The DOJ is the only “law firm” that represents a client (the United States) in cases that overlap the change in the attorney general. The incoming attorney general may have different views on important national cases when he or she comes in, but the Justice Department cannot function without continuity, and thus if a change occurs in the middle of a case, DOJ attorneys don’t suddenly reverse their earlier position. A.G. Merrick Garland followed this rule to a fault when he continued the DOJ’s representation of Donald Trump in the E. Jean Carrol defamation case, a case that Bill Barr decided to take the unheard-of step of representing a president in a purely personal matter. No one thought the Biden administration’s DOJ would continue its representation of Trump, and yet it did.
So, yes, left unchecked is the fact that DOJ is defending Trump in one case (that involves underlying criminal behavior) and is investigating him and possibly prosecuting him in another. That is a problem, and The Daily Beast’s Shan Wu has an essay out discussing the ramifications:
Garland’s decision to side with Bill Barr—presumably made while Garland was wearing his institutionalist cape—might have been merely distasteful if not for the Mar-a-Lago search warrant and ongoing criminal investigation. But critical to DOJ’s rationale that it can represent Trump—and what the Second Circuit agreed about—is that Trump was a federal employee when he made the allegedly defaming statements.
But that is not what Trump’s other lawyers think, as evidenced by a May 25 letter from Trump lawyer Evan Corcoran to DOJ denying that the President of the United States is a federal employee. Corcoran argued to DOJ that Trump could not possibly be criminally liable for mishandling classified information, because DOJ would have to prove beyond a reasonable doubt that Trump was an “officer, employee, contractor, or consultant of the United States” and “The President is none of these.”
As massive as DOJ may be, and it is, it still must pick a course of action, a single position in every case, or it leaves itself wide open to a conflict, and that’s horrific, especially when the civil case came first, establishing precedent, followed by the criminal case, where the rules governing criminal procedure and case law exists specifically to protect the rights of citizens from inconsistent prosecution:
Though it is certainly not ideal, the DOJ does have some options going forward:
Of course, DOJ has likely been thinking this through as well. AG Garland is, after all, a former federal court of appeals judge, and likely has good arguments about why this awkward but rare situation is not a true conflict of interest.
One solution might be for DOJ to appoint a special counsel to handle the Carroll defense, since that is an easier case to segregate than the investigation involving Mar-a-Lago. Another solution would be for DOJ to disavow former AG Barr’s decision, and withdraw from defending Trump in Carroll’s defamation suit.
They should withdraw from the Carroll case immediately, citing concerns about a possible conflict if it files charges against Trump. So long as charges have yet to be filed, there is a chance they can avoid the conflict. As Wu suggests, DOJ can appoint a special counsel and pay the legal bills, thus preserving Barr’s “position” on the matter (to cover Trump) and the freedom to continue the theory in Trump’s defense.
Clearly, the investigation and possible prosecution of criminal cases against Trump take precedence over the idiotic defense of Trump in a defamation case. But DOJ must move with speed to dump the potential conflict, or it will face serious consequences in any potential criminal indictment.
@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact for speaking engagements or any concerns.