Tuesday, May 25, 2021

Theseus' Ship v. The Department of Justice

So everybody on Twitter is suddenly a legal expert (again) and people who wish they were lawyers (or wish they were legal scholars, if they are lawyers) are buzzing about pontificating on what's going on in court with the DOJ and the Mueller report. And it's producing, not light, but mud: Shaub's argument is with what DOJ is trying to prevent.  He has a lot of problems with you people ("you people" being the DOJ), but that's an argument I don't think we can really have on Twitter, because the legal issues are too complex, and Shaub mostly just quotes Jackson's order and adds more heat than light.  The DOJ not agreeing with the Judge does not mean the DOJ is wrong or even pernicious.  That's part of the point of emptywheel's tweet, because people are jumping to all kinds of conclusions that are entirely unwarranted.
The argument before the court is about releasing the entirety of a memorandum opinion.  What the DOJ is appealing is that ruling.  What they are not challenging is the release of portions of that opinion which are discussed in Judge Jackson's memorandum opinion (that's what I'm getting from reading these tweets, mind.).  So, in part, this is not a major revelation; but also in part, this is not a major obstruction of the "right to know."  So I'm a bit confused as to what Walter Shaub's problem is, especially the parts where the DOJ has to abandon arguments previously made, and even admit it previously (as an institution, mind) made some bald-faced misrepresentations.  I do seem to remember the DOJ had this problem previously under Trump, when several DOJ attorneys had to withdraw from a case where they were being pressured to misrepresent the law and the facts to the court. (Found it!  The Census cases in 2019, on the matter of putting a citizenship question in.) So we've been down this road once or twice before, and the DOJ now is between Scylla and Charybdis:  on one hand trying to clean up the mess Barr made, on the other trying to preserve the institution of the DOJ.  Which, yes, raises the institutional problem of the "DOJ," which raises a sorta question of identity metaphysics*.

You know the stuff:  if you preserve Theseus' ship as a memorial by repairing and replacing parts over a long history, eventually you've replaced every part of it, and the question arises:  is it still Theseus' ship? (although more accurately the question is "What does it mean to call it "Theseus's ship"?)  So if you replace the AG with a new AG, and new assistant AG's (or deputies, or whatever they call the people right below the AG), have you replaced the DOJ?

Well, obviously not.  The idea of the DOJ is that it is not changed by a change in leadership; not fundamentally changed, I mean.  The ship is still a ship, even if no part of it ever felt the tread of Theseus, anymore.  And since "Theseus' ship" is actually the name of a memorial, is the memorial no longer a memorial if it is no longer in every part the original ship? (yeah, the "paradox" is based on a category error).  So the DOJ is still the DOJ, even if Bill Barr ran it up on the rocks and left it there during the hurricane as he helicoptered away.  He was a lousy captain, but does that give us salvage rights to the ship, including the right of plunder?

Some says yes, and some says absolutely!
There you go: helpful advice from a random Twitter user who has no connection to the DOJ whatsoever (or probably any experience in government service, any training in law, etc., etc., etc.).  The people unburdened with knowledge always have the best understanding of the solution to the problem.

So what is the DOJ up to?  I'm gonna go out on a limb and say the DOJ is doing what it thinks is best for the continuing function of the DOJ. I'm also gonna say this is not a position they are happy with, and that there are institutional reasons for the position they have taken which have nothing to do with covering Bill Barr's considerably large exposure.  Then again I've read apologias both considerably legally and institutionally arcane, as well as those very politically arcane.  And I've decided those people have no more idea than I do what the justification for DOJ's posture on this is, except it's clearly not so simple as all the knee-jerk reactions would have you believe.

And that's the part I want to pay attention to:  ignore the screeching from the peanut gallery, and pay attention to what DOJ is actually saying, viz: Ah, you see? That's a different kettle of fish entirely. Now we may be getting somewhere! So, the stated DOJ posture (now; yes, elections and changes of AG do have consequences; everybody take a deep breath, this isn't a TV show where the problems are raised and solved in 45 minutes, with commercials) is that Mueller screwed the pooch and opened a loophole Barr could drive a Mack truck through, and Barr happily took that option.  Here, let me emphasize it for you:  "In doing so, Barr rejected Mueller’s “fairness” theory/argument. What we see from Garland’s DOJ’s filing is that they reject it, too." 

I'm still not sure where that put's Garland's DOJ on the prosecution of Trump, or on any of the legal issues (which I'm also not clear about) raised by this action by the DOJ.  I think this is a legal argument they are obliged to pursue. Some sources indicate there is a question of a particular type of privilege involved, one allowing confidential consideration of legal theories, strategies, and postures to be conducted by the DOJ, not just by any Administration in charge of the DOJ at any moment.  Part of the question of identity metaphysics here is, who's DOJ is it?  Theseus' ship was his while he captained it, but once he died it became a memorial.  The memorial is "Theseu's ship," but is that label a designation, or a recognition of the rightful owner?  If the former, does the possessive not make it still a posession of the person named?  It is not longer Barr's DOJ; but it is still the DOJ.

The question of Mueller's actions, and the actions of Barr in response to Mueller, are more particular and, I dare say, more pertinent.  Screaming and yelling about what you think the DOJ is doing is one thing:  it generally makes you feel important if you scream the loudest and everyone listens to your argument (or screaming, more accurately).  But actually paying attention to what the DOJ is arguing, and what the judge is arguing, is a great deal more helpful.**  



*No, I'm still not convinced that's a "thing," but it's a handy bag to put some concepts into, so we'll use it here regardless.

**And there is some interesting speculation on whether this position is going to put pressure on Garland to prosecute Trump for obstruction of justice.  Again, a much more interesting question than why the DOJ is arguing with the trial judge about the release of certain documents.
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