Merrick Garland’s Dodges on Investigating Former Presidents

In the oversight hearing today, Eric Swalwell tried to grill Attorney General Garland on whether DOJ would reconsider the OLC memo holding that a sitting President cannot be indicted. Garland dodged answering any specific question. But along the way he laid out some principles that he might apply regarding the investigation of a former President.

Swalwell: General Garland, in 1973, an Office of Legal Counsel memo outlined the parameters for indicting a sitting President and said that you cannot do that. Twenty-seven years later, that memo was updated to reaffirm that principle. Twenty-one years later, we have seen a former President test the bounds of Presidential authority, and I’m wondering, would you commit to revisiting that principle, whether or not a President, while sitting, should be indicted?

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

64 replies
  1. Sandwichman says:

    “We always look at the facts and we always look at the law in any matter before making a determination.”

    A memo is not the law.

      • ernesto1581 says:

        Speaking of fair guidance at DOJ: is this perhaps why you said you doubted that Garland would undertake/open an investigation into Flynn case documents alteration & sharing, with Durham as second fiddle; or is it more fundamental — something along the lines of Departmental loyalty trumps all others?

        (or am I out in left field..?)

    • civil says:

      Congress should pass a law making it clear that a sitting President can be indicted but not tried while in office and that the statute of limitations will toll until s/he is out of office.

      • bmaz says:

        That would be excellent. To be fair, I know of no reason a sealed indictment could not be done currently. Though, think any defense atty would argue there would be a duty to notify in real time so that the putative Presidential defendant could muster evidence in real time. And that is not a bad argument.

  2. Mister_Sterling says:

    That’s a no from Justice Garland. We don’t want to upset the violent, criminal minority, do we? Maybe they will stop doing crimes if we’re nice to them. Yeah, that will work. Let’s not cross that line. Then we’ll really be in trouble.

    • subtropolis says:

      It looked to me like the furthest thing from a no without spelling it out.

      “Again, you’re pushing me very close to a line that I do not intend to cross.”

      If he was dead set against it, and there was no chance of an investigation under his leadership, he wouldn’t likely be so cautious about discussing it.

      • emptywheel says:

        I agree with that read. There’s a lot going on in his answer. One thing that’s not going on is a disavowal of investigating the former altogether, which (as you say) he could have given.

      • SlimSloSlider says:

        Sono d’accordo.
        Just keeping his cards close to his chest.
        But Donny Two Times will not take heart.
        Guy’s holding a busted flush.

      • Leoghann says:

        “The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.” That was a pretty big hedge, and it said volumes to me.

  3. John Paul Jones says:

    Took me a while to find it, but Judge Victor Marrero, ruling in late 2019 on whether Trump’s claim of immunity would protect from Cyrus Vance, basically shredded the memo(s). He says –

    “The Court is not persuaded that it should accord the weight and legal force the President ascribes to the DOJ Memos, or accept as controlling the far-reaching proposition for which they are cited in the context of the controversy at hand. As a point of departure, the Court notes that many statements of the principle that “a sitting President cannot be indicted or criminally prosecuted” typically cite to the DOJ Memos as sole authority for that proposition . Accordingly, the theory has gained a certain degree of axiomatic acceptance, and the DOJ Memos which propagate it have assumed substantial legal force as if their conclusion were inscribed on constitutional tablets etched by the Supreme Court. The Court considers such popular currency for the categorical concept and its legal support as not warranted” (emphasis added).

    Marrero goes through a lengthy analysis, but in the end, he is unpersuaded that the DOJ memos have any substantial support. Judge Beryl Howell, in a later ruling, noted sharply that the memos had never been tested or approved by any court, seemingly implying that a court test was overdue.

    Garland appears to disagree. Maybe him and Vic should meet for supper.

    • bmaz says:

      Yeah, but maybe Garland understands that the Marrero case was over mere document request by a state level grand jury for investigation, not federal criminal charging. So, frankly, I don’t think that case has much precedent as to charging a President, much less a former President no longer sitting. I know people act like the still extant memos can and should be blithely blown off, but that is wrongheaded. And they involve, putatively, a sitting President; they are not the holdup now. Actual evidence, much less proof beyond a reasonable doubt, is. If DOJ goes off half cocked, they will get clobbered.

