurd features, the DOJ will be filing an appeal with the 11th Circuit Court.

(Isn't all of this back-and-forth a fascinating case study in how lawyers think -- especially the dumb ones like Trump's bunch -- and how smart lawyers handle a wrong-headed judge? Trump's lawyers may be dumb, because it's hard to be smart with an idiot for a client, but they're not suicidal: "Mr. Trump has claimed that he had declassified everything he removed from the Oval Office to his residence. But his lawyers have not made that same assertion in the courtroom, where there are professional consequences for lying.")

Helping me understand the finesse behind what the DOJ filed yesterday is Glenn Thrust et al. in the NYTimes: "Notably, the government did not file a motion to reconsider [as opposed to a "motion to revisit"], a formal request for the judge to reverse her ruling. Such motions are notoriously hard to win, in part because they essentially ask judges to acknowledge they were wrong in making an earlier decision."

Further:

The department did not contest appointing a special master to sift through documents and photographs not marked as classified. Nor did it challenge Judge Cannon’s order preventing investigators from working with those files until they were cleared by the special master, although it said it disagreed with that part of her decision, too.

Instead, prosecutors asked Judge Cannon to grant them immediate access only to the classified material, arguing that her ruling had been based on concerns about Mr. Trump’s personal materials — including medical and financial records — that were swept up in the search.

“The classification markings establish on the face of the documents that they are government records, not plaintiff’s personal records,” they said.

Prosecutors added that Mr. Trump has no right to have classified government documents returned to him and there is no plausible claim that any are subject to attorney-client privilege.

My new favorite legal commentator, Georgetown University law professor Heidi Feldman, explains even more clearly about the "smart advocacy" behind the DOJ's request to Judge Cannon:

Prof. Feldman

The latest DOJ filing very skillfully shows how legal argument and process can make it hard, though certainly not impossible, for judges to simply do whatever they want. 1/

There are some unspoken layers to DOJ’s central position, which is that documents marked classified are both the ones most needed for criminal investigation and least arguably covered by any assertion by Trump of atty-client or executive privilege. 2/

DOJ tells the judge that if [she] puts off imposing the special master process with regard to the classified documents, DOJ will refrain from appealing the judge’s overall ruling. 3/

This allows the judge to walk back from most problematic parts of her arguments and their most unwise implications without requiring her to accept that she is wrong about everything she said. That’s smart advocacy. Judges are human and don’t want to admit to being all wrong. 4/

Even cannier, DOJ is telling the judge they won’t put her in the position of possibly being told by appellate she’s all wrong if she adjusts her treatment of the seized classified documents. 5/

By carefully explaining why law as applied to current facts favors judge allowing DOJ to use classified documents right now, DOJ has previewed for the judge arguments it will make on appeal, so judge can see how persuasive they may well be. 6/

Suppose, though, that Judge Cannon is so wedded to delaying the criminal investigation she refuses DOJ’s motion to allow immediate use of classified documents for that purpose. She could simply deny DOJ motion without explanation or by giving weak reasons. 7/

DOJ will still have gained. Its motion gives appellate court a heads up on potential timing of the appeal and lets appellate court see how it can, if it wants, overturn Cannon re classified docs while giving Trump every chance to get back personal records. 8/

DOJ alerting higher courts that upholding Cannon would mean courts having to say outright that a former president can assert executive privilege against incumbent to stop present executive from investigating theft of classified documents related to national security. 9/

No matter how much Trump-appointed appellate judges or right Supreme Court justices might want to shield Trump from criminal prosecution, that’s a pretty difficult conclusion for them to have to commit to. 10/

Ideally, would be better if DOJ did not have to expend time and resources on dealing with Cannon’s misguided decision to impose special master and enjoin use of seized documents for criminal investigation. 11/

It is especially valuable at this moment in American history, for DOJ to be showing how legal argument and process can be used to hinder judges from simply insisting on an outcome the judge would like to order. 12/12

 

The Wrong Attorney General To Right the Ship

 

On the same day I'm reading "The Case for Prosecuting Donald Trump" in the Boston Globe, I'm reading how Biden's Attorney General Merrick Garland is actually earning himself the Wet Noodle Award -- in a piece of WashPost reporting today headlined "Garland defends recent Justice Department moves to back Trump-era legal positions."

Jeebus!

All this on the heels of watching a complete takedown of Garland by Rachel Maddow on Monday, who logically suggested that the failure to prosecute Trump's crimes committed while in office will surely lead to more presidential crimes in the future by another president who notices that Trump got away with it.

Well, just a taste of the Boston Globe editorial while I soak my brain in vinegar (and I'm beginning to understand why Merrick Garland was so acceptable to so many Republican senators -- he's inoffensive to the point of impersonating a doormat):

Norms in a democracy are only as good as our willingness to enforce them.

After the precedent-busting, lawbreaking presidency of Donald Trump, Congress needs to pass new laws to constrain future officeholders. That’s the case the Globe has made in this series: curbs on the pardon power, safeguards against nepotism, broadening the power of Congress to investigate the president, protections for whistle-blowers, requirements that presidents make financial disclosures to root out conflicts of interest.

All of that is crucial to protect Americans against a repeat of the last four years.

