Tag: Merrick Garland

Hur lied

On March 13, 2024

Special counsel Robert Hur. Photo (cc) 2021 by Maryland GovPics.

I’m not sure how else we can characterize what happened. Special counsel Robert Hur all but called President Biden senile recently in describing him as “a well-meaning, elderly man with a poor memory.” Hur declined to recommend charges against Biden for keeping classified information in his possession, essentially arguing that it would be cruel to do that to an 81-year-old man in the early stages of dementia. And, of course, the media fell for it.

Now we know that Hur’s report grossly mischaracterized the reality, revealed in the transcripts of Biden’s deposition with prosectors. CNN media reporter Oliver Darcy has a good roundup of the media mea culpas, writing:

The acknowledgement from some, but not all, news outlets on Tuesday about the true nature of Biden’s deposition marked another embarrassing moment for the national press, which has floundered at pivotal moments in the lead up to the crucial 2024 presidential election.

The deposition transcripts not only indicated that Biden appeared fairly sharp during his testimony, joking with investigators and retelling stories with granular detail, but that Hur was misleading in how he presented some of the information included in his report.

It’s like a rerun in reverse from 2019, when then-Attorney General Bill Barr put out a summary of special counsel Robert Mueller’s investigation into the Trump campaign’s Russia ties that falsely declared Donald Trump had not obstructed justice. It became clear that’s not what Mueller was saying once his full report came out, but truth, boots, etc.

I especially enjoyed this account of Biden’s deposition, from Charlie Savage’s report Tuesday in The New York Times:

“I don’t remember how a beat-up box got in the garage,” he [Biden] said, speculating that someone packing up must have just tossed stuff into it. He added that he had “no goddamn idea” what was in a tranche of files shipped to his house and “didn’t even bother to go through them.”

Who among us?

Now, it has to be said that it was Attorney General Merrick Garland who named Hur, a one-time Trump appointee, as the special counsel. Given Hur’s predictably mendacious performance, I’d say that chances of Garland’s serving in a second Biden administration, should there be one, are nil. And they should be.

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Globe journalist forced to testify despite First Amendment concerns

By Dan Kennedy

On December 14, 2022

In First Amendment

Moakley Federal Courthouse in Boston. Photo (cc) 2017 by Beyond My Ken.

A Boston Globe journalist was forced to testify Tuesday in U.S. District Court in a case involving the Harvard admissions scandal. According to the Globe’s Shelley Murphy, politics editor Joshua Miller briefly took the witness stand and attested to the accuracy of quotes in an April 2019 article for which he interviewed the defendant, Jie “Jack” Zhao. Zhao has been charged with purchasing a Needham home at an inflated price owned by then-Harvard fencing coach Peter Brand so that Zhao’s two sons would be admitted to Harvard.

Miller’s compelled participation raises troubling First Amendment issues. Miller testified after a federal judge ruled against his motion to quash a subpoena. That’s not especially surprising. When faced with the prospect of requiring a journalist to testify, judges usually are more likely to rule against the journalist in a criminal case rather than in a civil matter, and they are more likely to rule against the journalist if they are not being ordered to reveal a confidential source. In this case, prosecutors merely sought Miller’s testimony so that they could enter his article into the record.

Nevertheless, the Globe’s lawyer, Jonathan Albano, cited in his motion to quash “the widespread recognition that the First Amendment protects journalists from the needless disclosure of sources, investigative techniques, and both confidential and non-confidential work product.”

Miller’s case also was the subject of a “friend of the court” brief filed by the Reporters Committee for Freedom of the Press, joined by 40 other media and legal organizations including the Center for Investigative Reporting, the Committee to Protect Journalists, Dow Jones, the First Amendment Coalition, the Freedom of the Press Foundation, Gannett, the Massachusetts Newspaper Publishers Association, McClatchy, MediaNews Group, the New England First Amendment Coalition, the New England Newspaper and Press Association, the NewsGuild, The New York Times, the Society of Professional Journalists, Tribune Publishing and others.

