Critics of the former President have demanded a response to what they charge are the many injustices and potential crimes of the Trump administration. But four months into President Joe Biden’s term, liberal advocates and some lawmakers are growing impatient that the Justice Department hasn’t done more to expose the Trump administration’s alleged misdeeds — and in some cases has even tried to help shield them.
So far, the Justice Department under Attorney General Merrick Garland has often favored protecting the powers of the executive branch, in keeping with a trend of recent presidential administrations. At times, that has meant helping Trump and his advisers keep their most confidential documents and decisions secret.
That’s not to say the Biden administration has left the Trump era untouched.
In late April, federal agents executed search warrants on Trump’s personal attorney Rudy Giuliani. Democrats have also received some documents related to Trump’s Washington hotel lease that the Trump administration had kept hidden. And on Friday, House Democrats will finally get the chance to interview former White House counsel Don McGahn about Trump’s efforts to obstruct justice.
While the Justice Department’s position on several other key Trump-era controversies has frustrated liberal critics eager to go after the former President, Justice officials tell CNN the department’s leaders have tried to cast the current administration as restoring normalcy after four years of Trump interfering in the nation’s top law enforcement agency.
Part of that effort, the officials say, is refraining from using the department to relitigate controversies from the previous administration.
It’s “a return to business as usual for DOJ — and not DOJ swinging as frantically to an anti-Trump agenda as it did to the pro-Trump one that I and many other observers abhorred,” said Norm Eisen, a former Obama administration ethics official and House Judiciary Committee consultant in 2019, when the panel first subpoenaed McGahn, and a CNN legal analyst.
“I appreciate the independence. I don’t always agree with the positions,” said Eisen, who would like to see more released by the Justice Department. “They’re going to act with that same independence in defense of what they perceive to be in the long-term interests of the executive branch.”
Democrats’ white whale
The Biden administration now has control over three high-profile documents that are still central to Democrats’ court fights related to Trump: Trump’s tax returns, held by the IRS; grand jury material underpinning the Russia investigation; and the key internal memo to former Attorney General William Barr justifying the decision not to charge Trump with obstruction in former special counsel Robert Mueller’s investigation. House Democrats are also still pursuing subpoenas to a Trump bank and his accounting firm.
Trump’s taxes have been the white whale of Democratic investigators for years, ever since the New York business mogul refused to turn over the records when he first became a candidate for president in 2015. When Democrats won control of Congress in 2019, House Ways and Means Chairman Richard Neal sent a formal request to the Treasury Department to turn over six years of Trump’s personal and business tax returns, arguing they were necessary to know whether the presidential audit system was working properly.
The Massachusetts Democrat told CNN last month that he is still pursuing the case. Sources close to Neal say the House is hopeful for a resolution from the Biden administration sooner rather than later. But there’s also a real concern that the matter is going to linger indefinitely, the sources said.
Recent proceedings in the IRS tax return case, in which the two sides say they’re talking but haven’t found an agreement, signal that the fight may end without a clear winner — and without the Biden administration cleanly handing over the tax returns. The Justice Department has yet to signal whether it would turn over the records.
In a court filing last week, the House and the Biden administration asked for another month to continue negotiating.
“Perhaps the temperature has dropped a little bit, and I like to think there’s room for some agreement not to give one party exactly what they’re seeking,” federal Judge Trevor McFadden told Biden’s Justice Department and the House in court in May, responding to the update that they were in talks.
Trump’s tax returns are no longer completely under lock and key, either. The Manhattan district attorney obtained them earlier this year through a lawsuit of his own.
‘This institutional rivalry’
The battle over Trump’s finances is just one of several decisions Garland faces as he and others in the Biden administration grapple with how to handle numerous political and legal questions tied to Trump and his administration.
Chief among those questions is how to deal with Garland’s predecessor.
Last week, Garland’s Justice Department partly sided with Barr. The department partially appealed a judge’s order to release a 2019 memo written for Barr about how to handle Mueller’s findings on Trump and obstruction of justice. The Justice Department tried to offer some transparency: A federal judge had slammed the department for considering the optics of the Mueller report’s rollout, and the department made that section public.
