Energized Trump probes pose problems for Biden

Six months after former President Trump left office, new disclosures are peeling back layers to his conduct in the White House, teeing up investigations that could create a headache for a Biden administration that is eager to move out of the shadow of its predecessor. 

A new trove of documents released last week by House Democrats offered a glimpse into how Trump’s White House unsuccessfully tried to pressure senior officials in the Department of Justice (DOJ) to probe unfounded claims of election fraud as Trump contested his loss to now-President Biden. 

Separately, the Justice Department’s Office of Inspector General and Congress have opened investigations into the DOJ’s efforts to access phone data of reporters, members of Congress and their families under Trump. 

The ongoing revelations pose a challenge for the White House and Justice Department, who are also under pressure from some Democrats to swiftly release information and come down hard on individuals who were involved in the efforts to surveil journalists and lawmakers.

“These are so extraordinary and so extreme, they’re still surprising even given everything we knew,” said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW), an ethics watchdog that has filed numerous complaints against Trump and officials who worked for him. “It makes it clear that it’s not just a lot of stuff out there that we don’t know about, but a lot of big stuff out there we don’t know about.”

Several committees are determined to learn more. The DOJ is already facing investigations from both the House and Senate Judiciary panels on the seizure of records from lawmakers, reporters and even former White House counsel Don McGahn.

For other Democratic congressional investigators, the change in administration is a chance to renew investigations repeatedly stalled by the Trump team. 

The House Oversight and Reform Committee is looking at documents from the Biden administration showing contacts between the White House and the DOJ. 

The House Transportation and Infrastructure Committee is asking the Government Services Administration to turn over records related to Trump’s leasing of the Old Post Office Building that now serves as his D.C. hotel.

And the House Natural Resources Committee said it will continue to investigate the clearing of protesters from a park near the White House shortly before Trump crossed the area for a photo-op at a church. 

A House select committee is also probing the federal government’s coronavirus response, seeking Trump-era documents from the Biden administration after the committee accused the previous administration of obstruction.

“It’s a perfect ‘after-storm,’” said Steven Cash, a lawyer at Day Pitney LLP and former chief counsel to Sen. Dianne Feinstein (D-Calif.). “Now is the cleanup, and it’s going to take tremendous effort by the Hill, by the executive branch and by the media.” 

Cash said the White House will have to balance efforts to cooperate while being transparent about disinterest in any investigations that resemble a “circus.”

“The White House needs to make it clear that the executive branch is going to cooperate with Capitol Hill oversight, both Democratic and Republican,” he said. “However, they are also going to need to set limits.”

The various Trump matters are particularly precarious for Attorney General Merrick Garland.

The former judge was slammed by progressives Tuesday for failing to fully shift positions on five major suits, including fighting in court to keep redacted portions of a memo underpinning former Attorney General William Barr’s conclusion that Trump did not obstruct justice in the Mueller investigation.

“We write to express deep concern regarding your apparent reluctance to correct the weaponization and politicization of the Department of Justice by the Trump Administration,” Rep. Pramila Jayapal (D-Wash.), the chairwoman of the Congressional Progressive Caucus, wrote in a letter signed by other Democrats on the House Judiciary Committee.

David Kris, who served as assistant attorney general for the DOJ’s national security division for two years under former President Obama, said that Trump’s efforts to deploy the tools of government to “qualitatively different ends” than his predecessors create two major challenges for current DOJ leaders as they try to shine a light on those efforts. 

“First, they must try to bring such efforts to light without compromising traditional standards of confidentiality and foundations of our system of separated powers,” Kris said. “Second, reaffirming traditional limits on the legitimate uses of governmental power may be hard to square with the appearance of nonpartisanship, at least to the extent that there remains a partisan divide on the validity of those traditional limits.”

Bruce Green, a law professor at Fordham University and a former federal prosecutor, said Garland is in a much more difficult position than former Attorney General Edward Levi, who took over the DOJ in the wake of Watergate.

“He had it easy in retrospect because the Republicans and Democrats wanted to restore or establish non-partisanship in the Justice Department and everyone recognized the abuses of the Nixon administration,” he said.

“No one on the Republican side is saying under Bill Barr the Justice Department overreached. Democrats obviously think he did, but Republicans aren’t giving any ground, and it’s a more difficult position to be in. And obviously Garland will be under attack because everything is partisan nowadays.” 

Michael Horowitz, the Justice Department inspector general, is leading an investigation into the department’s practices. It’s one of several high-profile investigations over which Horowitz has presided in his career that has also included the probe into the origins of the FBI’s Russia investigation. 

Horowitz is widely respected within the inspector general community as a professional who is independent and doesn’t pay attention to politics. A person familiar with Horowitz’s work described him as one who has always been able to carry out his duties by acting independently and objectively and not allowing politics to influence his decisionmaking.

In cases where the administration has quickly released information, lawmakers have made clear that their work is just beginning. 

House Oversight and Reform Committee Chairwoman Carolyn Maloney (D-N.Y.) said that the initial batch of documents showing Trump’s efforts to pressure the DOJ on election results “may be just the tip of the iceberg,” vowing to “continue to investigate and expose the Trump Administration’s conduct.”

“The Trump administration brazenly obstructed congressional investigations for four years. Only now are we finally beginning to understand the full scale of the Trump Administration’s corruption,” Maloney said in a statement to The Hill. 

In some cases, the White House has made clear they won’t be involved in certain investigative efforts.

The White House in February said that it did not have the power to access and release visitor logs belonging to the Trump White House, which are controlled by the National Archives.

It made a similar argument for turning down a coalition of House committees that asked the White House and 16 other agencies to turn over a trove of documents tied to their investigations of the Jan. 6 attack on the Capitol.

Bookbinder, of CREW, wishes both the White House and the DOJ would take a more active role in playing a truth and reconciliation function when it comes to examining the Trump era.

“They want to show they’re not politically motivated, they’re not out for retribution,” Bookbinder said. “But they’re missing the point that we had this proliferation of anti-democratic abuses that are really, really dangerous. … And that is much more important than protecting executive branch prerogatives.” 

Tags Carolyn Maloney Dianne Feinstein Donald Trump Joe Biden Merrick Garland Pramila Jayapal William Barr

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