DOJ restricts contact with White House, a sharp pivot from Trump administration

Attorney General Merrick Garland Wednesday issued a long-anticipated directive restricting Justice Department contact with the White House as a firewall against potential political interference.  

The order, which reaffirmed some policies of previous administrations, marks a sharp pivot from the Trump era when the former president casually broke with institutional norms, repeatedly calling on the department to launch investigations of his political rivals, including President Joe Biden, Hillary Clinton and former FBI Director James Comey.

"The success of the Department of Justice depends upon the trust of the American people," Garland wrote in the five-page department-wide memorandum obtained by USA TODAY. "That trust must be earned every day, and we can do so only through our adherence to the long-standing departmental norms of independence from inappropriate influences, the principled exercise of discretion and the treatment of like cases alike."

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Garland referred to necessary "safeguards" that have regulated communications between Justice and the White House as "designed to protect our criminal and civil law enforcement decisions, and our legal judgments from partisan or other inappropriate influences, whether real or perceived, direct or indirect."

The attorney general said that Justice would not alert the White House to "pending or contemplated criminal or law enforcement investigations or cases unless doing so is important for the performance of the president's duties and appropriate from a law enforcement perspective.

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Closely tracking the language of a 2009 memo issued by then-Attorney General Eric Holder, the Garland directive said that when appropriate, communications involving criminal or civil law enforcement investigations would be restricted to the top three officials at Justice at most, along with the president, vice president, White House counsel and deputy counsel.

On occasions when additional contacts were necessary on specific criminal or civil matters, the officials involved in the initial communications could designate subordinates to continue those discussions on the condition that superiors would be advised of the contacts.

The guidelines also included provisions covering grant-making decisions, civil service personnel matters and communications involving Justice's pardon attorney.

The Justice memo comes as the White House issued guidelines of its own Wednesday detailing  "prohibited contacts" with other parts of the government, including the Justice Department.

"Specific procedures apply to communications with the Department of Justice ... in order to ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political influence," the White House document states, noting that with some exceptions, initial contacts Justice should be restricted to the White House Counsel's Office.

More broadly, the White House directed no contact with "any department or agency" about specific regulatory actions, licensing adjudications, permitting, benefit decisions, investigations, litigation, enforcement matters and funding decisions involving specific parties. 

"If you think such contact is necessary, the Counsel’s Office will determine whether such contact is permissible and, if so, who should make the contact," the White House memo states.

The thrust of the White House directive was internally circulated to staffers at the time of Biden's January inauguration, an official familiar with the matter said. 

At Justice, Garland had vowed during his February Senate confirmation hearing to "protect the independence of the department from partisan influence in law enforcement investigations" and to "strictly regulate communications with the White House."

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In the Wednesday Justice memo, Garland did not refer to the free-wheeling practices during the Trump administration. But on the campaign trail, Biden frequently asserted that the department had been co-opted by Trump and transformed into "president's private law firm."

A wave of recriminations were leveled at former Attorney General William Barr who offered an aggressive defense of Trump in the face of damning findings outlined in the Russia investigation and repeatedly intervened in the prosecutions of the president’s allies.

"I want to be clear to those who lead this department (about) who you will serve," Biden said when introducing Garland as his nominee Jan. 7. "You won’t work for me. You are not the president or the vice president’s lawyer. Your loyalty is not to me. It’s to the law, the Constitution, the people of this nation, to guarantee justice."

Garland has taken his lead from Biden, drawing stark parallels to the post-Watergate era when the Justice Department faced a similar challenge to separate itself from the raw political interests of a president. 

Accepting the nomination, Garland invoked the name of Edward Levi, the  attorney general nominated by President Gerald Ford to restore the department's credibility after the Watergate scandal that led to the resignation of President Richard Nixon. 

“As Ed Levi said at his own swearing in, ‘Nothing can more weaken the quality of life, or more imperil the realization of the goals we all hold dear, than our failure to make clear by words and deed that our law is not the instrument of partisan purpose,’” Garland said.

Levi's portrait now hangs in the attorney general's fifth-floor conference room at the Justice Department.

When he was nominated, Garland said, it would be "my mission ... to reaffirm those policies as the principles upon which the department operates."

In Wednesday's memorandum, Garland referred to former Carter administration Attorney General Benjamin Civiletti, author of the department's first White House communications memo in 1979, suggesting that the guidelines were "not intended to wall off the department from legitimate communications with the administration."

"Rather, they are intended to route communications to the appropriate officials so that the communications can be adequately reviewed and considered, free from the appearance or reality of inappropriate influence."