The Securities and Exchange Commission’s chief litigator is joining the US attorney’s office handling January 6 cases

Capitol attack explosion fire
The SEC’s chief litigation counsel is taking the No. 2 role in the federal prosecutor’s office handling January 6 cases.

  • The SEC’s top litigator is stepping down to become No. 2 at the DOJ office handling January 6 cases.
  • Before joining the SEC, Bridget Fitzpatrick was a public corruption prosecutor in Washington, DC.
  • The move reunites her with US attorney Matt Graves, who signed the indictment of Steve Bannon.

The Biden-appointed US attorney in Washington, DC, has recruited a top lawyer from the Securities and Exchange Commission for the second-ranking role in the federal prosecutor’s office handling the hundreds of cases stemming from the January 6 attack on the Capitol, Insider has learned.

Bridget Fitzpatrick, the SEC’s chief litigation counsel, is poised to leave the commission to become the top deputy to US attorney Matt Graves, according to multiple people familiar with her plans. For Fitzpatrick, the move marks a return to the US attorney’s office where she once specialized in public corruption prosecutions.

She is expected to start at the end of December or in early 2022 as the so-called first assistant US attorney under Graves, whose early tenure as the top federal prosecutor in Washington has been highlighted by the indictment of Trump ally Steve Bannon on contempt of Congress charges. 

On Monday, the congressional committee investigating January 6 voted to recommend that the full House hold former White House chief of staff Mark Meadows in contempt of Congress, setting the stage for another possible referral for a Justice Department prosecution out of Graves’ office. Republican Rep. Liz Cheney of Wyoming also is suggesting DOJ should consider criminally charging former President Donald Trump with obstructing Congress for his role in the Capitol riot that halted lawmakers’ plans to certify the 2020 election results.

In their previous stints at the US attorney’s office, Graves and Fitzpatrick both worked in the fraud and public corruption unit — a team that reviews congressional referrals for prosecution and often brings cases against high-profile figures. Fitzpatrick once helped convict a sitting member of the District of Columbia’s city council on charges he embezzled funds earmarked for youth programs, and Graves was involved in the prosecution of former Rep. Jesse Jackson Jr., who pleaded guilty in 2013 to making lavish purchases and covering personal expenses with campaign contributions.

Fitzpatrick left the US attorney’s office in 2012 for the SEC at a time when the commission was seeking to bring in trial experience ahead of enforcement actions tied to the financial crisis. In her first year at the SEC, she won a court decision finding the former Goldman Sachs trader Fabrice Tourre — the self-proclaimed “Fabulous Fab” who had become a symbol of Wall Street’s role in the financial meltdown — liable for fraud.

Matt Solomon, who once supervised Graves and Fitzpatrick as a senior official in the US attorney’s office, said the two established themselves as stars early in their careers as prosecutors.

“Both of them had incredible white collar instincts, and that’s what sets them apart. They just got white-collar in a way that a lot of prosecutors never do,” said Solomon, who preceded Fitzpatrick as the SEC’s chief litigation counsel and recruited her to the commission.

“And it’s not that white-collar is so much harder than homicide or harder than gang cases, which are incredibly difficult to investigate and prosecute and critically important in the District. But there’s a certain instinct for crimes that are a little grayer because they always involve proving what’s going on inside someone’s head as opposed to pulling a trigger or even having a readily identifiable victim.”

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Meet Steve Bannon’s prosecutor, the most important Justice Department official you’ve never heard of

Bannon court
US attorney Matt Graves signed the indictment of Steve Bannon a week after taking office.

  • Matt Graves brought contempt charges against Steve Bannon just a week after becoming US attorney.
  • His office is handling January 6 prosecutions and is expected to receive more referrals from Congress.
  • Former colleagues say he brings experience with high-profile cases involving public figures.

The federal prosecutors knew that, if they didn’t bring charges, Republicans would accuse the sitting Democratic administration of protecting one of its own. So the decision could not have a whiff of politics.

It was late in the Obama presidency, and House Republicans had referred a top IRS official to the Justice Department in a scandal over whether the tax agency had improperly targeted conservative groups. The IRS official, Lois Lerner, invoked the 5th Amendment to avoid answering questions from the House, but Republicans argued that she had waived her constitutional rights against self-incrimination and should be charged with contempt of Congress.

The Justice Department declined to pursue a case but stressed, in a 2015 letter, that career prosecutors had carefully reviewed the Republicans’ criminal referral. Among the career prosecutors was Matt Graves, then a senior official in the US attorney’s office in Washington, DC.

Six years later, Graves is now the face of that US attorney’s office and grappling once more with politically-charged contempt referrals from the House. 

A week after being sworn in as US attorney in Washington, DC, Graves signed the indictment charging Donald Trump ally Steve Bannon with contempt of Congress over his defiance of the January 6 inquiry. In the weeks since, the January 6 committee has only turned up the heat with recalcitrant Trump world figures, taking steps to hold former White House chief of staff Mark Meadows and the onetime Justice Department official Jeff Clark in contempt.

The Bannon indictment — and potential for additional referrals — landed on the doorstep of the US attorney’s office in Washington at a time when it is also handling the deluge of prosecutions stemming from the January 6 attack on the Capitol. More than 700 prosecutions have arisen out of the January 6 investigation, which federal authorities have described as unprecedented.

The cases have put the US attorney’s office at the forefront of the Justice Department’s dealings with Congress as the House January 6 committee looks to contempt prosecutions to bolster its aggressive push for answers about the Capitol attack.

Former colleagues of Graves described the Reading, Pennsylvania, native as unflappable and almost uniquely made for the moment with his experience in an uncomfortable area for the Justice Department: the intersection of politics and prosecutions.

“He’s not a novice to these issues. To have someone who has firsthand knowledge of the law, on the sort of issues you have to grapple with, it’s huge. He would have picked it up anyway because he’s a bright guy, but his past experience gave him an upper hand to be able to hit the ground running,” said Channing Phillips, who served as the acting US attorney from March until Graves took office in early November.

liz cheney
Rep. Liz Cheney (R-Wyoming) heads to the House floor to vote at the US Capitol on February 3, 2021.

Cheney floats a big fish: Trump  

It remains unclear how many Trump figures the House will refer to the Justice Department for prosecution out of the congressional inquiry into January 6 — though one big fish has come up in recent days for Graves’ office to potentially consider.

Late Monday, as the House committee investigating January 6 voted to recommend holding Meadows in contempt, Rep. Liz Cheney of Wyoming appeared to raise the possibility that the congressional inquiry could prompt the Justice Department to prosecute Trump over his conduct during the Capitol breach.

Cheney, the committee’s Republican vice chair, said text messages to Meadows were “further evidence of President Trump’s supreme dereliction of duty during those 187 minutes.” 

