The Morning Dispatch: What’s Going On at the Justice Department?

Happy Tuesday! Unlike a certain president of the United States, we’re going to send this newsletter on time and not inexplicably make you wait an extra two hours for it.

Quick Hits: Today’s Top Stories

• Novavax announced yesterday its nanoparticle, protein-based COVID-19 vaccine was 100 percent effective at preventing moderate and severe disease in Phase III trials, and 90 percent effective overall (including 93 percent effective against “predominantly circulating Variants of Concern and Variants of Interest”). If the vaccine receives regulatory approval, the Maryland-based company said it remains on track to manufacture 100 million doses per month by the end of Q3 2021 and 150 million doses per month by the end of Q4 2021.

• President Joe Biden and Turkish President Recep Erdoğan met in Brussels yesterday during the annual NATO leaders summit, with Biden characterizing their discussion as “positive and productive.” It was the pair’s first face-to-face meeting since the Biden administration formally recognized the Armenian Genocide and the Trump administration sanctioned Turkey for purchasing a Russian missile system.

• The Senate voted 53-44 yesterday to confirm Judge Ketanji Brown Jackson to the U.S. Court of Appeals for the D.C. Circuit, filling the vacancy created by Merrick Garland’s attorney general nomination. Jackson is widely believed to be on President Biden’s Supreme Court shortlist.

• British Prime Minister Boris Johnson announced a four-week delay to the end of the United Kingdom’s coronavirus lockdown, pushing the country’s full reopening back from June 21 to July 19. “We are so concerned by the Delta variant,” Johnson said Monday. “We can simply keep going with all of step 4 on June 21 even though there is a real possibility that the virus will outrun the vaccines and that thousands more deaths would ensue that could otherwise have been avoided. Or else we can give our NHS a few more crucial weeks to get those remaining jabs into the arms of those who need them.”

• A pair of studies published in the U.K. and Scotland Monday found that existing vaccines provide significant protection against the Delta COVID-19 variant. Two doses of Pfizer/BioNTech’s vaccine, for example, reduced the risk of hospitalization with the Delta variant by 96 percent in a Public Health England report. A Scottish analysis found two doses of Pfizer/BioNTech’s vaccine to reduce the risk of infection with the Delta variant by 79 percent.

• Reality Winner—the former National Security Agency contractor sentenced in 2018 to more than five years in prison for leaking information about Russia’s attempts to influence the 2016 election—was released on Monday, according to her lawyer. 

• The United States confirmed 11,605 new cases of COVID-19 yesterday per the Johns Hopkins University COVID-19 Dashboard. An additional 160 deaths were attributed to the virus on Monday, bringing the pandemic’s American death toll to 599,928. According to the Centers for Disease Control, 13,944 Americans are currently hospitalized with COVID-19. Meanwhile, 1,323,282 COVID-19 vaccine doses were administered yesterday, with 174,234,573 Americans having now received at least one dose. (There was a glitch with the Johns Hopkins testing data yesterday.)

The Department of Justice News, Explained

As we noted in the Quick Hits section of yesterday’s TMD, the New York Times reported late last week that the Department of Justice subpoenaed Apple in 2017 and 2018 for data associated with the accounts of Adam Schiff and Eric Swalwell, two Democratic members of the House Intelligence Committee and vocal critics of former President Donald Trump, as well as some staffers and family members. Subpoenas were also used to obtain Apple account information belonging to former Trump White House Counsel Don McGahn and his wife.

Although this information was obtained three years ago, Apple just notified the affected account holders last month because of a gag order that was renewed three times. With at least one of the investigations now reportedly closed, the Justice Department allowed Apple to notify Schiff and Swalwell that their information had been requested in a subpoena from the federal government, and that Apple had complied with the request. 

The outrage was immediate—and predictable. “Like many of the world’s most despicable dictators, former President Trump showed an utter disdain for our democracy and the rule of law,” Swalwell said in a press release. “This kind of conduct is unacceptable, but unfortunately on brand for a president who has repeatedly shown he would cast aside our Constitution for his own personal gain.”

