Attorney General Merrick Garland and other prosecutors have sought to demonstrate that politics should not infect the justice system. Those efforts face a steep challenge as the Trump investigations move ahead.
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Attorney General Merrick B. Garland appears keenly aware that the prosecution of a former president has enormous political consequences.
WASHINGTON — On the morning of Jan. 6, 2021, Merrick B. Garland was busy typing away in his upstairs office at home, finalizing remarks he planned to deliver the following day when he was to be introduced as Joseph R. Biden Jr.’s nominee to be attorney general.
The speech was originally a summons to restore the Justice Department “norms” of independence after political meddling during the Trump administration that depleted morale and sapped public confidence. Then, after protesters burst through the barricades at the Capitol, Mr. Garland began a major rewrite that referenced the attack, and fortified his pledge to hold anyone who threatened democracy to account, from bottom to top.
The department would impartially investigate the attack, without “one rule for the powerful and one for the powerless,” Mr. Garland said during his somber introduction on Jan. 7.
Mr. Garland’s conjoined promises — restoring broad confidence in the department’s impartiality while investigating without favor the politically powerful — were not mutually exclusive. But achieving both simultaneously is proving to be an elusive goal as prosecutors at the federal and local level investigate former President Donald J. Trump on multiple fronts.
Even in the absence so far of any charges against Mr. Trump, political polarization runs so deep, and mistrust of federal law enforcement is so ingrained on the right, that efforts by Mr. Garland and others to offer assurances that justice is being dispensed without regard to politics are often drowned out by powerful counterforces. Among the strongest of those forces are allies of Mr. Trump who have sought to undercut the legitimacy of the Justice Department in general and the Federal Bureau of Investigation in particular.
The Justice Department “has been a remarkable backstop,” said Lindsay M. Chervinsky, a presidential historian and senior fellow at the Center for Presidential History at Southern Methodist University. “But the department is being given a role that it was never really designed to have — defending American democracy.”
In some ways, the confluence of Trump-focused inquiries is putting the criminal justice system through a public stress test unlike any in American history.
Multiple Trump investigations are marching toward decision points — and potential indictments — starting with the inquiry by the Manhattan district attorney, Alvin L. Bragg, into hush-money payments to a porn actress.
In Georgia, a local prosecutor is moving toward a decision about charges related to efforts by Mr. Trump and his allies to overturn Mr. Trump’s 2020 election loss in that state.
The Justice Department special counsel Jack Smith scored an important legal victory this week that could provide critical evidence in the investigation into Mr. Trump’s handling of classified documents and the possible obstruction of justice. Mr. Smith is also overseeing the parallel investigation into Mr. Trump’s efforts to remain in office after losing the 2020 election and his role in instigating the events of Jan. 6, 2021.
For months, Justice Department officials have been bracing for an all-out attack from the Republican-controlled House, which has launched investigations into what it calls the “weaponization” of the department against the right.
Mr. Trump set a more menacing tone shortly after the Mar-a-Lago search last year, when he told a rally in Pennsylvania that “the F.B.I. and the Justice Department have become vicious monsters.”
ImageFormer President Donald J. Trump is facing investigations from both federal and local prosecutors.Credit…Desiree Rios/The New York Times
Officials expect the reaction to any indictment of Mr. Trump by a grand jury in New York on the hush-money payments to be swift and ferocious — a preview of the bigger reaction expected if federal prosecutors indict Mr. Trump.
That apprehension is especially acute inside the F.B.I., which bore the brunt of recrimination following its long probe of the Trump campaign connections to Russia, and in the aftermath of the documents search of the former president’s Florida club and residence, Mar-a-Lago, in August. The F.B.I. remains a popular target for Republicans in Congress.
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“It is much easier to break something and undermine it than repair it,” said Peter Strzok, a former senior F.B.I. agent. Mr. Strzok was involved in the investigation into ties between the 2016 Trump campaign and Russia and was the target of repeated attacks by Mr. Trump and his supporters on the right.
