New Justice Communications Policy Strives for Independence from Political Influence 

The Justice Department released on Wednesday an updated version of its communication policy with the White House in an effort to bolster the department’s independence and apolitical nature. 

Attorney General Merrick Garland released a memo outlining the policy, as attorneys general have done since 1979. During the Trump administration there were vast allegations about political interference at the department. Then last month, a House committee released documents showing President Trump urging the department to overturn the results of the 2020 election. Before and after taking office, President Biden has vowed to keep his Justice Department independent and apolitical. 

“The success of the Department of Justice depends upon the trust of the American people,” wrote Garland in the memo to all department personnel. “That trust must be earned every day. And we can do so only through our adherence to the longstanding departmental norms of independence from inappropriate influences, the principled exercise of discretion, and the treatment of like cases alike.”

The Justice Department said in a press release “the policy expands upon procedural safeguards designed to protect the department’s criminal and civil law enforcement decisions, and legal judgments, from the appearance or reality of partisan or other inappropriate influences.” 

The five-page memo covers communications involving: pending or contemplated criminal or civil law investigations or cases; national security; requests for legal opinions; the Office of the Solicitor General; the pardon attorney; policy and intergovernmental relations; procurement and grantmaking; positions in the civil service and redirection of communications and all other matters––such as legislation, budgeting, political appointments, or other administrative matters. 

“The Justice Department will not advise the White House concerning pending or contemplated criminal or civil law enforcement investigations or cases unless doing so is important for the performance of the president's duties and appropriate from a law enforcement perspective,” says the document. It outlines procedures if there need to be communications between the department and White House. This section also applies to the Justice Department's use of its adjudicatory authority, such as within the Executive Office for Immigration Review. 

As for the civil service the memo says, “all personnel decisions regarding career positions in the department must be made without regard to the applicant's or occupant's actual or perceived partisan affiliation.”

Although the Justice Department routinely receives communications from the White House and Congress regarding political appointments, “communications regarding positions in the career service are not proper when they concern a job applicant's or a job holder's partisan affiliation,” wrote Garland. “Efforts to influence personnel decisions concerning career positions on partisan grounds must be immediately reported to the deputy attorney general.”

Garland said this policy is not meant to block communications between the White House and administration altogether, but rather make sure they go through the appropriate channels, nothing that is what Attorney General Benjamin Civiletti wrote in the first communications memo 42 years ago under President Carter. 

The document is “180 degrees opposite of what we saw in the last administration,” said Walter Shaub, former director of the Office of Government Ethics during the Obama administration who is now senior ethics fellow at the Project on Government Oversight, in a tweet. This is “an important step in shifting away from the legacy of [former Attorney General William] Barr’s politicization of justice.”

USA Today noted that much of the memo’s language mirrors that of the 2009 memo from then-Attorney General Eric Holder under the Obama administration. 

Also on Wednesday, the White House released 14-page guidelines for communications with agencies and departments. 

“The White House plays an important role in coordinating the activities of departments and agencies, particularly with respect to policy development,” wrote Dana Remus, counsel to the president. “But it is also important to ensure the integrity of government decision making and public confidence that decisions by government officials are made based on appropriate considerations.”

There should be limited contacts regarding “merits of specific adjudications, benefit determinations, investigations, litigation matters, enforcement actions, procurement decisions, and funding matters involving specific parties, as well as matters involving personal privacy or tax information,” Remus wrote. 

The memo reflects the need for an independent Justice Department and outlines policies for White House staff that reflect those of the Justice memo. 

On independent agencies it is “generally permissible” for White House staff to contact independent agencies about political appointments and policy or administrative matters; however, many independent agencies “have strict rules that require them to publicly report contacts they receive about certain policy matters, even from the White House, including even contacts concerning rulemakings.” 

In regard to rulemaking, once the proposed rule is sent to the Office of Information and Regulatory Affairs for review, “you should not communicate with outside parties interested in a rule in any way that allows outside parties to circumvent OIRA procedures,” said the memo. 

“This puts guardrails in place to prevent some of the worst abuses of the last administration,” tweeted Shaub, on the guidelines. “It is a very important tone-setting document, which is crucial in government ethics. As I've often said, tone from the top is everything.”

Andy Wright, partner at the law firm K & L Gates who previously served as associate counsel to President Obama and assistant counsel to Vice President Al Gore, flagged that the Trump administration’s guidance on agency communications was two pages. “Not that [the number] of pages is dispositive, but the new 14-page Biden [White House] memorandum contemplates a lot more types of potentially problematic interactions between the WH [and] DOJ,” he tweeted. 

The memos from the White House and Justice Department “reflect sophisticated thinking and a significant commitment to restoring and building confidence in the evenhanded administration of justice,” Wright said.