13 JUNE 2021

Untitled, Watercolor, 20" x 35", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

Remember the debate over whether the Constitution allowed Trump to pardon himself? Assuming he granted himself a pardon, pocket or otherwise, the only definitive way to test whether the pardon power extended that far would be to charge him federally, see if he raised a self-pardon as a defense and, if so, do battle in court.

During the presidential campaign, then candidate Biden was asked whether he would commit “to not pulling a President Ford under the pretense of healing the nation.” Mr. Biden answered, “Absolutely, yes. I commit. It’s hands-off completely. Look the attorney general of the United States is not the president’s lawyer. It’s the people’s lawyer.

Mr. Biden’s pledge was, of course, almost a year before the Trump-led and -inspired insurrection on January 6 and before Trump’s Department of Justice under servile Barr further politicized the Department by undermining the prosecutions of Flynn and Stone, but well after release of the Mueller Report, hush-money payments for which Trump’s personal attorney served time in prison, bribery/extortion of a foreign leader to influence the 2020 election, Trump taking money from foreign governments, etc. and etc.

Defaulting to the so-called neutral, equal application of the rule of law during his testimony before the Senate Appropriations Committee on Wednesday, June 9, 2021, Attorney General Merrick Garland purported to defend two recent Department of Justice decisions.

• The first was the DOJ’s decision to challenge on appeal United States District Judge Amy Berman Jackson’s order to release the 2019 memorandum prepared by the Office of Legal Counsel concluding that Trump should not be charged with any of the ten possible counts of obstruction of justice thoroughly sourced in the Mueller Report. You may recall Judge Amy Berman Jackson was unequivocal, albeit euphemistic, in her finding that Barr had lied to the American people who, she announced, were entitled to see a fuller picture of Barr’s and the administration’s disinformation campaign to undermine the Mueller Report.

• The second was the DOJ’s decision to stay the course forged by Barr to intervene on Trump’s behalf in the defamation lawsuit brought against Trump by one of his many alleged sexual assault victims, E. Jean Carroll. The intervention was based on the claim that Trump was “acting within the scope of his office as President of the United States” when he made the alleged defamatory remarks and denials. A federal judge in Manhattan rejected the DOJ’s request to intervene, finding that Trump was not acting within the scope of his office when he responded to a question about a decades old occurrence. What is the scope of a president’s office, and does it include going out of one’s way to defame and disparage a person who, consistent with more than a score of similar allegations, accused the occupant of rape some decades earlier? The Barr DOJ appealed. If the judge’s decision is reversed by the Second Circuit Court of Appeals, the United States will substitute for Trump as the defendant in the case and the lawsuit will terminate, leaving Ms. Carroll no recourse whatsoever because the United States cannot be sued for defamation under the Federal Tort Claims Act. (discussing sovereign immunity, a president’s immunity for conduct within the scope of the office, and the Federal Tort Claims Act bar to lawsuits against the United States for defamation)

Defending the decisions, General Garland explained to the senate committee: “The job of a Justice Department in making decisions of law is not to back any administration, previous or present. Our job is to represent the American people. And our job, in doing so, is to ensure adherence to the rule of law. . . . But in every case, the job of the Justice Department is to make the best judgment it can as to what the law requires.

I have yet to hear Attorney General Garland defend or condemn the secret Trump-era subpoenas directed at communications of at least two members of the House Intelligence Committee, and those of their staff and families, during the investigation of Russia’s interference in the 2016 presidential election. By all appearances, this was Trump’s illegal use of the Department of Justice as a weapon against political opponents in a coordinate branch of government. I guess we’ll see how Mr. Garland feels about such an abuse.

As for the DOJ’s aggressive attempts to learn confidential sources from CNN, the Washington Post, and the New York Times — media organizations that enjoy explicit First Amendment protection from government interference in exposing government wrongdoing — the Trump-era efforts continued under the new administration until the fact of the subpoenas came to light. Only then did President Biden declare it was “simply, simply wrong” and promise to end federal prosecutors’ efforts to seize the records. Word has it that members of the press will meet with the Attorney General on Monday June 14. Again, I guess we’ll see.

We do not have the benefit of inside information fully to assess the merits of these decisions based on past precedent and, more importantly, future precedent in applying the rule of law. My visceral reaction was that the Department of Justice — Attorney General Garland — bent over backwards, indeed pacified Trump and his constituency, at the expense of the rule of law and its equal application, in attempting to appear evenhanded and non-partisan in decisions that were anything but.

In General Garland’s defense of recent decisions, what did he mean by “our job is to ensure adherence to the rule of law”? What did he mean by claiming the DOJ’s “job is to represent the American people”? What did he mean by making his best judgment as to “what the law requires”? Truisms? Bromides?

Many of Trump’s serious violations of federal criminal law, committed while he was in office, were on public display, in real time. Others were identified in fully investigated and sourced reports, including the Mueller Report, Inspectors General reports, and impeachment proceedings. I won’t take up the space here to list them. What would it mean for “ensur[ing] adherence to the rule of law,” for “what the law requires,” for elected officials and future presidents, if the Department of Justice declines to prosecute open, notorious, fully documented and sourced violations of federal law that struck at the very core of our constitutional republic?

That would not be even-handed or non-partisan. That would be the most dangerous precedent the Department of Justice could possibly set for the future and survival of the United States as a democratic republic. Consistent with the conduct and pattern established in Trump’s DOJ, that would eviscerate and render meaningless the rule of law.

That would be a de facto pardon of Trump.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to and Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in and are hers

Attorney engaged in criminal defense and First Amendment law. Board Member, local ACLU affiliate. Progressive.