“And Mr. Meadows testimony will bear on another key question before this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes? Mark Meadows’ testimony is necessary to inform our legislative judgments,” she said. 

Her comments made waves in legal circles in no small part because it sounded like she was reading straight from the federal criminal statute.

In spite of attention surrounding his office, Graves has so far kept a low-profile in his first month as US attorney. He’s made no comment about a potential Trump prosecution, which shouldn’t be a surprise for someone of his position except for the fact one of his recent predecessors had publicly suggested such a case was under consideration during a controversial interview with CBS’s “60 Minutes” back in March. 

Shortly after his Senate confirmation, Graves delivered remarks at an annual gathering of current and former prosecutors in the US attorney’s office. But he has not given any public interviews or held press conferences since then. A spokesman for his office declined to comment for this article.

Former colleagues said Graves’ early approach is in keeping with his measured, mild-mannered style. But he could begin to step out in coming months as Bannon goes to trial next summer and criminal proceedings pick up against January 6 defendants.

“He won’t seek the limelight but won’t shy away from it either,” said Ron Machen, a partner at the law firm Wilmer, Cutler, Pickering, Hale and Dorr who served as the US attorney in Washington under the Obama administration.

In his current job, Graves is the face of the largest US attorney’s office in the country — a size owed, in part, to its unique role as a federal and local prosecutor for the District of Columbia. Graves could adopt a more public-facing posture as the nation’s capital confronts a year in which it recorded 200 homicides, a level of deadly violence it has not seen since 2003.

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Graves previous stint as a prosecutor was highlighted by a case against former Rep. Jesse Jackson Jr.

Jesse Jackson Jr. and Roger Clemens

Graves previously served in the US attorney’s office from 2007 to 2016, a period in which he rose to become a top public corruption prosecutor. His nearly decade-long tenure was highlighted by the prosecution of former Rep. Jesse Jackson Jr. of Illinois, a onetime rising star in Democratic politics who pleaded guilty in 2013 to making lavish purchases and other personal expenditures with campaign funds.

Jackson’s guilty plea and 30-month prison sentence marked a triumph for the US attorney’s office in a high-profile, politically-sensitive case against the son of the influential civil rights leader. But Graves also witnessed earlier in his tenure the failed prosecution of the former baseball star Roger Clemens on charges he lied to Congress in insisting that he never used steroids during his long career.

Graves was not personally involved in the case, but former officials in the US attorney’s office said the verdict underscored the challenges and pitfalls of politically-fraught prosecutions. Former officials said Graves is likely to draw on those experiences as closely-watched cases connected to the Trump era continue coming to the US attorney’s office.

“He’s not somebody who is going to be influenced one way or the other. I think he really will do the right thing, regardless of whether it’s a referral with pressure from Democrats. “And, if the tables turn in 2022, who knows what referrals are going to come then?” said Matthew Solomon, a former top official in the US attorney’s office who once supervised Graves. 

“In these kinds of cases, it’s like brain surgery, and you have to have the judgment,” he added. “You have to have an understanding of history, of what’s happened in the past with these cases, and of political dynamics. And of course the touchstone is, in the end, doing what is right – but that often means cutting through a lot of noise and that takes force of personality as well as finesse.

People walking out of the SEC building US Securities and Exchange Commission
The Securities and Exchange Commission headquarters in Washington, DC

Firepower from the SEC

As Graves has settled in as US attorney, he is also reconnecting with a former colleague from his time as a career prosecutor.

Graves has recruited Bridget Fitzpatrick, a former federal prosecutor now serving as the Securities and Exchange Commission’s chief litigator, to return to the US attorney’s office as his top deputy, according to multiple people familiar with his pick. Fitzpatrick is expected to join the office later this month or in early 2022 after completing a background process.

In her more than five-year tenure as a public corruption prosecutor, Fitzpatrick helped convict a sitting member of the District of Columbia’s city council on charges he embezzled more than $350,000 earmarked for youth programs. She left the US attorney’s office in late 2012 to join the SEC as the commission pushed to bring in more trial expertise in the aftermath of the financial crisis.

In 2013, she won a court decision finding the former Goldman Sachs trader Fabrice Tourre — the self-proclaimed “Fabulous Fab” — liable for fraud. Tourre had become a symbol of Wall Street’s role in the financial meltdown.

The January 6 cases and contempt referrals from Congress will dominate the headlines of Graves and Fitzpatrick’s tenure. But with their combined experience, Graves and Fitzpatrick have a chance to reinvigorate an office that was demoralized in the final year of the Trump administration as Justice Department leaders intervened in prosecutions to the benefit of the then-president’s political allies, former officials said.

“Yes, they have to see through the January 6 cases. Yes, they have to deal with the congressional referrals. But, to me, I think a big project for them is also going to be rebuilding a significant white collar portfolio in that office,” said Solomon, who served as the SEC’s chief litigation counsel following his stint in the US attorney’s office and recruited Fitzpatrick to the commission.

Solomon said they have the “full package, which is incredibly rare, of being incredibly hard-working, having really good white-collar instincts and being very, very intelligent and also very good trial lawyers.”

ben carson 2013
Graves represented Ben Carson, a former Trump cabinet official, while in private practice.

Ben Carson, Nike & GE

Graves joined the law firm DLA Piper as a partner after stepping down in 2016 as the chief of the fraud and public corruption unit within the federal prosecutor’s office. His role at the Justice Department put him in charge of the team that reviewed referrals from Congress and other cases involving well-known figures.

In private practice, his work continued to feature public figures and closely-watched cases.

Among his clients was Ben Carson, a former 2016 Republican presidential candidate who served in the Trump administration as secretary of housing and urban development. Graves’ roster of corporate clients included Nike, General Electric and the news outlet Al-Jazeera, according to his financial disclosure.

Public court filings show that Graves represented Al-Jazeera in litigation involving the professional baseball players Ryan Zimmerman and Ryan Howard, who sued the news outlet over a documentary alleging that they used performance-enhancing drugs. Graves withdrew from the case in July after President Joe Biden nominated him for the US attorney role.

In recent years, he has also represented the oil-rich state of Qatar, T-Mobile and the Bank of Palestine, amassing a client roster that has concerned good-government advocates who have raised alarm over the private sector ties of Biden appointees.

But former leaders of the US attorney’s office said the defense-side perspective will only help Graves as he makes closely-scrutinized decisions in the political crucible.

“He’ll game it out, he’s methodical. He’ll look at the case law precedent and weigh the pros and cons. He’s not just a career prosecutor but has been on the defense side and represented individuals and organizations as well,” Machen said. 

“The ability to understand both sides of an issue rather than view the matter through only one type of lens is critical in these sorts of high-profile matters,” added Machen, who held Graves’ job from 2010 to 2015. “You have to be able to see the whole playing field and he has got the experience to do that and to do it effectively.”