But imposing stricter rules on future presidents, by itself, is clearly insufficient. Those presidents also need a clear message, one that will echo through history, that breaking the law in the Oval Office will actually be punished — that ethics policies and legal requirements, both the existing ones and those Congress will hopefully enact in the future, are more than just words on paper.

Trump’s presidency didn’t just expose glaring legal weaknesses: It also made clear that our institutions are incapable of holding presidents accountable for breaking even our existing laws. If Congress had played the role the Founders envisioned, by removing Trump from the presidency after his criminality became clear in the Ukraine affair, that might have been enough of a deterrent to scare future presidents straight. But lawmakers didn’t.

 

Joe Biden's Justice Department

 

Merrick Garland, to be Attorney General of the United States

Garland, 68 -- most famous probably for being the Supreme Court nominee who never got a hearing, an early casualty of Trump-style bullying and a pelt on McConnell's shield.

Garland first worked at the justice department in 1979 as an assistant to Attorney General Benjamin Civiletti. He later became a federal prosecutor and in the Clinton administration served as a senior Justice Department official. Clinton appointed him to the D.C. bench of the US Court of Appeals.

He knows violent white supremacists. He played a leading role in the investigation and prosecution of Timothy McVeigh and Terry Nichols for the Oklahoma City bombing. His grandparents, Russian Jews, fled the Tsar's pogroms in the early 20th century. Garland was raised in conservative Judaism where he learned caring and protection for the weak. In 1983, as a lawyer in private practice, he won the case in the Supreme Court which mandated seat belts in all autos.

He looks too moderate for some progressives, but he looks foursquare to me. Nina Totenberg described him as "a moderate liberal, with a definite pro-prosecution bent in criminal cases." For post-Trump, that sounds promising. SCOTUSblog: "Judge Garland's record demonstrates that he is essentially the model, neutral judge. He is acknowledged by all to be brilliant. His opinions avoid unnecessary, sweeping pronouncements." Garland has a reputation for collegiality, and according to Wikipedia, his opinions rarely draw a dissent. "Some Biden advisers have come to view him as well-suited to restore norms of nonpolitical decision-making at the Justice Department" (WashPost).

 

Lisa Monaco, for the No. 2 position of Deputy Attorney General

She, too, is a department veteran. She served as the Assistant Attorney General for National Security from 2011 to 2013 and as the Principal Deputy Assistant Attorney General. Before that she worked as a prosecutor, then served as a senior adviser to Robert Mueller when he was FBI director. She also served in the Obama White House as the chief counterterrorism advisor to the president. 

She worked as a research coordinator for the Senate Committee on the Judiciary from 1992 to 1994 under then chairman Joe Biden, where she especially worked on the Violence Against Women Act. As a member of the Justice Department's Enron Task Force, she led the trial team in the prosecution of five former Enron executives. (Corporate corruption has got to be a target-rich area after four years of Trump.)

For the Russian interference she's well equipped. She was President Obama's chief cybersecurity advisor and drove the policy decision to create the Cyber Threat Intelligence Integration Center under the Office of the Director of National Intelligence in 2015.

Vanita Gupta, for the No. 3 position of Associate Attorney General

Wikipedia: President and Chief Executive Officer of the Leadership Conference on Civil and Human Rights. Previously the Principal Deputy Assistant Attorney General and appointed to head of the Civil Rights Division at the Department of Justice by Barack Obama, a position she held until January 20, 2017 (ahem). 

Before all of that, she was a civil rights lawyer and the Deputy Legal Director of the American Civil Liberties Union, where she oversaw its national criminal justice reform efforts. She also served as assistant counsel at the NAACP Legal Defense and Educational Fund. Throughout her career, she has drawn support from a wide range of liberal and conservative activists, as well as law enforcement leaders, for building collaborative support and finding common ground on policing and criminal justice reform.

I happen to know something about Gupta's very first case as a young lawyer working for the NAACP, because it involved people of color just 25 miles from where I grew up in the Texas Panhandle. She defended some 40 African Americans and six white or Latino people who were romantic partners of African Americans in Tulia, Tex., seat of Swisher County and a little town well known to me because it had a public swimming pool. The 40 Tulia defendants had been convicted by all-white juries on drug dealing charges. In almost every case, the only evidence was the testimony of an undercover agent, Tom Coleman. Coleman did not use wiretaps or marked money, and records showed that he had "filed shoddy reports." He had previous misdemeanor charges for stealing gasoline from a county pump and "abuse of official capacity." Gupta won the release of her clients in 2003, four years after they were jailed, then negotiated a $6 million settlement for those arrested.

Gupta's previous tenure at the Department of Justice was marked by several high profile matters that included the investigations of the Ferguson, Baltimore, and Chicago police departments; the appeals of the Texas and North Carolina voter ID cases; the challenge to North Carolina’s HB2 law and other LGBTQ rights litigation; enforcement of education, land use, hate crimes, and other statutes to combat Islamophobia and other forms of religious discrimination; etc.

Kristen Clarke, to be Assistant Attorney General for Civil Rights

Clarke's parents immigrated to Brooklyn from Jamaica. She got her B.A. from Harvard and her law degree from Columbia. After graduating from law school she joined the Department of Justice as a prosecutor and a trial lawyer on voting rights, hate crimes, and human trafficking cases. She won a landmark decision in the D.C. Circuit that found hateful on-line trolling a compensible tort.