The Justice Department Hits a New Low with the Epstein Files
On a Friday evening in October 2021, the Justice Department went into damage control mode. Attorney General Merrick Garland, Deputy Attorney General Lisa Monaco and other top officials met in an emergency conference call to decide how to handle what they saw as inappropriate remarks from President Joe Biden.
Steve Bannon, Donald Trump’s former adviser, had defied a subpoena from the House select committee investigating January 6. Committee members debated whether to refer Bannon to the Justice Department for prosecution. White House press secretary Jen Psaki avoided commenting on such a sensitive issue. “That would be up to the Department of Justice, and it would be up to them to determine that,” she told reporters. “They are independent.” But Biden, asked by CNN reporter Kaitlan Collins whether he thought those who ignored subpoenas should face contempt charges, did not mince his words. “Yes, yes,” he said.
As Carol Leonnig 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 reprimanding their boss. Just fifty-one minutes after Biden’s comments, the department’s chief spokesperson, Anthony Coley, issued this deliberately acerbic comment: “The Department of Justice will make its own independent decisions in all prosecutions, based solely on the facts and the law. Period. Period.”
Compare that with the reaction of another Justice Department, on another fall Friday, four years later, to a much more specific presidential directive. “Now that Democrats are using the Epstein hoax, involving Democrats, not Republicans, to try to distract from their disastrous ARREST and all their other failures, I will ask AG Pam Bondi and the Department of Justice, along with our great patriots at the FBI, to investigate Jeffrey Epstein’s involvement and relationships with Bill Clinton, Larry Summers, Reid Hoffman, JP Morgan, Chase and many other individuals and institutions, to determine what happened. it continues with them and with him,” Trump posted on Truth Social. “All the arrows,” he wrote, “point to the Democrats.”
This time, the attorney general’s response was not a full stop; it was at full speed. “Thank you, Mr. President,” Bondi responded on X, as if grateful for the mission. Jay Clayton, the US attorney in Manhattan, would “take the lead,” she assured Trump. William Barr, Bondi’s predecessor during Trump’s first term, was moved to publicly complain that the president’s frequent tweets about current affairs “make it impossible for me to do my job.” Bondi considers immediate obedience to Trump’s social media edicts his job description.
One of the challenges of covering Trump’s Washington is guarding against becoming exhausted by the endless stream of aberrant behavior, one politically motivated and factually deficient investigation after another. But, until the Clayton investigation was announced, Trump’s Justice Department was at least pretending that it was investigating crimes — that there was some basis (“preaching,” in DOJ parlance) for FBI agents and prosecutors to go after the actions of the president’s political enemies. The social media prosecution of Trump and Bondi’s enthusiastic obedience cross yet another line once considered inviolable.
Not only is this behavior not normal; it is also, as is becoming increasingly clear, doomed to failure. Experienced and ethical prosecutors want nothing to do with political prosecutions. That leaves such cases in the hands of inexperienced lawyers like Lindsey Halligan, the insurance lawyer appointed by Trump to serve as U.S. attorney for the Eastern District of Virginia after his first choice for the job, Erik Siebert, balked at bringing mortgage fraud charges against New York Attorney General Letitia James. That’s how Halligan found herself appearing before a grand jury for the first time, racing against a statute of limitations to file false statements charges against former FBI Director James Comey. Last Monday, a federal magistrate judge, citing a “disturbing pattern of profound missteps in the investigation,” granted the “extraordinary remedy” of giving Comey access to grand jury documents. These are usually secret, but the judge said Halligan made “fundamental misstatements about the law that could compromise the integrity of the grand jury process.”
The judge’s order is partially redacted, but Halligan appears to have misled the grand jurors about Comey’s constitutional right not to testify. The judge also found that while the grand jurors questioned whether there was adequate evidence against Comey, Halligan “clearly suggested” that “they were not obligated to rely solely on the record before them to determine probable cause, but could be assured that the government had more evidence — perhaps better evidence — that would be presented at trial.” » That’s not how prosecutions work. Grand juries are not instructed to issue indictments in the hopes that the government will produce more evidence later. Halligan has filed an emergency appeal, but his apparent incompetence could doom the case against Comey. On Wednesday, the district judge hearing the case, Michael Nachmanoff, questioned Halligan about the validity of the indictment if not all grand jurors had approved the final version — something she acknowledged, but later denied.
Ultimately, it took Trump just two days to move from denouncing the “Epstein hoax” to supporting a House decision to order the Justice Department to release the Epstein records. Never mind that he went to extreme lengths to pressure lawmakers to vote against the measure. Never mind that he didn’t need to wait for a decision from Congress; he could order the release himself. It was a humiliating about-face the likes of which we’re not accustomed to seeing from the president, but it reflected Trump’s submission to inexorable political arithmetic: Only one Republican member of the House, 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 available as quickly; the Justice Department could seek to invoke the Trump-ordered investigation to avoid releasing the records. Congress, controlled by Republicans, could show signs of independence, even belatedly. But the president can take solace in knowing he still has the subservient attorney general of his dreams. ♦
