The Stench of Politics at DOJ

Remember all the stuff we were hearing during the Presidential campaign about how we needed to make a change in order to get politics out of the Justice Department?  It was all a joke  —  on us.  Ed Whelan has the story today of what would surely be a scandal if Bill Barr tried it, and is a scandal today, squarely on the plate of Merrick Garland  —  a man I’m sure knows better.

Ed’s title is, “Biden’s Politicized Solicitor General’s Office Endures Embarrassing Defeat,” and “embarrassing” is an understatement.  “Humiliating” and “self-inflicted” would be more like it.

The Supreme Court’s ruling today in Terry v. United States is a huge embarrassment for the Biden administration, the Biden Department of Justice, and the Office of the Solicitor General in particular. On top of other actions, it powerfully exposes the falsehood that the Biden DOJ is abiding by nonpolitical norms of independence.

In Terry, the Court held unanimously that a crack offender is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. Justice Thomas wrote the majority opinion for eight justices. Justice Sotomayor agreed with the entirety of Justice Thomas’s interpretation of the First Step Act. (She declined to join the background part of Thomas’s opinion and wrote separately to offer her thoughts on the consequences of the decision.)

How, you might wonder, can the Supreme Court’s unanimous affirmance of a federal criminal sentence be a huge defeat for the Biden administration?

Good question.  Now get ready for the news about your “non-political” Justice Department.

The answer is that the Biden administration, which inherited defense of this case from the Trump administration, informed the Court on March 15—the very date the United States’ brief on the merits was due—that it would not defend the judgment below and that it was confessing error in the case.

Both the confession of error and the timing of the confession were extraordinary. The Department of Justice routinely defends criminal convictions and sentences in cases on appeal that it is almost certain to lose, yet it refused to defend this case that informed observers recognized that it was very likely to win. The only plausible explanation is that the Biden administration confessed error in this case in order to pander to the Black Lives Matter crowd and other constituencies in the Democratic Party.

Having worked at DOJ in both career and politically-appointed positions, including positions where I was called upon to draft Supreme Court briefs, I can tell you that it’s overwhelmingly likely that a brief advancing DOJ’s original position  —  a brief prepared by top-notch career attorneys in the SG’s Office  —  was ready to be filed on the original filing date, and was pulled back at the last minute on the orders of political appointees.

The timing of the confession of error reinforces this explanation and makes it all but certain that acting Solicitor General Elizabeth Prelogar caved at the last minute to political pressure from within the Biden administration. By confessing error only on the date the government’s brief was due, SG Prelogar deprived the Court of enough time to appoint an amicus to prepare a brief defending the judgment below before the scheduled oral argument in April. The Court instead was forced to reschedule the oral argument for a special sitting in May. It is highly unlikely that a talented Supreme Court advocate like Prelogar would have pulled this stunt on her own.

No kidding.  Ms. Prelogar should be called before Congress to explain this bizarre and craven switcheroo.

In its unanimous ruling today affirming the judgment below on which the Biden administration had confessed error, the Court briskly dismissed the Biden administration’s arguments as “sleight of hand” and concluded that the text of the statute unambiguously supported the judgment below. It is an extraordinary rebuke for the Supreme Court to rule 9-0 against the Solicitor General on a question on which the SG has confessed error.

So let’s be clear about what happened.  DOJ had a brief ready to go, a brief taking a position that a unanimous Court, and the great majority of legal observers, viewed as legally correct.  At the literal last minute, it tanked that brief in favor of a position so flimsy it could not command a single vote  —  but did command, so it surely seems, the enthusiasm of the powerful pro-drug, pro-criminal contingent that, operating from behind the curtain, ordered its filing.

Are you curious about who those people are?  I sure am.

This spectacle was, again, brought to you by the folks who promised us ever so solemnly last year that the Justice Department would end its supposed political slant and return us to the point where, for example, the law-centered judgment of seasoned, non-political attorneys in the SG’s Office would tell the tale.

As I say, this is a scandal.  Someone in the career ranks should stand up and resign.  In somewhat similar circumstances during the Clinton Administration, I did.