How Merrick Garland Mistook a Trump Hitman for a Career Prosecutor
When Merrick Garland appointed Robert Hur to spend a year reading through Joe Biden’s diaries, he emphasized that Hur was a career prosecutor, even while describing the role his appointee had played as Rod Rosenstein’s Principal Associate Deputy Attorney General (PADAG) and then as a Trump-nominated, Senate-confirmed, US Attorney.
Mr. Hur has a long and distinguished career as a prosecutor. In 2003, he joined the Department’s Criminal Division, where he worked on counterterrorism, corporate fraud, and appellate matters. From 2007 until 2014, Mr. Hur served as an Assistant U.S. Attorney for the District of Maryland, where he prosecuted matters ranging from violent crime to financial fraud. In 2017, Mr. Hur rejoined the Department as the Principal Associate Deputy Attorney General. In 2018, he was nominated and confirmed to serve as the U.S. Attorney for the District of Maryland. As U.S. Attorney, he supervised some of the Department’s more important national security, public corruption, and other high-profile matters. [my emphasis]
In my opinion, the vast majority of Merrick Garland’s critics mistake this — Garland’s naive belief in the good faith of people who have been DOJ employees — for a kind of caution or partisanship. Garland simply believes, I think, that something about working for DOJ rubs off on people and stays there, even the people who did scandalous things during Trump’s term. This is not the only time that faith has or could result in really grave consequences for DOJ’s ability to hold people accountable.
The problem is, with Hur, Garland should have known better, and not just because Hur was obviously a senior member of Trump’s DOJ.
At the end of last week’s Jack podcast (YouTube; Simplecast), Allison Gill and Andrew McCabe discussed the role Hur played in Trump’s DOJ. Gill replayed McCabe’s warnings, a year ago when Hur was appointed, about the former PADAG’s willingness to engage in politics. McCabe pointed to Hur’s role in imposing limits on the Mueller investigation (to which, I’ve noted, Hur didn’t adhere in this review) and participation in a gang arrest press conference staged at the White House, breaching the separation between the White House and DOJ.
But Hur had a more specific role in carrying out a partisan hit job for Trump.
Just after 1:02 on the podcast, in the stuff recorded last week, McCabe described that Hur played a key role in, “overriding the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.” McCabe claimed that Hur violated his due process to fulfill Trump’s demands to fire the former FBI Deputy Director rather than let him retire on schedule.
As laid out in McCabe’s 2019 lawsuit against DOJ, for months leading up to McCabe’s firing, Trump had been complaining that DOJ hadn’t fired him yet. Against that background, on March 5, 2018, FBI and DOJ started the process of using DOJ IG’s problematic report finding that McCabe lacked candor about serving as a source for one of Devlin Barrett’s biennial right wing hit jobs as an excuse to fire him. Time was short. They had less than two weeks to do that before McCabe’s designated retirement date (depending on how you calculate it, any of the days from March 16 and 19, inclusive).
The process started with Candice Will, the head of FBI’s Office of Professional Responsibility, preparing a recommendation to fire him.
After some discussion on March 5 about whether, in response to McCabe attorney Michael Bromwich’s request, McCabe’s team should get a copy of the IG Report in advance so as to have more time to respond, Will laid out, in a handwritten note sent March 7, that she would send just the letter reporting DOJ IG’s referral, but not the report, to Bromwich. Without saying it directly, Will was signaling she was not going to give Bromwich any extra time to respond.
That same note made it clear that without intervention from DAG — Rod Rosenstein’s office — “it seems unlikely that this will reach final resolution before Mr. McCabe’s March 18 retirement date.” Those rushing to fire McCabe before his retirement recognized on March 7 that the only way they could fire McCabe before he retired was via Rosenstein’s involvement.
The same morning Will explained that they couldn’t manage to fire McCabe before he retired without intervention from Rosenstein’s office, she sent Hur an email asking to speak to him on the phone, “about a matter being forwarded to the DAG?” Remember: at this point, Hur was Rosenstein’s top deputy.
Hur and Will spoke that evening.
Will’s notes from that conversation were, when released via FOIA, almost entirely redacted under a deliberative privilege. They appear to memorialize what happened at a meeting between Hur, Rosenstein, and Scott Schools that day. Schools, the senior career Associate Deputy Attorney General at the time, played a role in DOJ that was always supposed to ensure ethics; in that role, he oversaw the review process leading up to McCabe’s termination.
An email thread documenting how OLC head Steven Engel interpreted the SES guidelines on firing, which Hur then forwarded to Schools, who forwarded it to Will, likewise remains heavily redacted under b5 deliberative exemptions.
Those documents — what Robert Hur told Will on March 7, 2018 and how Steven Engel spun guidelines mapping out what kind of due process senior employees get before you can fire them — are among the records that McCabe would have gotten in discovery if DOJ hadn’t settled the lawsuit.
DOJ redacted less of the emails showing that Will kept Schools and, at times, Hur, informed of how Michael Bromwich frantically tried to review the entire case file in time to mount a legal challenge, but even there, there are deliberative discussions withheld from release.
One thing is clear: with each request Bromwich made, DOJ took days to respond.
In the lawsuit, McCabe’s lawyers noted that Bromwich wasn’t given emails and statements involving FBI’s press person, Michael Korten, that the DOJ IG had ignored — emails that were exculpatory — until the day before Bromwich had to present McCabe’s case to Schools.
Certainly, Andrew McCabe has reason to be biased against Robert Hur, because Hur was part of a team that forced McCabe to fight for years just to get a pension earned over decades.
