There has been a sea change in accountability decisions at the Department of Justice in recent weeks. If Attorney General Merrick Garland aims to restore our government’s commitment to the rule of law, he must show that these decisions are the start of a larger pattern – and make clear that the department will investigate former President Donald Trump's attempts to reverse the outcome of the 2020 election.
First, the DOJ indicted Thomas Barrack, a longtime friend of Trump’s who chaired his inaugural committee, on illegal foreign lobbying. Then it announced it would not defend Rep. Mo Brooks, R-Ala., whose fiery speech, like Trump's, incited the insurrectionist Jan. 6 crowd. The DOJ further declared that it would not shield former DOJ officials from testifying before congressional committees investigating the deadly Jan. 6 Capitol attack.
Finally, the Justice Department issued a new legal memorandum finding that the House Ways and Means Committee is legally entitled to Trump’s tax returns, and explained why the Trump-era memo reaching the opposite conclusion was wrong.
Garland meant well, but he was wrong
These moves were a major change from what we had come to expect from Garland. His first five months included a return to business as usual for the Justice Department after the abuses of the Trump era, but the lack of accountability for those very abuses and the Jan. 6 insurrection was downright alarming.
The DOJ continued defending Trump in a defamation case stemming from his denial of rape allegations dating to well before his presidency. In a case brought by my organization, Citizens for Responsibility and Ethics in Washington, the DOJ decided to continue fighting to keep secret a memo former Attorney General William Barr used to wrongly claim that special counsel Robert Mueller's report did not support findings of obstruction of justice by Trump – despite a court’s findings that both Barr and DOJ lawyers had been misleading.
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Garland said on numerous occasions that he was not going to look backward. His decisions seemed premised on the view that taking positions benefiting the Trump administration would show an unbiased nonpartisan approach. He was well-intentioned, but wrong.
Without fully coming clean about the many ways the DOJ and the federal government were abused, and ensuring some accountability for dangerous and anti-democratic actions, it will be impossible to restore the American people’s faith in our government and justice system and meaningfully move forward.
It’s not totally clear why the DOJ changed direction. It’s possible that it was continuing with the status quo until it could make the case and it was now turning the corner. It’s also possible that the stinging criticism the Justice Department received for protecting secrecy and executive power even in the context of outrageous abuses prompted some rethinking.
It is a hugely important change. The Barrack indictment and the tax return decision start to reverse the DOJ's Trump-era practice of making dubious legal arguments to protect the former president and his allies. The decisions not to shield former officials from testifying or Rep. Brooks from a lawsuit make clear that Garland knows accountability for an attack on our country takes precedence over the usual assertion of prerogatives to protect officials from investigation.
Former Acting Attorney General Jeffrey Rosen already testified for seven hours on Saturday to the Senate Judiciary Committee about Jan. 6. On Sunday on CNN, committee Chairman Dick Durbin called Rosen's disclosures "frightening from a constitutional point of view" and predicted history would be kind to Rosen for fending off Trump's attempts to overturn the election.
Prosecute Trump if necessary
It was disastrously shortsighted to put parochial interests of secrecy and executive power, or a desire to avoid looking political at all costs, ahead of getting out the truth about some of the worst attacks on our country. Now there is a chance to respond in a meaningful way to these abuses and begin the hard work of ensuring that they don’t happen again.
The hardest work is yet to come. With appropriate safeguards and procedures to prevent politicization, the DOJ must come out on the side of transparency, not just on Jan. 6 testimony and Trump's taxes, but more broadly with the Trump administration's unprecedented abuses – from using the government to hold onto power, make money and reward friends, to widespread corruption and attacks on the rule of law.
And the department must make serious determinations about whether and when investigation and prosecution of Trump and those around him are needed and appropriate. The recent revelations and testimony about Trump’s pressure on Justice Department leaders to help him reverse the election outcome make such an inquiry both timely and urgently needed. Those are difficult and fraught decisions, but the DOJ, and the country, must not shy away from them.
Garland’s Justice Department has demonstrated a willingness to revisit and reverse Trump-era policy, even in difficult and potentially politically charged cases. Now it must see the process through and deliver much needed accountability, while there is still time to salvage our system of justice.
Noah Bookbinder, a former criminal prosecutor for the Justice Department's Public Integrity Section, is the executive director of Citizens for Responsibility and Ethics in Washington. Follow him on Twitter: @NoahBookbinder
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This article originally appeared on USA TODAY: Investigate Trump corruption and abuses to salvage America's future