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Mark Meadows was just held in contempt by the special House panel investigating the January 6 attack on the Capitol

Mark Meadows
Former White House chief of staff Mark Meadows.

  • Former White House chief of staff could face up to a year in prison if convicted of contempt of Congress.
  • The House January 6 committee previously voted to hold Steve Bannon in contempt.
  • The full House could vote as early as later this week to refer Meadows to DOJ for prosecution.

The House committee investigating the January 6 attack on the Capitol voted unanimously late Monday to hold former White House chief of staff Mark Meadows in contempt over his refusal to answer questions and turn over contested documents as part of the inquiry.

The panel’s move sets the stage for the full House to vote on holding Meadows in contempt of Congress and referring him to the Justice Department for criminal prosecution on a charge carrying a punishment of up to a year in prison.

The vote came a day after the House select committee released a report detailing the extent of Meadows’ involvement in former President Donald Trump’s ill-fated effort to overturn the 2020 election. In a 51-page report, the panel of seven Democrats and two Republicans made its case for holding Meadows in contempt of the legislative body where he served from 2013 to 2020 as a Republican representative for a western North Carolina congressional district.

“Whatever legacy he thought he left in the House, this is his legacy now,” said Rep. Bennie Thompson, the Democratic chairman of the House committee, on Monday. “His former colleagues singling him out for criminal prosecution because he wouldn’t answer questions about what he knows about a brutal attack on our democracy — that’s his legacy.”

The committee said in the report that it wanted to question Meadows about an email he’d sent on January 5 advising that the National Guard was present the following day to “protect pro Trump people.” The House panel wants to ask Meadows about an exchange he had with an unidentified senator about rejecting the electors for now-President Joe Biden.

In the report, the committee also said Meadows used a personal cell phone, two personal Gmail accounts, and a Signal account for official government business.

Meadows had been cooperating with the House investigation into January 6 but abruptly shifted course last week. Citing Trump’s assertion of executive privilege, Meadows declined to turn over additional documents after having provided more than 9,000 pages of records to the House panel, including thousands of text messages, and he declined to sit for a scheduled deposition.

“He changed his mind and told us to pound sand. He didn’t even show up,” Thompson said.

“He has no credible excuse to stonewall the select committee’s investigation,” he added.

Following Thompson’s remarks, Rep. Liz Cheney read aloud a series of text messages in which Trump allies and Fox News hosts urged Meadows to convince Trump to publicly denounce the January 6 attack as it unfolded at the Capitol. Cheney, the committee’s vice-chair and one of two Republicans on the House panel, said the texts leave “no doubt” that the White House was aware of the extent of the violence.

Meadows sued House Speaker Nancy Pelosi and other House lawmakers last week in federal court, where he asked a judge to block a subpoena the January 6 committee issued him along with a separate subpoena to Verizon seeking his phone records.

Ahead of Monday’s vote, Meadows’ lawyer asked the panel to reconsider its plans to hold Trump’s former chief of staff in contempt and instead allow the civil lawsuit to proceed in Washington, DC, federal trial court. The lawyer, George Terwilliger III, said Meadows was trying to comply with his “legal obligations” as a former top Trump advisor.

Legal experts said Meadows’ lawsuit and past role as a close Trump advisor could complicate the Justice Department’s consideration of bringing contempt charges against him. In November, the Justice Department brought charges against Steve Bannon based on a referral from the House committee investigating January 6. But, unlike Meadows, Bannon was not serving in government during the period in question, undercutting his claims of privilege.

The House committee has also voted to hold the former Justice Department official Jeff Clark in contempt over his refusal to cooperate with the panel’s demands. Clark, who helped advance Trump’s baseless claims of election fraud, has said he plans to assert his 5th Amendment rights against self-incrimination and was given a second chance to appear before the House January 6 committee. The full House has held off on voting to hold him in contempt ahead of Clark’s scheduled appearance before the committee on Thursday.

In the buildup to Monday’s vote, the House January 6 committee said Meadows’ recently-released book raised a number of additional questions. The book, titled “The Chief’s Chief,” made his refusal to testify “untenable,” the committee said.

“Mr. Meadows has shown his willingness to talk about issues related to the Select Committee’s investigation across a variety of media platforms — anywhere, it seems, except to the Select Committee,” the panel wrote.

Last week, a three-judge appeals court panel rejected former President Donald Trump’s bid to prevent the National Archives from handing records from his administration over to the House committee. In a 68-page opinion, Judge Patricia Millett wrote that Trump had provided “no basis” for the court to reject Biden’s decision to allow the release of those records.

Thompson celebrated the ruling on Monday, saying the court ruled “quickly” in the committee’s favor.

“Day to day, we are getting a clearer picture of what happened, who was involved, and who paid for it,” he said. “So I’m pleased to report we’re making considerable progress, and before too long, our findings will be out in the open.”

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A federal judge just set Steve Bannon’s trial for July 2022 in the Capitol riot contempt case

Bannon court
Steve Bannon appeared in federal court Monday after being charged with criminal contempt of Congress.

  • A federal judge set a trial date of July 2022 for former White House chief strategist Steve Bannon.
  • Bannon faces two criminal contempt of Congress charges.
  • He’s one of several Trump allies who refused to comply with subpoenas from the Jan. 6 committee.

A federal judge on Tuesday set a July 2022 trial date for former White House chief strategist Steve Bannon, who faces two criminal charges of contempt of Congress.

Judge Carl Nichols, a 2019 appointee to the federal trial court in Washington, DC, set the trial to begin July 18 after hearing dueling arguments from prosecutors and Bannon’s defense team over the proper pace for the criminal proceedings.

In a joint filing Monday evening, prosecutors asked for the trial to begin no later than April 15, while Bannon’s defense team proposed a date six months later — October 17. Nichols said an April trial date would require an “extremely fast” briefing schedule, but also viewed Bannon’s proposed schedule as overly drawn-out.

“I do think the defendant’s proposal of an October trial date is too slow and too long from today,” Nichols said.

The Justice Department charged Bannon last month after he refused to comply with a subpoena issued by the House Select Committee investigating the January 6 Capitol riot. He rejected the committee’s demand that he sit for a deposition and produce relevant documents. The panel moved to pursue criminal contempt charges against him in October.

The Justice Department has previously declined to enforce criminal contempt referrals, but both Democrats and Republicans on the select committee said they hoped that would change under the Biden administration.

The department said in the Monday court filing that it expects to be able to present the case against Bannon in a single day. Bannon’s defense lawyers said their “best estimate” was that the trial would last about 10 days.