But you don’t have to take McCabe’s word that Hur played a part in, “overriding the process that I was entitled to and basically accelerating the decision to fire me in an effort to get it done before I could retire.”
Take Merrick Garland’s word on what happened. In response to a question from Chuck Grassley shortly after the settlement, Garland explained why career lawyers at DOJ said they should settle: because they were going to lose the case.
The case … involved a claim that he was not given amount of time necessary to respond to allegations and the litigators concluded that they needed to settle the case because of the likelihood of loss on the merits of that claim.
Garland delivered this heavily rehearsed (and inaccurate — that’s not the only thing included in the suit) statement, explaining that the team that rushed to fire McCabe so they could take his pension had not given McCabe the amount of time required to respond to the allegations against him, on October 27, 2021, over a year before he named one member of that team that deprived McCabe of his due process to lead an investigation into Joe Biden.
Garland was clearly just repeating a well-rehearsed answer in this response to Grassley. It’s unlikely he reviewed the matter closely enough to know that Hur was one of the people, according to the career attorneys who said DOJ would lose the suit, who deprived Andrew McCabe of due process. Though Garland knows how DOJ works. He should have known the universe of people who might be involved.
Given how politically contentious the decision to settle was, however, it is also virtually certain that people in Lisa Monaco’s office did review the details closely. In fact, traditionally, the person who would review matters that — like this one — involve weighing ethical considerations and the potential of a big black eye for DOJ is the career Associate Deputy Attorney General, the successor to Scott Schools, who was involved in the firing.
In July 2018, Jeff Sessions appointed Bradley Weinsheimer as Schools’ successor.
It would be shocking if Weinsheimer didn’t review the decision to settle the McCabe lawsuit.
But if he did, that would be cause for further concern. That’s because Weinsheimer is the guy who rejected complaints from Biden’s attorneys about Hur’s politicized attacks on Biden.
By settling Andrew McCabe’s lawsuit, DOJ conceded that Robert Hur and others had deprived the former FBI Deputy Director of due process. They violated DOJ’s rules to do Trump’s bidding. Then, DOJ put Hur in charge of an investigation of Joe Biden.
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Thank you.
Interesting. Though, it still seems possible that Garland is playing a long-game (I have seen some pretty suave backstabbing in bureaucracy). But it would rely on the press doing its job, which I’ve not seen much of in this MAGA-era. It would be a good thing for a congressional rep to look into whether Weinsheimer did review the McCable decision. In any event, I still think Garland was in between a rock and a hard place; allowing Hur to destroy his professional reputation could be the less harmful thing for Biden, as doing anything else would have fed directly into the even more damaging meme of Biden supposedly weaponizing the DOJ.
This is faulty on a couple of premises, I think. If the plan had been to allow Hur to self-immolate, if our side planned at their level, then there would have been a media strategy to save Biden’s reputation other than to feed the scoops to Marcy Wheeler as raw documents journalists ignore anyway. Democrats don’t understand the propaganda nature of the prosecutor function, because that is how terrorists think.
The other premise that might not be correct here, I think, is that you seem to claim that not choosing Hur would have been an action to defend, but you generally don’t have to defend the things you don’t do. Garland could have just chosen someone with integrity. We can debate the function of Garland’s attitudes and behaviors, but he seems to be doing a lot of work not seeing things as a kind of work to keep his worldview together. We all want to believe with Garland, but sometimes people rise because they have a kind of manner and appearance for the job, fastidious to norms, but they don’t really have mental horsepower and attention. It’s getting kind of late to make adjustments.
Thanks, I think you right in your critique.
I think Biden’s treatment of Special Counsels provides the space for Jack Smith to go big.
But that doesn’t mean the choice of Hur is correct. And as I’ll right, there’s a STRUCTURAL problem with having Weinsheimer oversee SCOs, and a likely constitutional one.
Yes, and slugger Jack Smith is hitting it out of the park with gripping, concise, fact-filled-filings that go into graphic detail of actual events and timelines, and walk you step by step into reasoning backed up with evidence and case law in answer to the bombast, mis-cited cases, logical fallacies, and erroneous irrelevancies, filed by the Trump side.
I have read Marcy’s withering critiques of John Durham’s pathetic crusade under Barr’s tutelage. Now with Prosecutor Weiss’ pathetic attempts to play politics with his DOJ position, and Robert Hur’s stepping out of line and subsequent cya by a DOJ superior, makes me think the integrity of the DOJ that AG Garland is so dedicated to improving post-Barr, is still suffering from the same influences that turned it rotten before.
It’s only thanks to Marcy I understand any of this.
When will the big press catch on? Or is corporate America group-think so entrenched you cannot get honest news stories from either The NY Times or Washington Post?
In other words, since the Biden administration took over, they have only managed to tread water, but not make real reversals or improvements?
No. AG Merrick Garland removed the malfeasance of Bill Barr from the beating heart of the Justice Department, likely much to the relief of the many dedicated, ethically scrupulous, lawyers who populate the DOJ.
What I was referring to were the inferior products of the Gingrich-Trump rot within the DOJ that obviously speak for themselves.
I understand. But. Just because Garland chose Hur to self-immolate doesn’t mean it’s a good idea to let the WH know about it. That just opens up another possible line of attack on the “Biden’s controlling the DOJ” line. Let’s not ‘misunderestimate’ how low the MAGAs are going. Splash-back should be a concern and Biden’s right to trust Garland to do the right thing (in my opinion).
