AG Garland resurrects the ghost of Bill Barr — without the outrage

When Joe Biden nominated Merrick Garland to be attorney general, many — including me — heralded Garland as an honorable, apolitical judge who would follow the law. He was not, the Washington Post editors insisted, “a lackey who will serve as the president’s personal attorney” like Donald Trump’s AGs. Garland has indeed followed the law, but some are not thrilled by where it has taken him.

President Biden’s Department of Justice (DOJ) has adopted some of the same positions taken by the Trump administration that a host of legal and media experts once denounced. This week, the DOJ sought to replace itself as the defendant in a lawsuit against Trump brought by writer E. Jean Carroll, who alleges that Trump raped her. The week before, it sought to dismiss a Black Lives Matter lawsuit over the clearing of Lafayette Park during a June 2020 protest. 

This time last year, both positions were cited by legal and media experts as grotesque examples of then-Attorney General Bill Barr’s political bias. Now, those same experts are silent as Garland takes the same positions Barr took in federal court.

Garland is free, of course, to reject prior legal positions of Barr, but he has reached the same conclusion as his predecessor on several points of law thus far. In yet another adherence to Trump-era policy, the DOJ will defend opposing the ability of Puerto Ricans to receive social security disability benefits before the Supreme Court. Likewise, Garland agreed with Barr that a DOJ memo finding no legal basis for an obstruction charge against Trump should not be released to the public in its entirety.

Is Garland a Trumpist mole, part of some “deep state” resistance to his own president? Or is the more likely alternative that some in the media and many others in politics or the law knowingly distorted past legal controversies to use those as political fodder against Trump?

The general lack of media criticism — or even coverage — has never been more striking than with the latest filing in the Carroll case. In November 2019, Carroll sued Trump, claiming he defamed her when he denied sexually assaulting her. She alleges that Trump raped her in a Manhattan department store dressing room in the 1990s.

The Biden administration has told the United States Court of Appeals for the Second Circuit that it — rather than Trump — should be the defendant because his comments were made as part of his official capacity as president. Said the Biden DOJ: “Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials’ employment — including when the statements were prompted by press inquiries about the official’s private life.”

That is the identical position taken by then-AG Barr last year.

A district court rejected that effort, and the Trump administration appealed. While I disagree with the treatment of any such statements as part of a president’s official duties, I stated at the time that there was support for the position in the governing federal statute and case law.

However, some media outlets featured an array of experts who denounced Barr’s legal move. Vanity Fair was typical of the coverage with a column titled “Bill Barr Sinks To New Low, Uses Justice Department To Try To Kill Trump’s Rape Defamation Suit.” In it, writer Bess Levin explained that the move proved that Barr was “willing not just to do [Trump’s] dirty work but to do it completely out in the open and without a scintilla of shame.” Citing the DOJ effort to replace Trump as a party in the suit, Levin declared that experts confirmed that “this special arrangement is wholly unique to Trump and his slippery, bootlicking A.G.” She cited University of Texas law professor and CNN legal analyst Steve Vladeck and an array of other experts cited in a New York Times article. The Times wrote how “some current and former Justice Department lawyers, speaking on the condition of anonymity, echoed Mr. Vladeck’s concerns, saying they were stunned that the department had been asked to defend Trump in Ms. Carroll’s case.”

One would expect that these same media outlets and experts would denounce Garland now as another “slippery, bootlicking A.G.” doing Trump dirty work. But … no.

The same is true with the Biden DOJ ‘s recent filing in the BLM lawsuit. Last year news stories stated as fact that Barr ordered Lafayette Park to be cleared of protesters to make way for Trump’s controversial photo op before St. John’s Church. From the outset, the Trump/Barr conspiracy claim had little support, and soon there were reports contradicting it. As I explained in my testimony to Congress on the protest, the plan to clear the park area to establish a wider perimeter was due to an extreme level of violence by protesters over the preceding two days, including the injury of a high number of federal officers. The violence was so great that Trump had to be moved to a bunker.

Now the Biden administration is arguing that the BLM case should be dismissed. Moreover, it is advancing the same position as Barr’s DOJ that “Presidential security is a paramount government interest that weighs heavily in the Fourth Amendment balance.” The DOJ’s counsel, John Martin, added that “federal officers do not violate First Amendment rights by moving protesters a few blocks, even if the protesters are predominantly peaceful.”

The Biden administration is not reluctant to change positions in litigation when it disagrees with the prior administration. However, in these cases the Biden administration insists that Barr was right on the law, even if it disagrees with Trump’s statements themselves. That would likely come as a surprise to many viewers of CNN or MSNBC.

Reasonable people can disagree about such legal disputes — but the point of much of the past coverage was that there was no real dispute, just raw political abuse by Barr.

As we watch the anger and divisions growing in our nation, we need to be honest about the role that media coverage continues to play in our age of rage. It is little surprise that many are enraged when legal experts state as a fact that the Justice Department is acting without legal basis; that makes for undeniably good ratings. Now that the ratings have receded, however, the law has again emerged — with the Biden administration in full agreement with its predecessor’s legal arguments.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.