Bannon is not the only associate of former President Donald Trump who’s failed to comply with the January 6 select committee’s investigation. After weeks of back and forth, an attorney for former White House chief of staff Mark Meadows said in a letter sent to lawmakers on Tuesday that his client would not cooperate with the select committee’s inquiry until the courts resolve issues related to Trump’s assertion of executive privilege over matters related to the committee’s investigation.

Rep. Adam Schiff of California, a member of the January 6 investigatory panel, said last week that Meadows undermined his own argument for withholding information from the committee because he wrote about matters related to the Capitol riot in his new memoir.

The select panel also moved last week to recommend criminal charges against Jeffrey Clark, a former top Trump appointee at the Justice Department. Clark’s attorney informed lawmakers that his client intends to invoke his 5th amendment right against self-incrimination. He was scheduled to appear before the committee to formally assert that claim on December 16, but the hearing was postponed after Clark’s lawyer said his client had an extenuating medical circumstance.

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Trump ally Steve Bannon can be prosecuted in a single day, DOJ says

Bannon Corcoran
Prosecutors said Monday they expect their “case in chief” against Steve Bannon to last only a day.

  • Federal prosecutors see the Steve Bannon case as “very straightforward” and want a trial date soon.
  • DOJ thinks it will only take a day of testimony to present the contempt of Congress case.
  • Bannon’s defense team wants a more drawn-out pace for the criminal proceedings.

Federal prosecutors expect to need just one day to make their case against former White House chief strategist Steve Bannon, the Justice Department said Monday in a court filing that pushed for the Trump ally to stand trial soon on criminal contempt of Congress charges.

A federal grand jury returned an indictment last month against Bannon over his defiance of a congressional subpoena demanding that he testify and turn over documents as part of the House investigation into the January 6 attack on the Capitol. At an early court hearing, prosecutor Amanda Vaughn described the case as “very straightforward” as Bannon’s defense team resisted the Justice Department’s push to set a trial date.

In Monday’s filing, prosecutors predicted that their “case-in-chief will consist of one day of testimony.” Bannon’s defense lawyers said their “best estimate” was that the trial would last about 10 days.

Prosecutors also asked for the trial to begin no later than April 15. Bannon’s defense team suggested a date six months later, October 17, asserting that the “average life of a criminal case” in the District of Columbia’s federal trial court is about one year.

“In our view, this is not the average criminal case on the docket – because it will take more time to obtain discovery, and more time to fully brief the issues,” Bannon’s defense lawyers said.

The court filing further illuminated the divide between Bannon’s defense and prosecutors over the pace of the proceedings, in a prosecution that House lawmakers hope will deter would-be recalcitrant witnesses from snubbing the select committee investigating the Capitol attack and buildup to January 6. The brief came a day before a second hearing before Judge Carl Nichols, a 2019 appointee to the federal trial court in Washington, DC, who was randomly assigned Bannon’s case.

The Justice Department had gone decades without bringing a contempt of Congress prosecution. But the department ended that years-long drought with Bannon, who asserted executive privilege even though he hadn’t served in the Trump administration since 2017.

In announcing Bannon’s indictment, Attorney General Merrick Garland stressed that it was not motivated by politics, saying the Justice Department “adheres to the rule of law, follows the facts and the law and pursues equal justice under the law.”

Last week, the nine-member committee voted unanimously to recommend criminal contempt charges against Jeffrey Clark, a former top Trump appointee at the Justice Department, over his refusal to cooperate with the investigation. The House committee moved forward with the vote a day after Clark came back and communicated, through his lawyer, that he would be invoking his 5th Amendment right against self-incrimination.

Clark’s 11th-hour move has staved off, at least for now, a full House vote to hold him in contempt and refer him to the Justice Department for potential prosecution. 

“As with Mr. Bannon, the Select Committee has no desire to be placed in this situation but Mr. Clark has left us no other choice,” said Rep. Bennie Thompson, chair of the January 6 committee, at a meeting last week. “He chose this path. He knew what consequences he might face if he did so.”

Clark was initially scheduled to appear before the committee on Saturday to formally assert his 5th Amendment claim. But the hearing was postponed to December 16 after Clark’s attorney told lawmakers his client had a medical condition precluding his appearance.

Trump, for his part, has repeatedly urged his associates not to comply with the select committee’s investigation. He also filed a lawsuit to prevent the National Archives from turning records over to the House committee.

A federal judge rejected Trump’s bid to block the Biden administration from handing over the records. Trump’s lawyers challenged the ruling to the US Court of Appeals for the DC, where a three-judge panel seemed equally skeptical of his claim that he can invoke executive privilege post-presidency and overrule the decision of the incumbent.

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A disgraced Trump loyalist is in trouble for blowing off January 6 investigators. But Biden’s DOJ still faces a tough call on prosecuting him.

Jeff Clark, Assistant Attorney General for the Environment and Natural Resources Division, speaks during a news conference at the Justice Department in Washington, September 14, 2020.
Jeffrey Clark. a former top Trump DOJ official, is defying congressional investigations into the January 6 riot at the Capitol.

  • The House is on track to refer a second Trump ally to DOJ for a contempt-of-Congress prosecution.
  • But the Justice Department is expected to have a more difficult decision in charging Jeffrey Clark.
  • Clark refused to answer lawmakers’ questions about Trump’s effort to overturn the 2020 election.

After going decades without prosecuting anyone for blowing off Congressional investigators, the Justice Department ended its drought by charging Steve Bannon with defying the House committee digging into the January 6 attack on the Capitol.

Now, another criminal case looks to be heading their way that presents Attorney General Merrick Garland’s Justice Department with a much more difficult decision than the one many legal experts described as a slam-dunk against Bannon.

The next potential culprit is Jeffrey Clark, a senior DOJ appointee from the Trump era who advocated for throwing the full weight of the Justice Department behind the lame duck Republican president’s baseless claims of election fraud following the 2020 general election.

On Wednesday night, the House committee investigating January 6 voted to hold Clark in contempt of Congress. But there was also a wrinkle: Clark’s lawyer said his client would be willing to appear for a deposition where he’d assert his 5th Amendment rights to avoid self-incrimination.

Clark’s 11th hour move has, for now, forestalled a full House vote that would result in his referral to the US attorney’s office in Washington. He’s scheduled to appear on Saturday for a deposition, and the House January 6 panel’s Democratic chairman said he’d use that meeting as an opportunity to assess next steps.

“This is, in my view, a last-ditch attempt to delay the Select Committee’s proceedings. However, a Fifth Amendment privilege assertion is a weighty one,” said Rep. Bennie Thompson of Mississippi. “Even though Mr. Clark previously had the opportunity to make these claims on the record, the Select Committee will provide him another chance to do so.”

It’s up to DOJ

Even if the House ultimately refers Clark to DOJ, it would be up to federal prosecutors to decide whether he should face charges from the Justice Department where he worked in the Trump and George W. Bush administrations. Legal experts told Insider that, even without a question over the 5th Amendment, the decision of whether to prosecute Clark would be anything but simple for the Justice Department.

