Most senior Democrats and former Justice Department officials agree that Sally Q. Yates, the former assistant attorney general who ran from 2015 to the early, tumultuous days of the Trump administration, is a top candidate for the position. Other names considered include Senator Doug Jones (D-Ala.), Former Homeland Security Secretary Jeh Johnson, Former Massachusetts Governor Deval Patrick, California Attorney General Xavier Becerra, and Former White House Advisor Lisa Monaco.
Behind the scenes, every Democratic candidate has a constituency as well as a critic. But whoever chooses Biden must be ratified by a Senate currently controlled by Republicans and take command of a department plagued by allegations of politicization.
“Personnel is politics,” said a former senior government official. “Whoever the president chooses can signal the political goals of the new administration, such as a focus on restoring the department or a focus on civil rights.”
In Biden’s transition team, initial discussions focused on re-establishing a more robust civil rights department and pushing the reform of the criminal justice system more vigorously, according to those familiar with the discussions, who, like others, discussed internal considerations on condition of anonymity. At the same time, Biden has pledged to restore independence to the department and his senior advisors are eager to improve morale after outgoing Attorney General William P. Barr delivered a speech in September that annoyed many of the department’s career workers. Some of these employees, in turn, wrote public letters denouncing him.
Vanita Gupta, who served as head of the Justice Department’s civil rights division during the Obama administration and now serves as president of the leadership conference on civil and human rights, said the Biden Justice Department will likely move quickly on two fronts: rebuilding morale the department by restoring independence from the White House and demonstrating early commitment to civil rights.
“There’s going to be a pretty significant shift on both fronts,” said Gupta. “I suspect and would expect a Justice Department in Biden to take its mission to enforce civil rights very seriously and consider it a top priority. This is not just police work – this is LGBTQ rights, this is educational equity that ensures hate crime enforcement and all of those things. “
Gupta also said she expected the department leadership to quickly withdraw some of President Trump’s controversial attorney general guidelines. These include Jeff Sessions’ order, which restricts the federal government’s ability to enforce changes to state and local law enforcement agencies alleged to have abused by judicial consent orders, and his comprehensive order asking prosecutors to indict cases for one mandatory minimum trigger rates – something the previous government had advised against.
“There is a long list of these memos that reform the criminal justice system requires the withdrawal or restoration of civil rights,” Gupta said.
Gupta said the department is also likely to review its position on various civil lawsuits and may take a different route from the Trump administration, especially in cases where professional lawyers’ judgments have been overridden by political leaders.
“The department’s morale really took a very bad blow in the Trump era and that is why you have seen long-time career employees step down, withdraw from cases and refuse to sign briefs reversing their verdict,” said Gupta. “The hope is that the new leadership will respect the agency’s independence and the importance of not allowing politicians to dictate how decisions are made in investigations and cases. Hopefully all of this will boost morale in the Justice Department and I think that is definitely very possible. I think there is a lot of hunger for it. “
Talks among Biden transitional officers also focused on environmental issues and signaled possibly a more aggressive role for the Department of Justice’s Environment and Natural Resources Department, according to those familiar with the discussions. Biden’s campaign website promised to set up a separate department for environmental and climate justice within the agency and to appoint officials to pursue environmental cases “to the extent permitted by law”. In the Trump administration, the Environmental Protection Agency referred the lowest number of pollution cases to the Justice Department in decades, according to Biden’s campaign website.
Those initially working on the switch were prevented from speaking to current Justice Department staff because they believed they could not do so properly before Emily Murphy, head of the General Services Administration, made the necessary determination to free up resources. Members of the Biden team relied largely on their personal experiences and conversations with former officials while they waited to get inside the building and evaluate the work to be done.
However, this is expected to change now as officials prepare for a Justice Department whose priorities will shift dramatically.
The department has recruited Lee Lofthus, Assistant Attorney General for Administration, to contact Biden’s agency review team, led by Christopher H. Schroeder, a former Justice Department official who now works at Duke University Law School. The official said Lofthus would coordinate briefings for a review team assembled by Biden on issues such as budget and departmental organization, and the staff would also arrange briefings from the various components of the Justice Department.
Biden’s campaign website noted that the Trump administration had restricted the use of extensive “sample-or-practice” investigations and consent orders to combat systemic misconduct in local police departments, and signaled that Biden would expand the Department of Justice’s activities in this area . Democratic governments tend to be more aggressive than Republican on such issues, a trend that has become increasingly evident over the past decade.
The Biden campaign has pledged to raise funds for the Justice Department’s civil rights division “to increase the number of investigators,” and promised to push for legislation to clarify that patterns or practices also target public prosecution malpractice could. Biden pledged to revitalize the Community Oriented Policing Services office, which distributed grants in the Trump administration but no longer worked with law enforcement agencies on comprehensive reform deals.
Trump figured himself out as the “Law and Order” president, and his Justice Department took an aggressive stance to fight the crime, drawing criticism from Democrats for calling such efforts a relapse into tenacious strategies of the 1980s.
In contrast, Biden’s campaign website said he would “reduce federal spending on incarceration” and stated that the criminal justice system “must be geared towards salvation and rehabilitation.” The website said Biden would once again end the federal government’s use of private prisons – something Yates did in the Obama administration’s Justice Department only to see the policy reversed in Trump’s first few months in office.
Trump personally complained about his allies’ treatment in criminal matters, which led to an intervention by the Supreme Justice Department and unsuccessfully called for his enemies to be prosecuted. Biden’s new chief of staff has said publicly that Biden will not tell the department who to investigate or who not to investigate.
The incoming Biden administration will have to decide how aggressively to investigate allegations of wrongdoing by its predecessors, including Trump and those close to him. Some former Justice Department officials have argued that prosecutors in New York or elsewhere should pursue criminal proceedings against Trump once he is out of office, while other former law enforcement officials have argued that doing so would destroy Trump’s long-term integrity, according to the department.
Beyond the basic question of the criminal investigation, Biden’s team is also likely to grapple with a version of the same problem the Obama administration faced in the first few months – how much time and political capital was spent on the previous administration’s controversies and scandals must become. The Biden Justice Department is likely to face decisions on how much information to share with Congress, or at the request of the Freedom of Information Act, about the Trump administration’s family segregation policy on the U.S.-Mexico border, handling cases, which involve people close to the US state, president and all internal discussions about pardons are to be exchanged.
In part because of competing democratic priorities, the Biden transition team is considering launching its attorney general selection at the same time as other top candidates for the department, such as the assistant attorney general, associate attorney general, and attorney general familiar with the discussions. Presenting a list of nominees who have a range of experiences covering a range of topics, rather than just one individual for a single job, could mitigate the unhappiness over a single selection, these people said.
A spokesman for the Biden transition said, “No personnel decisions have been made at this time.”