Department of Injustice?

The New York Times this week reported that the Department of Justice (DOJ) under both Attorney General  (AG) Jeff Sessions and Bill Barr secretly subpoenaed metadata from Apple and Microsoft for members of the House Intelligence Committee and their staff in 2017 and 2018. Records supplied included phone numbers and email contacts, as I understand it, but no actual emails, texts, or voice correspondence. Ranking Member, Congressman Adam Schiff (now Intelligence Committee Chair) and committee member, Congressman Eric Swalwell, both of California were among those recently notified by Apple that their records had been supplied to the Department. Apple had been under a gag order that was renewed every year until this year, so could not have informed them earlier.

The reasons for the records requests were supposedly a result of an investigation into leaks about the Russian interference in the 2016 election which the administration assumed were coming from Congress. At the time, the president was said to be furious concerning public comments about the Mueller probe, the Comey firing, and investigations of his election staff and demanded  that the DOJ provide him with information. He made many statements indicating that he knew that Congressman Schiff was the leaker and he wanted this proven. The Congressman, of course, denied that this was true. However, there were major concerns about the Republican Chair of the Committee, Devin Nunes, who was said to be secretly sharing Intelligence Committee documents with the White House. Nunes was temporarily removed as Chair after these revelations, so many wondered what leaks he might have been responsible for. The Intelligence Committee has the highest security clearances for top-secret government documents and is expected to be nonpartisan in its’ reviews of such matters.

The Mueller Probe, which was not released until 2019, indicated that Russia did interfere on behalf of the Trump (DJT) campaign in the 2016 election. Attorney General Barr worked hard to obfuscate the final report, issued his own misleading summary, and redacted a good portion of the report, which can be found here (part 1) and here (part 2). In part 2 we find this statement as the conclusion: "CONCLUSION - Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent present difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him"

These are the comments that the White House did not want to be publicized and probably the reason Barr delayed the release until after his report exonerating the former president was released. So, this background gives context for the issue about the DOJ, however, it does not excuse the conduct. From what I can discern, the investigation into communication records for members of Congress and their staff and families, (including a child) is totally a breach of the concept of separation of powers–remember the three divisions are each an equal entity–Legislative, Judicial, and Executive. The Encyclopedia Britannica defines this separation as: "Separation of powers, division of the legislative, executive, and judicial functions of government among separate and independent bodies. Such a separation, it has been argued, limits the possibility of arbitrary excesses by government, since the sanction of all three branches is required for the making, executing, and administering of laws."

Therefore, while Congress has oversight over the Executive, it cannot compel him/her to take certain actions, although it may pass laws that limit actions. The Judiciary cannot make laws but can declare some laws as unconstitutional and advise Congress to revise them. The Executive can prepare a budget but is not supposed to spend money not authorized by Congress., nor can one declare war without the authority of Congress. Somehow, during the previous administration, these lines have become blurred.  When Congress requested members of the administration to appear before oversight committees, the administration refused to allow them to appear even when valid subpoenas were issued. Barr’s DOJ supported this stonewalling which went against the separation of powers concept. The Supreme Court has supported Congress’ role in this function, stating that this is necessary for Congress to carry out legitimate investigations. When subpoenas are ignored, the only authority Congress has is to issue an order of contempt of Congress. Technically, the Sargent at Arms can detain someone who ignores a contempt finding to appear, but this has been done only historically in the distant past. Also, a federal prosecutor could initiate charges, but this was unlikely in this DOJ. It was only recently, after a series of court hearings over several years that Special Counsel to DJT, Don McGahn was finally allowed to testify before Congress after a subpoena issued during the Russia probe.

This week, after the revelations about the release of the metadata described above, Democratic leaders have called these actions unprecedented and called for both Sessions and Barr to testify before Congress.  Barr, Sessions, and Ron Rosenstein (deputy AG) have all said they did not know about or remember the subpoenas. But someone’s name had to be on those orders; it should not be too difficult to learn that information. It is said that many of the Federal prosecutors who worked on these records are still employed by Justice. Why were these orders, which seem to be part of an illegal fishing expedition, not questioned? Where is the moral compass for these attorneys who, when they took the job vowed in their oath, to uphold the laws of this country? 

Now the task is up to the new AG Garland to root out these offenders. It appears that he is reluctant to investigate his predecessors, although I doubt that if the tables were turned that they would have any such reticence. I think he must clean house, learn who was involved in these lawless activities, and fire them.  I know that he has a lot on his plate, but this should be done now before they can hang around and create more mayhem. I do understand that the Inspector General has agreed to look into this entire scheme, but his investigation will be thorough and take a long time. I believe that AG Garland needs to look into his department and see really just who is employed at the department. He has important issues to deal with such as ensuring that we can have free and fair elections and redistricting in 2022. The department needs to find a way to stop the vote-recounting circus in Arizona, which is already outside Federal election guidelines before it spreads to other states. The department needs to act instead of just admonish those who are already intimidating election officials, boards of elections, and Secretary of State officials across the country.

Merrick Garland is a serious man, a judge who should have been placed on the Supreme Court.  He does not appear to be a partisan person, which should be a good thing. However, he needs to not be passive, he must be an active AG and right these wrongs in our democracy where he can. It is good that he has spoken out, but that is not enough. He needs to have actions that follow his words so that the elections excesses already in place can be addressed. If we cannot rely on Democrats to get The Voting Rights Bill and the John Lewis Bill passed, then we need an activist DOJ in the area of free elections.

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President Biden and member nations at the G7 have promised to release one billion covid vaccine doses to third world countries to try to reduce the inequities in vaccine allocations. (Half of these vaccines will come from the US alone.) The number of cases in the US continues to decline as more, but not enough, people are vaccinated. 142.1 million residents in the US are fully vaccinated with 172.8 million partially vaccinated, which averages out to slightly over 52% of the population. In Maryland this week, one day noted a new case level under 100–the first time in many months.

COVID stats: NY Times:

Total US cases: 33,429,075. New cases: 14,288. Total Deaths: 599,781. New Deaths: 363.

Maryland Totals: Total Cases: 461,183. New Cases: 86. Total Deaths: 9,683. New Deaths: 6.

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This week is the 40^th anniversary of the first cases of AIDS being identified mostly in the gay male community; there were many years with the diagnosis being a death sentence before any treatments could be identified. The disease was classified as a blood-borne and body fluid-based condition, which required physical contact for transmission. IV drug use with contaminated needles is also a route of transmission. The diagnosis led to discrimination against many. In those early times, this transmission was not well understood, consequently, our national blood supply was not protected from the disease. Ryan White, a hemophiliac teenager, was one of many who developed the condition from contaminated blood which he received in a transfusion as did tennis player Arthur Ashe when he underwent surgery; both died from the illness. It took years of activism against the stigma before the US under Reagan finally would begin to mount a defined effort against this virus. In the late 90s, some effective therapies were developed and now, while ongoing medications and monitoring are required, the treated disease is more chronic, quite different from those early days. This disease is also a virus that is thought to have jumped from animals to people, much as COVID might have done.

According to the UN - they estimate that more than 34.7 million people across the world have died since those first diagnoses. In 2020, 37.8 million people were living with AIDS-related illnesses, of whom 1.9 million were children. Currently, about 600,000 people die each year from AIDS-related illnesses. About 73% of those diagnosed are now under treatment. The NY Times Magazine this year had a very sad article about a remote village in Pakistan where more than 1000 children have been diagnosed with AIDS, contacted mostly from the lack of needle sterilizations or clean medical instruments used for routine treatment. We can and should do better for the children of the world.

‘Til next week, Peace!