The Reporters Committee brief was submitted by First Amendment lawyer Robert Bertsche of the Boston firm Klaris Law. Perhaps the most notable aspect of his brief is that he observes the subpoena was not limited to asking that Miller attest to the accuracy of his article but, rather, was “open-ended.” In other words, if Miller was on the witness stand and was unexpectedly asked about confidential sources or reporting methods, he would either have to answer or refuse and thereby risk being held in contempt of court. Bertsche wrote:

Compelling reporters to testify about their communications with sources — even on-the-record, nonconfidential conversations — harms the newsgathering and reporting process, to the ultimate detriment of the public. It embroils reporters in time-consuming litigation and diverts news organizations’ already scarce resources away from newsgathering and reporting — burdens that weigh especially heavily on journalists who regularly investigate and report on matters that could involve potential criminal activity, and thus whose interviews and other work product could regularly be the target of federal prosecutors. Moreover, enforcement of subpoenas like the one at issue here threatens to erode public trust in the independence of the news media by creating the misimpression that journalists are an investigative arm of prosecutors and courts. That risk is particularly acute in situations where, as here, a journalist’s testimony is sought in connection with a criminal investigation launched after publication of the relevant reporting. Simply put, enforcement of government subpoenas that seek to compel journalists like Mr. Miller to testify in criminal trials risks making reporters’ existing and potential sources—both confidential and non-confidential — more reluctant to speak candidly, or simply unwilling to speak at all.

As I noted recently, Miller was subpoenaed not long after U.S. Attorney General Merrick Garland was hailed for announcing that reporters would no longer be compelled to testify in leak cases involving national security. This may be a matter of apples and oranges, but it’s notable that the stakes involved in demanding Miller’s testimony are considerably lower than the standard that Garland articulated. Yet that didn’t stop a judge from dragging a journalist into court.

The Globe is hit with a subpoena despite new rules protecting journalists

By Dan Kennedy

On November 5, 2022

In First Amendment

Merrick Garland

Well, that didn’t last long.

Late last month, supporters of a free press were celebrating when Attorney General Merrick Garland announced new guidelines aimed at protecting journalists. As Hadley Baker and Katherine Pompilio wrote at Lawfare, the rules — codifying a policy that Garland had put into effect early in his term — would prohibit “the use of compulsory legal process — the use of subpoenas, search warrants, court orders, and other investigatory practices — against ‘newsgathering’ individuals who possess and/or publish classified information.”

The rules were specifically aimed at protecting journalists in leak investigations involving classified information. But surely the guidelines would inform the Justice Department’s behavior in lesser matters, no? No. Today The Boston Globe reports that one of its editors, Joshua Miller, has been subpoenaed by federal prosecutors who are demanding that Miller testify on Dec. 5 in a case involving the Harvard admissions scandal. Miller broke that story in 2019.

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Miller would most likely not have to testify in 49 states or the District of Columbia because they either have a shield law or, as is the case in Massachusetts, a ruling from their highest state court that journalists are protected from being dragged into court at the whim of prosecutors. The only places that do not have shield protections are the state of Wyoming and the federal government. The courts, though, are supposed to balance the interests of the criminal-justice system against the importance of a free press. As Mike Damiano writes in the Globe:

In a memorandum supporting a motion to quash the subpoena, Globe counsel Jonathan M. Albano cited extensive legal precedents protecting journalists from subpoenas and referred to “the widespread recognition that the First Amendment protects journalists from the needless disclosure of sources, investigative techniques, and both confidential and non-confidential work product.”

The judge in the case may rule against the prosecution, but it shouldn’t get even that far. This is an outrage against the First Amendment. If U.S. Attorney Rachael Rollins didn’t know about it, she needs to step in immediately and put an end to it. And if she did know, then she needs to undergo the “comprehensive training” that the Garland memo refers to as soon as possible.

Politico’s extraordinary scoop on the end of Roe signals dark days ahead

By Dan Kennedy

On May 3, 2022

In Media, Politics

Photo (cc) 2014 by Thomas Hawk

A few words about the extraordinary scoop broken Monday evening by Politico that the U.S. Supreme Court has put together a draft opinion overturning Roe v. Wade, thus freeing states to ban abortion.

First, we all make fun of Politico. I make fun of Politico. It succeeded by taking the horse-race approach to politics and amping it up on steroids, which hasn’t been good for anyone. But Politico is a large news organization with many talented journalists, most definitely including Josh Gerstein and Alexander Ward, who broke the Roe story. It is possible to both generalize about Politico’s shortcomings and praise it when it produces extraordinary work.