Also, I’m not claiming it had to be Hur, but that it was deemed better to choose someone that the MAGA House wanted, and that choice certainly is not going to be anybody with integrity (if no one’s noticed yet). Hur may have been chosen because it brings to glaring light Hur’s partisanship and the MAGA hypocrisy, for example. And (who knows?) maybe the media will notice before the Summer is over? I think (some) independent non-MAGA conservative-leaning voters have noticed and more will continue to notice (have you seen Cruz’s numbers in Texas?).
But I can understand the concern, especially given the shallow press reporting these days. Also, given the slime-job pulled on HRC over decades, I don’t want to be quick to dismiss the damage this report summary may have caused. As Marcy has said, it’s up to us to get the voters out who need to get out and vote.
I think Marcy is right. Biden may have not only the intention of non-interference but also the correlative, no organized complaining re. Hur but also Weiss. I think Biden might be making a genius move not to make a huge fuss, but take some political damage because the charges against Trump are so much more grave. The GOP would prefer a pattern of reaction, I think. Corruption in the DOJ works for Trump’s defense even when he’s the one instigating it against Biden. If Hur’s report draws the Democrats into a mirrored outrage and provokes an internal rebuke from Garland or even the DOJ Inspector General, it will prove Trump’s thesis that his own prosecution is corrupt.
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The Democrats have been needing to make adjustments since Reagan attacked Carter by calling him a Liberal. I vote for Democrats, but wish to fuck they’d get their shit together.
“We can debate the function of Garland’s attitudes and behaviors, but he seems to be doing a lot of work not seeing things as a kind of work to keep his worldview together.”
This. Recently chastised by Big Lawyer for not being sufficiently pro-Garland.
This says it all
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Bob Hur was not the man for the job, or probably any job at the DoJ. I think Marcy’s point is that had Garland appointed the kind of prosecutor he imagined worked at the DoJ, neither he nor Joe Biden would have been put in the predicament Hur put them in.
It’s inconceivable to me (and yes, Inigo, I do know what that word means) that Garland wouldn’t do due diligence on Hur, or anyone else he would appoint. The DOJ is full of folks without the history of partisanship Hur carries; I find it hard to believe that the same guy who pulled Jack Smith from The Hague would drop the ball on appointing a Biden investigator.
So, higher-dimensional chess? Did a mirror Garland shave his goatee and appoint Hur? /s
Thanks for this post EW. I’m not at all familiar with the inner workings of DOJ or the who’s who of its senior leadership. I suspect that you have the measure of Garland better than most.
I’m curious, how difficult might it have been for Garland to do a major housecleaning of that leadership when he arrived? Was he stuck with the personnel he inherited from the Trump era or could he have done a careful review and either removed or reassigned personnel who had engaged in questionable conduct? Just curious to what extent his hands were tied versus his presumption that career staff are apolitical and to be trusted in all cases.
He did not do that housecleaning. That’s part of my point. He didn’t do it because he believed that those left over were DOJ people. That proved to be dangerously wrong on a number of occasions.
I’m not sure there was a way to simply clean house. But if I fault him for one thing — aside from the way he has overseen SCOs, but Weinsheimer is a part of that — it’s that his defensiveness about leave-behinds was not high enough.
Thanks : )
Housecleaning or no, he should have made better choices both in the selection of Hur and in the final form of the released reports by Durham and Hur.
I think his decision to appoint AN SCO w/Hur was fine. I have my suspicions about how Hur got picked and whether Garland or even Monaco were fully briefed on him.
I’m working on a f-up about the problem with the way Garland is overseeing these SCOs, probably including Jack Smith.
Great! I look forward to reading that : )
All the independent counsels I can think of were chosen from men (cannot recall any women) outside gummint. Jaworski, for example.
That begins to look like a good practice.
That approach doesn’t eliminate the problem of having the judgment and street smarts to appoint the right people.
Well, Durham was not and Weiss was given SCO on a case he was already working, the latter of which may be the most problematic, especially the way Weiss threw in Smirnov.
I’ll still go with this all being part of the housecleaning. “Keep your friends close and your enemies closer”. Hur and Durham chose to take massive hits to their reputations.
Garland messing with those reports would have been a major hit on Biden in social media land. Better to take a gut punch than a knock-out blow.
“Hur and Durham chose to take massive hits to their reputations”… not with the people who count to them, i.e., Republicans.
No, if you talk to Republicans who paid attention to these Special Counsels, they think Hur and Durham were both incompetent or worse, as neither produced the indictments and convictions that those Republicans wanted to see.
What massive hits did Hur and Durham take among the people who most wanted the type of reports they prepared, the ones who have and might use or promote them in future?
To repeat, had Garland not appointed Hur, but an apolitical professional, that person would have given Biden and Garland no or fewer problems to fix.
Would that be much different with the bogus crap these SCs pulled?
Allison Gill supported Garland to the max.Anybody who followed her,who saw through the pattern of Garlands ineptitude,she blocked or muted.Never apologized to those people who were warning Hair on Fire.So disingenuous.Trusting Garland was catastrophic imo.😣Have followed you since Atrios days.Thank you Marcy💃🏼👍🏼
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No. Gill, like me, adhered to the facts, on both this and Jan6. Many people, including a great number of TV lawyers, make shit up about what the Jan6 investigation did.
I block people who do, too.
It would be neither easy nor quick, but holding staff accountable to administrative policies is how you do that.
