Joe Biden has had to face some trying circumstances as President-elect: a surging pandemic, an incumbent unwilling to admit defeat, and a Senate whose balance of power is still up for grabs. But he still has one of the most consequential tasks of his transition ahead of him: choosing his next Attorney General.
Biden is set to take over a Justice Department that suffered a crisis of faith externally and slumping morale internally during the Trump Administration, experts say. While any incoming President and Attorney General must set new policy priorities, Biden and his new top law enforcement official will face the added challenge of having to restore many Americans’ faith in the Justice Department as an apolitical body that metes out equal justice under the law.
“There’s definitely been a degrading of the morale within the DOJ, and I think that there has unfortunately been a heightened perception of DOJ being more political than it is and than it should be,” says Jan Paul Miller, a former United States Attorney who is now a partner at the law firm Thompson Coburn. “The most important thing going forward is to get DOJ back to its apolitical role and standing.”
The Justice Department did not respond to a request for comment.
The Justice Department regularly faced accusations of political bias during Trump’s term and William Barr’s tenure as attorney general. In March 2019, Barr publicized his summary of special counsel Robert Mueller’s report before releasing the report itself, which had the effect of oversimplifying Mueller’s findings in ways many viewed as favorable to Trump. In February 2020, Barr intervened and overruled line prosecutors to lessen the recommended sentence for Trump ally Roger Stone, who had been convicted on multiple counts— including witness tampering and lying to investigators— in a case stemming from Mueller’s investigation. Months later, the Justice Department dropped its criminal case against Trump’s first national security adviser Michael Flynn, who had twice pleaded guilty to lying to the FBI. (Trump then pardoned Flynn.)
Barr, who is set to leave the Justice Department in December, wrote in his resignation letter to Trump that there had been a “partisan onslaught” against the President, “in which no tactic, no matter how abusive and deceitful, was out of bounds.”
Biden can help re-establish boundaries from the Oval Office, former DOJ officials say, including by not publicly expressing opinions about the Justice Department’s handling of criminal cases or investigations, which Trump often did and which Barr once complained made it “impossible for me to do my job.”
Biden’s “job is to appoint the right person, and then basically never talk about the Justice Department again, unless it’s a policy issue,” says Asha Rangappa, a former FBI special agent now at Yale’s Jackson Institute for Global Affairs. “Because that has been part of the problem, the porousness between the Justice Department and the White House, and the way that it’s been used as an extension of the political goals of the White House.”
It’s a dynamic Biden is keenly aware of and has promised to rectify. “My Justice Department will make decisions based on the facts,” Biden told TIME in an interview in December before he was named Person of the Year with his Vice President Kamala Harris. “They’re the people’s lawyers; they’re not my lawyers. I’m never going to pick up the phone and say, “Pardon so-and-so,” or “Go out and prosecute so-and-so.”
But even a return to a more traditional relationship between President and Attorney General won’t be as easy to achieve as it may seem, given the highly political investigations and questions already looming within the Department. In December, Joe Biden’s son Hunter confirmed that the Justice Department is “investigating” his “tax affairs.” The Wall Street Journal reported that Barr had known about the investigation for months and worked to keep it under wraps during the election year, which prompted Trump to tweet that Barr’s conduct had been “a big disappointment.”
The new leadership at DOJ will likely need to figure out how to avoid the appearance of political bias while conducting a federal investigation into the new president’s son. It isn’t the only sensitive matter Biden’s new attorney general will inherit. Connecticut U.S. Attorney John Durham’s secretive probe into the FBI’s handling of the Russia investigation is also ongoing, and Barr recently appointed Durham as special counsel so his work will be protected under new Department leadership as the investigation continues.
Handling these politically fraught matters — and deciding whether to investigate Trump or any of his close allies — is what Rangappa calls “the central dilemma” of the next Justice Department. There have been some indications of areas of potential interest. Federal prosecutors in New York are reportedly probing Trump’s personal attorney Rudy Giuliani’s business dealings, and Trump’s inaugural committee has also drawn scrutiny for possible financial crimes.
“On the one hand, if we really believe that no one is above the law, then if there’s evidence of any kind of wrongdoing, it should definitely be investigated,” Rangappa says. But when the people in question could be Hunter Biden, or a close Trump ally, or even Donald Trump himself, “that would carry with it the risk of extending what the last four years have been, (with people) accusing DOJ of being politicized,” she says.
When asked about whether the Justice Department should investigate Trump or those around him, Vice President-elect Harris told TIME in December, “I would not dare tell the United States Department of Justice what it should do. Or what any prosecutor should do. They will make their decisions based on the facts and the law, and I think we should all respect that.”
Perceptions of how the Justice Department has been doing its job have seen a growing partisan split under the Trump Administration. An October 2019 Pew Research poll found that views of the Justice Department had diverged widely by political party under Trump. Nearly 50% of Democrats viewed the DOJ favorably in that poll, down 11 percentage points from a year prior and down from the nearly three quarters of Democrats who viewed it favorably in January 2017. Republicans, on the other hand, expressed more positive views of the Department over the same time frame: 61% of Republicans said they viewed the Department favorably in the 2019 poll, up 14 percentage points from January 2017.
That partial damage to the public perception of the Justice Department, former officials say, leaves a tricky dynamic waiting for Biden and his Attorney General next year. “When you have a reputation for integrity, if you lose it, it’s very hard to get it back,” says John Bies, a former Justice Department official under President Obama who is now chief counsel at American Oversight. “The same is true for the [Justice] Department. Once it loses that reputation, restoring it is actually a very hard task.”