In Bannon’s case, the Justice Department weighed a referral from the House that targeted a Trump ally who by January 6 was years removed from his role in the administration. Bannon’s position outside government during the period in question also has made his claims of executive privilege laughable in the eyes of legal experts familiar with the nuances of his case.

Even if he had a claim of executive privilege, legal experts said, Bannon disregarded the House panel’s subpoena for his testimony, depriving lawmakers of a chance to pose their individual questions so he could invoke the privilege. 

Clark has a stronger argument on the privilege front because he served at the Justice Department at the end of the Trump administration. He also made at least a cursory appearance before the House committee in early November to deliver a letter from his lawyer advising lawmakers that he would not answer any of their substantive questions. 

“Bannon’s defense is relatively frivolous. The Clark case would be significantly tougher. He was actually inside of the government, which makes the executive privilege claim more challenging. Second, he’s a lawyer, which is going to raise difficult attorney-client questions that would further gum up any prosecution,” said a former top official in the US attorney’s office in Washington, which is handling the Bannon prosecution.

bennie thompson
Rep. Bennie Thompson leads the House committee investigating the January 6 attack on the Capitol.

Jeffrey Clark ‘knows better’

Still, there are a number of factors working against Clark.

For one, there’s the letter Trump sent saying he would not try to prevent him from testifying. The Justice Department itself cleared Clark and other former Justice Department leaders to testify. And the Biden administration also has made a decision to broadly waive executive privilege for the purposes of the January 6 investigation and provide lawmakers access to presidential records from the Trump era.

“In some ways, it’s easier to hold Clark accountable because he knows better. He knows how it works,” said Jonathan Shaub, a University of Kentucky law professor who previously worked in the Justice Department’s Office of Legal Counsel. “And if the Justice Department has authorized him to testify, he doesn’t have any basis for not testifying.”

“Of course, he’s going to rely on the ambiguities of executive privilege and former President Trump, but he’s sort of bootstrapping himself onto these claims Trump is making for others, because Trump doesn’t seem to be making them for him,” Shaub added. “He’s kind of cut him loose.”

Jeff Rosen DOJ
Former acting Attorney General Jeff Rosen has already testified about Trump’s efforts to pressure DOJ.

Rosen and Donoghue already testified

Further undercutting Clark’s privilege defense is the cooperation of two other Trump-appointed Justice Department leaders: former acting Attorney General Jeff Rosen and his one-time deputy, Richard Donoghue. 

Both men have already testified extensively before both the House panel investigating January 6 and a separate Senate Judiciary Committee probe into the violent and deadly transition period between the Trump and Biden presidencies. 

In closed-door interviews, both men detailed how they and other Justice Department leaders pushed back against Clark’s effort to contest the 2020 election results in multiple states. Clark at one point agreed to replace Rosen as acting attorney general, but Trump backed down from elevating him after other Justice Department leaders threatened to resign in protest.

In the course of the House committee’s investigation, Clark has separated himself from his former Justice Department superiors by avoiding lawmakers questions entirely. And now he’s in a precarious legal position where a referral for criminal prosecution signals lawmakers no longer are willing to hold out for testimony that was expected to largely track with Rosen and Donoghue.

“If anybody should know better, it’s this guy,” said Rizwan Qureshi, a partner at the law firm Reed Smith and former prosecutor in the US attorney’s office in Washington. “He’s a lawyer. He understands the importance of appearing and responding to a subpoena.” 

 

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Why a contempt case against Jeffrey Clark is a much tougher call for Biden’s Justice Department compared with Steve Bannon

Jeff Clark, Assistant Attorney General for the Environment and Natural Resources Division, speaks during a news conference at the Justice Department in Washington, September 14, 2020.
Jeffrey Clark. a former top Trump DOJ official, is defying congressional investigations into the January 6 riot at the Capitol.

  • The House is set to refer another Trump ally to DOJ for a contempt-of-Congress prosecution.
  • But the Justice Department is expected to have a more difficult decision in charging Jeffrey Clark.
  • Clark refused to answer lawmakers’ questions about Trump’s effort to overturn the 2020 election.

After going decades without prosecuting anyone for blowing off Congressional investigators, the Justice Department ended its drought by charging Steve Bannon with defying the House committee digging into the January 6 attack on the Capitol.

Now, another criminal case looks to be heading their way that presents Attorney General Merrick Garland’s Justice Department with a much more difficult decision than the one many legal experts described as a slam-dunk against Bannon.

The next potential culprit is Jeffrey Clark, a senior DOJ aide from the Trump era who advocated for throwing the full weight of the Justice Department behind the lame duck Republican president’s baseless claims of election fraud following the 2020 general election.

On Wednesday night, the House select committee investigating January 6 is scheduled to decide whether to hold Clark in contempt of Congress. Absent a last-minute decision by Clark to change course and cooperate, his fate would next go to the entire House of Representatives. A simple majority vote would result in a referral to the US attorney’s office in Washington, where prosecutors would determine whether Clark should face charges from the Justice Department where he worked in the Trump and George W. Bush administrations. 

Legal experts told Insider this will be anything but a simple decision — for a number of reasons.

In Bannon’s case, the Justice Department weighed a referral from the House that targeted a Trump ally who was not serving in the federal government during the period in question surrounding January 6. 

That makes Bannon’s defense claims of executive privilege laughable in the eyes of legal experts familiar with the nuances of his case. He completely blew off a subpoena for testimony before the House panel and never gave lawmakers a chance to pose their individual questions so he could invoke the privilege. 

As for Clark, he has a stronger argument on the privilege front because he served at the Justice Department at the end of the Trump administration. He also made at least a cursory appearance before the House committee in early November to deliver a letter from his lawyer advising lawmakers that he would not answer any of their substantive questions. 

“Bannon’s defense is relatively frivolous. The Clark case would be significantly tougher. He was actually inside of the government, which makes the executive privilege claim more challenging. Second, he’s a lawyer, which is going to raise difficult attorney-client questions that would further gum up any prosecution,” said a former top official in the US attorney’s office in Washington, which is handling the Bannon prosecution.

bennie thompson
Rep. Bennie Thompson leads the House committee investigating the January 6 attack on the Capitol.

Jeffrey Clark ‘knows better’

Still, there are a number of factors working against Clark.

For one, there’s the letter Trump sent saying he would not try to prevent him from testifying. The Justice Department itself cleared Clark and other former Justice Department leaders to testify. And the Biden administration also has made a decision to broadly waive executive privilege for the purposes of the January 6 investigation and provide lawmakers access to presidential records from the Trump era.