It would certainly not be unique to Garland’s DOJ, or to really any sizable organization that managers within that org lack the stomach to enforce accountability. It’s time consuming and doesn’t feel like “the real job.” It requires being patient with people you don’t like and firm with people you do.
If it’s true that Garland is a faithful believer in DOJ’s internal legend of who DOJ is, then a culture of accountability will never manifest. Individual managers might have a commitment to accountability, but it’s exactly the people who need to be held accountable who you cannot trust to police themselves. It has to be driven from the top.
In a perverse way, this is another variation on the conversations we had regarding Boeing in recent weeks. Many moons ago, Boeing had a rigorous safety culture. They took pride in holding themselves to exacting standards, i.e. in policing themselves.
Even under someone as generally respectable and professional as Garland, it’s clear that DOJ is just as incapable of policing themselves as many other smaller, “less professional” law enforcement organizations.
I agree with your take on Merrick Garland. But even casual observers of DC could see the intense campaign to politicize the govt bureaucracy that CheneyBush engaged in, a regime that ended fifteen years ago.
One thrust of that campaign was to insinuate political appointees into career slots, a nominally prohibited act, to increase the number and authority of Stay Behinds. The DoJ was a special target for them. More than a few of your early posts dealt with that.
Obama did little to upset that particular apple cart or to clean the bureaucratic house for eight years. Then came Trump, which made the problem worse. Biden seems to have done significantly more than Obama to clean house, but he inherited a bigger problem than did Obama, and a thin majority in the Senate with which to tackle it.
So, the one thing I agree with most is that Merrick Garland should have known better what he was or might have been dealing with concerning politicized staffing at the DoJ.
Which shows his naivete, choosing to think the organization validates the individual’s character.
“Garland was clearly just repeating a well-rehearsed answer in this response to Grassley. It’s unlikely he reviewed the matter closely enough to know that Hur was one of the people,”.
If he didn’t know he shoulda, too wrapped up in his boys club, like Muller, all gentlemen around the BBQ. Nevah mind the partnership payoff for Federalist flunkies.
You’re attempt to explain Garland makes him sound like an idiot. The Attorney General has a “naive” belief? Has he been living under a rock? Was he fooled by Rosenstein’s corruption? Hur’s working in any capacity with Rosenstein should have been disqualifying.
He “should have known better?” That’s the definition of incompetence. I’ve never said much, if anything, about Garland, but my opinion of him is way worse after reading this.
Others have pointed out that Garland was better suited to be a S Ct Justice rather than AG. His appointment seemed to me like a gift to compensate for the shabby treatment he received when he was Obama’s pick for the S Ct.
Proofreading before posting about someone else “sounding like an idiot” is always a good idea.
Indeed, particularly because I write for living, have had thousands of articles published as journalist and researcher. Thanks for noticing. Writing when I’m on my way to the airport not a good idea.
“Your”
Thanks for the great analysis.
In short it appears that either:
1). Garland was not aware of the MAGA-supportive background of Hur, but should have known before appointing him; or
2). Garland knew of the MAGA-supportive background of Hur and thought that things would work out fine since Hur had been with the DOJ for a long time and therefore believed in the rule of law over politics.
Either way does not look good for Garland in my opinion.
I think it’s option 1.
I also SUSPECT that Weinsheimer misrepresented what the evidence showed when he explained it ot Monaco and Garland.
I’m going to do a follow-up, but that position has ALWAYS been more about protect DOJ’s PR than ethics.
If House Republicans use Hur as a witness, Dem questioning (if they do question instead of giving five minute speeches) can get to bias and the effort to screw McCabe out of his pension because they could.
Is Biden more comfortable running on his age being little different then Trump’s while paying more attention to his health and not the cardio risk? Trump’s next trial is the hush money, and Biden can say he’s been blessed with two wonderful wives, staying true to each, and that hush money shows a lapse of character. As with misleading lenders.
Would he rather speak to older people his age about ageism than to angry white young men whining about migrants “hurting the economy?” Biden can say he asked the Congress to give him a bill, and he is still waiting.
Dean Phillips is not moving the needle pushing the ageism contention. And, Hur is proof he and Garland have not been weaponizing the DOJ. Ditto Weiss.
Presuming there will be at least one debate, Trump will be extended via running and defending, so what does Biden need to do beyond being cogent and a gentleman?
Yes, Hunter has had difficulty turning his life around, and Joe has only him left of his children, but Trump’s two elder children are proven frauds along with their dad.
Is it helpful to have Hur a working biased tool rather than objective, something he can indirectly say while the media will be seeing Dems in the House doing their job in defense of the man who, after all, did win the election?
Just wondering, from the hinterlands and not a DC insider. Ageism attacks could hep with undecided elderly who do turn out to vote.
Yes to all of these.
If there is a debate, Biden should demand a “no speaking-over” rule, with mics deadened for the purpose. If Trump nonetheless starts yelling at him across the stage, Biden can just stand down, saying, “A candidate for President who can’t adhere to rules or agreements is not fit to run, much less worthy to debate,” and walk off.
Somehow, I see Trump skipping the general election debates this time around, just like he did this year with the primary debates.
But…if the unlikely happens…the only positive will be that this time around, he probably won’t be shedding covid virus while spewing lies.
President Biden’s year-old daughter, Amy, died in the same auto crash as his first wife in 1972, in which sons Hunter and Beau were critically injured but survived. Beau died in 2015 at 46 of brain cancer, which may have been due to his exposure to military burn pit toxins.
Joe and Jill have a daughter, Ashley.
Whatever the reason, the AG needs to be on top of things. A mistake of this magnitude is inexcusable.
