It is increasingly unlikely, these people said, that former Massachusetts governor Deval Patrick will be selected to become the nation’s top law enforcement official. People familiar with the discussions said in recent days that the discussions of the three other candidates have increasingly shifted toward the likelihood of confirmation in the Senate, which is currently controlled by Republicans. On that question, Jones is viewed as having an edge over Yates, according to the people familiar with the discussions.
With Jones’s stock on the rise, some civil rights leaders have privately expressed some reservations to members of Biden’s inner circle in recent days about whether his record on criminal justice reform and civil rights is sufficient. As a U.S. attorney in Alabama in the Clinton administration, Jones famously prosecuted members of the Ku Klux Klan who bombed a Black church in Birmingham in 1963, killing four girls. The case had been stymied by then-FBI Director J. Edgar Hoover, but was resuscitated in 1971 and then again in 1993 at the urging of civil rights leaders.
House Majority Whip James E. Clyburn (D-S.C.) recently cited that case in praising Jones to the website Cheddar.
“Decades they walked around free after bombing that church and killing those four Black girls. [Jones] prosecuted them and got them convicted,” Clyburn said. “You don’t have to be Black to do right by Black people.”
But — publicly and privately in conversations with those close to Biden — some civil rights leaders have suggested the case does not, by itself, demonstrate the kind of proven track record on civil rights and criminal justice reform they would like to see in an attorney general.
“I would never look at one case for anyone to determine the full measure of their record on civil rights or criminal justice reform,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. “I think if you’re looking at the full measure of their record, it’s legitimate to ask how broad that record is in the matters that are of most interest to activists and communities of color around the country.”
As a senator, Jones sponsored voting rights legislation and co-sponsored the bipartisan criminal justice reform First Step Act. He also successfully passed legislation calling for the release of records about unsolved criminal civil rights cases, and he struck a deal to permanently renew annual federal funding for historically Black colleges and universities.
Some civil rights leaders have privately expressed concern that Jones voted to proceed on a Republican police reform bill, led by Sen. Tim Scott (R-S.C.), that Democrats and the civil rights community saw as too weak. Jones was only one of two Senate Democrats to break with his party, along with Joe Manchin III (W.Va.). Jones’s vote, though, was only procedural. He told WBUR radio at the time that he would not vote to pass it “as is” but wanted to bring the bill to the floor for debate, where “the American people would have seen the flaws” in it.
Asked about the possibility of a Jones nomination, one civil rights leader speaking on condition of anonymity said: “Nobody’s going to be jumping up and down with enthusiasm,” but added, “I don’t know if people would be jumping up and down with opposition either.”
A spokeswoman for Jones declined to comment.
Several civil rights leaders have publicly expressed a preference for a Black attorney general. Marc Morial, president and CEO of the National Urban League, said that in addition to scrutinizing the attorney general pick, he was focused on the entire slate of senior officials that Biden will pick to run the Justice Department.
“I’ve made that point privately, repeatedly, that the attorney general is crucial, but the team is crucial,” he said.
To that end, people familiar with the discussions said the incoming administration has increasingly focused in recent days on finding Black candidates to nominate for other Justice Department jobs, as it appears likely that Biden’s attorney general pick will be White.
Ifill has publicly expressed support for Yates, and other civil rights leaders have seemed to give her a tacit endorsement — noting that familiarity with the inner workings of the Justice Department was an important criterion to them. That would not seem to apply to Jones or the other person still under consideration, Garland, as both of their experience in the Justice Department was from long ago.
Yates has more-recent and extensive history on civil rights and criminal justice reform. As the Justice Department’s No. 2 official at the end of the Obama administration, she ordered the shutdown of private prisons under the department’s control, pushed for ending the use of solitary confinement and helped implement sentencing reform. She was also generally viewed inside the building as an advocate for prosecuting police officers who committed misconduct.
According to people familiar with the matter, when a dispute erupted among the department’s Civil Rights Division and federal prosecutors in New York about whether to bring charges against the officer involved in the death of Eric Garner, Yates sided with the Civil Rights Division, which wanted to proceed with a case. Ultimately, though, Attorney General Loretta Lynch gave the green light to proceed so late in her tenure that the case fell to the next administration, and officials under Attorney General William P. Barr closed it without bringing any charges.
Yates, though, also has detractors, and her confirmation could be a bruising fight. Senate Republicans have scrutinized Yates and others’ supervision of the FBI’s probe of President Trump’s 2016 campaign — recently calling her to testify publicly about the matter — and Trump has attacked her as having “zero credibility.”
A new issue emerged this week that could complicate the confirmation process for whichever candidate Biden chooses — the disclosure of a two-year investigation of the incoming president’s son, Hunter Biden, into whether he paid taxes on China-related business dealings. Already, some Republicans are calling for a special prosecutor to be appointed to handle the investigation.
Robert Mintz, a former federal prosecutor now in private practice, called the Hunter Biden case “the first big test” of President-elect Biden’s pledge to reestablish the independence of the Department of Justice.” Mintz said the next attorney general will face “the daunting task of how to manage a highly politically charged investigation of an immediate member of the president’s family while attempting to maintain the appearance of autonomy and lack of political influence in the decision-making.”