Today’s Edition: Saving the Department of Justice. Or not.

June 11, 2021.

          The Justice Department is broken, and Attorney General Merrick Garland has a narrow window of time to fix it. Garland’s seemingly placid response to abuses under his predecessors Jeff Sessions and Bill Barr is both perplexing and worrisome. Does he care? Will he do anything to expose the abuses, punish those responsible, and rehabilitate the Department of Justice? To date, the only available evidence suggests that the answer is, “No.” It is, of course, possible that Merrick Garland is working feverishly behind the scenes to investigate abuses under his predecessors and to punish those responsible. It is true that Attorneys General usually do their investigative work in silence, allowing indictments and court filings to speak for the Department. But these are not normal times. Trump, Sessions, and Barr trampled democratic norms and destroyed the credibility of the Department. If Garland expects to restore public trust in the DOJ, he cannot work behind the scenes in silence. He must assure the American public that he does care, that he is working diligently to rehabilitate the Department, and that justice will be served.

          On Thursday, the New York Times reported that the DOJ had not only seized phone metadata for reporters but had also seized phone metadata for members of Congress and their families. See NYTimes, “Hunting Leaks, Trump Officials Seized Records of Democrats.” In effect, Trump used the DOJ to spy on his perceived political adversary, Rep. Adam Schiff, who was then the senior member of the House Intelligence Committee. In that capacity, Rep. Schiff and others were investigating connections between the Trump campaign and Russian operatives. The effort by the DOJ to surreptitiously spy on a sitting member of Congress is unprecedented and violated basic constitutional norms of our democracy, including separation of powers.

          The DOJ’s agreement to function as a political hit squad for Trump is a sin that the Department can never expiate—though it should make every effort to do so.  The Department’s shameful conduct is exponentially worse because the initial spying by Jeff Sessions failed to substantiate Trump’s unfounded suspicions about Rep. Schiff. Undeterred by the absence of evidence, Bill Barr revived the investigation three years later, in the waning days of the Trump administration. During that time, the senior leadership of the DOJ was aware of the Sessions/Barr political vendetta against Schiff—and apparently did nothing to stop it. Several of those senior members remain at the DOJ today in their leadership positions—presumably advising Merrick Garland on how to handle the fallout from the latest disclosures.

          Garland stumbled when this story began to emerge a month ago with the revelations that the DOJ had subpoenaed phone metadata for reporters at three news organizations. See, ABC News, “Trump Justice Dept. seized phone records of 4 NYT reporters.” Disclosure of the DOJ’s efforts to seize reporters’ phone records was delayed because Merrick Garland defended a gag order that prevented the targeted news media from discussing their court fight to quash the subpoenas. That was Garland’s first flawed judgment—attempting to maintain the shroud of secrecy over the past questionable conduct of his predecessor, Bill Barr.

          After the story became public, a chastened DOJ promised “never to do it again.” See CBS News, “Justice Department says it will no longer seize reporters' records in leak investigations.” But missing from the DOJ’s statement was any acknowledgment that the Department was investigating whether the efforts to spy on journalists violated DOJ policies. Garland has remained mute on the controversy—though he plans to meet with leaders of CNN, NYTimes, and the Washington Post to discuss the DOJ’s effort to seize their reporters’ phone metadata. See MSN, “Attorney General Merrick Garland to Meet With Top News Execs Over Seized Records.” The private meeting is another stumble by Garland. While he should meet with the leaders of the news organizations targeted by Barr and Trump, he should also address the American people about the DOJ’s questionable conduct—and what he intends to do about it.

          Garland is scheduled to hold a press conference on Friday, June 11th, to discuss the DOJ’s efforts to protect voting rights. Good. But if he fails to use that press conference to reassure the American public about his efforts to punish those who violated Department policies under Trump, he will severely undermine his ability to restore public trust in the Department. The window of opportunity is narrow. Garland must rise to the occasion on Friday to preserve hope of redeeming the DOJ’s tarnished reputation.