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I’m still pissed that BHO picked Garland over Sri Srinivasan. I would have loved to see Moscow Mitch attempt to block a hearing for what would have been the first Indian-American justice. Picking Garland, based on the recommendation of Orin Hatch, as the path of least resistance blew up in Obama’s face.
Moi aussi. Garland is 71 already (circuit judges have to semi retire at 70 for chrissake). On top of everything else, he was going to be a relatively short-termer.
And the “everything else” was not minor: at the top of that list was that the travesty of his getting shivved by McConnell’s proto-MAGA maneuver ended up not giving any juice to Hillary’s soon-to-be POTUS run. Imagine if Obama had nominated *another* strong, articulate, and young woman with a deep understanding of the US Code and the Code of Judicial Conduct. Hillary would have been able to say (with Trump as her target), “The GOP is afraid of strong, principled women, so much so they didn’t dare let Judge ________ have a hearing in the Judiciary Committee. If there’s something worse than a cowardly misogynist, I can’t think of it offhand.” At least there could have been one good thing come out of denying the Dems a shot at Scalia’s seat.
And as to who _________ is, here’s a name I tried in vain at the time to push up the chain to the WH: https://en.wikipedia.org/wiki/Stephanie_M._Rose (not that she was alone in that category, although she *was* on the Iowa Circuit bench, and Grassley was Chair of the committee).
Lots of people work at DOJ. Obviously some must be raging partisans.
Reading this account by MW, I cannot help but come with the impression that either:
(1) the Republicans who work at DOJ are better at hiding their tracks when they do a partisans hit job (Hur, or David Weiss), or to stir up a false scandale (Andrew McCabe’s lack of “candor”, McDurham’s investigation of Russian interference, etc…),
or (2) the Democrats don’t know how to fight (in fact, don’t even seem to know that they are “in a fight”).
Blame Democrats. Always. *eye roll*
Consider the nature of persons who tend to go into law enforcement — are they typically liberal? Consider the nature of persons who consistently have faith in democracy — are they typically conservative?
Consider the possibility the nature of the institution and the possibility legislators have not ensured integrity and ethics in law enforcement.
There’s a pretty wide array of democrats. The unifying rally of the right is “everything is the fault of democrats” where they don’t even seem to understand the problems. Political realities usually push the far left out of the sphere of participatory politics, but they don’t seem very good at anything anyway.
The Ds appointed on talent, the GOP on partisanship, especially in the last two GOP administrations. Burrowing was intentional since the civil service rules protected the moles.
It’s one of the things that made Defendant-1’s idea of the Schedule F rollback a bit weird, since if the plan failed the next D president would have license to houseclean thoroughly.
Yep, this. Seems like this was an under the radar burrow.
I do think Marcy is on to something though… I think Garland assumes that all DOJ folks have the same sort of ethics and are able to put partisanship on the back burner when their job requires them to. This might be due to his longer experience in the judiciary rather than at DOJ (although he was PADAG for a while, so you’d think he’d know something about the bureaucracy there).
And I think he’s likely also too hands off here. I’m not sure what role the DAG has in supervising special counsels (they typically run the entire department anyway), but then again Lisa Monaco has like thousands of fires to put out, so she can’t be on top of everything, everywhere all at once.
At the time, I thought Alabama’s Doug Jones would be a fine candidate for Attorney General.
Perhaps, Biden played the wrong poker hand.
Wasn’t it Biden’s decision whether or not to clean out the DOJ with mass firings? Didn’t other presidents do just that?
Presidents replace US Attorneys. Biden did that.
There’s no way to replace civil servants in bulk, including people like Weinsheimer.
Reassignment? Is that a Civil Service red flag too?
And in his latter period in office, didn’t Trump do his darndest to fill as many civil service positions as he could with his loyalists, knowing they couldn’t be easily shifted thereafter? His business with SCOTUS caught all the public attention, but there was much more than that going on, largely out of the spotlight.
He did. And largely failed, but — what I have not seen reported — caused a lot of disruption at at least one of the targeted agencies, with first-rate people moving to other departments or out of gummint altogether.
Civil service rules came into play once President Garfield was assassinated in 1881 by a rejected patronage office seeker. Chester Arthur (not otherwise known for integrity) saw the writing on the wall and started the process.
Yes. I understood Trump’s 2020 executive order creating Schedule F appointments to be his attempt to convert civil service positions to a different category, without civil service protections. Biden repealed that, also by executive order, on the third day of his administration.
I remembered that much clearly, but I hadn’t noticed this, in the Wikipedia article on “Schedule F appointment”:
There are added protections for high ranked to keep someone like Nixon from doing what he did during the Watergate probe. One of those protections is they can only be fired on the spot if they commit a felony, so they used an OIG referral to start the prosecution in McCabe’s case, which failed utterly after the grand jury returned a no bill.
As I understand it, this is exactly Trump’s plan, not to fire anyone he doesn’t think is loyal, but to create a whole new civil service classification of “employees” who will do their master’s bidding, no matter what the rules say, and thus swamp the bureaucracy so that it no longer functions in a fair manner.
That characterization misses the part about Trump’s vindictiveness, and ignores the television show punchline that made him wealthy and well-known enough to run for President.
I can’t help but keep making comparisons with the Weimar period in Germany, and if anything they are getting closer. A government slowly rotting from the inside because its faithless servants, instead of impartially performing their sworn duties, were dedicated to bringing it down. Now we even have an online version of Alfred Hugenberg. What next?
