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But some maneuvers can easily overshadow the others. Perhaps the most incendiary move by DOJ in recent weeks came in the lawsuit against Trump by E. Jean Carroll, who accused him of rape in 2019. After Trump publicly denied her claims and called her a liar, Carroll filed a defamation lawsuit against him in New York state court. Last September, the Barr Justice Department intervened and sought to move the case to the federal courts, substituting the United States as a defendant. The department justified the move by noting that Trump made the denials while he was president, thus implicating the executive branch itself. Under Garland, DOJ is declining to change course.

If the departments position prevails in court, most legal experts believe that it is exceedingly unlikely that Carrolls lawsuit will succeed. The move drew the ire of Trump critics who expressed horror at the prospect of the Biden administration formally defending a former president over one of his accusers. Carroll herself strongly criticized Garland for the decision. They argue that Trump was doing his job when he repeatedly slandered me and told the world that I was too ugly for him to rape, she wrote in her newsletter. (Emphasis hers.) Bidens DOJ turns out to be run by someone who may be more interested in protecting his vision of the DOJ institution than in cleaning up its corruption.

Other observers noted that Garlands stance in the Carroll case reflects the departments broader goal of defending the executive branch and the presidency itself, no matter who happens to hold the White House. The issue is whether a presidents duties include answering questions during an interview given in his official capacityincluding questions about his earlier private life that may reflect on his fitness for office, Randall Eliason, a George Washington University law professor, wrote in a Washington Post op-ed this week. Assuming they do, then federal law provides that he cant be sued for what he said. Eliason said that the alternative was that any federal employee could face lawsuits for their on-the-job remarks if opposing lawyers are clever or tenacious enough.

Eliason said the same long-term reasoning also appeared to be guiding Garlands actions in the Barr memo case. As for the Mueller investigation memo, if Garland simply agreed to release it, he creates another precedent, he wrote. Future senior advisers to the attorney generalor to other government officialsmight be reluctant to offer their candid views in controversial cases out of fear of disclosure if the political winds shift. Thats why the law has long recognized legal privileges for such internal communications. He added that he expected the department to prevail in both cases.

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Merrick Garland's Moves Have Progressives Feeling the Angst - The New Republic