Last night, The Washington Post reported that Manhattan District Attorney Cyrus Vance empaneled a grand jury in his ongoing criminal investigation of the Trump Organization. It’s a huge step. There is now a real possibility that Trump, his family, or high-ranking officials in his organization will be indicted for financial crimes.
But the DA’s work (and the work of New York Attorney General Letitia James, whose investigation into the Trump Organization has recently taken on a criminal focus) is mainly a clean-up job. They’re looking into Trump’s business crimes, and much of that alleged misconduct is stuff that could have been prosecuted years before he became president.
I’m happy that prosecutors are closing in on Trump for something, but holding him accountable for the crimes he apparently committed while he was president is even more vital to the republic. Trump’s federal misconduct—his obstruction of justice, his abuse of power, his administration’s use of the White House to hock products—these are the things that future presidents will emulate or avoid depending on whether prosecutors are willing to bring Trump to justice.
I’m just not sure that the institutionalists in the Biden administration are willing to do that work.
On Monday, the Department of Justice filed notice that it would appeal a court ruling ordering it to release a controversial legal memo that could expose the lengths to which former Attorney General Bill Barr went to protect Donald Trump. Back in 2019, Barr cited the memo as the basis for his claim that Trump had not been found guilty of obstruction of justice by the Mueller investigation. But, earlier this month, Judge Amy Berman Jackson found that Barr had been “disingenuous.” She ordered the internal memo released pursuant to a Freedom of Information Act request. In response, Merrick Garland’s DOJ released a portion of the memo, then appealed Jackson’s request to release the rest.
Although efforts by watchdog organizations to get access to this memo started way back in 2019, this appeal is the first time Garland’s Justice Department has weighed in on the case. Because of all the usual legal mumbo-jumbo surrounding the issue, there is some confusion over what Garland’s Justice Department is actually doing. But here are the key points.
The memo, according to Barr, was written by the Office of Legal Council, which is generally responsible for coming up with untested opinions about what the government can or cannot do. Barr claimed that he relied on the memo for guidance as to how to think through whether Mueller’s findings amounted to prosecutable offenses. But Judge Jackson ruled that Barr’s office meddled with the memo from the beginning, meaning that it represents his strategic thinking about what to do about the fact that the Mueller report exposed 10 instances where Donald Trump committed obstruction of justice.
All of this is critically important, because if Trump could not be prosecuted for his crimes while he was in office, he must be prosecuted for them now that he’s out of power. Otherwise, he just gets away with it. That memo might show that the DOJ already knows Trump obstructed justice, and thus is duty-bound to prosecute him now. Or it might show that the legal arguments needed to keep Trump out of jail are so weak that the DOJ has to repudiate them, which would again lead to prosecution.
Why is Garland’s DOJ blocking the full release of the memo? Why is it running this kind of interference for Barr’s Justice Department? Well, because at core, Garland (like so many in the Biden administration) is an institutionalist. This kind of appeal defends the integrity of the Department of Justice. It says the institution does not lie to the court (even if the previous administration included a cadre of professional liars). It says the institution does not provide advice on how to cover up the crimes of the president (even if that’s precisely what Barr did).
It’s important to understand that the credibility of the DOJ took a major hit during the Barr regime. There are people throughout the Justice Department who desperately want that credibility back. This kind of appeal is a fairly normal move from people who think institutional credibility must be defended at all costs. Garland’s DOJ is not looking backward at the lies, misinformation, and corruption of Barr’s tenure. They’re looking forward and are worried about the ability of the institution to function if its lawyers are afraid that their internal memos might one day become public. One way to build back institutional credibility is to defend the actions of the previous administration, even when those actions are questionable. That’s how institutionalists think.
Of course, the other way to build back credibility is to prosecute and punish people who do criminal things. It’s to hold members, or previous members, of the institution accountable for their actions. It’s to embrace transparency instead of looking for a rug to sweep the trash under. The problem with the DOJ’s decision is that it is yet another indication that the quest for justice is less important to people like Garland than the defense of their precious institutions.
And it’s not just Garland’s DOJ. The Democratic Party is full of people who value their institutions over the interests of the American people. We see it in Congress, where a certain bloc of Democrats values institutional procedures (the filibuster, the debt ceiling) over the pressing needs of the people who put them in power. We see it on the courts, where certain “liberal” justices are against expanding the court and refuse to retire in the face of impending midterm elections. We see it throughout the Executive Branch, with not just the DOJ but also an administration that seems committed to maintaining ICE, continuing deportations, and using a Census that we know undercounted the number of people of color living in this country.
This isn’t to say that both parties are “the same.” Indeed, a key feature of the modern Republican Party is its willingness to completely abandon institutions that stand in the way of delivering victory to their base of bigots, racists, and corporations. They are literally willing to reject the institution of American democracy if that democracy allows Black people to participate. Republicans don’t want the institutions to win; they want white people to win, and they’re willing to do whatever it takes to make that happen.
Democrats never bring that kind of heat. Instead of delivering the policies and programs their pluralistic base wants, too many Democrats are eager to hide behind their institutional concerns, on the mistaken belief that those institutions will do good simply by existing. It’s the most myopic form of problem-solving: just a bunch of people staying in their lanes, minding their own parts of the store, hoping somebody else will take responsibility for addressing the people and problems that slip through the cracks. The proverbial buck gets passed around from institution to institution like the password to a Netflix account nobody wants to pay for.
This kind of institutionalist response is, of course, precisely what Barr and Trump and the rest of the GOP always banks on. They know they can commit crimes with impunity while in power because they know that Democrats will never go after them when their party is back in control. They know they can destroy whatever institution they run because they know that Democrats will waste all their time trying to rebuild the institution instead of capitalizing on their power. They know they can deface the country because the Democrats will always be there trying to wash away the mess instead of prosecuting the vandals.
If you longed for a return to institutional competence, the Biden administration is doing just fine. The Covid-19 vaccine is being distributed; corruption and graft are being reined in; and our government is being guided by the perceived interests of the American people as opposed to the vindictive thought-bubbles of a Twitter carnival barker. The institutions are making a comeback, and with them a shared sense of normalcy is also returning. For some, that’s all they wanted out of the Democrats.
Others wanted justice.