Justice Dept. Backs Away From Trump Era but Is Still Expected to Test Garland



WASHINGTON — As Judge Merrick B. Garland prepares to take over the Justice Department, officials have already begun to reverse Trump-era policies denounced by Democrats and restore what longtime employees described as a less charged environment where they no longer feared retaliation from the president or public criticism from the attorney general.

Judge Garland, who is expected to be confirmed as attorney general in the coming days with bipartisan support, emphasized in his confirmation hearing his experience as a former prosecutor and his commitment to protecting the department from partisan influence. His remarks gave many Justice Department officials the impression that he would be an evenhanded leader who would trust and respect them.

But the judge’s vow to be fair and apolitical will be immediately tested by politically thorny investigations, efforts to reverse Trump-era measures and the Biden administration’s aims to reinvigorate civil rights initiatives and combat domestic terrorism, including the sprawling investigation into the Capitol attack by a pro-Trump mob on Jan. 6.

Monty Wilkinson, the acting attorney general and a career law enforcement official, quickly began reversing the Trump administration’s signature initiatives last month, including some viewed with skepticism even by Republicans. He rescinded contentious guidance to prosecutors about voter fraud investigations and harsh sentencing, as well as the “zero tolerance” policy for illegal entry into the United States from Mexico, which separated thousands of children from their families.

Since President Biden took office on Jan. 20, the department has also notified the Supreme Court that it would no longer challenge the Affordable Care Act, disavowing its position under the Trump administration. It withdrew a lawsuit that accused Yale of discriminating against Asian-American and white applicants, seen as part of a wider effort to dismantle affirmative action. And it retracted support for a lawsuit seeking to block transgender students from participating in girls’ high school sports.

Other moves by Mr. Wilkinson helped raise morale among employees who saw President Donald J. Trump and Attorney General William P. Barr as wielding the Justice Department for political gain, according to current and former employees. Most notably, Mr. Wilkinson asked a Trump-appointed prosecutor to stay on to oversee an investigation into Mr. Biden’s son, Hunter Biden; and he allowed John H. Durham, the special counsel, to continue his inquiry into the Russia investigation. Department officials viewed the decisions as an indication that facts, rather than political interests, would set the course.

Though Democrats said they considered those moves an important reset, more difficult work lies ahead. Senator Richard J. Durbin, Democrat of Illinois and the chairman of the Senate Judiciary Committee, accused previous department leaders during Judge Garland’s confirmation hearing of shaking the public trust in the department as they sought to advance Mr. Trump’s personal and political interests. Mr. Durbin called for the next attorney general to restore faith in the rule of law.

Despite support from many Republicans on the committee, which voted 15 to 7 to advance Mr. Garland’s nomination, at least one objected to expediting his confirmation, Mr. Durbin said on Wednesday. “It could be days, maybe even into next week, before he can take the job,” Mr. Durbin said in a speech on the Senate floor.

Like any attorney general, Judge Garland will face headwinds once he is in charge of criminal investigations with political dimensions. “The integrity and wisdom of decision-making throughout the department will continually be drawn into question,” Kenneth Starr, the former Whitewater special prosecutor, said in Senate testimony supporting the judge’s nomination.

Judge Garland told the committee that the first briefing he would receive from aides would be on the assault on the Capitol, which he called “the most heinous attack on the democratic processes” he had seen and an indicator that domestic extremism was a greater problem now than it was when he investigated the 1995 Oklahoma City bombing.

Leadership of that investigation is in flux. The head of the Capitol assault investigation, Michael R. Sherwin, has stepped down as the acting U.S. attorney in Washington and may relinquish oversight of the case in the coming weeks, according to a memo he wrote to the office.

That investigation promises to be politically tinged; it has already edged toward Mr. Trump’s inner circle, with the F.B.I. examining communications between extremists and his ally Roger J. Stone Jr. And as the department prioritizes its fight against domestic extremism, with the Capitol case at the center of its work, it will face unavoidable questions about links between extremists and the Republican Party.

