Under Biden, justice dept. lawyers seek a shield from partisan battles
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More than 40 former and current employees wanted someone who would stand up for the employees and protect them from undue political influence
Since President Donald Trump took office, the Justice Department has been under sustained attack as he questioned whether the lawyers and investigators who serve the country were loyalists who supported his personal agenda or traitors who should be rooted out and fired.
But under President-elect Joe Biden, the department’s former and current employees hope that his pick for attorney general will shield the agency from partisan battles and political concerns.
More than 40 current and former department employees shared with The New York Times who they thought should run the Justice Department. They all wanted someone who would stand up for the employees and protect them from undue political influence, something that they say Trump’s attorneys general have largely been unable or unwilling to do.
They said that restoring the department’s independence from the White House, repairing morale and engaging both racial justice advocates and law enforcement officials on matters of race and criminal justice were the biggest issues facing the incoming leader.
More than a dozen people said that they hoped Biden would nominate Sally Q. Yates, the former deputy attorney general in the Obama administration who was fired by Trump for refusing to defend his executive order banning entry to the United States for those from Muslim-majority countries.
Because she had so recently served as a top official in the department, the current and former department employees said they believed Yates would be ready from the get-go to tackle the big national security threats facing the country. As a strong civil rights advocate under President Barack Obama, she would be able to revitalize racial justice work that had languished during the Trump administration, they said.
They bristled at widespread reports that Biden would disqualify her because he feared the prospect of a difficult confirmation hearing. Focusing on a two-day grilling before Congress, they said, would give short shrift to the seriousness of the work to be done.
Two people made cases for Doug Jones, the departing Alabama senator who, as a U.S. attorney under the Clinton administration, prosecuted members of the Ku Klux Klan who had bombed the 16th Street Baptist Church in Birmingham in 1963, killing four Black girls. Jones shares the quality that seems, more than any other, essential to securing a nomination from Biden — he is a close friend of the incoming president.
One person said that he believed Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit, whose Supreme Court nomination Republicans blocked in 2016, would be ideal, citing his reputation for fairness.
Biden’s choice of attorney general has been complicated by the fact that his son, Hunter Biden, is under federal investigation for possible tax crimes, shifting some of the calculus over the pick. Among the questions the selection now raises is whether it is an asset or a liability for the attorney general to be known as a close friend when that person will need to handle such a sensitive matter.
The choice gained some urgency Saturday after Trump again attacked Attorney General William Barr, this time for not publicly disclosing the inquiry. Doing so, he contended, could have helped sway the election in his favor, and the public excoriation set off a fresh wave of speculation that he would fire Barr and replace him with a loyalist who department employees feared could inflict untold damage on the institution.
“Why didn’t Bill Barr reveal the truth to the public, before the Election, about Hunter Biden,” Trump said on Twitter, referring to the federal inquiry. Justice Department policies prohibit public discussion about cases that could influence the outcome of the election.
Some of the people interviewed for this article said that the incoming attorney general should have deep national security experience and expertise in both domestic terrorism issues and challenges from foreign adversaries like China and Iran.
While Democratic administrations often prioritize the work of the civil rights division, the protests prompted by the death of George Floyd this spring have made such work an urgent priority, regardless of which party is in office, most interviewees said. To that end, they hoped for an attorney general who had the strong support of civil rights groups. But many acknowledged that for that to be consequential, on issues including complicated ones like policing, that person should be able to work with groups like the Fraternal Order of Police.
People were deeply divided over how the department should handle the prospect of investigating Trump or his inner circle. Some argued that Biden himself had no appetite for investigating and prosecuting the past and that the attorney general should take a similar approach. Others, mostly prosecutors, said the department must pursue criminal cases without fear or favor.
But those interviewed agreed on one thing: The merits of a case should determine whether the department chose to seek an indictment, and only someone who was seen as nonpartisan could credibly make and explain that sort of sensitive determination.
Nearly everyone said that the incoming attorney general would need to reestablish the idea that prosecutions would be free of political pressure from the president.
“Great damage has been done to the reputation and credibility of the department by the way it has been used for political purposes,” said Jonathan M. Smith, a former prosecutor in the civil rights division who now serves as executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
He said that Barr had contributed greatly to that process by intervening in high-profile cases involving the president’s allies, such as having the department withdraw its prosecution of the president’s first national security adviser, Michael T. Flynn, and presenting the special counsel’s report on Russian interference in the 2016 election as less damning to the president than it really was. But he said the problem of politicization had seeped throughout the agency, preventing career prosecutors from effectively investigating police misconduct.
Some current and former employees argued that the leadership’s decision to largely cut career people out of the decision-making process had contributed to politicization. Others argued that it was not entirely unusual and had been done because of the great amount of information that had found its way into the hands of reporters in the Trump era. Regardless, everyone agreed that it had hurt morale.
The incoming attorney general should solicit opinions from career officials before deciding on significant matters, one former longtime employee of the department said. Moreover, that leader, the former employee said, should trust deputies to bring issues of importance to top leaders when necessary.
An attorney general who adopted “a more inclusive, trust-driven and less hierarchical approach to management” could help repair the department’s culture, said Julie Saltman, a former lawyer in the civil division. “I’d like to see a genuinely good manager.”
Many employees said that they wanted an attorney general who would support their desire for accountability in the wake of the Trump era, even if no one from the current administration was prosecuted.
In a survey of more than 600 Justice Department alumni conducted by the legal group Protect Democracy, 77% said that the attorney general should work to identify all the ways that the departing administration had eroded the department’s norms and policies and build new procedures to restore its integrity. Only 5% said that a change in administration alone would rebuild credibility and restore morale.
“For the government to rebuild norms around Justice Department independence, there needs to be an accounting of what happened and who as involved,” said Rachel Homer, a former lawyer in the civil division.