Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN senior legal analyst and former federal and state prosecutor, gives his take on the latest legal news. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Jim Acosta” on weekends.
During his nearly two years as US Attorney General, William Barr did unprecedented damage to the Justice Department. He misled the public (about former special counsel Robert Mueller’s report, among other things), he abused the department’s power to protect former President Donald Trump and his political allies (including former National Security Adviser Michael Flynn and Trump confidante Roger Stone) and he eagerly parroted Trump’s most dangerous political talking points (on the purported risk of massive voter fraud, for example).
But to anyone hoping that Barr’s replacement, Merrick Garland, will methodically undo the deep structural harm done by his predecessor: don’t hold your breath. Garland plainly hopes to restore the Justice Department to its rightful station as a unique bulwark of independence in our government. But he has been too timid in his approach so far, and he seemingly has no plans to become the anti-Barr.
During his first three months in office, Garland already has had several opportunities to reverse the specific actions and miscalculations of his predecessor. Yet, each time, Garland has declined to directly undo Barr’s machinations, and has opted instead to take a conservative (lower-case “c”) middle path reflecting his own institutionalist approach to managing the department.
Most recently, Garland’s Justice Department declined to reverse course on one of the most egregious abuses of the department under Barr: its attempt to take on the legal defense of Trump in a defamation suit filed by magazine columnist E. Jean Carroll.
In November 2019, Carroll alleged that Trump falsely accused her of being a liar after she publicly claimed that Trump had raped her in the mid-1990s. In September 2020, after a state judge denied Trump’s motion to dismiss, the White House requested that Justice Department take over Trump’s legal defense in the Carroll case, and Barr agreed.
As Carroll herself succinctly tweeted, “TRUMP HURLS BILL BARR AT ME.” Barr’s Justice Department justified its bizarre intervention by concluding, somehow, that when Trump allegedly defamed Carroll by calling her a liar, he “was acting within the scope of his office or employment at the time of the incident out of which the claim arose.”
A federal judge firmly rejected Barr’s tortured rationale, holding that “while commenting on the operation of government is part of the regular business of the United States, commenting on sexual assault allegations unrelated to the operation of government is not.”
Barr’s Justice Department then filed an appeal. Garland now has taken up that appeal, expressly attempting to distance the department from Trump’s alleged misconduct toward Carroll but adhering to the legal position previously taken under Barr (and rejected by the district court judge).
Garland’s appeal is the latest in a string of decisions that make clear he does not intend to categorically reverse Barr’s actions. In May, for example, Judge Amy Berman Jackson, a federal judge, pointedly ruled that Barr was “disingenuous” in his public summary of the Mueller report – nothing new there, as Mueller himself and another federal judge (this one Republican-appointed) already had lambasted Barr for his dishonest public statements about Mueller’s work.
Jackson also found that department’s description of an internal legal memo that Barr purportedly consulted in concluding that Trump had not committed obstruction of justice included “incomplete explanations” intended to “obfuscate the true purpose of the memorandum.”
Garland could have let Jackson’s ruling stand and produced the disputed internal memo to the public.
Instead, the Justice Department under Garland – apparently seeking to preserve the secrecy of its internal deliberations – chose to appeal part of Jackson’s ruling. In so doing, Garland bypassed an opportunity to draw a sharp line of distinction with Barr and to make clear that he will have no part in defending the prior attorney general’s “disingenuous” representations intended to “obfuscate.”
While we can’t know everything happening behind closed doors at the Justice Department, we have seen no public indication that Garland intends to revisit other abuses that marked Barr’s tenure. Barr’s Justice Department turned a blind eye and declined even to open a criminal investigation into potential criminality by Trump, former Trump attorney Rudy Giuliani and others relating to the Ukraine scandal that resulted in Trump’s first impeachment.
There is nothing to indicate Garland has picked up the mantle. Nor is there any public indication that Garland has sought to reconsider or update the longstanding, much-maligned Justice Department policy against indicting a sitting president. Garland has also offered no public sign that he will revisit the shaky ethics determination that permitted Barr not to recuse himself from the investigation of Russian interference in the 2016 election, even though Barr already had opined that Mueller’s theory on obstruction of justice was “fatally misconceived.”
One of Garland’s most consequential decisions lies ahead: what to do about Mueller’s findings regarding Trump’s potential obstruction of justice? On Friday, former White House counsel Don McGahn testified behind closed doors to the House Judiciary Committee. According to the Mueller report, McGahn was a key witness to one of Trump’s most flagrant acts of obstruction: in June 2017, Trump instructed McGahn to fire Mueller, during the pendency of Mueller’s investigation (an incident which the former president denies happened).
Months later, when the media reported on Trump’s effort to dispatch Mueller, Trump allegedly called McGahn into the Oval Office and told him to deny the story and to create a false document to support the denial. Trump denies telling McGahn to fire Mueller, “even though I had the legal right to do so.”
The Mueller report has now largely receded in the public memory, and the chances of Trump ever facing consequences for his myriad alleged abuses of power are dwindling. It will fall to Garland to decide whether the Justice Department meaningfully considers criminal obstruction of justice charges. All of Trump’s potentially obstructive conduct laid out in detail in the Mueller report – and the McGahn incident is just one among many – is still within the five-year statute of limitations. An obstruction charge, or any charge, against a former president undoubtedly would be enormously difficult and controversial; but then, prosecutors don’t do the job to take the easiest way out.
When he took office, Garland plainly understood the daunting nature of the rehabilitation job that awaited him. In his opening statement at his February 2021 confirmation hearing, Garland pointedly (and correctly) noted that “[t]he president nominates the attorney general to be the lawyer – not for any individual, but for the people of the United States.” Garland committed to pursue “[p]olicies that protect the independence of the department from partisan influence in law enforcement investigations.”
Yet, thus far, Garland has been reticent in his pursuit of those policies. He could have gone either of two routes to get the Justice Department back on its rightful footing: affirmatively undo Barr’s many abuses, or take the conventional, institutionalist middle path and hope for the best. Garland has chosen the latter approach. But that may not be enough to fix the grievous damage inflicted by his predecessor.