Judge Garland’s record of combating domestic terrorism — which includes not only the Oklahoma City case but also his supervision of the 1996 Atlanta Olympics bombing and the Unabomber case — can help blunt fears of politicization in those investigations, said Matthew Schneider, a partner at the Honigman law firm and a former U.S. attorney in Michigan.

When Mr. Schneider’s office indicted members of a violent white supremacist group in a plot to kidnap Gov. Gretchen Whitmer of Michigan, a Democrat who had sparred with Mr. Trump, political infighting between the two overshadowed his announcement, he said.

Two other inquiries — the federal tax fraud investigation into Hunter Biden and the Durham investigation into any potential wrongdoing by Obama-era officials who opened the Russia inquiry — are certain to be met with accusations of political influence, no matter their outcomes.

Justice Department employees expressed hope that Judge Garland’s reputation for fairness and integrity would help mitigate some of those accusations. He is also a departure in temperament and leadership from Mr. Barr’s sometimes combative bluntness, which current and former employees predicted could help dampen controversy.

“He has the reputation we need in an attorney general right now,” Kenneth L. Wainstein, a former Justice Department official under President George W. Bush, said of Judge Garland. “He’s recognized as being a thoughtful person, not as an ideologue or as a political partisan. And he understands what it means to be the attorney general for the country, and not for the president. There will never be a morning when you open the paper and see that he’s misused his authority to protect the president.”

Mr. Barr’s approach to politically charged prosecutorial matters was also a model to be avoided, current and former employees said. He contravened norms to let prosecutors investigate fraud before the election was certified, fueling fears that the results could not be trusted. He ordered them to lower a sentencing recommendation for Mr. Stone, who was convicted of seven felonies but later pardoned by Mr. Trump. And he sought to drop a case against Mr. Trump’s former national security adviser Michael T. Flynn, who had pleaded guilty to lying to investigators. Mr. Barr also used a manuscript review process intended to keep classified information private to sue Stephanie Winston Wolkoff, the author of a gossipy tell-all about working for the former first lady Melania Trump.

Under Mr. Wilkinson, the department withdrew the legal action against Ms. Wolkoff and returned to working through established chains of command.

Judge Garland is also expected to try to revive the Justice Department’s civil rights division, which under Mr. Trump saw its priorities drastically shift. Religious freedoms were prioritized over work to protect rights for L.G.B.T.Q. people. The department all but stopped using consent decrees as a tool to overhaul police departments with records of racial discrimination and other abuses. Mr. Barr sought to more narrowly enforce Civil Rights Act prohibitions on racial discrimination, and he accused the Black Lives Matter movement of using Black people as props for a radical political agenda.

Late last year, the department banned any diversity and inclusion training or programming to comply with Mr. Trump’s executive order that banned such training and said that implicit bias did not exist. That guidance was rescinded.

Judge Garland’s positions so far demonstrate a contrast, and his commitment to diversity and inclusion appeared heartfelt, said a Justice Department employee who belonged to the D.O.J. Gender Equality Network, an employee-run advocacy organization that promotes equitable treatment for workers in the department.

But Republicans have already warned against an embrace of progressive priorities, insisting that religious freedom must not lose priority and that consent decrees should not be widely used. Senator Mike Lee, Republican of Utah, has indicated that he will not support Kristen Clarke, Mr. Biden’s nominee to run the civil rights division.

But Judge Garland made clear at his hearing that he supported reversing the version of civil rights under the Trump administration, rooting his position in the department’s origins in fighting the Ku Klux Klan and upholding the Civil Rights Act to protect the rights of “the most vulnerable members of our society.”

That mission “remains urgent because we do not yet have equal justice,” Judge Garland said. “Communities of color and other minorities still face discrimination in housing, in education, in employment and in the criminal justice system.”


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