But the department is now fighting to keep redacted six-and-a-half pages of legal analysis on whether a criminal case against the then-President was merited, even if he could not be charged under Justice Department policy.
Trump critics were unhappy with Garland’s move.
“The appearance, if not the reality, of what Mr. Barr did to the Justice Department cannot be ignored: He used his mighty prosecution powers to protect the Trump administration and its friends, including the president,” former Obama-era acting Solicitor General Neal Katyal wrote in a May 26 New York Times op-ed, calling for the release of the full internal Justice Department memo Barr relied on to announce there wasn’t an obstruction case to be made against Trump.
Congressional Democrats urged Garland not to appeal the judge’s decision. Senate Judiciary Chairman Dick Durbin, an Illinois Democrat who sent a letter to Garland pressing him not to stop the release, said last week that he was surprised by the Justice Department decision and was reaching out to Garland to learn his rationale.
“There is this institutional rivalry between executive and legislative branches that overlays or perhaps underlays the misbehavior that the judge found within the department,” said Sen. Sheldon Whitehouse, a Rhode Island Democrat who joined Durbin’s letter.
House isn’t dropping Trump probes
The Justice Department’s stance shouldn’t be a surprise, given that Biden came into office with a team that was vowing to move on from the Trump-era controversies.
The House committees that investigated Trump, however, have vowed to keep pursuing their cases that are tied up in court. Democrats argue that they’re important not just to assert Congress’ power to subpoena the executive branch, but also that the information they obtain could be relevant politically with Trump continuing to flirt with a comeback 2024 presidential bid.
In a March memo renewing a subpoena to Deutsche Bank, a bank used by the Trump Organization, House Intelligence Chairman Adam Schiff, a California Democrat, wrote that the committee sought to understand “the extent and degree of any continuing foreign financial entanglements” Trump may have that could pose a counterintelligence risk.
The McGahn case was a notable, though delayed, success for the House.
The House Judiciary Committee had sought the interview with McGahn after he ignored the panel’s subpoena in 2019, and the Trump Justice Department defended him in court, claiming absolute immunity for top White House officials. The Biden Justice Department and the House reached an agreement last month for McGahn’s closed-door session, in which he can be asked about the episodes of obstruction documented in the Mueller report. A transcript will be released after the Friday interview.
Another House committee, Transportation, quietly received long-sought records related to the Trump International Hotel last month from the Biden administration’s General Services Administration, the building’s landlord.
The other cases may take longer or could fizzle. The Supreme Court was set to hear an appeal from the administration as it sought to keep grand jury documents cited in the Mueller report under seal, after the House won access in court. That hearing has been postponed.
‘Close to an agreement’
The House’s push for financial documents and Trump’s tax returns has another obstacle beyond the Biden administration: Trump himself. The former President’s involvement in the cases, now as a private citizen who has several teams of lawyers protecting his interests, may be one reason for the stalemates.
Trump’s private lawyers are still in court fighting standoffs over the House committee subpoenas to Deutsche Bank and the accounting firm Mazars. Last month, both sides said they were “close to an agreement” over Deutsche Bank’s Trump family financial records.
But with Mazars — the same firm that has already provided Trump’s tax returns to a prosecutor in New York — Trump’s team still seeks to block the House Oversight Committee’s subpoena.
“It burdens individuals, to put it mildly, to have Congress obtain and publicly expose their entire financial history over the last decade,” Trump’s lawyers wrote in a recent court filing, playing up the need to protect the executive.
The Justice Department is not involved in the Mazars lawsuit.
In the cases where the House is negotiating with the Biden administration, Trump’s lawyers still loom. When the Justice Department and Congress reached a deal for McGahn’s testimony, Trump’s lawyers didn’t attempt to step into the case and object. But they could do so if a deal is struck for the former President’s tax returns: Trump’s lawyers already have won a court-ordered grace period of three days if the administration were to decide to give the tax returns to the House.