The Mar-a-Lago search has ignited a roaring debate about whether the Justice Department is following the law or playing politics. Merrick Garland says that he doesn’t have a political bone in his body. The actions of the agency he heads say otherwise, although you have to be paying attention.
The tip off was in a Supreme Court case decided a bit more than a year ago, Terry v. United States. The issue in the case was less than earth-shaking; it concerned the breadth of a pro-leniency statute called First Step Act. What was startling was that Garland’s Justice Department turned its back on the court of appeals’ unanimous judgment in the government’s favor; “confessed error” in behalf of the criminal; and was rebuffed by SCOTUS in its new and newly ideological interpretation of the law by a vote of 9-0.
Yes, it’s all true. DOJ’s newly-hatched, criminal-hugging position was so preposterous it couldn’t even get Sonia Sotomayor.
The canny Ed Whelan told the tale.
Ed’s title is, “Biden’s Politicized Solicitor General’s Office Endures Embarrassing Defeat,” and “embarrassing” is an understatement. “Humiliating” and “revealing” would be more like it.
The Supreme Court’s ruling…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 low-down 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 Solicitor General’s Office — was ready to be filed on the original filing date, and was pulled back on that date 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 switcheroo.
In its unanimous ruling…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. At the literal last minute, DOJ conjured up a new position in the US Supreme Court — a position so flimsy it could not command a single vote. However, it did command, so it surely seems, the enthusiasm of the Democrats’ pro-criminal contingent — a contingent that, operating from behind the curtain, pushed its filing.
Are you curious about who’s in that contingent? And more to the point, do you think that if the Justice Department is willing to go to that length merely in behalf of its (admittedly large) criminal-hugging fans, it might be willing to go a good deal farther to put the squeeze on Joe Biden’s most despised (and probably most powerful) political opponent? A man who will fire the lot of them if he returns to the White House in two years?
This spectacle was, again, brought to you by the folks who promised us so solemnly last year that the Justice Department would end its supposed political slant.
One final note. Of course it’s possible both that the Justice Department had a credible legal case for the Mar-a-Lago search, and that a powerful impetus for undertaking such an unprecedented move lay in its politics. But the Department’s obvious willingness to be pushed by politics in a much less important matter makes the current suspicions both inevitable and very worrisome.