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Elie Mystal: Why Is Merrick Garland Siding With Trump In Rape Case?

The justice correspondent for The Nation lets off a little steam about Merrick Garland's decision to defend Trump in E. Jean Carroll's defamation lawsuit.

Neal Katyal said he admired Elie Mystal's gift for understatement. I couldn't agree more. His calm, almost hypnotic manner was on full display while he spoke about Merrick Garland's decision to allow the DOJ to continue to defend Donald Trump in the defamation lawsuit brought by E. Jean Carroll. It was nearly impossible to decipher how he felt about the decision from his demeanor alone, so make sure to pay attention to his words, too.

Joy Reid asked Mystal about Garland's defense of the decision, which the AG gave in front of a Senate committee on Wednesday, saying, "Our job is to represent the American people, and our job in doing so is to ensure adherence to the rule of law." It took some coaxing, but Reid managed to get Mystal to come out of his shell a little to give his reaction to that defense.

"Yes. I know the law can sometimes be confusing and lots of, like, big words. Let's be really clear. There is nothing in the Constitution, nor any U.S. statute that says defaming women who accuse you of rape is part of the presidential office and responsibilities. There's NOTHING there. That's NOT a thing!" Mystal said demurely.

"So Garland is choosing, he is choosing to defend Trump here. He is choosing to say that actually defaming alleged rape victims is part and parcel of being the president, and we are, therefore, allowed to ask him why he's making that choice. Garland is trying to gaslight the nation into saying, 'Oh, my hands are tied! I had no choice!' No! No! He HAD a choice. He's choosing poorly. This is the problem," explained Mystal, his voice barely above a whisper.

So, if you dig deeply, really read between the lines of what Mystal is saying, you might begin to get the notion that he's unhappy with this decision. Perhaps a movie analogy would help make it more clear?

"[T]here are some arguments on both sides, but Garland is choosing to make the Bill Barr argument. If I may quote very briefly, Al Pacino from Devil's Advocate, 'Guilt is like a bag of bricks. All you got to do is lay it down.'"

Okay, I'm gonna need some help with this one, Elie.

"If Merrick Garland does not think that U.S. policy should be that the president of the United States can defame women who accuse him of rape, then all he's gotta do is take that horrible argument that was left to him from Bill Barr and drop it down. The fact he's not is a problem with him. Not the law," he explained.

Reid read a counter-argument from a Washington Post piece by Randal Eliason, in which Eliason argues that the issue is "whether a president's duties include answering questions during an interview given in his official capacity including questions about his earlier private life that may reflect on his fitness for office. The alternative rule would mean that any federal employee speaking in the course of his or her duties would have to fear being sued for damages if a creative lawyer can later allege a particular comment somehow strayed from the official into the personal."

Mystal was unconvinced.

"Nope! Nope! The alternate rule is that any person, as part of their official duties, if they defame somebody, has to hire their own lawyer. Again, nobody's saying Trump isn't allowed to defend himself. He can go look on the subway and call up a lawyer just like anybody else in this country," Mystal offered.

In other words, if you want the DOJ to defend you in lawsuits, you'd damn well better make sure you've not done the thing of which you're being accused. Or at least it had better clearly have been an accident or innocent mistake. But if you're gonna actively/carelessly crime on the job, get your own lawyer.

"The question is whether or not he is absolutely immune from the charge of defamation, and whether or not the Justice Department, yours and mine and Neal's tax dollars have to feed into making that defense for him. That's the question. Nobody's saying Trump isn't allowed to defend himself from these charges, but can sure enough hire his own lawyer to do it."

There is nothing keeping Garland from changing course from Barr's DOJ on this, other than precedent, and the tradition of DOJs not flipping positions on laws and policies from president to president, which allows the DOJ to maintain vitally necessary neutrality, and an apolitical stance. But Garland is so focused on appearing apolitical that he is allowing that to have an outsized impact in his decision. He is so concerned about setting a potentially dangerous new precedent for future DOJs that he is losing focus on righting the massive, seismic injustices of the previous DOJ.

While it was like pulling teeth to get him to summarize his opinion, Mystal came up with this brilliant analogy later in the show:

Bill Barr ran a car into a tree. Merrick Garland is trying to rebuild the car, as opposed to going and getting the person who ran the car into the tree. That's my problem. When a drunk driver wrecks their car, you don't go to a Mavis. You arrest the driver, and if you can't do that, you go after the bartender that served him the drinks. THAT'S what I need Garland to do that he's not doing.

Don't feel bad, Elie. With time and practice, you'll become more comfortable expressing your opinion.

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