DOJ hits new low with Epstein files

On a Friday evening in October 2021, the Department of Justice went into damage control mode. Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco, and other top officials met on an emergency conference call to decide how to handle what they viewed as out-of-line comments from President Joe Biden.

Steve Bannon, a former adviser to Donald Trump, challenged a subpoena from the House Select Committee investigating on January 6. Committee members were considering whether to refer Bannon to the Ministry of Justice for trial. White House press secretary Jen Psaki avoided commenting on such a sensitive issue. “This will be up to the Ministry of Justice, and it will be their jurisdiction to determine that,” she told reporters. “They are independent.” But Biden, when asked by CNN’s Kaitlan Collins if he thought those who ignored subpoenas should face contempt charges, didn’t mince words. “I do, yes,” he said.

As Carol Leunig and Aaron C. Davis report in their new book, “Injustice,” those three words so alarmed Garland and his team that they felt compelled to issue a statement effectively rebuking their boss. Just fifty-one minutes after Biden’s comments, the department’s chief spokesman, Anthony Cooley, issued this deliberately scathing comment: “The Department of Justice will make its own independent decisions in all prosecutions based solely on the facts and the law. Period. End.”

Contrast that with the Justice Department’s other reaction, on another fall Friday, four years later, to presidential guidance that was much clearer. “Now that Democrats are using the Epstein hoax, involving Democrats, not Republicans, to try to deflect attention from their disastrous decision to shut down the network, and all their other failures, I will ask Attorney General Pam Bondi, and the Department of Justice, along with the great patriots of the FBI, to investigate Jeffrey Epstein’s involvement and his relationship with Bill Clinton, Larry Summers, Reid Hoffman, JP Morgan, Chase, and many others.” “People and institutions to determine what happens to and with them,” he wrote. “All arrows point to Democrats,” he wrote.

This time, the Attorney General’s answer was not halting; It was full speed ahead. “Thank you, Mr. President,” Bundy replied to X, as if grateful for the assignment. She assured Trump that Jay Clayton, the US Attorney for Manhattan, “will take the lead.” William Barr, Bondi’s predecessor during Trump’s first term, was led to complain publicly that the president’s frequent tweets about pending cases “make it impossible for me to do my job.” Bondi takes immediate obedience to Trump’s social media edicts as her job description.

The challenge of covering Washington in the Trump era is to avoid being burned out by a constant stream of erratic behavior, one politically motivated and fact-incomplete investigation after another. But until the Clayton investigation was announced, the Trump Justice Department was at least engaging in the thin pretense that it was investigating crimes – that there was some basis (“attribution,” in Justice Department parlance) for FBI agents and prosecutors to look into the actions of the president’s political enemies. Trump’s prosecution through social media, and Bondi’s extreme compliance, cross another line that was once thought inviolable.

Not only is this behavior abnormal; It is also, as is becoming increasingly clear, self-defeating. Experienced and ethical prosecutors want nothing to do with political trials. That leaves such cases in the hands of inexperienced lawyers like Lindsey Halligan, the insurance lawyer appointed by Trump to serve as United States Attorney for the Eastern District of Virginia, after his initial choice for the position, Eric Seibert, declined to file mortgage fraud charges against New York Attorney General Letitia James. So Halligan found herself appearing before a grand jury for the first time, racing against the statute of limitations deadline for bringing false charges against former FBI Director James Comey. Last Monday, a federal judge, citing a “troubling pattern of profound errors in the investigation,” granted “extraordinary remedy” by granting Comey access to grand jury materials. These are usually confidential, but the judge said Halligan had made “fundamental errors of law that could jeopardize the integrity of the grand jury process.”

The judge’s order was partially redacted, but Halligan appears to have misled grand jurors about Comey’s constitutional right not to testify. The judge also found that while grand jurors grappled with whether there was sufficient evidence against Comey, Halligan “clearly suggested” that they “not have to rely solely on the record before them to determine probable cause, but can be assured that the government has more evidence — and perhaps better evidence — that will be presented at trial.” That’s not how prosecutions work. Grand juries are not required to issue indictments in the hope that the government will present more evidence in the future. Halligan filed an emergency appeal, but her apparent incompetence could doom the case against Comey to failure. On Wednesday, the district judge hearing the case, Michael Nachmanoff, questioned Halligan about whether the indictment would be valid if not all of the grand jurors agreed to the final version — something she admitted, but later denied.

In the end, it only took two days before Trump went from condemning the “Epstein hoax” to supporting the House’s move to require the Justice Department to release the Epstein files. Regardless, he has done his best to pressure lawmakers to vote against the measure. Never mind that he didn’t need to wait for congressional action; He can order the release himself. It was a humiliating reversal of the kind we’re not accustomed to seeing from a president, but it reflected Trump’s acquiescence to stubborn political calculations: A single House Republican, Clay Higgins of Louisiana, voted against the bill, and the Senate passed it by unanimous consent and sent it to Trump, who signed it. Despite this lopsided vote, the documents may not be released so quickly; The Justice Department could seek to subpoena the investigation ordered by Trump to avoid disclosure of the files. The Republican-controlled Congress may be showing signs of independence, albeit belatedly. But the president can take solace in knowing he still has the submissive prosecutor of his dreams. ♦