      • OldTulsaDude says:

        IANAL, but didn’t Mueller’s report create pretty much a roadmap to the evidence of obstruction of justice by Trump?

        • OldTulsaDude says:

          Charging. Surely it is important to at least establish a record that someone is attempting to dissuade illegal behavior.

        • Zirc says:

          True, but one comes before the other, and that first thing hasn’t happened. I haven’t seen anything to show it’s going to.


        • Rugger9 says:

          We also have Select Committee testimony coming under oath plus supporting evidence to help move things along in spite of the GQP penchant for “plausible deniability” that’s been a trademark since Reagan. I agree that swinging and missing at DJT too soon would functionally exonerate him (and he’ll certainly say so) leading to more and worse crap heading our way.

          As for the DOJ memos, they would make sense in more rational times (not that it stopped Whitewater) but from their birth during Watergate to their apparent use now AG Garland really needs to acknowledge the apparent criminality and sedition and investigate formally. DJT brought it on himself, and I would expect that the Select Committee will get that linkage established. The timeline could be more like next year, however.

        • bmaz says:

          Why? The OLC memos are absolutely irrelevant with Trump out of office. Anybody focusing on them is wasting their time, they are not the issue.

        • Rugger9 says:

          I would normally agree except that AG Garland kept referring to them as his reason to tread lightly. Thus, the question about when AG Garland would no longer consider them to be binding. After all, the J6 Sedition happened when DJT was still sitting and thus the memos appear to be considered relevant by AG Garland.

        • bmaz says:

          Disagree completely. Though I do think it would behoove Garland to just flat out say “Trump is no longer President, those two memos are irrelevant”. And they are irrelevant.

        • Troutwaxer says:

          The issue here is that Garland is trying to walk a fine line. On one hand, he doesn’t want to argue with established precedent. On the other, he doesn’t want to scare the prey.

          What he’ll actually do when push comes to shove it unknown to anyone but Garland.

        • Troutwaxer says:

          Sorry, phrased that poorly. What I meant was that Garland is playing his cards close to his vest. He’s not embracing the memo, but he’s also not denying it, mainly so he can keep his options open.

        • bmaz says:

          I don’t think it is that at all. It has nothing whatsoever to do with the two OLC memos. PI think people are reading this the wrong way.

        • Leoghann says:

          Under the Ham Sandwich Rule, I suspect that, once DOJ believes they have the prey dead to rights, they will also have a public argument down pat about why “established memo” doesn’t apply.

      • Theta says:

        Is Garland taking a wider view of the memo’s restrictions than Mueller? According to Mueller’s testimony, Trump could definitely be prosecuted after he left office, for crimes he had committed while in office (in particular, obstruction). But Garland seems to say that crimes committed in office by even a former president could not be prosecuted (i.e. after he has left office), according to the memo. Or is he not saying that at all?

        • bmaz says:

          As Gordon Lightfoot would say “If I could read Merrick Garland’s mind”. I have no idea where he is personally at, and what is currently being said in the DOJ Main conference room. My best guess is they are almost certainly more constrained by general DOJ charging standards than the OLC memos. That is why, above, considered the memos irrelevant now.

        • emptywheel says:

          That’s one of the reasons I transcribed this, because of that comment. But there are aspects of the rest of this that could be read the opposite way.

      • John Paul Jones says:

        This is why I bolded Marrero’s note that his remarks applied only in the context of the “controversy at hand” (document production in a state-level case). However, my sense of the argument he presented was that it seriously undercut the overall standing of the memos, that is, that while he limited applicability, it seems clear – to my unlawyerly self, that is – that he was pointing to the serious weaknesses of the memos as a justification for never charging a sitting President. As I say, just my opinion of the opinion, and yes, I admit, I am to an extent reading between the lines. Mea culpa.

        • bmaz says:

          Oh, no, don’t get me wrong, it is a fair discussion (I have never liked or agreed with those two memos). I just have a hard time seeing those memos as pertinent as to Trump now. Even if they may have been up until January 20.

