Thinking About Things: Ruminations about The Biden Justice Department

by John DeQ. Briggs

We have a greater opportunity than normal this edition to engage in rank speculation and congenial rumination about what various facets of the Biden administration might look like. My remit for the moment is the Justice Department and some of its constituent pieces.

I am going to begin by thinking a bit about the Justice Department in historical terms, to contrast the hysterical way in which Mr. Barr has been treated by most of the media. Full disclosure, I have known Bill Barr for a long time and consider him to be a man of integrity and honor who has long put country before politics. He is of course, like you and me dear reader, a human being, capable of making mistakes. Whatever his mistakes, I believe he has demonstrated his value and loyalty to country in a variety of ways and under different Presidents. He has not been a lap dog or a lackey of President Trump, although he has done the assigned job of the Attorney General of the United States to defend the constitutionality or legality of the administration’s rules, regulations, and legislation.

So, caveat stated, a short rumination on my adult memories of the Attorney General. For political purposes, I shall consider my adulthood to have begun with the 1960 election of John F. Kennedy. He appointed his brother Robert F Kennedy as the 64th Attorney General of the United States. The appointment was criticized, most notably by the New York Times. “It is simply not good enough to name a bright young political manager no matter how bright or how young or how personally loyal, to a major posting government,” the New York Times editorialized. Other reporters or opinion writers felt much the same. See Politico article. Nobody loathed Robert Kennedy more than Lyndon Johnson, who reportedly took great pleasure in signing into law a 1967 nepotism statute that, among other things, appeared to make it impossible for a President to appoint immediate family members to the cabinet or, some argued, even to the White House staff. President Kennedy himself told people, maybe in jest, that he “just wanted to give [Bobby] a little legal practice before he becomes a lawyer.” Bobby was not amused.

President Johnson appointed Nicholas Katzenbach, and then later his old Texas friend Ramsey Clark. President Nixon brought us Attorneys General 67-70. John Mitchell was above all a loyalist; his career as Attorney General was cut short by his conviction of multiple crimes committed during the Watergate affair. His successors were in certain ways controversial, but not for their loyalty to the President.

President Ford appointed Edward Levi, who was best known for his reform of the then-common cowboy tactics of the FBI. He was not a servant of the President in the manner of Bobby Kennedy or John Mitchell. The same was doubtless true of Jimmy Carter’s two Attorneys General, Griffin Bell and Benjamin Civiletti. President Reagan’s Attorney Generals (Nos 74-76) were William Smith, Edwin Meese, and Dick Thornburgh. Mr. Meese was quite controversial and attacked for ethical lapses in his past; the others were highly regarded even by the opposition.

President George H. W. Bush appointed William Barr as Attorney General No. 77. Mr. Barr was not considered a Bush loyalist in the sense I have been describing, but he had long been a strong defender of presidential power. Nonetheless his confirmation for the post in 1991 involved “unusually placid” hearings, and it was said he enjoyed a “sterling reputation” on both sides of the political aisle. See Wikipedia here.

President Clinton appointed Janet Reno as his Attorney General (No. 78) and she served for nearly eight full years in the position. Somewhat remarkably, she managed to avoid being drawn into the various legal, ethical, and sexual controversies swirling around President Clinton during much of that time.

The George W Bush administration accounted for three different attorneys general, all of whom were experienced men with no particular personal ties to the President. This is a slight contrast to the Obama attorneys general, Eric Holder and Loretta Lynch (Nos. 82 and 83). Holder was a confidante and close ally of the President; he was unabashedly loyal and presented himself to the public as the President’s “wingman,” not a term designed to suggest independence of judgement but rather as one there to defend the President personally. The Miami Herald took him to task a year ago for his criticism of William Barr and accused him of considerable hypocrisy. Miami Herald.

Then, for nearly two years, there was Loretta Lynch, whose reputation seems unlikely to recover from her unfortunate secret meeting with Bill Clinton on a private plane on the tarmac of an airport during the presidential campaign of 2016. This, coupled with her inability to control her subordinate James Comey and her confused quasi-recusal from the Hillary Clinton email brouhaha, have left her with matters difficult to recover from and a sullied reputation.

This glance at the past is intended to provide a degree of perspective so that we can viw the present and the future through a cleaner lens. For starters, one would not normally expect Joe Biden to appoint as his Attorney General someone whose main job he perceived to be the protection of the Biden family. On the other hand, the appointment by William Barr of John Durham as a Special Counsel with a broader warrant to continue his investigation into the 2016 Russiagate is doubtless going to have a material impact on who gets the job of Attorney General. Or maybe more to the point, on who does not get the job. Sally Yates has been on various short lists, but it seems that with John Durham as Special Counsel, and given that she is a potential target of that investigation, it seems unlikely that she would be appointed.

That said, an early decision of President Biden will be whether to terminate John Durham as Special Counsel. Attention-seeking Congressmen like Gerald Nadler and Adam Schiff have already called for Durham’s termination, Nadler on the ground that he is not eligible and Schiff on the ground that “Barr is using the special counsel law for a purpose it was not intended: to continue a politically motivated investigation long after Barr leaves office.” See here. Jonathan Turley, on the other hand, wrote that: “The move confirmed that, in a chaotic and spinning political galaxy, Bill Barr remains the one fixed and the movable object.” Importantly, the appointment makes a public report more likely. Prosecutors do not normally prepare reports. Special Counsel’s do. As Turley wrote over the weekend, President Trump himself was irate at the appointment and claimed that it was a “smokescreen” to delay the release of the report. Trump seems to have missed both the legal and political significance of the action. In Turley’s words: “From a political perspective, the move is so elegantly lethal that it would make Machiavelli Green with entry.” Turley Blog.

