The Department of Justice appears to have discouraged the U.S. Marshals Service from arresting protesters illegally demonstrating at the homes of the Supreme Court justices, according to internal materials obtained by a United States senator.
During a hearing Tuesday, Sen. Katie Britt, R-Ala., revealed training slides reportedly from a “whistleblower in DOJ who was concerned about the attorney general’s misleading testimony before the Judiciary Committee.” Those slides were used to prepare U.S. Marshals personnel for their protective details outside of justices’ homes, according to the senator.
Britt said the DOJ explicitly discouraged U.S. Marshals from enforcing the law against the protesters without coordination with the relevant U.S. attorney’s office, warning that it would be “counterproductive” for the marshals to make arrests on cases that the DOJ “will not charge and prosecute.”
“Not a single person has been prosecuted for illegally harassing Supreme Court justices outside of their homes,” Britt said after the hearing. “The reason is crystal clear: The Department of Justice has willfully chosen not to enforce federal law.”
The slides stand in contradiction to Attorney General Merrick Garland’s previous assertion to lawmakers that the decision to arrest the protesters lies with the U.S. Marshals. Garland also admitted that it is a federal crime under 18 U.S.C. § 1507 to protest outside a judge’s home with the intent of influencing that judge.
“Decisions have to be made on the ground about what is the best way to protect those lives,” he said on March 1.
The slides also coincide with The Daily Signal’s previous conversations with U.S. Marshals outside the homes of the justices. In January, The Daily Signal spoke with several U.S. Marshals who said that the activists are not breaking the law since they were not on the justices’ property, merely the sidewalk.
The authorities also repeatedly mentioned the First Amendment and free speech and said that the activists had the right to demonstrate as long as they were within the law.
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Garland has not enforced 18 US Code 1507, though both Virginia Gov. Glenn Youngkin and former Maryland Gov. Larry Hogan requested that he do so.
“U.S. Marshals have the authority to arrest anyone under that statute or any other federal statute,” Garland said earlier this month. “The attorney general does not make the decision to arrest. The marshals on the scene—they do make the decision of whether to arrest.”
Britt questioned Garland about the slides on Tuesday, where the attorney general told her that he had not been aware of the slides and noted that the marshals were still permitted to make arrests, adding that their “first and principle job is to protect the lives and property of the members of the court.”
“Protest is not synonymous with unlawful activity,” the slides read, noting that the First Amendment protects public protests.
The slides also instruct the marshals to avoid, “unless absolutely necessary, criminal enforcement actions involving the protest or protestors, particularly on public space.”
“Making arrests and initiating prosecutions is not the goal of the USMS presence at SCOTUS residences,” the slides say.
“Enforcement actions that involve both federal and state/local crimes, particularly those that involve public space, should be conducted by state and local authorities, if possible,” they read.
The slides specifically address 18 USC 1507: “the face of 1507 directly implicates activities that also involve the 1st A right to free speech, to assemble, and to petition government. The ‘intent of influencing any judge’ language thus logically goes to criminal threats and intimidation, not 1st A protected protest activities.”
The slides suggest that “any threat or intimidation that may violate 1507 likely also involves other” federal, state, or local criminal statutes.
“Regardless,” the slides say, “any arrests of protestors are a last resort to prevent physical harm to the Justices and/or their families.”
Though Garland told the Senate Judiciary Committee that the marshals had “full authority” to decide on arrests, the slides order the marshals to coordinate their enforcement with the relevant U.S. attorney’s office.
The Heritage Foundation’s Oversight Project sued the Justice Department earlier in March for communications related to the department’s failure to apply federal law against far-left protests at the Supreme Court justices’ homes. (The Daily Signal is the news outlet of The Heritage Foundation.)
Since June 17, 2022, the Oversight Project has filed multiple FOIA requests seeking records related to the enforcement of 18 U.S.C. § 1507 and protests at Supreme Court justices’ private residences. When the DOJ did not properly acknowledge these requests or provide the requested information, Heritage’s Oversight Project filed a lawsuit seeking judicial relief.
“Attorney General Garland told the Senate that the decision to allow violations of 1507 to continue was made by the U.S. Marshals,” Mike Howell, director of the Oversight Project, told The Daily Signal last week. “I don’t think that is true, and if it was, then why are they unlawfully withholding the records from us?”
Oversight’s requests include all records related to “18 U.S.C. § 1507 and protests, picketing, parades, demonstrations, occupations, sit-ins, or any other form of protest at the residences of the Chief Justice of the United States or the Associate Justices of the Supreme Court of the United States.”
The groups of far-left activists, which include individuals such as Sadie Kuhns, Melissa Barlow, Nikki Enfield, and Nadine Seiler, have been protesting at the homes of the Supreme Court justices since the May leak of the draft opinion indicating that Roe v. Wade would soon be overturned.
That unprecedented leak sparked protests throughout the country, attacks on scores of pro-life centers and faith-based institutions nationwide, and even an assassination attempt against Justice Brett Kavanaugh.
According to Justice Samuel Alito, it also made the justices “targets for assassination.”
“It was a shock because nothing like that had happened in the past,” Alito said of the leak in October during remarks at The Heritage Foundation. “So it certainly changed the atmosphere at the court for the remainder of last term.”
He added: “The leak also made those of us who were thought to be in the majority, in support of overruling Roe and Casey, targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us.”
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