Weimar’s servants were faithless because they never believed in parliamentary democracy in the first place. Almost no one did, even the Social Democrats had a street army.
In my lefetime, I think I have observed a shift from don’t-like-gummint-’cause-it-gets-in-my-hair to don’t-like-gummint-’cause-it-is-immoral
Thank you, Marcy, for helping me understand another complicated situation more clearly.
I’m REALLY out of my depth here, and I tend to hope for the best out of people, so with those two caveats …
Just in this note from Marcy and the comments under it to date, I have a sense that Garland had a LOT to worry about after taking office, and that a fair number of people at DOJ Garland should have been able to trust are turning out to be untrustworthy.
The DOJ website says DOJ has (quoting) “more than 40 separate component organizations and more than 115,000 employees”. I have no idea how many direct reports Garland has, but I’m reading that as meaning one of two things – either Garland has too many direct reports to micromanage, or there are really important things at DOJ that Garland doesn’t supervise directly, and he needs to trust his direct reports to direct traffic in and out of his office, and brief him well.
Please don’t misunderstand – I am angry that, however it happened, Garland didn’t start on Day One looking for Trumpist dead-enders burrowed into inconvenient places at DOJ more aggressively (whether he could eject them immediately or not). He could have started with a list of people NOT to trust with any meaningful new assignments, and Hur should have been near the top of that list. I hope he’s building that list now, but things like Hur’s appointment have already happened. And there are other things happening in our world that I hope he’s spending time on – I’m writing from Texas, and I hope Garland is paying attention to next steps on the stunningly illegal actions Abbott is taking on the Texas border, with support from (I believe) every other Republican governor.
But I do wonder how well positioned we are to keep track of people who should be on that list, compared to how well (for example) the Federalist Society is to actively maintain a list of people who they think should DEFINITELY be on the Federal bench, if not the Supreme Court.
I think that’s the arms race we’re looking at. I hope we win.
When is Garland next scheduled for public testimony?
IIRC, the cabinet members make the rounds during budgeting time, so any day now is possible. I’d be interested to see if Hur’s hearing(s) will be public. I’d love to see how the Ds from Raskin on down take him apart, five minutes at a time.
It seems that even Trump, in his latest self-referential claim for attention following the death of Navalny, recognises what has been insidiously taking place in America, inverted of course as always by his inevitable projection.
Just to stir up the pot for the sake of argument, what about the possibility that Garland isn’t as ‘Democrat friendly’ as Obama and Biden thought ?
A centrist and contemplative person might have been a desirable SC nomination by a former law professor from the University of Chicago, but that doesn’t mean that he has the right temperament or executive management skills required to be a successful AG. Obama never liked the ‘politics’ of being President, he liked the idea of accomplishing things. He sought judicial purity for the bench. He wasn’t choosing an AG.
I think a certain amount of skepticism about human nature is required to be a CEO, which is essentially what an AG has to be, in addition to top lawyer. I don’t see that skepticism in Garland.
Mueller, Comey and Rod Rosenstein all have obvious and rather rigid conservative DNA that is visible just under their skin, though cloaked in cover of department policy apolitical verbal statements. But as always, believe what they do, not what they say.
In that regard, look over decisions, and non-decisions, that Garland has made in the last three plus years. There was no follow up action on the Mueller report, there was a seemingly, stunning delay in action on January 6. And now we have Hur’s 388 page report on the Bidens, which is the equivalent of Comey’s last minute hatchet job on HRC’s emails.
What if Merrick Garland isn’t actually the blindfolded statue of Justice, with arms stretched out to hold the scales ? What if he actually thinks that Biden is too old to be President again ?
To quote Marcy “Though Garland knows how DOJ works. He should have known the universe of people who might be involved.”
What if he did ?
The Republicans sank his Supreme Court nomination. I cannot imagine anyone would be Republican-friendly after having that happen to them. The Supreme Court!! As you note, in other words, he may be a good, or even excellent, judge, but that does not automatically make him an excellent, or even good, chief administrator of a large organization. I think he’s just bad at his job, like 10-20% of the population is, and that’s really all there is to it.
What if your what ifs are inconsistent with Garland’s entire career? I think Marcy’s concerns more accurately gauge Garland’s failings.
See, this is a paragraph that make me want to poke my own eyes out.
I’ve written how those who complain about no follow-up on Mueller are doing PR for Bill Barr. And I can’t count the number of posts I’ve written correcting TV lawyers who don’t know anything about the Jan6 investigation.
So your premise is wrong.
Good Grief I never intended to promote this level of consternation Marcy. I feel like I owe you a set of goggles, or eyedrops at the very least. I think I misunderstood your assessment of Garland from above. I am willing to readily claim my premise is wrong. I just cannot understand how someone as experienced as Garland can not see the duplicity of some of the people in DOJ.
“I just cannot understand how someone as experienced as Garland can not see the duplicity of some of the people in DOJ.”
Me either so is it a feature or a bug?
For me it was Chris Wray pushing a disingenuous crime narrative without pushback from the DOJ? Maybe it was right not to stir that pot and that may be valid but when will a Democrat ever be picked to run that GOP riddled organization?
I would find it almost impossible to believe that Garland arose in DC without knowing how to read tea leaves? Maybe so, but if Biden wins re-election I propose that he gives one of Robert Hur’s mentors the heave ho.
What’s your evidence that Garland is one of Bob Hur’s mentors?
Chris Wray is one of Hur’s mentors….they wrote a joint book review of John Ashcroft’s book. I will not link to the Fed Society pdf.