Sen. Josh Hawley, a Republican, was far less hyperbolic in his language with reporters Monday night—but expressed some concern over the process. “That’s not a small deal,” he said. “I haven’t been briefed on that; all I know is the news reports. But it’s something we want to take seriously. Because DOJ does have that power, and it can be appropriate, but you want to do that in very rare circumstances, and it needs to be appropriate.”

The two men seemingly most implicated by the story—former Attorneys General Jeff Sessions and William Barr—have in recent days denied being aware of the subpoenas until news reports from last week. Rod Rosenstein, who was the acting attorney general for the Russia investigation and oversaw the special counsel, has told associates something similar. Barr went on-the-record with Politico, declaring he was “not aware of any congressman’s records being sought in a leak case.”

How can that be? Sarah (who, full disclaimer, worked as the Justice Department’s director of public affairs under Sessions) posited a guess on yesterday’s Advisory Opinions: The Justice Department was investigating a House staffer for violating federal law by leaking classified information, and Schiff and Swalwell’s phone numbers happened to get swept up in that investigation.

“In order to investigate anyone, you’re going to pull their toll records, meaning who they called, the numbers that they spoke to at the time you think the leak happened. So let’s say in that one-week period for this House staffer that they were investigating, they pulled 100 phone numbers that he interacted with in some way, that his cell phone interacted with. You’ve just got a bunch of 10-digit numbers David, you don’t know who they belong to. You don’t know what these numbers are. He could be calling for pizza. So what you do is you go to Apple and you say, ‘Here’s a subpoena, we need the account information for these 100 phone numbers,’ in order to figure out who is useless on that list, right? And if you are a House staffer, it is not surprising that two of the numbers that you might have called are members of the House.”

As Matt Tait—a cybersecurity expert and former British intelligence official—pointed out on Twitter earlier this week, Sessions, Rosenstein, and Barr are either “denying knowledge of a document that has their own signature on it and which they know will be published, or this story has travelled a fair distance from the underlying facts.”

Such investigations into congressional aides are not that unusual. In 2018, Senate Intelligence Committee staffer James Wolfe was sentenced to two months in prison after pleading guilty to lying to the FBI in connection to a leak investigation. The Associated Press reported that a former House Intelligence Committee staffer was questioned by federal agents last year, but “ultimately, prosecutors weren’t able to substantiate a case.”

There is currently no evidence that any political appointee in the White House or at the Justice Department signed off on—or was even aware of—the subpoenas in question, but top Democrats were quick to demand investigations. 

“This appalling politicization of the Department of Justice by Donald Trump and his sycophants must be investigated by both the DOJ Inspector General and Congress,” Senate Majority Leader Chuck Schumer and Senate Judiciary Committee Chairman Dick Durbin said in a statement. “Former Attorneys General Barr and Sessions and other officials who were involved must testify before the Senate Judiciary Committee under oath. If they refuse, they are subject to being subpoenaed and compelled to testify under oath.”

Michael Horowitz, the Justice Department’s inspector general, announced Friday he was launching a review of the department’s use of subpoenas regarding members of Congress and the news media, examining “the Department’s compliance with applicable DOJ policies and procedures, and whether any such uses, or the investigations, were based upon improper considerations.”

That was enough for Senate Minority Leader Mitch McConnell, who on Monday dismissed calls for Barr and Sessions to testify as a “witch hunt in the making,” adding that the Justice Department’s inspector general is “fully equipped to determine whether [strict procedural protections] were followed in this case.”

Attorney General Merrick Garland also issued a statement on the topic yesterday expressing his “full confidence” in Horowitz to “conduct a thorough and independent investigation.” He added: “There are important questions that must be resolved in connection with an effort by the department to obtain records related to Members of Congress and Congressional staff.”

