There is no single federal agency riper for a restart under a new administration than the Department of Justice. Critics charged President Trump treated DOJ as his personal legal firm. President-elect Joe Biden has pledged to restore the agency’s independence from politics and rebuild divisions shrunk during Trump’s tenure.
Biden unveiled his foreign policy team last week, but he may not name his choice for attorney general right way. Biden insiders told The Washington Post the President-elect wants to hold off until he can introduce a slate of nominations for top DOJ posts covering a range of issues. The formal transition, which involves direct communications between outgoing and incoming officials, has just begun.
A priority for Biden’s new DOJ leadership will be to improve morale. The agency saw resignations and staff lawyers withdraw from cases over alleged politization of the agency’s decision-making, often at the public urging of Trump. That could take the form of reinstituting previous polices and tossing out Trump policies. Biden’s DOJ also is expected to review pending or potential civil investigations.
Areas within DOJ that Biden is certain to resuscitate include the civil rights and environmental enforcement divisions. Vanita Gupta, who headed the Civil Rights Division under the Obama administration, told the Post, “I expect a Biden Department of Justice to take its civil rights enforcement mission very seriously and consider it a top priority. That’s not just policing – that’s LGBTQ rights, that’s educational equity, that’s ensuring hate crimes enforcement.”
There also are signals of a more aggressive role on environmental enforcement. In his presidential campaign, Biden promised to establish an Environmental and Climate Justice Division that would be separate from the existing Environment and Natural Resources Division. The move would complement Biden’s appointment of John Kerry as a special climate change envoy and his observation that the Environmental Protection Agency under Trump referred the fewest anti-pollution criminal cases in decades.
Based on campaign statements, Biden will okay more and broader investigations into systemic misconduct by local police departments, again a practice Trump’s DOJ largely sidelined. Biden also indicated he will reinvigorate the Community Oriented Policing Services office that offers grants for local police departments undertaking reform.
I expect a Biden Department of Justice to take its civil rights enforcement mission very seriously and consider it a top priority. That’s not just policing – that’s LGBTQ rights, that’s educational equity, that’s ensuring hate crimes enforcement.
While Trump is seeking to speed up executions before his term ends, Biden’s DOJ is likely to suspend or limit them, along with ending federal use of private prisons. Biden has expressed support for criminal justice reforms to reduce incarceration, including limiting cases that carry minimum sentences, and instead emphasize “redemption and rehabilitation”.
Perhaps the thorniest political question Biden and his attorney general will face is whether and how to pursue investigations and prosecutions of Trump and his aides. Biden has deflected the issue by stressing the independence of the DOJ during his tenure to make such decisions. That may not satisfy all members of his political coalition who want Trump held to account for alleged self-dealing, obstruction of justice, immigration law violations and false claims about the 2020 election, which he is continuing to make in fundraising appeals.
Names circulating as potential Biden choices for attorney general include Sally Q. Yates, the former deputy AG whom Trump fired, and outgoing Alabama Democratic Senator Doug Jones, who was defeated in the election. Other names mentioned include former Massachusetts Governor Devall Patrick, California Attorney General Xavier Becerra and former White House adviser Lisa Monaco, who played a role in vetting Biden vice presidential candidates.
One other intriguing name in the hopper is Merrick Garland, the federal appeals court judge whose nomination to the Supreme Court by President Obama in 2016 was stonewalled in the GOP-controlled Senate. Garland began his career at DOJ, managing parts of the sprawling agency and overseeing the successful prosecution of Timothy McVeigh for bombing the federal building in Oklahoma City.
Biden is no stranger to criminal justice reform based on his work in the Senate. His views will benefit from advice from Vice President-elect Kamala Harris, who was a prosecutor and attorney general in California before her election to the Senate, where she served on the Senate Judiciary Committee.