        • Ken Muldrew says:

          And yet Garland clearly says that the memo continues to constrain DOJ with regard to anything done while Trump was president:

          The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

          Here he says that the memo refers to acts while in office, without regard to whether the person is still a sitting president. However, he is trying to say nothing at all and evade the topic altogether, so perhaps one should not parse his statement too closely.

        • Rugger9 says:

          Perhaps Swalwell asked the wrong question: it should have been “what crimes or events would supersede this memo and compel prosecution of a sitting President?”

          If the smoking gun linkage is established to the J6 sedition then there is no possible way DJT could claim that a direct violation of his oath of office is part of his duties as President. I’m sure that is why he’s desperately claiming privilege on Bannon. If I were Thompson, I would haul in Ivanka since I have no doubt she was present in the WH during the J6 riot.

        • bmaz says:

          No, he says exactly the opposite of what you allege. The memos are not pertinent now that Trump is out of office.

      • Hoping4Better_Times says:

        There is a statute of limitations for charging a crime. If a sitting president cannot be charged during his/her tenure (possibly as long as 8 years), the SOL may run out. Or is it tolled for the term(s) of office? Like his pardons, another term might have been a “get of jail free” card for trump.

        • bmaz says:

          I am aware. But, no, there is no tolling that I am aware of. There clearly “should” be, but there is nothing that establishes that.

  4. Peterr says:

    Pet peeve: Garland is an attorney, not a general.

    Law enforcement is filled with enough of a military mentality as it is. I wish folks would quit calling the AG a general.

    • earlofhuntingdon says:

      Point taken. The word order of the title adopts a usage more common in French, in that “general” modifies attorney, not the other way round. The plural, used properly by Garland, is “attorneys” general. It’s inappropriate to shorten the phrase by omitting either word.

  5. Peterr says:

    Garland: “. . . we have the same kind of respect for our precedents as the courts do.”

    Given the recent work of SCOTUS, does this mean that Garland will be revisiting this OLC memo next week?

    Or is the legal rule that precedent is binding on Democrats but not Republicans?


    • bmaz says:

      Boy howdy, that is not even snark. It is a good question. And it is a lot easier to withdraw an OLC memo than go through the courts to reverse precedent. Also, as you know, there are professionals that don’t think they are right to start with. But those memos are irrelevant to Trump at this point.

  6. Rugger9 says:

    Way OT, but somehow satisfying: Matt Gaetz’s law license is suspended, not because of his DUIs, or credible accusations of statutory rape among other antisocial behaviors (I’m leaving out the J6 sedition for now until a firmer link is established). Nope, it’s because by gawd he didn’t pay his $265 dues. So with apologies to our lawyers here, this actually enforced standard of professional conduct is something the various Bar associations will need to fix.

      • P J Evans says:

        Niece is suspended for not paying dues – but she’s not actually practicing law. (She teaches ASL. Not much market for lawyers who are Deaf.)

        • bmaz says:

          It is easy to remedy if you want, it just costs a penalty that grows over time. Understand your niece, who we have discussed before, but Gaetz is an idiot for not keeping current.

        • FM says:

          Gaetz may have purposely let his license lapse so as not to go thru the embarrassment of having it pulled if he is indicted for sex trafficking or other crimes. His pal, Joel Greenberg, is apparently telling all in his hopes to reduce his sentencing.

        • Leoghann says:

          But he’s a Florida Republican bigwig, for now. He’s now reinstated, following payment of the $265, plus a $175 penalty. The really sad-ish thing is that he was suspended in 2019 & 2020 as well, for failing to sign or turn in his renewal paperwork.

    • earlofhuntingdon says:

      For a guy who makes over $175,000/year, that takes some doing. He might also be behind on his CLEs, too, even if that wasn’t mentioned. He’s not the kind of guy who does his own homework.

      • vvv says:

        The reporting is now that he just paid the fee plus a $200 penalty.

        Here, the fee is $450.

        And we also have CLE requirements here (32 hours every two years). I did a CLE Zoom seminar just yesterday.

        Perhaps interestingly, we are allowed to bareback (no professional liability insurance) but at a cost of many additional hours of CLE – something like 15 or 20 per year. Reminds me, I gotta get my renewal in by year’s end.

