President-elect Joe Biden is reportedly set to name Merrick Garland as his nominee for attorney general. If confirmed, Garland will take over a demoralized Justice Department that has abandoned bedrock principles and priorities, and come under withering attack from President Donald Trump’s administration.
Garland, a former federal prosector who lead the investigation into the Oklahoma City bomber, was nominated to the Supreme Court by former President Barack Obama following Antonin Scalia’s 2016 death. The Republican-controlled Senate refused to hold a hearing on his nomination for months, citing the presidential election. His pending nomination died in early 2017, after 293 days.
Garland will take over a Justice Department that Trump sought to weaponize against his political opponents and use as his personal law firm. Trump has fired or pushed out a number of key department officials, most famously former FBI Director James Comey. Trump appointees have used the Justice Department’s power in an overtly political fashion, even if they’ve resisted Trump’s desire to wield the department’s prosecutorial power as a blunt political weapon.
The nominee will face the challenge of determining how the Justice Department will approach potential criminal investigations into Trump and members of his administration. They will also face the prospect of rebuilding components like the Civil Rights Division, which abandoned key issues like police reform and focused on controversial religious liberty cases and attacks on college affirmative action programs. They’ll also have to deal with the long-term consequences of Trump’s attacks on the FBI, which has gutted Republicans’ confidence in the nation’s premier law enforcement organization. Biden’s nominee may also have to figure out how to combat a rise in right-wing domestic terrorism cases, some of which have been directly inspired by the outgoing president’s rhetoric against his political enemies and Muslims.
In addition, Biden’s nominee will have to deal with the delicate question of how to handle the ongoing tax investigation into the new president’s son, Hunter Biden, which is being led by the U.S. Attorney’s Office in Delaware. The nominee will have to reassure the American public that there won’t be political interference in the probe, perhaps by walling off the investigation. Republicans, the vast majority of whom were unconcerned with Trump’s repeated attempts to improperly interfere in Justice Department matters, might even call for a special counsel to assure the probe’s independence.
Former Attorney General Eric Holder, who had to rebuild the Justice Department after controversies during the George W. Bush administration, told HuffPost that Biden understands that he needs to give the attorney general “the space that he or she needs to restore integrity and the independence” of the Justice Department.
“The department has been taken off a road that I think it’s basically been on since the Nixon administration, where there’s been that separation of the Justice Department from the White House,” Holder told HuffPost ahead of the election. “You really need to look at the department as a whole. The people there, both in the field and at Main Justice, their motives have been called into question, their patriotism has been called into question, and all of that has to be dealt with. The department has got to be restored to what it was and what it must always be and clearly not what it is now.”
Attorney General William Barr, who replaced former Attorney General Jeff Sessions after he was forced out following the 2018 midterm elections, went to bat for Trump during Robert Mueller’s special counsel investigation into Russian interference in the 2016 election, releasing a misleading summary of the Mueller report which controlled public opinion about the report’s findings about Trump’s actions for weeks. Barr, who holds strong views of executive power, was also accused of covering up Trump’s actions in the Ukraine scandal that led to the president’s impeachment by attempting to hide from Congress a whistleblower complaint about Trump’s phone call with the Ukrainian president. Barr announced he would leave the Justice Department on Dec. 23.
Many career Justice Department employees who held on for four years of the Trump administration were likely to depart had Trump been reelected and able to mold the department into an even more overtly political organization.
Biden, according to The New York Times, plans to keep FBI Director Chris Wray unless he’s fired by Trump before the president leaves office. Wray, a Republican who once said he’d quit before breaking the law for the president, has upset Trump with his descriptions of the loosely organized anti-fascist movement known as “antifa,” his description of the limited impact of voter fraud, his discussion of Russian election interference, and his refusal to provide Trump’s campaign with a last-minute boost by violating DOJ standards and publicly announcing some sort of politically advantageous investigation. Wray has defended the bureau from Trump’s attacks, but he’s been quiet post-election as Trump has made broad, sweeping claims about mass voter fraud, which law enforcement officials say could inspire attacks by right-wing extremists convinced that the election was illegitimate.
Another major question facing Biden and his attorney general is the fate of the nation’s 94 U.S. attorneys across the country, most of whom are Trump appointees. Those officials, who serve as the nation’s top federal prosecutors in federal districts, have sometimes been allowed to stick around until their replacements are confirmed. Trump’s decision to ask the presidentially appointed holdover U.S. attorneys to resign set off some controversy in March 2017, not long before Comey’s firing.
Until the Trump administration, modern attorney general nominees had typically received strong bipartisan support. Even Sessions voted for Holder back in 2009, when Holder was confirmed 75-21.
Holder told HuffPost that Biden’s attorney general pick has to come prepared with a “targeted approach” to handle the most egregious misconduct to come out of the Trump administration and hold people accountable but not get bogged down in a way that could derail the entire administration.
“There’s such a wealth of inappropriate conduct coming from the Trump administration that I think that they’re actually going to have to prioritize what they’ll look at,” Holder said. “If you looked at all the negative things, all the inappropriate things, you would spend an inordinate amount of time focusing on the inappropriate conduct by Cabinet members, White House officials, the president himself, and that could inhibit the ability of the new administration to focus on what the American people want them to focus on.”
But, Holder added, “You can simply let it go. People need to be held accountable.”
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