“In some ways, it’s easier to hold Clark accountable because he knows better. He knows how it works,” said Jonathan Shaub, a University of Kentucky law professor who previously worked in the Justice Department’s Office of Legal Counsel. “And if the Justice Department has authorized him to testify, he doesn’t have any basis for not testifying.”

“Of course, he’s going to rely on the ambiguities of executive privilege and former President Trump, but he’s sort of bootstrapping himself onto these claims Trump is making for others, because Trump doesn’t seem to be making them for him,” Shaub added. “He’s kind of cut him loose.”

Jeff Rosen DOJ
Former acting Attorney General Jeff Rosen has already testified about Trump’s efforts to pressure DOJ.

Rosen and Donoghue already testified

Further undercutting Clark’s privilege defense is the cooperation of two other Trump-appointed Justice Department leaders: former acting Attorney General Jeff Rosen and his one-time deputy, Richard Donoghue. 

Both men have already testified extensively before both the House panel investigating January 6 and a separate Senate Judiciary Committee probe into the violent and deadly transition period between the Trump and Biden presidencies. 

In closed-door interviews, both men detailed how they and other Justice Department leaders pushed back against Clark’s effort to contest the 2020 election results in multiple states. Clark at one point agreed to replace Rosen as acting attorney general, but Trump backed down from elevating him after other Justice Department leaders threatened to resign in protest.

Headed into Wednesday’s House committee contempt vote, Clark has separated himself from his former Justice Department superiors by avoiding lawmakers questions entirely. And now he’s in a precarious legal position where a referral for criminal prosecution signals lawmakers no longer are willing to hold out for testimony that was expected to largely track with Rosen and Donoghue.

“If anybody should know better, it’s this guy,” said Rizwan Qureshi, a partner at the law firm Reed Smith and former prosecutor in the US attorney’s office in Washington. “He’s a lawyer. He understands the importance of appearing and responding to a subpoena.” 

Mark Meadows
Former White House chief of staff Mark Meadows has agreed to cooperate with the House January 6 committee.

Tough optics for DOJ

Clark still has time to change course too and cooperate — and recent developments could nudge him in that direction.

Trump’s former White House chief of staff, Mark Meadows, signaled on Tuesday he would rather avoid a potential contempt referral by agreeing to appear for an initial interview and turn over documents to the same House committee that wants to question Clark.

Also, the House committee’s scheduled vote to hold Clark in contempt comes just a day after arguments in the US Court of Appeals for the DC Circuit where lawyers for Trump encountered a skeptical three-judge panel that didn’t seem very impressed with their arguments aimed at preventing the House committee from obtaining records from the past administration. 

While Trump’s lawyers have said they’d appeal a loss on the records case to the Supreme Court, it is anything but clear the nation’s top court would agree to hear their arguments, let alone side in the former president’s favor.

So Clark could still engage further with the House committee and negotiate a solution. Even after the committee’s vote, Clark could stave off a criminal referral to the Justice Department by agreeing to cooperate before the full House decides whether to hold him in contempt.

Any cooperation on Clark’s part could spare the Justice Department a vexing decision and potential awkwardness of prosecuting a former official over conduct connected to his time in government.

“The optics are going to be harder for the Justice Department to swallow in some ways. For the institutional interests, you would hope the Justice Department would be in a position of prosecuting former officials,” Shaub said. “But, of course, if Justice Department officials engage in wrongdoing or criminal acts, part of the Justice Department’s responsibility is to prosecute them.”

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Mark Meadows says he’d like to see the House speakership shift from Pelosi to Trump: ‘She would go crazy’

Pelosi Trump
US House Speaker Nancy Pelosi rips up pages of the prepared speech at President Donald Trump’s State of the Union address in the chamber of the House of Representatives on February 4, 2020.

  • Meadows said that Speaker Pelosi “would go crazy” if Trump ran the House after the 2022 midterms.
  • “You talk about melting down … people would go crazy,” the former White House chief of staff said.
  • Meadows, a Trump ally, has recently criticized Minority Leader Kevin McCarthy’s leadership skills.

Former White House chief of staff Mark Meadows said he would “love to see” the House speakership shift from veteran Democratic Rep. Nancy Pelosi of California to former President Donald Trump after the 2022 midterm elections.

During an interview Thursday on former White House chief strategist Steve Bannon’s “War Room” program, Meadows basked in the prospect that the former president could reenter government leading a potential Republican majority in the lower chamber.

“I would love to see the gavel go from Nancy Pelosi to Donald Trump. You talk about melting down … people would go crazy,” he told Bannon. 

“As you know, you don’t have to be an elected member of Congress to be the speaker. She would go from tearing up a speech to having to give the gavel to Donald Trump,” he added, referring to the now-infamous scene when Pelosi tore her copy of the then-president’s State of the Union address in February 2020.

He then emphasized: “Oh, she would go crazy.”

Bannon then said that Trump could come in “for 100 days to sort things out and then step out and announce his 2024 campaign,” which the former president has been teasing to supporters since he left the White House in January.

Meadows’ remarks come as he faces potential criminal contempt charges for ignoring a subpoena to appear before the House committee investigating the January 6 insurrection.

The former Trump advisor and ex-congressman from North Carolina last week declined to appear for a deposition and turn over documents requested in the probe.

Bannon, who also flouted a subpoena from the January 6 committee, was indicted on two charges of contempt of Congress last week and turned himself in the FBI on Monday. On Wednesday, he pled not guilty to the two misdemeanor counts of criminal contempt.

While on the Bannon program, Meadows, who recently said that the 13 House Republicans who backed the $1.2 trillion bipartisan infrastructure package should be stripped of their committee assignments, went after GOP leaders in Congress.

While speaking with Rep. Matt Gaetz of Florida on the congressman’s “Firebrand” podcast on Thursday, Meadows awarded a “D” grade to Republican leadership — namely House Minority Leader Kevin McCarthy of California — in assessing the party’s efforts to block President Joe Biden’s legislative agenda.

“Listen, you need to make Democrats take tough votes. You need to make sure that when you’ve got them on the ropes that you don’t throw in the white towel of surrender and that’s what’s happened,” he told Gaetz, referring to the 228-206 vote for the bipartisan infrastructure bill.

“If you’re going to be the speaker of the House, you’ve got to be able to control those members,” he added, needling McCarthy for allowing GOP defections in backing the legislation, which will appropriate long-sought funding for the nation’s highways, bridges, and roads.

Republicans, who lost control of the House after the 2018 midterm elections, hope that Biden’s sagging poll numbers tied to issues like inflation and illegal border crossings at the US-Mexico border can propel them back into the majority.

Democrats currently have a 221-213 edge in the House — 218 seats are needed to control the chamber.

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Why Steve Bannon should worry about the Trump-appointed judge handling his criminal case

Bannon court
Steve Bannon appeared in federal court Monday after being charged with criminal contempt of Congress.

