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Defending Indefensible Behavior

Niles West High School in Morton Grove where Merrick Garland and Mark Karlin graduated from as honors students one year apart in 1970 and 1969, respectively. Garland and Karlin both attended grammar and junior high school, Lincoln Hall, in the Lincolnwood school system, a small suburb on Chicago’s northern border. (Neil Luke, Google Maps)

Dear Merrick,

You may not remember me. We were both honor students one year apart at Niles West High School, a public high school in the Chicago suburb of Morton Grove. I graduated in 1969 and attended Yale; you graduated in 1970 and attended Harvard.

I think our paths crossed a couple times since Niles West, once when you were volunteering on an Abner Mikva campaign (a now deceased and revered liberal Congressman whose base was in Evanston, IL). The other time, I was doing lobbying for increased funding for Medicaid recipients and people with disabilities. You were in a hearing room helping to prepare a Clinton nominee for his testimony.

As I became an inner city healthcare advocate, a consultant to non-profits and then a journalist, founding BuzzFlash on the tail end of the Clinton presidency, I occasionally came across references to your invariably-described fair oversight of the US Circuit of Appeals as its Chief Judge in recent years. I was proud of a Lincolnwood-boy made good, a fellow bowler at Gabby Hartnett’s (a former Chicago Cubs player) on Lincoln Avenue (to readers, please note that Lincolnwood is a heavily Lincoln-themed town) who had risen to the loftiest realms of the law that is the foundation of our democracy.

Like most believers in fair play, I was appalled by Mitch McConnell’s brazen theft of a Supreme Court seat that you were entitled to. Then in 2018, my sister told me you were on a YouTube clip delivering the “keynote” at the 75th anniversary of Lincoln Hall Junior High. When I watched the tape I was struck by how earnestly you took the ceremony, a small town celebration with students as MCs, an older teacher recalling the history of the school and the current principal and superintendent.

You of all people know that you are in an increasingly hot seat because many Democrats are fearful that once again a Republican president may be getting away with lawlessness due to a Democratic tepidness

At the end of the quaint program, you spoke, and I was moved to tears at your recollection of your life in Lincolnwood, which crossed so many of the “landmarks” that I knew. You broke up a couple of times, emotionally moved by how your parents sacrificed, but also acknowledging the values that you learned from the families and friends you got to know. You said, if I remember, that you still rely on the friendships that you developed in our town composed mostly of Jewish parents who only escaped the Holocaust because their parents had the foresight or luck to gain safe passage to America.

I write this letter because I have a request. I would like you to breathe deeply, close your eyes and reconnect with those values you grew up with and spoke about.

You of all people know that you are in an increasingly hot seat because many Democrats are fearful that once again a Republican president may be getting away with lawlessness due to a Democratic tepidness that doesn’t want to look back, and to your role as head of the Department of Justice that wants to defend institutional precedents — even if they were grossly and repeatedly violated by Trump, Sessions and Barr.

I don’t want to venture into all the actions in which the DOJ may be engaged in hindering victims of Trump, protecting Trump by not disclosing Mueller’s redacted grounds for believing Trump may have obstructed justice, the support of religious schools to discriminate against LTGBQ students even if the school receives federal funds and other actions that have progressive Democrats seething. I am not an attorney, and I can’t pass judgment on whether or not there is an institutional integrity issue in these and other cases that appear to favor Trump while denying information to someone heinously targeted by him such as Adam Schiff.

However, there is one decision by the current DOJ that I find particularly abhorrent: continuing to represent Donald Trump in the E. Jean Carroll defamation suit against him. A June 8 Rolling Stone article noted how off the guard rails this decision was about a Trump statement that had nothing to do with his being president. He inappropriately slandered Carroll about an accused rape that allegedly occurred decades ago. The only thing presidential about his words were that they were said during a news conference. However, he was ruthlessly attacking a private citizen. As Rolling Stone wrote:

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While campaigning last year, then-candidate Joe Biden didn’t seem very enthusiastic about his prospective Justice Department prosecuting prospective civilian Donald Trump. It’s “a very, very unusual thing and probably not very … good for democracy, to be talking about prosecuting former presidents,” the future president said in August.

But it would have been hard to imagine that Biden’s Justice Department would wind up defending Trump in court, which has become a strange theme of the first few months of Attorney General Merrick Garland’s tenure. The latest example came Monday night, when the DOJ filed a brief with a federal appeals court in New York claiming that Trump could not be sued for defamation by E. Jean Carroll, who has accused Trump of raping her, because the defamatory comments in question were made while Trump was president.

“Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office,” the brief read. “Officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives,” the lawyers for the [Barr] Justice Department added.

That is the problem in its essence. Trump was stepping outside of the “bounds of his office.” The unqualified immunity extended to presidents has always relied on an assumption, and indeed a history, that a president will behave according to certain civilized standards. If the law justifies taxpayers paying for Donald Trump’s salacious accusations, then it is up to the DOJ to write a directive that changes such enforcement of defending the indefensible.


How can you defend Trump for reprehensible comments about a private citizen that have nothing to do with his serving as president?

In October of 2020, the original federal judge on the Carroll case cast withering scorn on Barr’s assertion that only the DOJ could represent Trump in the case. According to an October 27, 2020, NPR article:

That lawsuit proceeded normally until last month when the Justice Department took the unusual step of intervening in the case. It argued that Trump was acting within the scope of his official duties as president when he denied Carroll's allegations.

The Justice Department argued that the federal government… should step in as the defendant in the case.

Judge rejects government position

In his 61-page ruling, U.S. District Judge Lewis Kaplan rejected that request.

"The president of the United States is not an 'employee of the government' within the meaning of the relevant statutes," Kaplan wrote. "Even if he were such an 'employee,' President Trump's allegedly defamatory statements concerning Ms. Carroll would not have been within the scope of his employment."

Kaplan wrote that Trump's comments concerned an alleged sexual assault that predates his time in office, and the allegations against him "have no relationship to the official business of the United States."

"To conclude otherwise would require the court to adopt a view that virtually everything the president does is within the public interest by virtue of his office," Kaplan wrote. "The government has provided no support for that theory, and the court rejects it as too expansive."

If the law is not ensuring justice, then it shouldn’t be the law.

It is not your role as Attorney General to save Trump from his own potentially illegal behavior. Law and justice must square. If the goal of the DOJ here is to once again use the excuse of preserving presidential immunity, then justice dictates that men or women who occupy that position should not be protected from their personal moral depravities.

Otherwise, this isn’t law; it’s a travesty.

Judge Lewis Kaplan, cited above (and appointed by Clinton, as you were), rejected Barr’s original attempt to wrest the case from Carroll’s attorneys in an effort to technically get Trump out of legal jeopardy because, if he or you were successful, Carroll couldn’t sue the government for defamation.


As someone who traveled in the same circles in our formative years, I would ask you to reconnect to your Lincolnwood values. They are what make you a mensch. Trump’s rogue and lawless past is not the responsibility of the people of the United States; don’t make it that way.


Mark Karlin