Biden’s attorney general can’t let Trump-era abuses of powers go. Here’s what he should do.


Like a multi-car pileup on the expressway, the effects of Donald Trump’s abuses of office keep being felt long after the initial bad act. And it is tempting to shrug off each new revelation given that he is out of office — but that temptation must be rejected, as the recent revelations of his administration’s clandestine surveillance of journalists and political rivals both ranks among Trump’s most egregious offenses and has far-reaching implications for American democracy.

The Trump administration subpoenaed Apple for cellphone records related to reporters at The New York Times, The Washington Post and CNN and, while the existence of those subpoenas has become public because gag orders expired, the reasons behind the Justice Department’s request to a judge to gag Apple remain a secret. Federal prosecutors also subpoenaed Google for the emails of Times’ reporters, but Google resisted and, under Biden, the Justice Department eventually dropped the quest.

The department also obtained (and renewed) secret subpoenas directed at House Intelligence Committee members, staff and their family members, including Chairman Adam Schiff, D-Calif., and Rep. Eric Swalwell, D-Calif,, bulldozing over the separation of powers guaranteed by the Constitution. Apple said the 2018 subpoena from the Justice Department encompassed 73 telephone numbers and 36 email addresses, including at least a dozen accounts of persons it now knows are connected to the Intelligence Committee.

And the department also secretly served Apple subpoenas in 2018 for the account information of then-White House counsel Don McGahn and his wife.

Nixon often abused his presidential power by illegally investigating leaks of information damaging to him.

The stench of a secret federal probe of vocal Trump critics and their families (as well as his own lawyer) is reminiscent of President Richard Nixon’s infamous enemies list — an abuse of power that led to Nixon’s downfall.

Nixon and now Trump vindictively seized the levers of the criminal justice system to spy on their enemies, their friends and attempt to silence criticism. Using the rubric of protecting national security by investigating leaks of supposedly confidential information to journalists, both former presidents intruded into the private affairs of political rivals, government officials and journalists.

As outlined in the final report of the House Judiciary Committee in 1974 explaining its vote to impeach, Nixon often abused his presidential power by illegally investigating leaks of information damaging to him.

In his first term, Nixon targeted journalists. His key aide, H. R. Haldeman, ordered the FBI to investigate CBS national correspondent Daniel Schorr, which eventually entailed interviews with 25 people about Schorr’s personal life. Nixon had the phone of New York Times reporter Hedrick Smith wiretapped for nearly three months. He had the CIA conduct surveillance on syndicated columnist Jack Anderson. And, at the White House’s bidding, a private firm wiretapped prominent journalist Joseph Kraft.

Nixon also authorized the FBI to wiretap: five current or former National Security Council employees or contractors (two of whom had left the council and had become consultants to Democratic Sen. Edmund Muskie when the wiretaps were in place); a White House speechwriter; and two other White House aides. All in all, the telephones of 17 persons were wiretapped; none led to a prosecution for leaking classified material.

Ever the department institutionalist, however, Garland’s modest step is both toothless and naive.

These misdeeds were, however, among those supporting the Judiciary Committee’s charge that Nixon abused his power as president.

But while Nixon’s misconduct has been thoroughly exposed — and much was exposed prior to Nixon’s resignation — the actions of Trump’s Department of Justice remained completely shrouded in secrecy for years, and the whole story remains to be revealed

And until the government’s filings in support of their secret subpoenas and any related court transcripts are revealed, neither the public nor Congress can judge the legitimacy of the Trump administration’s probe of journalists, the House intelligence committee and its own White House counsel or the extent to which its prosecutors were candid and truthful to the court that issued the gag orders.

Nixon’s abuse of power led to a congressional impeachment inquiry that culminated in his resignation— but, thanks to Republican senators, Trump dodged conviction in two separate impeachment trials. But Justice Department lawyers who were complicit in obtaining the phone records and persuading a court to ban Apple from disclosing the seizure to its customers must be investigated.

On Monday, Attorney General Merrick Garland took the first baby step to get answers. He asked the Justice Department’s inspector general to investigate the subpoenas, saying that he had “full confidence that he will conduct a thorough and independent investigation.”

Ever the department institutionalist, however, Garland’s modest step is both toothless and naive.

Within hours of Garland’s announcement, the holdover Trump administration assistant attorney general for the national security division, John Demers, announced that he is resigning this month. By resigning, Demers will evade being questioned in any inspector general’s probe and, like former Attorneys General Jeff Sessions and William Barr, Demers will be beyond the reach of any inquiry.

Inspector General Michael Horowitz admitted in prepared testimony to Congress earlier this year that he is powerless to compel the testimony or cooperation of former members of the Justice Department. “[U]nlike the Department of Defense OIG, the DOJ OIG does not currently have the authority under the Inspector General Act to compel the testimony of witnesses that have left the Department,” he said.

Garland’s institutional loyalty cannot justify whitewashing the action of his predecessors in the Trump-era Justice Department or the careerists who carried out their directives.

An anonymous department source told NBC News on Monday that Demers’ resignation had been planned and was not tied to the scandal about the subpoenas to Apple.

What a coincidence.

Another investigative alternative appears blocked too. A call by Senate Majority Leader Chuck Schumer, D-N.Y., for Barr and Sessions to be subpoenaed to testify before the Senate was dismissed Monday by Senate Minority Leader Mitch McConnell, R-Ky.

But if Garland is serious, he has one other option. The Justice Department possesses the documents filed by its prosecutors with the court, and Garland can simply unilaterally release them. If a court order somehow prevents that, he can ask the court to allow the disclosure. Garland could also deliver these files to the House Judiciary Committee, which Chairman Jerry Nadler, D-N.Y., announced Monday will launch its own investigation.

Garland’s institutional loyalty cannot justify whitewashing the action of his predecessors in the Trump-era Justice Department or the careerists who carried out their directives. While protecting the institutional role of the Justice Department has value, its value does not extend to sheltering the actions of Trump-era prosecutors from scrutiny.



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