        • earlofhuntingdon says:

          Going without malpractice insurance for the price of a few hours of CLE strikes me as a transparent, pro-trade association dodge that potentially harms clients. I hope the lawyer at least has to inform their clients in writing ahead of time.

        • vvv says:

          It’s an interesting approach. It is difficult to find more than 10 or 15 free hours of CLE in a year, which can otherwise cost $100/hr. So, 10 hours = $1K goes a long way toward basic mal coverage, and having coverage saves you the money-making time – most CLE, especially the free, is live during business hours, altho’ you can buy recordings of real estate and domestic and corporate law focused stuff…

          My understanding is you are supposed to advise the client if you lack insurance; my experience is that is rarely done. (That experience is re other atty’s who are uninsured; I pay the piper.)

          As well, the state regulatory body publishes insurance status on the lawyer’s regulatory listing page, which is a resource I refer to when doing oppo research. If Wm. Whiteshoes III, Esq. of *Smackem, Whackem and Rip’emoff* is too dumb or lacking in resources to have insurance … I’m even more less than impressed by their shoddily written, pre-formatted web page.

  7. Bobster33 says:

    I am reminded of a $130,000 payment to Stormy, which sent Michael Cohen to jail. DJT and Alan Weisselberg apparently have gotten away scot free from those actions.

    • Rugger9 says:

      It kind of looks that way on SOL grounds, but my question would be whether the SOL gets deferred while the sitting President can’t be touched. The Servicemembers’ Civil Relief Act (SCRA) works that way, where someone overseas in most cases can invalidate almost all civil actions until 90-120 days after their return (with some very specific exceptions). Keep in mind it works like a continuance, not a dismissal.

      • Bobster33 says:

        It’s becoming like that Stalin quote. A single crime is a tragedy, but commit a million crimes and that is just a statistic.

  8. Bay State Librul says:

    SOL meet SOL

    Shit out of Luck/Statute of Limitations.
    My new word to replace Treason = Sedition
    I have a safe haven under 18 U.S.C.A 2384 (2000)
    What could be more clear or present?

  9. dude says:

    So, what is the internal DOJ policy for candidates running for the Presidency? If DJT announces he is running, does DOJ have a rule saying “we don’t investigate or indict candidates running for President…well, because they are running for President…even if they do file 3 years in advance of the election.”

    • Franktoo says:

      Duh. The investigation of Hillary Clinton didn’t end just because she a was running for President. For the record, Hillary Clinton announced her candidacy on April 12, 2015.
      FBI opened investigation in August 2015

  10. dude says:

    Thanks. I was listening to a discussion about Trump intimidating other Republicans from running and then recalled the reluctance of DOJ to get involved during Presidential elections–did not recall the details. I feared Trump might just use DOJ rules to delay complying with subpoenas, depositions and such, giving him time to set more fires and create more distractions. If unilaterally declaring his candidacy this far out would help him, I am sure he’d exploit the opportunity.

  11. Franktoo says:

    Since the OLC often behaves as if it were the President’s law firm, our system of justice is incapable of constraining the behavior of presidents. The OLC has ruled that the DoJ will not indict a sitting president, which is somewhat sensible given that the president is Chief Executive and therefore their boss. Fortunately we have (or had before Congress became so partisan) a Congress that can impeach the President. However, the OLC has maintained for more than a half-century that presidential advisors can’t be compelled to testify in front of Congress, making it nearly impossible for Congress to establish that a president committed high crimes and misdemeanors. And the OLC has maintained its position on compelled testimony despite two lower courts adamantly ruling against their position. They have done so by appealing the judge’s ruling and then settling out of court. (It seems to me that the OLC should be required to follow the ruling of a lower ruling unless they are actively appealing a ruling against their position. An appeals court will almost certainly accept an appeal, but the Supreme Court may choose to not hear an appeal in a case that is has become moot.)

  12. Troutwaxer says:

    I think what it comes down to is this. Joe Biden and Merrick Garland had some kind of interview. Joe asked a question that went something like this (though probably phrased MUCH more subtly:) “How far up the chain are you willing to go following up the January 6th riots?”

    And Garland gave Joe an answer. We don’t know what that answer was, but it was an answer that satisfied Joe… and if it doesn’t satisfy me I’ll probably leave the country.

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