The Durham investigation, while not as directly focused upon the Biden administration in the same way that the Muller investigation was focused on the Trump administration, nonetheless touches Biden, and could bleed into matters related to the Hunter Biden Affair.

It is with some of this in mind that the media apparatchiks have come up with a list of names that supposedly are in serious consideration for the Attorney General position. The diverse list is full of heavy hitters, political veterans, and new faces. It is also doubtless incomplete. But to me the most notable things about the people mentioned thus far are that: (i) none seem to be particularly progressive; all seem to be Obama centrists; and none seem to have any obvious political axe to grind (with potential exceptions noted below); and (ii) none seem to fit into the “loyalty to the President uber alles” mold. Here are those most mentioned.

  1. Merrick Garland. Highly qualified by any standard. Had Hillary Clinton won the 2016 election, the Republicans would still be kicking themselves for denying him a seat on the Supreme Court. He served as Deputy Assistant Attorney General in the criminal division of the Justice Department. The early years of the Clinton administration and then as the principal associate Deputy Attorney General. He supervised investigation of the 1995 Oklahoma City bombing and oversaw the prosecution of Timothy McVeigh.
  2. Jeh Johnson. Is a well-qualified African American who served as Secretary of the Department of Homeland Security from 2013-17. Before that he served as General Counsel of the Department of Defense. Under President Clinton, he served as General Counsel of the Department of the Air Force.
  3. Doug Jones. He has served briefly as a senator from Alabama, having defeated Jeff Sessions but then been defeated by Republican Tommy Tuberville. He also served as US Attorney for the Northern District of Alabama.
  4. Deval Patrick. Patrick was the governor of Massachusetts and quite close to President Obama. He spent a short time as the candidate for the 2020 democratic nomination but dropped out after just a few weeks. He headed the Civil Rights Divisions of the US Department of Justice. He also served as a managing Director of Bain Capital, Executive Vice President and General Counsel of Coca-Cola, and Vice President and General Counsel of Texaco.
  5. Lisa Monaco. She is a former Federal prosecutor who served as White House homelands security advisor during President Obama second term. She has been an advisor to the Biden campaign.
  6. Sally Yates. Acting Attorney General for a blanket when I during the early days of the Trump administration, until the President fired her for ordering Justice Department lawyers not to make legal arguments defending President Trump’s Executive Order on immigration and refugees.

By the time this gets into print, other names may have been mentioned. Xavier Becerra was on the list but was appointed today to another cabinet position (HHS). As seems to be reasonably well understood, many of the rumors about who will get what job will turn out to be untrue, and often this misdirection is intentional. This is because the transitional process is a perfect opportunity for: (a) reporters to flatter sources by suggesting those sources should be considered for major jobs; (b) team Biden to float someone’s name to flatter him or her; (c) a person who wants to be considered for a key job to float his or her own name;(d) other constituencies in the Democratic Party to push their preferred choices; and so on. See FiveThiryEight.

Still and all, if “the press” is to be believed, Biden wants to “restore the Independence” of the Justice Department and refocus it more on civil rights. Having chosen Janet Yellen (white female) for treasury, Anthony Blinken (white male) for State and having three Defense choices (Jeh Johnson, Michele Flournoy and Lloyd Austin) somewhat hanging out there for several days, the Justice position is not getting as much attention as might be thought normal. But to my eye, one of the most remarkable things about all of his cabinet appointees thus far is how centrist they are. It would be hard to imagine any of them being appointed by Bernie Sanders or Elizabeth Warren, for example. To use a phrase that is highly derogatory when used by members of antifa, all of the candidates for the job of Attorney General can be thought of as Globocaps, or global capitalists. And this is true of most of those already appointed to senior positions, and most of those reportedly under consideration for other senior positions. So, while Team Biden is making headlines for appointing a record number of individuals who are LGTBQ, most people do not seem to be overtly “progressive” or “radical” when it comes to most economic or other core policy issues. To be sure, they all despise Trump, and do not care for Trump supporters as individuals or otherwise either.

Whomever Biden selects, it would be surprising to me if the Justice Department’s mission became the continuation of the past vendetta against the Trump administration. One suspects that competition policy will be high on the agenda of the Justice Department, as it has been under the Trump Administration, and I for one would not expect much of a change there. The powers that be who enforce competition policy around the world seem all equally fed up with Big Tech and therefore considerable investigative activity is likely to take place in that space.

The Civil Rights division of the Department of Justice will have to contend with the BLM movement and associated demands for reparations of one or another sort. This is a field in which Biden must tread carefully since it could end up pitting him against what he has always liked to think of as “his people — Joe Sixpack.” Somewhat similarly, the focus on LGBTQ, and the stated goal of making the Justice Department more “independent” (of what I wonder), does suggest the stirrings of an agenda to advance and protect the LGBTQ community, which certainly broke heavily for Biden and whose vocal influence is in inverse proportion to its size. It is a group that punches well above its weight. Justice Department actions in this area would almost certainly bring the Biden administration into conflict with various religious groups and could be a source of considerable disunity. And should the Civil Rights division efforts be blocked at the Supreme Court, as is quite imaginable, this could help to create a particularly noisy community within the Democratic Party for packing the Supreme Court to eliminate the influence of the current majority. No matter what happens in Georgia next month, there are going to be a lot of issues to mediate within the Democratic Party.  It could be quite a messy thing to watch, and maybe will give the media a fresh look at the real world after four years of being mesmerized by Trumpland.