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Biden's Attorney General Explains Controversial Decisions Related To Trump

RACHEL MARTIN, HOST:

When Merrick Garland was announced as Joe Biden's pick for attorney general, he vowed to operate free of political influence. That has meant staking out legal positions that Democrats and the Biden administration's political allies sometimes don't like. NPR justice correspondent Ryan Lucas reports.

RYAN LUCAS, BYLINE: At a recent hearing on Capitol Hill with Attorney General Merrick Garland, Democratic Senator Patrick Leahy opened his round of questioning with this observation.

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PATRICK LEAHY: Attorney General, in the past few weeks, your department has endorsed some highly controversial positions taken by the former president's Justice Department.

LUCAS: Leahy pointed to two cases in particular. The first is the department's effort to block the release of an internal memo cited by former Attorney General Bill Barr in deciding that President Trump did not obstruct justice in the Russia investigation. The second is the department's decision to continue a controversial legal effort to intervene on Trump's behalf in a defamation lawsuit brought against him by the writer E. Jean Carroll, who says he sexually assaulted her in the 1990s. Channeling the thoughts of many Democrats and progressives, Leahy wanted to hear from Garland - what gives? Garland defended the department's decisions.

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MERRICK GARLAND: The job of the Justice Department in making decisions of law is not to back any administration, previous or present. Our job is to represent the American people.

LUCAS: That means, Garland said, that the same rules apply to Republicans and Democrats alike - something, he said, that isn't always easy to do.

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GARLAND: Sometimes it means that we have to make a decision about the law that we would never have made and that we strongly disagree with as a matter of policy.

LUCAS: A prime example of that may be the defamation lawsuit brought against Trump by E. Jean Carroll. With Barr in charge, the Justice Department stepped in last year to try to replace Trump as the defendant in Carroll's lawsuit, a move that, if successful, would effectively end the case. The legal argument revolves around whether Trump as president is an employee of the federal government and whether he was acting within the scope of his job when he denied Carroll's allegations. A district court judge in New York ruled against the department last year. This month, the Justice Department, now under Garland, forged ahead with its effort to defend Trump.

Kim Whaley is a professor at the University of Baltimore School of Law and a former federal prosecutor. She says Garland perhaps would not have intervened in the case...

KIM WHALEY: But the fact is that Bill Barr did intervene and produced a decision from a lower court that arguably hamstrings the presidency in ways that perhaps Attorney General Garland decided the Justice Department needs to manage on appeal.

LUCAS: Whaley says there are institutional interests that Garland has to take into account when making calls in these sorts of cases.

WHALEY: And it's actually a good thing that we're not seeing knee-jerk, reflexive political postures that one would expect out of a Democratic president.

LUCAS: Stuart Gerson led the department's civil division during the George H.W. Bush administration. He says there are institutional interests that apply in the decision to fight the release of the obstruction memo as well.

STUART GERSON: With regard to the disclosure of documents and the like of that, those are positions that are taken by any administration.

LUCAS: And, he says, that after the turmoil of the Trump years, Garland also needs to restore the morale and confidence in the department's career staff.

GERSON: He is attending to that by proceeding in a businesslike way and standing behind institutional positions of the department, things that are argued from administration to administration irrespective of party.

LUCAS: At his Senate hearing, Garland said that the department under the Biden administration has reversed several policies from the Trump era - among the most notable so far, on immigration, policing oversight and leak investigations.

Ryan Lucas, NPR News, Washington.

(SOUNDBITE OF MOUSE ON THE KEYS' "PRAXIS") Transcript provided by NPR, Copyright NPR.