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On Monday, our show revealed the existence of a document — a May 25, 2022, memo from Attorney General Merrick Garland to all Justice Department employees about “election year sensitivities.” Though the memo had been described, in part, in recent New York Times reporting, the document itself had not been reported or published.
There’s been no shortage of hyperbole about the memo and our reporting. Some saw the memo as confirmation that slow, cautious Garland will never prosecute former President Donald Trump. Others felt our show exaggerated, if not distorted, what is both historic and sensible DOJ policy.
To my mind, neither of those takes correctly interprets the memo, especially when read in tandem with the February 2020 memo issued by then-Attorney General Bill Barr that it incorporates. Neither accurately reflects Rachel’s analysis. And neither is fair to the Justice Department.
Here’s why: As Garland’s memo says on its face and as Rachel recited last night, it exists “to remind [DOJ employees] of the department’s existing policies with respect to political activities.” And in large part, as MSNBC legal analyst Chuck Rosenberg and attorney Michelle Onibokun wrote shortly before the 2020 election, such a memo is typically issued by the attorney general every four years and has “remained remarkably similar across administrations” with “virtually similar guidance” issued in 2008, 2012 and 2016. Barr himself issued an election year sensitivities memo in May 2020 that largely echoes his predecessors’ versions.
Garland’s recent memo starts off no differently. In fact, the entire first section — on statements, investigations and charging near an election — is either nearly identical or repeats verbatim that same section from prior iterations. And that is, to quote Rachel, utterly “non-controversial.” You don’t have to be a former prosecutor to understand why, in the days and weeks leading up to an election, the Justice Department can and should take pains to ensure its neutrality and fairness toward partisan political actors.
But Garland’s memo does depart from the others in one meaningful, if not necessarily outcome determinative, way. It reads: “Department employees must also adhere to the additional requirements issued by the Attorney General on February 5, 2020, governing the opening of criminal and counter-intelligence investigations by the Department, including its law enforcement agencies, related to politically sensitive individuals and entities.”
Since this new language merely calls for “adherence” to a different, pre-existing DOJ policy, it’s tempting to minimize its insertion here, as some former DOJ types are urging publicly. That too is a mistake.
For starters, as with any documentary evidence, the devil is in the details. When Barr issued that February 2020 memo (on the same day the Senate acquitted Trump following his first impeachment), it was news. Why? Because, as the Times reported at the time, Barr was “the first to require that the F.B.I consult with the Justice Department before opening politically charged investigations.” The memo also specifically mandated that no investigation of a “declared candidate for president or vice president” should be initiated without the “prior written approval” of the attorney general.
It’s also true that the Barr memo, by its own terms, was never intended to last forever. Instead, Barr wrote that the requirements of his memo would “remain in effect through the 2020 election and until withdrawn or amended by further order of the Attorney General.”
“Following the 2020 elections, the Department will study its experiences and consider whether changes to these requirements are necessary,” he wrote.
Garland, however, neither rescinded nor amended these additional requirements. Instead, he extended them wholesale roughly 2.5 years before any presidential election with nary a declared presidential candidate in his sight.
The question isn’t so much whether extending that policy is prudent from the DOJ’s standpoint. Indeed, there are many reasons why it makes sense to centralize and formalize control over politically sensitive investigations. One is that even at this point in Joe Biden’s presidency, fewer than half of the U.S. attorneys nationwide have been confirmed by the Senate; dozens of acting U.S. attorneys are career federal prosecutors who are not known quantities within DOJ headquarters nor are they accountable politically to the administration.
The question also isn’t whether Garland’s written approval is the death knell for any investigation or prosecution of Trump. On the contrary, that Trump could be prosecuted, much less investigated, without the attorney general and deputy attorney general’s deep involvement and oversight is anathema to anyone who understands how the department functions. I also take Deputy Attorney General Lisa Monaco at her word when she said Tuesday that the DOJ will “follow the facts wherever they go, no matter where they lead, no matter to what level” regardless of whether Trump declares his candidacy.
But that doesn’t mean the memo is meaningless either. Rather, to my mind, there are two questions that warrant further — and nuanced — reflection.
First, why is the DOJ recommitting to the Barr policy now? Yes, Garland could have been anticipating Trump’s early entry into the 2024 race and wanting to guarantee no instrument of DOJ could so much as look at the former (and potentially future) president without the attorney general’s express approval. Today’s hyperpartisan Congress could have been another factor. After all, beyond requiring approvals for the investigation of any declared presidential candidate, his campaign or senior staff, the February 2020 Barr memo also requires notification and consultation with specified DOJ leaders for any investigation of a House or Senate candidate, or any investigation concerning campaign contributions by foreign nationals to any federal campaign.
Second, by extending the Barr memo now, has the DOJ incentivized Trump to declare his candidacy two-plus years in advance, thereby strengthening his hand both politically and legally? Some might say yes. Even if the memo has zero impact on how the DOJ actually approaches any investigation of Trump, one can imagine him distorting it at rallies, claiming that the memo demands he be treated with kid gloves. Sadly, it’s also not hard to envision Trump reducing Garland and Monaco to campaign foils, goading them with grotesque nicknames and accusing them of corruption.
Finally, as Rachel noted last night, the DOJ “has a lot of discretion in how it pursues criminal prosecution, how many resources to apply to a particular problem, how aggressive to be in charging and in sentencing decisions.” And that discretion exists whether or not memos like these are issued or extended.
But in a world where, as Rachel said, any Trump-related investigation “has to be personally cleared in writing through the very highest echelons of the Justice Department,” the Garland memo means no one but Garland or Monaco has much room to exercise that discretion. And it also means that a DOJ that’s already been slow to investigate potential Jan. 6 crimes outside the Capitol could be weighed down by process at a time when it is already racing against the clock.
That kind of impact isn’t black and white or even necessarily visible to outsiders. And it certainly isn’t evocative of the “the sky is falling” vs. “nothing to see here” reactions of the Twittersphere. But that doesn’t mean the memo’s not news.