Can a bipartisan group of Senators produce a compromise on the infrastructure bill?

          A group of ten Senators agreed to something on Friday. What they agreed to is not clear, but headlines suggest they have reached a “deal” on Biden’s infrastructure bill. See NYTimes, “Bipartisan Group of Senators Say Tentative Infrastructure Deal Reached - The New York Times.” Per the Times, the group claims to have “reached a tentative agreement on a framework for an infrastructure plan.” Don’t get too excited. If a question on a first-year law school exam asked, “Is a tentative agreement on a framework for an infrastructure plan an “agreement?” the only acceptable answer would be “No. An agreement to agree is not an enforceable agreement.” See Politico, “Deal or no deal? Confusion rules Senate infrastructure talks.” (“Some senators claimed their group made significant headway, others said they doubt a bipartisan deal will happen.”)

          While the group deserves credit for effort and optimism, they are negotiating without portfolio. They do not represent their respective caucuses, their respective leaders in the Senate, or the President. They can “agree to agree” on a framework, but they still have to convince fifty other Senators to agree on a final bill. (It is possible they would need only forty other Senators if Joe Manchin were to agree to allow the bill to pass by reconciliation, which he has said he will not do.)

          I hope they succeed—but not with their current tentative “framework.” The tentative framework eliminates everything designed to fight climate change—on the theory that climate change has nothing to do with infrastructure. Biden’s original bill proposed a far-reaching investment in electric vehicles, renewable energy, and modernizing the energy distribution grid against climate change. The ten Senators are apparently satisfied with an energy future that is dependent on fossil fuels. There may be other sticking points that we will hear about when we learn what is in the elusive “tentative agreement on a framework for a plan.” Stay tuned.

Joe Biden’s first foreign visit remains “below the fold.”

          Joe Biden’s visit to the U.K. for the G-7 meeting is landing “below the fold” in newspapers that still print the news on paper. That is a good development because it means that Biden set appropriate expectations before he left and is fulfilling those expectations each day. Such regularity is a welcome relief. On Thursday, as expected, Biden and U.K. Prime Minister Boris Johnson signed a new “Atlantic Charter” between the U.S. and the U.K. See NYTimes, “Eighty Years Later, Biden and Johnson Revise the Atlantic Charter for a New Era.” Biden’s steady hand is already improving the world’s perception of the U.S. as a responsible participant in global affairs. During Trump’s administration, the U.S. received abysmal ratings from citizens in other countries. See Pew Research Center, “U.S. Image Plummets Internationally as Most Say Country Has Handled Coronavirus Badly.” But during Biden’s short tenure, the view of America abroad has markedly improved. See Pew Research Center, “America’s Image Abroad Rebounds With Transition From Trump to Biden.”

          It would be easy to dismiss the views of foreign citizens who have no right to participate in American politics. But America’s reputation matters. If America (and her allies) are seen as standing for the rule of law, that will encourage democratic movements in other countries—which will increase stability and prosperity for all nations in the world. Biden may not be making news, but he is making a difference. Good.

Concluding Thoughts.

My brother reminded me of a Washington Post article from October 2020 by Amy Siskind titled, “Amy Siskind’s list of norms President Trump abandoned.” It is worth ten minutes of your time to scroll through the article, which lists hundreds of norm-breaking actions by Trump and his advisers. The list is both sobering and uplifting. It is sobering because it is a stark reminder of how much damage we must repair from Trump’s tenure. It is uplifting because we survived a period in history when each new day brought events never before seen in this history of our nation. If we survived four years of earth-shattering, norm-busting developments under Trump, we can surely survive and prevail over the current crises generated by his followers. The past has made us stronger. We must apply our new strength to ensuring that Trump and his followers never gain control of the White House again. Though we face an uphill battle, we are going to win. It is just a question of when.

          Talk to you on Monday! Enjoy the weekend!