The goal of many Trump allies in attacking the bureau, he said, was to “chill” F.B.I. investigators, which would ultimately weaken the Justice Department’s case against Mr. Trump.
Trump supporters have long cast Mr. Strzok as a villain and a central actor in a “deep-state” plot to damage the former president. The former F.B.I. agent has never been accused of a crime by the government, and the department’s inspector general found no “documentary or testimonial evidence that political bias or improper motivation influenced” officials’ decision to open the Russia investigation.
In the short term, senior Justice Department officials are concerned that Mr. Bragg’s case, centered on how Mr. Trump handled the porn actress’s threats to go public with an account of what she said was a sexual liaison with him, will be conflated in the public consciousness with the differing federal investigations into Mr. Trump.
“Everything gets merged together, so people sometimes lose the nuance that these are separate investigations conducted by different entities,” said Anthony D. Coley, who served as Mr. Garland’s spokesman until earlier this year.
Mr. Coley said those concerns were not likely to influence Mr. Smith, who has sought to portray himself inside the department as unswayed by external factors. Mr. Garland has said much the same in his terse public discussions of the probe.
But Mr. Garland, a former federal judge, is keenly aware that the prosecution of a former president and leading presidential candidate from the opposing party has enormous political consequences. And he has taken steps to ensure that the department’s side of the story is being told — disclosing key details of the investigation in public court filings, to make the case that his investigation represents the pursuit, not perversion, of justice.
ImageThe Federal Bureau of Investigation might be in a more vulnerable position than the Justice Department.Credit…Sarah Silbiger for The New York Times
The sequencing of decisions about whether to charge Mr. Trump could also affect public opinion about the fairness of any prosecutions, some legal experts say.
An indictment in Fulton County, Ga., related to Mr. Trump’s efforts to overturn Georgia’s election results “just might condition the public psyche” for a future federal indictment, said E. Danya Perry, a former federal prosecutor who oversaw investigations for the commission established to probe corruption in New York State government in 2013.
“There is strength in numbers,” she added. “One domino falls, then another one falls.”
But House Republicans have already made their investigation of the Justice Department a focus of their oversight and political messaging efforts.
“All of these steps are about planting the seeds for a potential impeachment of Garland in 2024 during the campaign, which would be their ultimate demonstration that the investigation, and indictment of Trump, were all about partisanship,” said Charles Tiefer, a University of Baltimore law professor, who served as a legal counsel in the House and Senate.
The F.B.I., once considered the most unassailable law enforcement institution in the country, might be in an even more vulnerable position than the Justice Department.
The drumbeat of attacks, aimed at sowing doubt among Americans that the F.B.I. is a fair and impartial law enforcement agency, have taken their toll on morale and fostered a culture of caution as some agents worry about becoming political targets. Many bureau veterans have come to believe they are subjected to unfair condemnation when any major investigation — even one overseen by the Justice Department — runs into problems.
The bureau’s concerns have played out in the investigation into Mr. Trump’s handling of classified documents after leaving office and the search in August by F.B.I. agents of Mr. Trump’s private club and residence, Mar-a-Lago.
Days before the F.B.I. executed the search warrant at Mar-a-Lago, some agents expressed concern about how it would look if they descended on the property in their signature raid jackets, emblazoned with “F.B.I.” on the back. (They carried out the search without the jackets.)
Agents at the F.B.I.’s Washington field office also wanted to obtain consent first from Mr. Trump’s lawyer for a search — and wanted to serve a search warrant only if agents failed to obtain the consent of Mr. Trump and his legal team.
In a tense meeting before the search, Justice Department officials made it clear to F.B.I. agents that they did not care about the optics of the search and did not trust Mr. Trump’s lawyer, according to a former federal law enforcement official familiar with the episode. Agents have been careful to make sure every step is documented, mindful that any mistakes could be exploited for political purposes, the former official said.
Source: nytimes.com
