Trump inquiries present a stress test for Justice in a polarized nation

On the morning of Jan. 6, 2021, Merrick Garland was busy typing away in his upstairs office at home, finalizing remarks he planned to deliver the following day when he was to be introduced as Joe Biden’s nominee to be attorney general.

The speech was originally a summons to restore the Justice Department “norms” of independence after political meddling during the Trump administration that depleted morale and sapped public confidence. Then, after protesters burst through the barricades at the Capitol, Garland began a major rewrite that referenced the attack, and fortified his pledge to hold anyone who threatened democracy to account, from bottom to top.


The department would impartially investigate the attack, without “one rule for the powerful and one for the powerless,” Garland said during his somber introduction Jan. 7.

Garland’s conjoined promises — restoring broad confidence in the department’s impartiality while investigating without favor the politically powerful — were not mutually exclusive. But achieving both simultaneously is proving to be an elusive goal as prosecutors at the federal and local level investigate former President Donald Trump on multiple fronts.

Even in the absence so far of any charges against Trump, political polarization runs so deep, and mistrust of federal law enforcement is so ingrained on the right, that efforts by Garland and others to offer assurances that justice is being dispensed without regard to politics are often drowned out by powerful counterforces. Among the strongest of those forces are allies of Trump who have sought to undercut the legitimacy of the Justice Department in general and the FBI in particular.

The Justice Department “has been a remarkable backstop,” said Lindsay Chervinsky, a presidential historian and senior fellow at the Center for Presidential History at Southern Methodist University. “But the department is being given a role that it was never really designed to have — defending American democracy.”

In some ways, the confluence of Trump-focused inquiries is putting the criminal justice system through a public stress test unlike any in American history.

Multiple Trump investigations are marching toward decision points — and potential indictments — starting with the inquiry by Manhattan District Attorney Alvin Bragg into hush money payments to a porn actress.

In Georgia, a local prosecutor is moving toward a decision about charges related to efforts by Trump and his allies to overturn Trump’s 2020 election loss in that state.

Justice Department special counsel Jack Smith scored an important legal victory this week that could provide critical evidence in the investigation into Trump’s handling of classified documents and the possible obstruction of justice. Smith is also overseeing the parallel investigation into Trump’s efforts to remain in office after losing the 2020 election and his role in instigating the events of Jan. 6, 2021.

For months, Justice Department officials have been bracing for an all-out attack from the Republican-controlled House, which has launched investigations into what it calls the “weaponization” of the department against the right.

Trump set a more menacing tone shortly after the Mar-a-Lago search last year, when he told a rally in Pennsylvania that “the FBI and the Justice Department have become vicious monsters.”

Officials expect the reaction to any indictment of Trump by a grand jury in New York on the hush money charges to be swift and ferocious — a preview of the bigger reaction expected if federal prosecutors indict Trump.

That apprehension is especially acute inside the FBI, which bore the brunt of recrimination following its long probe of the Trump campaign connections to Russia, and in the aftermath of the documents search of the former president’s Florida club and residence, Mar-a-Lago, in August. The FBI remains a popular target for Republicans in Congress.

“It is much easier to break something and undermine it than repair it,” said Peter Strzok, a former senior FBI agent. Strzok was involved in the investigation into ties between the 2016 Trump campaign and Russia and was the target of repeated attacks by Trump and his supporters on the right.

The goal of many Trump allies in attacking the bureau, he said, was to “chill” FBI investigators, which would ultimately weaken the Justice Department’s case against Trump.

Trump supporters have long cast Strzok as a villain and a central actor in a “deep-state” plot to damage the former president. The former FBI agent has never been accused of a crime by the government, and the department’s inspector general found no “documentary or testimonial evidence that political bias or improper motivation influenced” officials’ decision to open the Russia investigation.

In the short term, senior Justice Department officials are concerned that Bragg’s case, centered on how Trump handled the porn actress’s threats to go public with an account of what she said was a sexual liaison with him, will be conflated in the public consciousness with the differing federal investigations into Trump.

“Everything gets merged together, so people sometimes lose the nuance that these are separate investigations conducted by different entities,” said Anthony D. Coley, who served as Garland’s spokesperson until earlier this year.

Coley said those concerns were not likely to influence Smith, who has sought to portray himself inside the department as unswayed by external factors. Garland has said much the same in his terse public discussions of the probe.

But Garland, a former federal judge, is keenly aware that the prosecution of a former president and leading presidential candidate from the opposing party has enormous political consequences. And he has taken steps to ensure that the department’s side of the story is being told — disclosing key details of the investigation in public court filings, to make the case that his investigation represents the pursuit, not perversion, of justice.

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