Most senior Democrats and former Justice Department officials agree a top contender for the position is Sally Q. Yates, the former deputy attorney general whose tenure stretched from 2015 to the early, tumultuous days of the Trump administration. Other names under consideration include Sen. Doug Jones (D-Ala.), former homeland security secretary Jeh Johnson, former Massachusetts governor Deval Patrick, California Attorney General Xavier Becerra and former White House adviser Lisa Monaco.
Behind the scenes, each Democratic contender has a constituency as well as detractors. But whomever Biden picks will have to be confirmed by a Senate that is currently controlled by Republicans, and take command of a department wracked by accusations of politicization.
“Personnel is policy,” said a former senior government official. “Who the president selects may signal the new administration’s policy goals, like a focus on restoration of the department or a focus on civil rights.”
Among Biden’s transition team, early talks have focused on reinstituting a more robust civil rights department and pushing more vigorously on criminal justice reform, according to people familiar with the discussions, who like others spoke on the condition of anonymity to describe internal deliberations. At the same time, Biden has pledged to restore independence at the department, and his senior advisers are keen to improve morale after the departing attorney general, William P. Barr, gave a speech in September excoriating many of the department’s career employees. Some of those 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 works as president of the Leadership Conference on Civil and Human Rights, said the Biden Justice Department will probably move quickly on two fronts: rebuilding morale at the department by restoring its independence from the White House and demonstrating an early commitment to civil rights.
“On both of those fronts, there’s going to be a pretty significant shift,” Gupta said. “I suspect and would expect that a Biden Department of Justice would 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 and all of that type of stuff.”
Gupta also said she expected department leadership to swiftly withdraw some of the controversial directives of President Trump’s attorneys general. Those include Jeff Sessions’s order restricting the federal government’s ability to enforce changes at state and local law enforcement agencies accused of abuses through court-monitored consent decrees, and his sweeping order calling for prosecutors to charge cases in such a way that they would trigger mandatory minimum sentences — something the previous administration had discouraged.
“There’s a long list of those memos that on criminal justice reform, civil rights need to be withdrawn or restored,” Gupta said.
Gupta said the department will also probably review its position in various civil lawsuits, perhaps taking a different tack than the Trump administration did, particularly in cases where the judgments of career lawyers were overruled by political leadership.
“The morale of the department has really taken a very hard hit during the Trump era, and that’s why you saw long-standing career employees resigning, getting themselves off cases, refusing to sign pleadings where their judgment was reversed,” Gupta said. “The hope is that new leadership respects the independence of the agency and the importance of not allowing politics to determine the kind of decision-making in investigations and in cases. All of this will hopefully build morale back in the Justice Department, and I think it’s definitely very possible. I think there’s a lot of hunger for it.”
Talks among Biden transition officials have also focused on environmental issues, perhaps signaling a more aggressive role for the Justice Department’s Environment and Natural Resources Division, according to people familiar with those discussions. Biden’s campaign website vowed that he would establish a separate Environmental and Climate Justice Division within the agency and direct officials to pursue environmental cases “to the fullest extent permitted by law.” In the Trump administration, Biden’s campaign website noted, the Environmental Protection Agency referred the fewest number of criminal anti-polluting cases to the Justice Department in decades.
Those working on the transition initially were prevented from talking with current Justice Department employees, as they felt they could not properly do so before General Services Administration head Emily Murphy made the requisite finding to free up resources. Those on the Biden team largely relied on their personal experience and talks with former officials as they waited to get inside the building and assess the work that needed to be done.
That, though, is now expected to shift, as officials prepare for a Justice Department that will see its priorities shift dramatically.
The department has tapped Lee Lofthus, the assistant attorney general for administration, to interface with Biden’s agency review team, led by Christopher H. Schroeder, a former Justice Department official now at Duke University’s law school, according to a Justice Department official. The official said Lofthus would coordinate briefings for a review team assembled by Biden on topics such as the budget and department organization, and staff would also arrange for briefings from the various Justice Department components.
Biden’s campaign website noted the Trump administration had limited the use of broad “pattern-or-practice” investigations and consent decrees to address systemic misconduct at local police departments, and signaled Biden would expand the Justice Department’s activity in that area. Democratic administrations tend to take a more aggressive approach than Republican ones to such issues, a trend that has grown more pronounced in the last decade.
The Biden campaign has pledged to boost funding to the Justice Department’s Civil Rights Division “to increase the number of investigators,” and vowed to push for legislation to clarify that pattern-or-practice investigations could also target misconduct in prosecutors’ offices. Biden vowed to reinvigorate the Community Oriented Policing Services office — which doled out grants in the Trump administration but stopped working with police departments on broad reform agreements.
Trump billed himself as a “law and order” president, and his Justice Department took an aggressive posture toward cracking down on crime, drawing criticism from Democrats who called such efforts backsliding to heavy-handed strategies of the 1980s.
Biden’s campaign website, by contrast, said he would “reduce federal spending on incarceration” and noted the criminal justice system “must be focused on redemption and rehabilitation.” The site said Biden would once again end the federal government’s use of private prisons — something Yates had done in the Obama administration’s Justice Department, only to see the directive reversed in Trump’s first months in office.
Trump personally complained about the treatment of his allies in criminal cases, prompting top Justice Department intervention, and called unsuccessfully for prosecutions of his foes. Biden’s incoming 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 it pursues allegations of wrongdoing by its predecessors, including Trump and those close to him. Some former Justice Department officials have argued that federal prosecutors in New York or elsewhere should pursue a criminal case against Trump once he is out of office, while other former law enforcement officials have argued that doing so would be destructive to the long-term integrity of the department.
Beyond the basic question of criminal investigations, Biden’s team is also likely to wrestle with a version of the same problem the Obama administration faced in its first months — how much time and political capital to expend on the controversies and scandals of the previous administration. The Biden Justice Department will probably face decisions about how much information to share with Congress, or through Freedom of Information Act requests, about the Trump administration’s family-separation policy at the U.S.-Mexico border, the department’s handling of cases involving people close to the president and any internal discussions about pardons.
In part because of the competing Democratic priorities, the Biden transition team is considering rolling out his attorney general pick at the same time as other top nominees for the department, such as the deputy attorney general, associate attorney general and solicitor general, according to people familiar with the discussions. Presenting a slate of nominees who have a range of experience covering a number of issues, rather than a single person for a single job, could blunt any unhappiness over an individual pick, these people said.
A Biden transition spokesman said, “No personnel decisions have been made at this time.”