Where Biden’s Justice Department Isn’t Breaking From Trump

The political news cycle hit home in rare fashion on Monday as the attorney general, Merrick B. Garland, met with newsroom leaders from The Times, CNN and The Washington Post to discuss how the administration was responding to revelations that Donald J. Trump’s Department of Justice had secretly sought information on reporters and their sources.

When a Justice Department gets into the business of seizing reporters’ phone records and trying to track down leakers, while putting gag orders on the news organizations whose records it’s seizing, it’s hard not to wonder about the health of the First Amendment.

So with the revelations now public, Mr. Garland vowed to act. Speaking to members of the Senate Appropriations Committee at a budget hearing last week, he pledged that he would institute new policies that were “the most protective of journalists’ ability to do their jobs in history.”

In Monday’s meeting, the leaders of the news organizations pushed Mr. Garland to pursue accountability for the administration officials who had worked to target journalists and whistle-blowers; Mr. Garland’s responses were kept off the record.

But legal watchdogs and advocates of criminal justice reform say this is far from the only area of concern. They are pointing to a few major areas in which Mr. Garland’s Justice Department has elected to defend Trump-era policies, particularly those orchestrated by former Attorney General William P. Barr.

Mr. Garland has stepped up enforcement of civil rights laws, and he is leading investigations into some major municipal police departments suspected of systematic misconduct. He announced last week that he would take aggressive steps to protect voting rights.

But on a range of other issues, there are gripes coming from within the president’s own party. Some critics have expressed worry that his Department of Justice was rubber-stamping policies that sought to expand the president’s legal immunities, turn back progressive action on racial justice and restrict immigrants’ ability to enter the country legally.

Trump, E. Jean Carroll and presidential protections

During Mr. Trump’s presidency, Mr. Barr sought to help Mr. Trump try to fight off a sexual assault accusation from the journalist and advice columnist E. Jean Carroll.

After she publicly made the allegation, in 2019, Mr. Trump said in an interview from the Oval Office that Ms. Carroll was “not my type,” and that he’d never assaulted her. She then filed suit, accusing him of slandering her.

Mr. Barr argued in court that Mr. Trump had been acting as an employee of the federal government when he made the comments, and was therefore shielded from charges of slander and libel.

The case was still pending when President Biden took office. And this month, Mr. Garland’s Justice Department lamented Mr. Trump’s “crude and disrespectful” remarks, but it said that his administration had been right to argue that he could not be sued over them.

Mueller’s findings and the ‘Barr memo’

Prominent Democrats had also urged Mr. Garland not to fight a federal judge’s ruling demanding that a classified report that Mr. Barr had requested be made public. Known as the “Barr memo,” the document argues that he should tell the public that Mr. Trump’s efforts to impede the Russia investigation — as lain out in the report by the special counsel, Robert S. Mueller III — cannot be charged as obstruction of justice, and offers legal analysis in support of that claim.

Mr. Trump’s foes scored a major victory last month, when, in a blistering decision, Judge Amy Berman Jackson of the U.S. District Court in Washington ordered the memo to be made public, accusing the Trump administration of “disingenuous” reasoning. In a public letter last month, Democrats on the Judiciary Committee asked Mr. Garland not to appeal Judge Jackson’s decision, “in order to help rebuild the nation’s trust” in the Justice Department.

But Mr. Garland soon announced that he would indeed appeal it, seeking to keep secret most of the memo — the portion laying out the legal analysis for why none of potential obstruction episodes in the Mueller report rose to a chargeable crime — and citing “the irreparable harm that would be caused by the release of the redacted portions of the document.”

Much like Barack Obama’s choice, in 2009, not to systematically pursue accountability for members of the Bush administration over their invasive surveillance policies, or the mistreatment of military prisoners during the war on terror, the Biden administration’s move on the Barr memo was seen as an attempt to protect the narrow institutional interests of the Justice Department and to move on.

Gun prosecutions in D.C.

Many proponents of racial justice were dismayed this spring when Mr. Garland’s Justice Department announced it would continue Mr. Trump’s policy of using the federal courts to prosecute gun crimes in the District of Columbia, not the city’s own justice system.

That policy, enacted in 2019, had reversed decades of tradition in the nation’s capital, where the lead prosecutor is a federal appointee but most crimes are typically tried in city courts.

At a moment when the D.C. Council had been passing laws to undo the effects of mass incarceration, the Trump administration’s move disproportionately affected African-American men, as Black people account for a vast majority of those brought up on gun charges in the nation’s capital. Average sentences for these crimes are roughly twice as high in the federal court system.

“That’s why it’s so surprising that the administration stuck with it: because this is an issue that touches on mass incarceration, racial injustice and D.C. rights,” Andrew Crespo, a Harvard Law School professor who has been involved in the effort to roll back the Trump policy, said in an interview.

A group of 87 former federal prosecutors signed a letter in May urging the Justice Department to abandon the practice, but so far it hasn’t changed its position.

Immigration policies

Mr. Garland’s Justice Department has also continued some Trump policies that prevent immigrants trying to enter the U.S. from having access to certain legal rights.

One policy, which was enacted at the end of Mr. Trump’s presidency by the department’s immigration review office, concentrates decision-making power underneath a political appointee and can prevent immigrants seeking to remain in the U.S. from presenting certain evidence that could help them from being deported.

Lawyers for Mr. Garland’s Justice Department have repeatedly argued to uphold the rule, resisting lawsuits from proponents of immigration rights in two separate district courts.

Biden administration lawyers have also argued in court on behalf of a policy that prevents immigrants with temporary protected status from gaining green cards with the support of their employer. The Biden administration has also sought to end protected status for hundreds of thousands of people from El Salvador and other countries.

Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, pointed to the fact that Mr. Garland’s Justice Department had agreed to defend former members of the Trump administration, including Jeff Sessions and Stephen Miller, in lawsuits seeking damages for harm caused by the family-separation policy.

It is customary for former federal officials to have access to Justice Department representation, but Mr. Gelernt said that the family-separation policy went beyond the pale, and suggested a need to re-examine old precedent where some of the Trump administration’s policies are concerned.

“For the Biden D.O.J. to choose to represent the people who did the family-separation practice is deeply troubling,” he said.

A voting rights coalition urges corporations to stop funding ALEC, the conservative group.

A coalition of more than 300 voting rights groups, civil rights advocates and labor leaders has written a letter to multiple major corporations in the U.S. demanding that they cease their financial support of the American Legislative Exchange Council, or ALEC, an influential conservative group funded by businesses.

The three-page letter accuses the group of engaging in partisan gerrymandering and of playing a central role in the crafting of legislation in states across the country that would introduce a raft of new voting restrictions.

“Your continued financial support of ALEC is an active endorsement of these efforts to create more barriers to the freedom to vote and weaken representation for the American people in government,” the letter states. “Intended or not, the money your company is contributing to ALEC helps fund this modern Jim Crow effort.”

The letter comes as multiple groups seeking to slow the attack on access to the ballot have sought to pressure major businesses to take a more proactive role in pushing back on new voting laws. In Georgia, a coalition of faith leaders called for a boycott of Home Depot after it did not actively oppose the state’s new voting law.

But even as some businesses have spoken up, it has rarely had a significant impact. A broad coalition of major corporations last month called on Texas to expand voting access, only to see the state’s Legislature continue to work toward a final bill of voting restrictions.

The letter on Monday focusing on funding for ALEC, a regular target of liberal groups, signals a broadening of the activism aimed at weakening or halting new voting bills, taking the battle beyond state legislatures and members of Congress and to the broader ecosystem that has been powering the monthslong push to enact new voting laws.

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