  • A Trump appointee, Judge Carl Nichols, was randomly assigned to preside over the prosecution of Steve Bannon.
  • Nichols has ruled repeatedly against Trump and his allies since his confirmation to the federal bench in 2019.
  • The judge will weigh legal issues and set the pace for the closely-watched and politically-charged prosecution. 

At first glance, Steve Bannon appeared to hit the judge-drawing lottery when his criminal prosecution was randomly assigned to a Donald Trump appointee.

But in the two years since Judge Carl Nichols’ confirmation to the federal trial court in Washington, DC, he has ruled repeatedly against Trump and his allies — and often found himself in high-profile cases like the closely-watched prosecution against Bannon that has landed in his lap. 

Nichols’ record could be concerning for Bannon, a former top White House advisor and Trump 2016 campaign official who was charged last week with criminal contempt of Congress over his refusal to turn over documents or testify as part of the House investigation into the January 6 attack on the Capitol. 

Just a month into his tenure on the federal bench, as House Democrats aggressively investigated Trump and his administration, Nichols drew a politically-charged case that presented — in his words — a “conundrum.” It was July 2019, and then-President Trump had sued preemptively to prevent New York from turning over his financial records to House Democrats. 

The case put Nichols in a “very awkward position,” the judge said in court at the time, since House Democrats had not even asked New York for Trump’s state tax returns. At the same time, the House could request the records at any moment and New York could turn them over without notifying Trump, depriving the sitting president of a chance to challenge the move.

In a blow to Trump, Nichols later dismissed the lawsuit, ruling that the federal district court in DC was the wrong venue for a case against New York officials.

From the Supreme Court to Bush’s DOJ

Bannon’s prosecution has returned the longtime corporate lawyer to the spotlight and positioned him to make critical, closely-watched decisions in a case with ramifications extending beyond Bannon to the future of congressional investigations and the ongoing House inquiry into the January 6 attack on the Capitol.

A former Supreme Court clerk for Justice Clarence Thomas, Nichols held a top Justice Department role in the George W. Bush administration and later worked as a corporate lawyer at the firm Wilmer, Cutler, Pickering, Hale and Dorr. As Politico recently reported, Nichols argued as a top Justice Department lawyer that the president’s close advisors have “absolute immunity” and can ignore congressional subpoenas.

“Carl Nichols is a straight-shooter. He was in the government himself and had to make decisions on hard issues. He will understand the equities all around,” said Jamie Gorelick, a partner at Wilmer Hale who served as the second-ranking Justice Department official in the Clinton administration.

Calling him a “very smart and principled lawyer,” Gorelick added that Nichols will “want to move things along quickly but with the defendant’s rights in mind.”

Nichols will likely have to rule ahead of any trial on Bannon’s arguments that executive privilege shields him from having to comply with the special House committee’s subpoenas. 

But Bannon had not worked in the White House for years by the time of the January 6 attack on the Capitol, undercutting his claim of privilege, legal experts said. Those experts added that, even if Bannon’s conversations with Trump were protected, he would still need to appear before the House committee and invoke privilege on a question-by-question basis.

“It’s pretty clear that the subpoena was issued, he received it and then he failed to show up. Unless he has some legal privilege argument to make, I don’t think he has a leg to stand on,” said Randall Eliason, a former public corruption prosecutor in Washington who now teaches at the George Washington University School of Law.

“I just don’t think the executive privilege questions are very difficult since Bannon had not been in the White House for three years” by January 6, Eliason added.

Capitol attack West Front
Insurrectionists loyal to President Donald Trump breach the Capitol in Washington on January 6.

The pace of prosecution

Nichols will also set the pace of a prosecution that House Democrats hope will proceed quickly to deter other Trump officials from snubbing their noses at congressional subpoenas. 

A federal grand jury returned an indictment last week charging Bannon with two counts of contempt of Congress over his refusal to testify or turn over documents as part of the House investigation into the Capitol siege. On Thursday, Bannon appeared for the first time before Nichols at a virtual hearing that focused on how quickly the prosecution should proceed, with prosecutors urging a swift pace and defense lawyers seeking to drag out the proceedings.

“In our view, this is a very straightforward case about whether or not the defendant showed up. So we don’t see any reason to delay setting up trial dates,” said Amanda Vaughn, a federal prosecutor in the US attorney’s office in Washington, DC. 

Bannon defense lawyer M. Evan Corcoran asserted that the case involves “complex constitutional issues” and argued Nichols should not set a trial date and recommended that the judge instead schedule a hearing for early 2022. 

Nichols responded by scheduling a hearing for early December where he said he will address the timing for a trial.

Bannon’s comment and reputation for fiery rhetoric has raised speculation that Nichols might eventually consider a gag order similar to what was imposed on Roger Stone when he was prosecuted in 2019 for obstructing Congress’ investigation into Russia interference in the 2016 election. In response to the indictment, Bannon threatened outside of court last week that he would make his case the ‘misdemeanor from hell” for the Biden administration.

Going against Trump

Trump has demonstrated that he expects loyalty and favorable decisions out of judges he appointed. But, beginning with Trump’s case against New York, Nichols has ruled against the former president and his allies.

More recently, Nichols has presided over civil defamation cases that the voting equipment manufacturer Dominion Inc. has filed against Rudy Giuliani, Sidney Powell and My Pillow CEO Mike Lindell alleging that they spread accusations that the company rigged the 2020 presidential election. Giuliani, Powell and Lindell argued that their claims were protected political speech, in a bid to have Nichols toss the defamation lawsuits.

But Nichols rejected their arguments and, in an August ruling, allowed the defamation cases to proceed into discovery.

“There is no blanket immunity for statements that are ‘political’ in nature,” Nichols wrote. “It is true that courts recognize the value in some level of ‘imaginative expression’ or ‘rhetorical hyperbole’ in our public debate. … But it is simply not the law that provably false statements cannot be actionable if made in the context of an election.”

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Democrats reveal their criticisms and frustrations with Biden’s attorney general Merrick Garland

Garland press conference
Attorney General Merrick Garland has faced criticism for not adapting his judge-like style to the political demands of his Justice Department role.

  • Merrick Garland has frustrated Democrats with his judge-like approach to running the DOJ.
  • Recent House and Senate oversight hearings reveal Garland’s political blind spot.
  • Garland has tangled with the White House and been slow delivering Democrats’ desired policy moves.

Just a day after a violent mob stormed the US Capitol, Joe Biden stepped to the podium as president-elect and presented Merrick Garland as his pick to steady the Justice Department and steer it away from the politicization and chronic turmoil of the Trump era.

Democrats have been living with that choice ever since — and they’re not always loving the results.