Two hundred years ago, Andrew Jackson attempted to subject all govt jobs to a spoils system, in which the winning party had the right to replace all govt employees at will. The consensus defeated him, however, in the belief that the USG performed too important a job to have its staff replaced en mass every few years. The USG needed continuity, regardless of which political party controlled the House, Senate or Presidency from year to year. Civil service protections were put in place to do that.
Trump wants to undo all that. For him, the USG – like the RNC and the Trump Organization – has a single job: preserve, protect, and defend Donald Trump. Consequently, like Jackson, he demands the power to hire, fire, and punish, at will and without consequence to him. (Come to think of it, quite a few Ameican CEOs agree with him.)
IIRC one of the first things Trump did was hang Jackson’s portrait in the oval office.
Initially I read Weinsheimer as weisenheimer. Thought I had a great joke brewing but alas.
Agreed, my first take on ‘Weinsheimer’ was also weisenheimer – but perhaps you could work in a weimaraner pun to account for the similarities between the current political state here and now compared to the odious 1933 happenings in Germany without becoming a weisenheimer.
Worth keeping in mind that the “odious happenings” didn’t begin in 1933, they began (at least as far as Weimar politics was concerned) in 1918. Started small and disparate, then over the years festered and ripened until reaching maturity.
Likewise with the GOP. It has long provided the fertile exceptionalist humus in which a Trump could seed and (more importantly) flourish. But when its nation-wide voter base has shrunk to what looks like a permanent minority, desperation slowly sets in, and even the usual approximate democracy and plain dealing suddenly don’t look like very attractive options.
The GOP looks like it’s going to “bet the bank” on Trump for a presidential win this year. It deserves to lose, and fully reap the consequences of its Faustian bargain.
Thanks for fleshing that out.
It deserves to lose, but will it accept that defeat?
That is what this nation has to face.
And how will it do so?
With so much scheming going on, there was scant time for presidenting. No doubt Donald wasted precious government time hollering into his phone directing his retribution.
It raises my eyebrows that Merrick Garland’s career mentor has been Jamie Garelick, who was Jared and Ivanka’s lawyer during the Trump administration. I worry that Garland is playing by the old norms, which Trump has obliterated. The Democrats either are unwilling or unable to play Calvinball since 2017.
Poor Garland. He is always trying so hard to do what he believes is the proper thing, to avoid controversies, to appease everyone, and in the end, he ends up fucking things up.
He based his entire career on being nice and avoiding controversies. Obama picked him for supreme court because, knowing that his candidate would never get approved by the Senate, he was looking for the least controversial candidate he could find, to make McConnel look bad. But what started as Obama’s political shtick earned Garland his role as the AG, and I suspect he is now out of his depth.
Tying to be nice and trying to appease everyone doesn’t work as well when you’ve got a political party that don’t play by the rule and would do whatever they can to game the system.
Recall that Garland was one of the top prosecutors for the Oklahoma City bombing that killed 168 and injuring hundreds more. Personally, I feel fairly confident that he is a very honest man and a strong legal mind.
“Personally, I feel fairly confident that he is a very honest man and a strong legal mind.”
He’s a Boy Scout. In addition to all the incompetence posted here, people forget that he delayed the E. Jean Carroll litigation for several years while he took the position that Trump’s defamation was protected by some concept of immunity.
Having recently read Jeff Toobin’s book about McVeigh, I got the impression that Garland took that assignment a) late; b) with a sort of legalistic lack of passion; and c) in as rote a manner as possible given the circumstances.
You don’t have to be a genius to prosecute an act as evil and tragic as the Oklahoma bombing. I wouldn’t say it prosecuted itself, just that Garland does not seem to have broken any ground with it.
Back when Scalia passed and Garland was nominated to replace him the chatter from some in the defense bar was general positing Garland was no heroic defender of rights but a normal centrist institutionalist appellate judge (I am paraphrasing) “… the court defers to the trial judge … “ basically, I trust my peers type of guy. I still view him in that light. McConnell did what he did b/c Garland was not to his radical likings.
I want a non vindictive, non reactionary at the DOJ. Though I could never help but wonder how a person shoved out in such a partisan way could ignore the partisan politics within is his own purview. Alas, Marcy’s wrap up here is kinder than I am. Interesting to consider all the various reasoning but I can’t guess, assume, presume, or game anyone’s thinking on who and/or why. And not specific to DOJ only but I have little faith of any echelon’s desire and ability to hold one another to full account. Especially here with the McCabe deliberative exemptions and all. It is systemic from my view. So – hopes and votes; sharing with likely fence sitting GOP voters what I learn here.
The newer post showing the 2024 updates and how it was used to justify Hur’s opus shows yet again a personal choice over professional ethics and democracy be damned.
Hi there. Some of us in the “defense bar” still think Garland was no better than Scalia. But, hey, what do I know?
“McConnell did what he did b/c Garland was not to his radical likings.”
What McConnell did had nothing to do with Garland. He declared he wouldn’t bring the vote to the floor regardless of who the nominee is, long before Obama announced Garland as his nominee. Obama probably wouldn’t have selected Garland if he knew there is a chance the Senate would confirm his nominee.
They tried to burrow in Michael Ellis as General Counsel at NSA and it failed because too many negatives about him came to be known.
Maybe Democratic Presidents have burrowed in some people over the years, but I don’t know if any have been as flawed as Ellis.