But Garland has thus far declined to elaborate on what information was sought or collected with the subpoenas in question, or explain why the Department has refused to release the subpoenas if the investigation in question has been closed. Senate Judiciary Committee Democrats sent the attorney general a letter on Monday asking him to release the subpoenas—as well as other documents and communications related to the original investigation into the leaks—within two weeks.

This isn’t the first time Garland has received blowback from Democrats in recent weeks. Testifying before the Senate last week, the attorney general was pressed by Sen. Patrick Leahy on the Justice Department’s decision to continue defending former President Trump in a defamation suit brought by author E. Jean Carroll over derogatory comments the former president made about her after she accused him of rape.

“The job of a Justice Department in making decisions of law is not to back any administration, previous or present. Our job is to represent the American people. And our job, in doing so, is to ensure adherence to the rule of law,” Garland said. “Sometimes it means that we have to make a decision about the law that we would never have made—and that we strongly disagree with—as a matter of policy.”

The decision regarding the Carroll lawsuit outraged many Trump opponents, but even progressive legal analyst Ian Millhiser pointed out in Vox that it was not all that unreasonable or unprecedented. Due to institutional concerns, the Justice Department has only rarely switched positions after past presidential transitions.

“If [Carroll] ultimately prevails, her victory could fundamentally weaken the presidency as an institution—and it could do so when future presidents are sued for conduct far less odious than Trump’s,” Millhiser wrote. “[Carroll v. Trump], in other words, forced the Justice Department to choose between its institutional responsibilities and avoiding the repugnance of being associated with Trump’s behavior. It ultimately decided that its larger responsibilities must prevail.”

Last year, a Pew survey showed that the Department of Justice was one of the federal agencies viewed least favorably by the public, particularly among Democrats. Garland has, early in his tenure, attempted to rhetorically steer the agency above the hyper-partisan fray—he reiterated Monday that he will “vigorously guard” the principle that “political or other improper considerations must play no role in any investigative or prosecutorial decisions”—while continuing to advocate forcefully for Biden administration priorities like protecting voting rights.

Do We Need Novavax?

With more than half of eligible Americans already fully inoculated against COVID-19 and the Biden administration ramping up its commitments to airmail U.S. vaccines around the world, you’d be forgiven for thinking that the impending approval of yet another company’s vaccine is back-page news. But biotech company Novavax’s announcement Monday of strong Phase III vaccine trial data may be a boon for those still worried about residual U.S. vaccine hesitancy, should the drug receive approval from the Food and Drug Administration in the near future.

Results from the company’s Phase III trial of 29,960 participants indicate that the two-shot Novavax vaccine has 90.4 percent overall efficacy against all COVID-19 variants, only slightly behind the offerings from Pfizer and Moderna, and better than Johnson and Johnson’s one-shot injection. More importantly, the data shows the Novavax vaccine provides 100 percent protection from moderate and severe cases of disease.

Upon approval from the FDA, Novavax’s inoculation is poised to become the fourth COVID-19 vaccine eligible for distribution in the United States. In a press release Monday, the president of Novavax outlined the company’s plan to apply for regulatory authorizations by the end of Q3 2021 and be producing 100 million doses per month by September. 

The Maryland-based company will likely seek the same emergency authorization that has allowed for the distribution of existing COVID-19 vaccines. But given the already abundant supply of vaccine doses, it is possible the FDA will tell Novavax to apply for full authorization instead. Acquiring a full license would likely take Novavax several additional months, and the company has admitted it will likely win authorization for its vaccine in another country before the United States.

Howard Forman, a professor of public health policy at Yale University, told The Dispatch that the FDA should grant Novavax emergency authorization, since it could potentially allow health providers to reach segments of the population who have up until now been hesitant to receive an mRNA vaccine. 

Like some traditional influenza shots, the COVID-19 vaccine from Novavax is a subunit vaccine, relying on proteins from the virus to trigger the immune system directly. This subunit vaccine is simpler to make than mRNA vaccines, so production will not put additional pressure on existing supply chains, and it may allay some peoples’ fears, whipped up by conspiracy theories surrounding the Pfizer and Moderna vaccines, that receiving a vaccine will alter one’s DNA.