Second, Brian Stelter, writing for CNN’s “Reliable Sources” newsletter, flagged a tweet from SCOTUSblog that is worth pondering: “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”

It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.

— SCOTUSblog (@SCOTUSblog) May 3, 2022

Good. If the right-wing majority is going to turn back the clock on reproductive rights by 50 years, then let the entire court descend into scorpions in a bottle. The interests of society as a whole may be better served by the spectacle of a court in chaos. We all need to understand that this is now a rogue institution, undone by Donald Trump’s illegitimate choices of Neil Gorsuch, who holds the seat that should have gone to Merrick Garland, and Amy Coney Barrett, rushed through at the last minute.

Third, the draft decision cites the 1896 Plessy v. Ferguson as a case whose outcome was so egregiously wrong that it had to be overturned in its entirety. Plessy failed to recognize the rights of Black Americans under the 14th Amendment and was in fact reversed in Brown v. Board of Education 58 years later. The decision to overturn Roe, though, is more like Plessy than Brown in that it takes away long-established constitutional rights.

Historian Heather Cox Richardson compares the draft opinion to the infamous Dred Scott decision, the 1857 Supreme Court case that took away what few rights Black Americans had at that time and paved the way for the Civil War. She writes in her newsletter:

And so here we are. A minority, placed in control of the U.S. Supreme Court by a president who received a minority of the popular vote and then, when he lost reelection, tried to overturn our democracy, is explicitly taking away a constitutional right that has been protected for fifty years. Its attack on federal protection of civil rights applies not just to abortion, but to all the protections put in place since World War II: the right to use birth control, marry whomever you wish, live in desegregated spaces, and so on.

The decision isn’t final yet, but I don’t see how we can expect it to change. This is a dark day in American history — the latest in many dark days. God help us all.

The Supreme Court’s vote to uphold the Texas abortion law is an affront to democracy

By Dan Kennedy

On September 5, 2021

In Politics

Photo (cc) 2006 by OZinOH

In analyzing the U.S. Supreme Court’s 5-4 vote not to overturn Texas’ drastic new abortion restrictions, a number of commentators have focused on the role played by the three justices nominated by Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

All three, needless to say, are wildly controversial. Gorsuch was chosen after then-Senate majority leader Mitch McConnell refused even to take up Barack Obama’s nomination of Merrick Garland, who’s now attorney general. Kavanaugh was confirmed despite serious and credible allegations of sexual assault. Barrett was rushed through before the 2020 election following the death of Ruth Bader Ginsburg.

But there is a more systemic problem, and that’s the failure of democracy that made last’s week’s decision possible. Trump, as we all know, lost the popular vote to Hillary Clinton in 2016 by about 3 million votes. He won only because the Electoral College, a relic of slavery, provides small rural states with disproportionate power. Yet he got to appoint one-third of the current court.

Moreover, all three of Trump’s justices were confirmed by a Senate controlled by the Republicans even though they represented fewer people than the Democrats. Gorsuch and Kavanaugh were confirmed during the first two years of Trump’s term, when the Democratic senators represented 56% of the population nationwide compared to the Republican share of 44%. That margin had narrowed slightly by the time Barrett was confirmed, but 53% of the population was still represented by Democratic senators compared to 47% by Republicans. (See my analysis.)

The other two justices who voted to uphold the Texas law were Clarence Thomas, appointed by George H.W. Bush, who was a majority president, and Samuel Alito, appointed by George W. Bush during his second term, which he won by a majority after losing the popular vote the first time around. But that’s just two votes. If Obama and Clinton had named three justices instead of Trump, it’s easy to imagine that the Texas law would have been suspended by a 7-2 vote. It’s just as easy to imagine that the Texas legislature wouldn’t have passed such a perverse and draconian law in the first place.

This is not democracy. Nor is it republicanism, since a properly designed republic is supposed to represent a majority of the electorate by proxy. It’s fair to ask how long this can go on before the majority stands up and demands an end to government by the minority.

Garland makes good on Biden’s promise to stop harassing the press

By Dan Kennedy

On July 20, 2021

In First Amendment, Media, Politics

Attorney General Merrick Garland. Photo (cc) 2016 by Senate Democrats.

