The Attorney General's Extension Of His Predecessor’s Elections Investigations Policy Sparks Debate Over Its Merits

This past spring, the attorney general extended his predecessor’s requirement that investigations into presidential or vice-presidential candidates, as well as their senior staff and advisors, can’t begin without written notification to the department and his written approval, as reported earlier this week. There has been much debate since then as to whether that was justified. 

MSNBC’s Rachel Maddow reported Monday night on a memo Attorney General Merrick Garland sent to Justice Department employees in May reminding them of the department’s elections policies amid the 2022 midterm season. The initial memo that then-Attorney General William Barr issued in February 2020 was an effort to avoid mistakes made during the 2016 campaign, The New York Times reported at the time. Also, while previous attorneys general have stated that the department needs to take additional caution on campaign-related probes during election years, Barr was the first to mandate that the FBI must confer with the department before opening these investigations, the paper noted. 

When the Barr memo first came out it was “controversial to me honestly less because of the content of it and more because it came from Attorney General Barr,” Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, told Government Executive. The memo, to him, seems “pretty standard practice,” however “the problem was that Barr, by that point, had already shown that he was willing to abuse the Justice Department for Donald Trump’s political benefit.” He deemed Garland’s action as something of a “non-event” and noted that “rolling back this policy could also potentially look political.” 

Barr said in his memo that the policy would be in place through the 2020 elections after which the department would review if changes were needed. When asked about Barr being the first attorney general to issue such a memo, as The Times reported, Bookbinder said, the memo “maybe goes a little further than necessary and it could be abused when you have a politicized attorney general like Barr, but it also kind of seems like standard practice even if it was codified previously. It’s just hard to imagine line prosecutors opening investigations into a major presidential candidate without going up to the attorney general.” 

Moreover, a possible indictment of Trump for his actions regarding the Jan. 6, 2021, attack on the Capitol “none of that was ever going to happen without the attorney general weighing in on it,” said Bookbinder, who thinks the Justice Department should open an investigation into Trump's conduct.

Renato Mariotti, a former federal prosecutor who is now a partner at the law firm Thompson Coburn LLP and a legal analyst for news outlets, pondered on Twitter why the memo was “controversial.” 

“In the context of Barr and Trump, I can understand why there were legitimate concerns that Barr would personally intervene in cases to protect Trump, given that he appeared to do so on more than one occasion,” he tweeted. “The answer to that is institutional reform of DOJ.”

Additionally, “it is fair to call out Garland for not explicitly doing more to recognize politicization during the Trump era and to reform DOJ to prevent future abuse,” Mariotti continued. “But I don’t understand why Garland is criticiz[ed] for ensuring DOJ leadership is aware of politically sensitive cases.” 

On the other hand, Asha Rangappa, a former FBI special agent who is now a legal and national security analyst and editor at Just Security, tweeted, “Barr’s 2020 guidance was a bad-faith policy intended to further insinuate that the 2016 investigation into Russian interference was improperly predicated. The whole thing is now Barr (and Trump’s) checkmate on Garland. There should have been a Special Counsel appointed last year."

Bradley Moss, a lawyer who specializes in national security and federal employment and a partner at Mark S. Zaid P.C., tweeted that he recognized “folks are up in arms” over the memo, but advised everyone to “chill.” Barr’s memo “did nothing but require higher level approval to start investigations” and Garland’s “just incorporated that and reminded personnel of that as the election nears,” Moss said. “Neither memo prevents an indictment.” 

He told Government Executive that Barr’s memo “was a clear reaction (if not over-reaction) to what occurred in 2016 both with respect to the Trump and Clinton campaigns.” Garland’s memo “does nothing to prevent an investigation into, if not an indictment of, former President Trump,” Moss said. “At most, it simply requires that Garland sign off on opening an investigation specific to Mr. Trump, something that presumably was going to likely occur anyway given the political sensitivities.”

The Justice Department did not respond to Government Executive’s inquiry about Garland’s decision to extend the policy. 

In addition to underscoring that “partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges,” Garland’s also reminded Justice employees of their obligations under the Hatch Act, which limits the political activity of government employees while on the job.