How would a Biden Justice Department be different?

The Justice Department has been attacked for having been “politicized” in the Trump administration — by former Attorney General Jeff Sessions and, more so, by current Attorney General William Barr. But really, doesn’t it depend on what one means by “politicize”?

Few people, even ardent supporters of President Trump, would disagree that Sessions and Barr have actively carried out the president’s policy agenda: aggressive immigration enforcement, federal agents activated to quell protests, voting rights, litigating to overturn ObamaCare, and more. As the president’s attorney general — politically incorrect as that phrase is — both men recognized that Trump was elected to carry out such policies. 

Sessions, a staunch conservative, urgently believed in that agenda. Barr? Not so sure, but either way, he’s all in. In fairness, though, had Hillary Clinton won the White House, her attorney general likely would have taken the opposite position on these issues because she would have opposed them.  

In advancing the administration’s policy goals, these two attorneys general were carrying out the unquestioned priorities of the president — just as most attorneys general have done in the past. It’s not a matter of an attorney general telling a president, “I’ll do this to help ensure your reelection.” Rather, a president tells his attorney general what he wants to accomplish for the country and the attorney general helps make it work. Yes, an attorney general will — or should —  put a halt on unconstitutional, illegal or unethical things; he is, after all, the attorney for the United States.

It’s not always any different in the Trump administration, except that Barr has used his tenure to intercede in places that an attorney general does not belong. He editorially misconstrued the Mueller Report in the president’s favor; he demanded that subordinates dismiss the Michael Flynn indictment; and he directed his prosecutors to reduce the sentencing request for Roger Stone. In the cases of Flynn and Stone, both former Trump associates convicted of lying in official inquiries to help the president, Barr interceded in court proceedings over the objection of line prosecutors. And Barr probably didn’t take those actions because he thought they were in the interest of the country.

Unmistakably, however, line assistants throughout the Justice Department have carried out their responsibilities consistently, no matter who sits in the Attorney General’s Office or the White House — and they will continue to do so. Line prosecutors do their work with the same vigor no matter which attorney general they serve, or which president their AG serves. In truth, most cases don’t engage the interest of the attorney general and he doesn’t interfere in them. 

President Trump’s initially asking that incumbent United States attorneys resign after he took office is a time-honored practice of presidents regarding presidentially-appointed U.S. attorneys, so that the president can appoint his own choices to carry out his attorney general’s litigation policies (and the president’s).

So, what would Joe Biden do if he’s elected? Many anticipate he would appoint a qualified lawyer to lead the department. Barr certainly is qualified, but detractors of Trump and Barr would expect Biden’s choice to show appropriate independence from the president, as other attorneys general have done in the past.  

Does that mean that if a President Biden, for policy reasons — say, minority rights, census participation, immigration, health care, and other issues —  wants to distinguish or even overturn Supreme Court decisions that the Trump administration secured, Biden’s attorney general should be free to stake out his own position or even ignore the president? Of course not.

But, if evidence emerged, for example, questioning the conduct of Biden, his family or political intimates, the attorney general would need to demonstrate the independence that Barr appears to have lacked (but that Sessions managed to adhere to when he recused himself from the Russia collusion investigation). I certainly don’t like most of the policies that Sessions ambitiously promoted — such as regarding immigration or civil rights — but those were policies on the administration’s agenda. If Sessions urgently disagreed with them, it was his right to resign if he couldn’t persuade the president against them.

So how might a Biden Justice Department be different? As president, Biden shouldn’t expect his attorney general to take a dive for him. Given his considerable government experience, we would expect Biden to select someone who doesn’t believe in the philosophy of a unitary executive who is accorded unbridled power, or who will go to bat for his family or cronies if they break bad. Despite some questionable decisions as former chairman of the Senate Judiciary Committee over some Supreme Court nominees, Biden appears to understand the role of the attorney general as the attorney for the United States and not for the president. 

It goes without saying that if Trump wins and, come January, chooses the next attorney general or renominates Barr, we basically know what to expect. Will the rank-and-file employees at Justice remain vigorous and committed to duty no matter who leads the next administration? We can count on that. But will the department’s reputation, which some believe is now diminished, change for the better on Jan. 20? The answer to that lies in the eyes of the beholder.

Joel Cohen, a former state and federal prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan. He is the author of “Blindfolds Off: Judges On How They Decide” and teaches a class at both Fordham and Cardozo Law Schools in New York based on the book.