Give President Joe Biden credit for having a keen understanding of what it takes to hold together his Democratic-liberal-progressive coalition.

When he said in May that it was “simply, simply wrong” for the government to spy on journalists, I was skeptical that he would follow up his sentiment with concrete action. After all, he was vice president under Barack Obama, whose harassment of reporters in his campaign against leaks was legendary. Other presidents also thought nothing about going after reporters, including Donald Trump, George W. Bush and, of course, Richard Nixon.

But press secretary Jen Psaki followed up by assuring reporters that Biden meant what he said. And, on Monday, it came to fruition with Attorney General Merrick Garland’s announcement that the administration would stop attempting to seize journalists’ records in nearly all circumstances. In a memo quoted by The New York Times, Garland wrote:

The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of news-gathering activities.

Bruce Brown, executive director of the Reporters Committee for Freedom of the Press, issued a statement of approval, saying:

The attorney general has taken a necessary and momentous step to protect press freedom at a critical time. This historic new policy will ensure that journalists can do their job of informing the public without fear of federal government intrusion into their relationships with confidential sources.

Technically, Garland was acting on his own. The attorney general is supposed to be independent of the president. But Garland could hardly continue with the anti-press policies of Biden’s predecessors after Biden himself had spoken out so strongly in favor of reform.

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Garland’s actions come in response to some truly shocking actions undertaken by the Trump administration, some of which spilled over into the first few months of the Biden presidency. Acting on what appeared to be political motivations, the Trump Justice Department sought phone and email records from journalists at The Washington Post, The New York Times and CNN. Judging from the timeline, the Trumpsters seemed to be looking into those news organizations’ reporting on the 2016 Trump campaign’s ties to Russian interests.

There are some exceptions to Garland’s order in the case of life-or-death situations, or if a reporter is believed to be actively helping a source obtain classified information. But these exceptions strike me as reasonable rather than being easily exploited loopholes.

Garland’s memo also says that the Justice Department will support efforts to pass legislation making the guidelines permanent so that they don’t expire as soon as Biden leaves office. That’s really the key, since future presidents and attorneys general would otherwise not be bound by Biden and Garland’s good intentions.

What’s next following the death of Justice Ruth Bader Ginsburg

By Dan Kennedy

On September 19, 2020

In Politics

Ruth Bader Ginsburg meets President Jimmy Carter in 1980. Photo in the public domain.

On this day of national mourning, do yourself a favor and read Linda Greenhouse’s magnificent obituary of Justice Ruth Bader Ginsburg in The New York Times. The accompanying video is outstanding as well.

So where do we go from here? During the Democratic primary campaign, Pete Buttigieg called for expanding the size of the Supreme Court as retribution for Senate Majority Leader Mitch McConnell’s refusal even to consider Judge Merrick Garland, President Obama’s choice to replace the late Antonin Scalia.

Buttigieg’s idea gained no traction then. But Joe Biden and the Democratic congressional leadership should go to McConnell immediately and make it clear that expanding the size of the Supreme Court from nine to 11 is exactly what they’ll do if he moves ahead with his grotesquely hypocritical plan to fill Ginsburg’s seat before Jan. 3, when the next Congress is sworn in.

Of course, they will then have to go out and win the White House and Senate and hold onto the House. Otherwise, even if McConnell agrees, he’ll turn around and ram through President Trump’s choice during the lame-duck session.

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Yes, Dems should filibuster Gorsuch — even though it’s not really about Gorsuch

By Dan Kennedy

On March 29, 2017

In Politics

Judge Merrick Garland, left, meets Sen. Al Franken last March. Photo (cc) 2016 by Senate Democrats.

You may have missed it amid the Sturm und Drang over the fate of health care, but late last week Chuck Schumer announced that Senate Democrats would filibuster President Trump’s nomination of Neil Gorsuch to the Supreme Court.

Schumer will almost certainly fail. But it’s worth trying to stop this illegitimate nomination. And if Senate Democrats approach it in the right way, they can make an important statement about our broken system of government and what happens when only one of our major parties is willing to respect the norms and traditions that have long guided us.