In the eight months since his confirmation as attorney general, Garland has proven himself as anything but a politically-attuned firebrand. His measured, mild-mannered approach has stuck with him from his quasi-monastic past life as a federal judge, and frustration among some Biden’s allies has only grown as they experience Garland’s methodical ways of running a DOJ that must reckon with the Trump years and an invigorated onslaught of partisan political attacks.

“He’s been out of the hurly-burly for 25 years,” a former top Obama administration official told Insider. “It’s hard to get back into the arena. I think that’s part of the problem here.” 

Garland’s political limitations were well noticed during a recent round of congressional oversight hearings. 

Both House and Senate Republicans put Garland on the defensive as they grilled him about a Justice Department initiative to address threats of violence and harassment against teachers, school administrators, and local school board members. 

His GOP critics claimed Biden’s administration was seeking to silence parents concerned about school policies. Garland responded by repeatedly stressing how the DOJ was focused on keeping the public safe and not crimping speech protected by the First Amendment and Supreme Court precedent.

 

In those tense exchanges, some Democrats and former Justice Department officials told Insider they thought Garland missed an opportunity to more forcefully respond to Republicans and even challenge them on their strategy of turning local education into the latest front in the culture wars.

“He didn’t do great, but a huge factor is that he’s never been the type of individual that plays the political show that Republicans play,” a Democratic Senate aide told Insider. “We learned a lot from that oversight hearing.” 

Others agreed that Garland went on the defensive in spite of having the politics on his side. 

Garland “could have walked into the hearing and said, ‘You’re damn right I’m worried about the safety of school board members, the same way I’m worried about the safety of election workers, the same way I’m worried about your safety since your building was attacked on January 6th,'” said Matt Miller, who served in the Obama administration as the top spokesperson for former Attorney General Eric Holder.

“I don’t think it’s his natural style,” Miller added, “to be a pugilistic fighter.”

Durbin DOJ oversight
Sen. Dick Durbin, the top Democrat on the Senate Judiciary Committee, presided over an oversight hearing that exposed Garland’s political limitations.

‘Running it like it’s a chambers’

Garland’s style as attorney general has only fed the perception that he still embodies the role of a federal judge who has a natural inclination to show impartiality in the face of partisan attacks. 

“I think he’s still feeling his way in the executive branch,” said Barb McQuade, a former Obama-era federal prosecutor and MSNBC legal analyst.

Not content with a high-level briefing, Garland is known to read case law himself and even inquire about the judges handling various matters. His interest in that level of detail is uncommon for attorneys general, according to people familiar with his approach.

“He seems incapable of making decisions,” the former top Obama administration official said, adding: “He’s running it like it’s a chambers, where he’s going to have to write an opinion or something.”

On his staff, Garland has surrounded himself with Capitol Hill veterans and aides recruited from the vast and loyal network of law clerks who worked for him over 23 years on the DC Circuit US Court of Appeals. The presence of past clerks has played into the impression that he’s still operating like a judge. 

“He’s been a judge, where people are super-nice to you all the time,” the former Obama administration official said. “No one really questions you. Somebody might write a dissent, but it’s an academic dissent.”

Garland’s methodical approach has grated on Capitol Hill Democrats who bemoan delays that hurt their desired policy goals. For example, Sen. Dick Durbin, an Illinois Democrat and chairman of the Senate Judiciary Committee, criticized Garland’s Justice Department last month for not yet rescinding a Trump era memo arguing that federal prisoners released in light of the pandemic should be returned to custody.

Durbin and Sen. Cory Booker, a New Jersey Democrat, sent Garland’s Justice Department a letter urging it to rescind the memo. Six months later, they had not received a response, Durbin said. On Tuesday, Durbin called for Garland to remove the head of the federal prison system, Michael Carvajal, with a “reform-minded director who is not a product of that bureau’s bureaucracy.”

Garland spokesperson Anthony Coley declined to address the criticism but noted that the attorney general’s travel and public speaking schedule has picked up in recent weeks, notably with a trip to Mexico and a visit to the family of a slain DEA agent. Earlier in his tenure, travel and public appearances were limited by pandemic precautions and Garland’s general belief that the Justice Department should speak within the four corners of a court filing.

Coley said Garland has visited several US attorneys’ offices and is set to stop at the outposts in Manhattan and Brooklyn on Friday. The attorney general has also paid out of pocket for ice cream socials — a more recent event featured apple cider and donuts — for Justice Department staff, Coley said.

“He wants to get off of the 5th floor as much as possible to meet the folks who in many cases are doing the work, on the front lines,” Coley said. “He’s intentional about that.”

Biden Garland
President Joe Biden framed his attorney general pick as designed to restore DOJ’s integrity.

Following Trump and Bill Barr

Garland’s Democratic critics acknowledge that his style is what Biden signed up for. 

He brought to the DOJ a reputation as an independent and fair-minded judge who sat for nearly a quarter-century on the prestigious DC-based federal appeals court. Biden himself framed Garland’s nomination as the embodiment of his stated goal of restoring the Justice Department’s reputation and independence after seeing Trump look to the nation’s highest law enforcement agency as if it were his personal law firm.

That transition from the Trump years has led to occasionally tense relations between the Garland-led Justice Department and White House. When Biden said he hoped the DOJ would prosecute those who defy subpoenas from the special House committee investigating the January 6 attack on the Capitol, Garland’s spokesperson shot back that the department would “make its own independent decisions in all prosecutions based solely on the facts and the law.” 

Tensions have only persisted as legal experts wonder why Trump himself hasn’t been charged with any federal crimes when local prosecutors in New York and Georgia keep the heat up on the former president. “Where oh where is Merrick Garland?” Laurence Tribe, a legal scholar who taught the attorney general at Harvard Law School, mused recently on Twitter. 

The Justice Department brought the first such prosecution on Friday with the indictment of Steve Bannon, a close Trump ally who refused to testify or turn over documents as part of the House investigation. Announcing Bannon’s indictment on contempt of Congress charges, Garland said the prosecution reflects the DOJ’s “steadfast commitment” to following the facts and the law.

Garland made a similar defense as the DOJ continued to back Trump against a defamation case brought by E. Jean Carroll and later when it challenged a court decision requiring the disclosure of a memo former Attorney General William Barr cited in deciding not to charge Trump with obstructing the Russia investigation. Both decisions drew criticism from Democrats eager for the new Justice Department to hold Trump accountable.

The consternation conflicts with Garland’s first priority of restoring the Justice Department’s reputation as an apolitical body, said Miller, the former Holder spokesman.

“That had to be goal No. 1 above anything else, and I think he’s accomplished that,” Miller said. 

“Where he’s still learning,” he added, “is in how to be the public face of the department and defend its work and defend its priorities, especially when attacked by people who have no interest in having a reasonable conversation with you. If we’re having the same conversation a year from now, it will be a problem.”

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