“It’s not using mRNA and it’s not using DNA. It’s just inciting an immune response using a protein, so that’s an advantage,” Forman said. “It’s a vaccine that most people may have an easier time accepting. Even in the United States, it deserves emergency authorization because it potentially serves the needs of millions of people who are hesitant to take an mRNA vaccine.”

Novavax could also be used as a booster shot to suppress the spread of COVID-19 variants. The company has already begun testing the vaccine in this capacity—in a recent trial, researchers gave doses of the Novavax vaccine to baboons who had already received an inoculation a year prior and found that it increased immunity against all existing coronavirus variants.

Even if Novavax does not end up being distributed widely in the United States, the U.S. will be able to send unneeded doses abroad. After the U.S. government’s $1.6 billion investment in Novavax last spring, the company pledged it would supply the United States with 110 million shots. But if these doses prove to be unnecessary, the chief executive of Novavax has already said the U.S. could donate them to the COVAX program that supplies vaccines to developing countries.

Whether Novavax ends up being used domestically or abroad, Forman emphasized that it was a worthwhile investment. “We’re not out of the emergency at this point even though things seem so much more normal,” he said. “Having one more vaccine available to people is a big boost, so I wouldn’t write off its use in the United States. It’s 100 percent effective against moderate and severe disease—with the other vaccines, we’ve been talking about severe disease only. And the population it was tested in was more mixed than the Pfizer and Moderna ones were, with cases of the U.K. variant included. So when you add all that up, it would suggest it’s at least as effective as Pfizer and Moderna, maybe even better.”

Worth Your Time

• Homeschooling tends to evoke a certain trope—usually Christian, primarily white, and often suburban. For TheNew Yorker, Casey Parks writes about a new wave of homeschooling enthusiasts: black families. Parks argues the COVID-19 pandemic exposed fault lines within some public education systems—particularly for young black children—leading school choice advocates to have garnered new teammates, ranging from the libertarian corporation Koch Industries, to urban Detroit families.

• For The Atlantic, Derek Thompson discusses the future of working from home. Beginning with the question “who wins?” Thompson posits that established, white collar workers benefit—and will continue to benefit—from the work-life balance WFH offers. Others, such as entry-level workers who need to make an impression on their coworkers, will miss out on coffee runs and commiseration. “If the pre-pandemic office was like a fine-dining experience—a large group enters, sits down together, and leaves several hours later—the post-pandemic office may be more like a neighborhood café,” he writes. “People will come and go, you’ll recognize some of them but feel estranged from others, and the office might convey a sense of both vague belonging and day-to-day transience.”

Presented Without Comment: ‘Politics Stops at the Water’s Edge’ Edition

Toeing the Company Line

• On yesterday’s Advisory Opinions, David and Sarah discuss the Supreme Court’s invitation to the Biden administration to weigh in on a pending challenge to Harvard’s affirmative action policy, as well as two criminal cases that united the justices unanimously in favor of the government. Then, Sarah provides some insight from her own time at the Department of Justice into why a New York Times story that the Trump-era Justice Department seized the data of congressional Democrats might be overblown.

Let Us Know

Do you think it’s truly possible, as Attorney General Garland claimed, for “political or other improper considerations” to “play no role in any investigative or prosecutorial decisions” at the Department of Justice? How do you think impartiality can best be achieved?

Reporting by Declan Garvey (@declanpgarvey), Andrew Egger (@EggerDC), Haley Byrd Wilt (@byrdinator), Charlotte Lawson (@charlotteUVA), Ryan Brown (@RyanP_Brown), Harvest Prude (@HarvestPrude), Tripp Grebe (@tripper_grebe), Emma Rogers (@emw_96), Price St. Clair (@PriceStClair1), Jonathan Chew (@JonathanChew19), and Steve Hayes (@stephenfhayes).