The EW detail view is always deeply valuable and appreciated. I worked at DOJ out of law school, 1979 to 1986. Great job for a young lawyer. Deeply impressive career people from which to learn. Garland so fits that mold.
Maybe he’s playing a different and deeper game, or maybe he’s oblivious to things he’d be better served to have anticipated. But in the end it is the Biden campaign’s job, and Biden’s job, to rebut the age argument. Biden’s age is unarguable. I don’t understand why the issue isn’t used as a natural pivot to his strengths: as in something like, “Yes, I am 81. Anyone paying attention would remember that for decades I would sometimes make a mistake when talking. That hasn’t changed. It probably won’t change. And I understand why the Republicans are going on and on about it — they have nothing else to complain about. The economy is historically strong. Job creation is historically strong. NATO is united ….” Etc, etc. Pivot to the laundry list of accomplishments. Every question about age and infirmity can be used as the vehicle to discuss item after item of things he’s gotten done. It creates its own context.
President Biden tried to do something like that in his press conference, but because he did it from a place of anger and denial rather than flip the infirmity script, causing his blunder on Mexico/Egypt to fall flat. The blunder rebutted his own denial. If he takes it more gracefully it would seem he can flip it to his advantage, using it as the vehicle to discuss the long list of what he’s gotten done. More in the spirit of Reagan’s effectively raising the same issue in his debate with Mondale, saying he wouldn’t use Mondale’s “youth and inexperience” against him when people were questioning if Reagan was too old to serve.
And the rest of what you said. It is Biden’s (and his staff’s) job to counter the agism arguments. And I think they, and many very effective media-savvy groups are doing a very good job.
It is also Biden and his staff’s job to understand what is happening within the DOJ – even if they are trying to keep an influence fence between the Executive and the department. I’m hoping that Hur’s proclivities were known within the administration rather than being blind-sided by the report.
Many commenters assume that Merrick Garland appointed a DOJ prosecutor who was a career civil servant. They say Garland failed to “clean house.” Robert Hur resigned two weeks after Biden’s inauguration. On Feb 15, he joined a private law firm. Garland was dumb to appoint a man who had been a Trump appointee. He could have chosen a career prosecutor like Jack Smith. He could have redacted the gratuitous slams at Biden. He hurt Biden through his vain desire to show how “nonpartisan” he is. He handed Biden over to a highly partisan prosecutor.
This is the problem with Garland: his desire to be perceived a certain way. In his case, that way is fair and non-partisan. But decisions motivated by a need to maintain an outward appearance are compromised, sometimes just as compromised as decisions motivated by partisan political ends.
Yes, Garland looks better than Barr. That is the point, after all. But the president he serves takes a beating in service of this narcissistic goal. Whatever principles of justice, broadly defined, Garland thinks he is serving will be more gravely injured by a resultant Trump victory in November than they would have been by the “controversy” generated by him insisting on Hur editing his egregious report.
https://www.theguardian.com/us-news/2024/feb/15/house-republicans-hearing-robert-hur-biden-report — reports:
“The House judiciary committee, chaired by rightwing Republican Jim Jordan, will hear testimony from Hur on 12 March, two unnamed people familiar with the plans told the Associated Press on Thursday. The White House declined to comment on the plans.”
“[…] Republicans want to hear from Hur after his report last week offered an unflattering assessment of Biden’s competency and age.”
I have seen no online indication whether Bradley Weinsheimer would also be an intended witness, to bolster his saying Hur’s report met standards.
This critique of Garland – that he would rather preserve the reputation of the DoJ & its people than preserve the republic, if the two are in conflict – is also the substance of the allegation that he didn’t prosecute Trump’s obstruction crimes 3 years ago, which would have had Trump in jail now. Allegedly ‘Bill Barr made prosecuting these crimes impossible’, but only if you pretend that Barr wasn’t a corrupt mook, his all too convenient theory that Presidents cannot obstruct justice was & is at best in error & at worst, complete BS, & that every decision he made, memo he wrote & order he issued could have been declared invalid & retroactively withdrawn. But that would have made the Trump DoJ look as fundamentally corrupt as it obviously was, which would have damaged the reputation of that unimpeachable institution.
It’s plausible that a decision not to besmirch the reputation of the DoJ in 2021 could result in the US taking a hard dive into literal fascism, with a newly reconfigured post purge Trump DoJ developing a new & justified reputation as Trump’s version of the NKVD. But as long as nobody ever had to admit that the DoJ was fundamentally corrupt & corrupted during Trump era during Biden’s term, it will all have been worth it.
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You’re new here. That’s not even a question because if you’d been reading this site regularly you’d know why Trump and his immediate co-conspirators couldn’t have been indicted in 2021.
I suggest reading these two posts for starters:
https://www.emptywheel.net/2022/02/02/while-tv-lawyers-wailed-impotently-doj-was-acquiring-sidney-powell-and-rudy-giuliani-and-probably-mark-meadowss-communications/
https://www.emptywheel.net/2023/08/09/the-overt-investigative-steps-into-trumps-co-conspirators-tv-lawyers-ignored/
And then ask yourself if the media you’ve been following up to now has ever done adequate reporting on issues covered in this post:
https://www.emptywheel.net/2021/12/03/ten-things-tv-lawyers-can-do-rather-than-whinging-about-merrick-garland/
I’m not “new” here. There are fair questions. Your two cites, and only to here, proves only a little;
It seems to me that Hur’s evident partisanship creates a narrative of “he tried to find dirt on Biden as hard as he could, but really didn’t come up with anything”
That’s a good narrative. Did Garland think that way? I have no idea.