This memorandum sets up a new set of guidelines and communications between the Justice Department and the Executive Office of the President.
On July 21, U.S. Attorney General Merrick Garland issued a formal memorandum promulgating new guidelines for communication between the Justice Department and the Executive Office of the President. The memo provides that, with few exceptions, the DOJ “will not advise the White House concerning pending … investigations or cases unless doing so is important for the performance of the president’s duties and appropriate from a law enforcement perspective.” In addition, any future communications with the White House must be channeled through the attorney general or the deputy attorney general.
The purpose of these requirements, Garland noted, is to insulate line prosecutors and investigators from “inappropriate influences,” including partisan politics. To emphasize the point, the memo also prohibits the consideration of “actual or perceived political affiliation” in personnel decisions for career DOJ employees.
Referencing similar policies that have existed for “more than four decades,” the memo seeks to root these guidelines in the DOJ’s “longstanding departmental norms of independence.” That’s true; every administration since Jimmy Carter has had some form of guidelines covering DOJ communications with the White House. But while Garland expressly appealed to the DOJ’s long history, the memo has largely been received and reported on in the press as a critique of the DOJ’s more recent past. Although the memo itself never refers to the Trump administration, it was quickly framed in the popular press as a rebuke of the former president’s efforts to politicize DOJ decision-making.
But to the career professionals inside the DOJ—the primary audience for the memo—the message was somewhat different. The DOJ has always straddled an awkward position within the executive branch. It simultaneously provides legal advice to the president and potentially investigates wrongdoing by his friends and supporters. It is charged with effectuating the policies of elected officials and appointees, but is composed mostly of civil servants who wish only to perform their jobs well and without interference.
For as long as there has been a DOJ, there have been internal debates about how to balance these competing interests and responsibilities. At one end of the spectrum are proponents of a unitary executive, for whom even the idea of DOJ independence is anathema. Under this view, everyone in the DOJ derives authority solely from the President, who alone is charged by Article II of the Constitution to “take care that the laws be faithfully executed.” To adherents of unitary executive theory, the president may properly direct the attorney general or any other subordinate at the DOJ in any way he sees fit.
At the other end of the spectrum is a culture of apolitical professionalism that places fidelity to the “rule of law” above the edicts or preferences of any one president. After all, this thinking goes, each line prosecutor and special agent swears an oath to “support the Constitution of the United States,” not the partisan or political interests of the person in charge. By the same token, each prosecutor also has independent professional and ethical obligations as an officer of the court, to act with basic fairness and honesty, to use reasoned discretion, and to treat similar cases the same.
In the decades since Watergate, the apolitical professional view has tended to predominate amongst the DOJ’s career staff. The work culture among prosecutors and agents generally abhors displays of partisanship, places a high premium on personal credibility, and aspires to a kind of detached objectivity in the administration of justice. Common DOJ truisms about “doing justice” or acting “without fear or favor” generally reflect this viewpoint. Administrations of both parties have tested, and frequently chafed against, this culture of apolitical professionalism. Some have characterized it as a barrier to reform or accountability. It has also, at times, served as an important check on the worst impulses of the political leadership.
In tone and substance, Garland’s memo allies him with the apolitical professional view, and thus the perspective shared by most of the career staff that Garland seeks to lead. With the manner of a former career prosecutor who remains generally suspicious of politics, Garland’s memo makes repeated reference to the need to “protect” DOJ staff and cases from partisan influence. In short, Garland appears to be earnestly attempting to reassure the DOJ’s career personnel: “I am one of you, and I will protect you from the political chaos roiling other parts of the government.”
At the same time, the memo is blunt about the rather fragile legal foundations upon which Garland’s preferred values rest at DOJ. As the memo acknowledges, the DOJ’s culture of independence is the result of norms, not formal legal protections. And the concepts that underlie this tradition—including the rule of law itself—remain fairly squishy and subjective.
Even Garland’s own prohibitions on White House communications contain ambiguous exceptions that threaten to swallow the rule. Exactly what matters, for example, qualify as sufficiently “important” or “appropriate from a law enforcement perspective” to support alerting the White House? Presumably, any matters that the attorney general or the president himself may decide. Future leaders who do not share Garland’s professional outlook are likely to take a capacious view. And of course, Garland’s memo itself may be rescinded or superseded the next time political winds shift.
In that sense, while the memo is clearly intended to reassure career staff and reinforce Garland’s preferred norms at the DOJ, most line prosecutors and agents may find limited comfort. Far from a permanent guarantee against political interference or retaliation, Garland’s memo seems like a temporary reprieve at best.
Sean McDonnell is a partner in Mayer Brown’s Washington, D.C., office and a former federal prosecutor, who served in the DOJ from 2016 to 2021.
Reprinted with permission from the August 9, 2021 edition of The National Law Journal © 2021 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.
To read this complete article visit The National Law Journal (subscription required).