- MSNBC's Rachel Maddow caused uproar online with a report on a DOJ memo for election-year inquiries.
- The memo from AG Merrick Garland doesn't mean DOJ won't investigate or even charge Trump.
- With or without the memo, Garland would want to review any action against the former president.
Late Monday night, MSNBC host Rachel Maddow presented an exclusive report : Attorney General Merrick Garland signed a memo in May reiterating Justice Department policy that requires high-level approval of politically sensitive investigations.
It instantly set off a firestorm on social media, dropping as Trump weighs an early announcement of a third White House run. For many, Maddow's report validated concerns that Garland's Justice Department was stalling — and that Trump and his allies could avoid criminal accountability for their efforts to overturn the 2020 election.
For legal experts, though, there was just one problem: Garland's memo meant nothing of the sort.
"I know folks are up in arms over the @maddow scoop but chill," wrote Bradley Moss, a national security lawyer in Washington, DC.
As he and other legal experts pointed out, Garland's memo was akin to similar guidance past attorneys general have issued in election years. And so Garland's memo — titled "Election Year Sensitivities" — served not as a new limitation on the Justice Department but as a reminder of its longstanding policy for avoiding steps that could be perceived as partisan and designed to influence an election result.
"This is particularly important in an election year," Garland wrote. "Now that the 2022 election season is upon us, and as in prior election cycles, I am issuing this memorandum to remind you of the department's existing policies with respect to political activities."
Garland's memo also pointed to a new addition to the policy, ordered by then-Attorney General William Barr in February 2020, requiring that the Justice Department leader approve any investigations into presidential candidates.
Barr issued the memo in an effort to avoid a recurrence of the FBI upending an election, as it did in 2016, with inquiries into campaigns. His memo came on the heels of the Justice Department's internal watchdog finding that the FBI failed to follow protocols in its bid to investigate former Trump campaign advisor Carter Page.
On her show Monday, Maddow said "that new rule was established by Bill Barr when he was working for Donald Trump.
"Merrick Garland," she added, "has just formally extended that guidance and told every employee of the Justice Department that it is still in effect."
But legal experts said Barr's memo makes little difference for any inquiry touching Trump. And neither Barr's memo nor Garland's does anything to prevent an indictment of Trump.
"Given that Mr. Trump is a former president, and the fact much of the actions at issue took place while he was still in office, it's likely Garland would have required his sign-off anyway even if the memorandum didn't exist," Moss told Insider Tuesday.
Trump considered announcing a run for president as early as this month, but he's now reportedly eyeing September. Regardless, he would not appear on the ballot until 2024, and legal experts told Insider an active candidacy would not likely stave off criminal inquiries and potential charges.
Putting those realities aside, legal experts pointed to a recent case in which the Justice Department proved itself willing to bring charges against a political candidate. In early June, weeks after Garland issued his election sensitivities memo, the FBI arrested Ryan Kelley, a Republican gubernatorial candidate in Michigan, on charges stemming from his alleged participation in the Capitol siege.
The angst over Maddow's report reflected the widespread frustration with Garland's "follow the facts and the law" strategy as the Justice Department has confronted the January 6 attack and the broader efforts to overturn the 2020 election. Garland has stressed repeatedly that federal prosecutors investigate crimes, not people, and prioritized removing the Justice Department from the politicization of the Trump era.
But, in a series of public hearings, the House committee investigating January 6 has aired damning evidence connecting Trump to the violence of the Capitol attack and established that the former president moved forward with his efforts to overturn the 2020 election — even after close advisors told him his claims of widespread voter fraud were baseless. Amid those hearings, the pressure on Garland has only mounted, with some calling for the Justice Department to shift its "bottom-up" approach to one that starts with Trump and moves outward.
In a guest essay for the New York Times, Andrew Weissmann, a senior prosecutor in the special counsel investigation into Russian interference in the 2016 election, wrote "that is actually the wrong approach for investigating the Jan. 6 insurrection.
"That approach sees the attack on the Capitol as a single event — an isolated riot, separate from other efforts by Donald Trump and his allies to overturn the election," Weissmann wrote.