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Linda Greenhouse dissects our partisan Supreme Court

By Dan Kennedy

On March 23, 2016

In Media, Politics

Linda Greenhouse

Previously published at WGBHNews.org.

Just as Congress and the broader electorate are hopelessly divided along partisan and ideological lines, so, too, is the Supreme Court.

Before the death of Justice Antonin Scalia, there were four liberals, four conservatives, and one centrist—Anthony Kennedy. All four liberals were appointed by Democratic presidents and all four conservatives (plus Kennedy) by Republicans.

And now a partisan battle has broken out over Scalia’s replacement. Despite President Obama’s choice of a respected moderate, federal appeals court judge Merrick Garland, Senate Republican leader Mitch McConnell has vowed not even to take up the nomination. Instead, McConnell insists the decision should be left to the next president.

It’s a dispiriting scenario—and a historical anomaly. As the retired New York Times Supreme Court reporter Linda Greenhouse pointed out Tuesday, we only have to look at fairly recent history to observe a very different dynamic.

After all, President Dwight Eisenhower appointed Earl Warren to the chief justice’s position, and Warren turned out (to Eisenhower’s chagrin) to be one of the most liberal justices in the court’s history. President John F. Kennedy appointed Byron White, who was liberal on civil rights but deeply conservative on social issues. And unlike today, when advocates expend most of their energy trying to persuade just one justice, Anthony Kennedy, years ago there were regularly three, four, or more justices who might vote either way.

“I’m deeply concerned as a citizen and as someone who cares about the court and about the consequences of the politicization of the court,” Greenhouse said. “The Roberts court is allowing the court to be used as a tool of partisan warfare.” As an example, she cited the court’s decision to rule on the legality of Obama’s executive order stopping the deportation of some undocumented immigrants—a decision that she said was accompanied by an overreaching aside questioning whether Obama’s order violated the Constitution.

Greenhouse, who currently teaches at Yale Law School and who still writes online commentaries about the court for the Times, spoke at the Shorenstein Center on Media, Politics and Public Policy, part of Harvard’s Kennedy School. She offered a range of dyspeptic opinions on the political environment both inside and outside the court. To wit:

• On Justice Scalia’s legacy. “I think he degraded the discourse of the court, frankly,” Greenhouse said. “His snarky dissenting opinions were ill-advised and enabled snarkiness in others. I think his, quote, originalist understanding of constitutional interpretation goes nowhere. That died with him.” She added: “He was a very colorful figure and great at calling attention to himself. He was kind of a cult figure. But I don’t think he’ll have much lasting impact.”

• On McConnell’s refusal to consider Obama’s appointment of Judge Garland to the court. “It’s truly unprecedented. … It’s totally cynical. It’s totally playing to the base,” Greenhouse said. She also disagreed with an observation by Shorenstein Center interim director Tom Patterson that Obama should have chosen a woman or a member of a minority group who would be more appealing to Democratic voters. “The brilliance of this nomination,” she said, is that the Garland choice will make Republicans “squirm” because he is exactly the sort of moderate they had earlier said they would confirm.

• On the Supreme Court’s order that the Massachusetts Supreme Judicial Court reconsider the state’s ban on stun guns. By custom, Greenhouse said, the Supreme Court would make such a decision without comment. But Justices Samuel Alito and Clarence Thomas added a caustic opinion suggesting the SJC had put a woman’s safety at risk. “Something’s not right here,” she said. “The idea is you don’t wash your dirty linen in public. … They thought they had to enlighten us with this 10-page screed.”

Greenhouse said that one way to make the court less politicized would be to put more (as in any) politicians on it. At one time during the Warren era, she said, not a single member of the court had served as a federal judge. Warren himself had been governor of California. More recently, Sandra Day O’Connor had served as an elected official in Arizona before entering the judiciary.

“I think a diversity of characteristics on the Supreme Court is very helpful,” she said.

Given that many Supreme Court decisions can go either way (after all, Greenhouse added, the reason most cases are before the court in the first place is because federal appeals courts in different jurisdictions reached opposite conclusions), a politician’s willingness to seek compromise might sometimes be superior than the certainty with which judges with legal backgrounds often act.

WGBH News contributor Dan Kennedy is a Joan Shorenstein Fellow at Harvard’s Kennedy School.