On a Friday night in October 2021, the Department of Justice went into damage control mode. Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco and other senior officials convened on an emergency conference call to decide how to handle what they consider out-of-touch remarks from President Joe Biden.
Steve Bannon, a former adviser to Donald Trump, ignored a subpoena from the House Select Committee investigating the events of January 6. Committee members debated whether to refer Bannon to the Justice Department for prosecution. White House press secretary Jen Psaki declined to comment on such a sensitive issue. “That will be up to the Department of Justice to decide and that will be their purview,” she told reporters. “They are independent.” But Biden, when asked by CNN reporter Caitlan Collins whether he believed those who ignored subpoenas should be charged with contempt, did not mince words. “Yes, yes,” he said.
As Carol Leonnig and Aaron K. Davis report in their new book, Injustice, those three words so alarmed Garland and his team that they felt compelled to issue a statement, effectively rebuking their boss. Just fifty-one minutes after Biden's comments, the department's top spokesman, Anthony Coley, issued a deliberately blunt comment: “The Department of Justice will make its own independent decisions on all charges based solely on the facts and the law. Period. Period.”
Contrast that with another Justice Department's response on another fall Friday, four years later, to a presidential directive that was much more extreme. “Now that Democrats are using the Epstein hoax involving Democrats rather than Republicans to try to distract from their disastrous SHUTDOWN and all their other failures, I will ask Attorney General Pam Bondi and the Department of Justice, along with our great patriots at the FBI, to investigate Jeffrey Epstein's involvement and relationships with Bill Clinton, Larry Summers, Reed Hoffman, J.P. Morgan, Chase, and many other people and institutions to determine what is happening to them and to him,” Trump wrote on Truth Social. “All the arrows,” he wrote, “point to the Democrats.”
This time the attorney general's response was not complete; he was at full speed ahead. “Thank you, Mr. President,” Bondi responded to X, as if grateful for the assignment. Jay Clayton, the Manhattan U.S. attorney, “will take the lead,” she assured Trump. William Barr, Bondi's predecessor during Trump's first term, was forced to publicly complain that the president's frequent tweets about unfinished business were “making it impossible for me to do my job.” Bondi believes it is his responsibility to immediately obey Trump's edicts on social media.
The challenge of covering Trump's Washington is to avoid becoming exhausted by a constant stream of anomalous behavior, one politically motivated and factually flawed investigation after another. But before the announcement of the Clayton investigation, Trump's Justice Department at least made a flimsy pretense that it was investigating crimes—that there was some basis (“predication,” in Justice Department parlance) for FBI agents and prosecutors digging into the activities of the president's political enemies. Trump's social media harassment and Bondi's zeal crosses another line that was once considered sacrosanct.
This behavior is not only abnormal; it is also, as is becoming increasingly clear, doomed to failure. Experienced and ethical prosecutors want nothing to do with political persecution. As a result, such cases remain in the inexperienced hands of lawyers such as Lindsey Halligan, an insurance lawyer appointed by Trump to serve as U.S. attorney for the Eastern District of Virginia after Eric Siebert, his original choice for the job, declined to bring mortgage fraud charges against New York Attorney General Letitia James. As it happens, Halligan appeared before a grand jury for the first time, seeking to meet the statute of limitations to bring charges of perjury against former FBI Director James Comey. Last Monday, a federal magistrate judge, citing a “troubling pattern of profound investigative errors,” granted an “extraordinary remedy” by granting Comey access to grand jury records. They are usually secret, but the judge said Halligan made “fundamental misrepresentations of the law that could jeopardize the integrity of the grand jury process.”
The judge's order is partially redacted, but Halligan appears to have misled the jury about Comey's constitutional right not to testify. The judge also found that while the jury debated whether there was adequate evidence against Comey, Halligan “clearly suggested” that “they need not rely solely on the record before them to determine probable cause, but they can be confident that the government has more evidence – perhaps better evidence – that will be presented at trial.” That's not how the prosecutor's office works. Grand juries are not tasked with returning indictments in hopes that the government will present more evidence in the future. Halligan filed an emergency appeal, but her perceived incompetence could have doomed the case against Comey. On Wednesday, the district judge presiding over the case, Michael Nachmanoff, asked Halligan whether the indictment would have been valid if all grand jurors had not approved the final version – something she acknowledged but later denied.
After all, it took Trump only two days to move from denouncing the “Epstein hoax” to supporting the House decision to order the Justice Department to release Epstein's files. It doesn't matter that he just went out of his way to pressure lawmakers to vote against the measure. It doesn't matter that he didn't have to wait for Congress to act; he could have ordered the issue himself. It was a humiliating reversal we're not used to seeing from a president, but it reflected Trump's submission to inexorable political arithmetic: The lone Republican House member, Clay Higgins of Louisiana, voted against the bill, and the Senate passed it by unanimous consent and sent it to Trump, who signed it. Despite this lopsided vote, the documents may not be received as quickly; The Justice Department may seek to initiate the investigation Trump ordered to avoid the release of the files. The Republican-controlled Congress may be showing signs of independence, albeit belatedly. But the president can take solace in the fact that he still has the obedient attorney general of his dreams. ♦
