In a Disorienting Return to Civility, Joe Biden’s DOJ Backs Up Betsy DeVos

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Joe Biden’s campaign message was all about restoring order to Washington, a return of professionalism to government and an embrace of D.C.’s norms. Biden the Bland wasn’t a sexy sell, but it worked for a country weary of Donald Trump’s antics, antagonism and ambivalence about the actual job he was elected to do.

Need proof that Biden’s pledge to get things back to normal is more than words? In a little-noticed legal filing this week, Biden’s Justice Department joined a motion — wait for it — to help Trump’s Education Secretary Betsy DeVos quash a subpoena in a class-action suit over her Department’s alleged practice of slow-walking loan forgiveness for students at for-profit colleges.

It’s not that Biden’s team agrees with what she is accused of doing. It’s that the norms and rules of Washington typically don’t demand former Cabinet Secretaries spend their time in depositions about their tenure in public office. Doing so “would threaten the separation of powers, chill agency decision-making, discourage public service, and create potential for abuse or harassment,” Biden’s Justice Department wrote in its motion.

At the center of this ruckus is a class-action suit filed by 160,000 former students at for-profit colleges. They claim they were swindled by dodgy colleges and, as such, they shouldn’t have to pay back the federal student loans. In other words, they borrowed government money to buy junk courses, and the feds should let them off the hook under an Education Department program known as the Borrower Defense to Repayment.

The forgiveness program was rarely used before 2015, but it quickly picked up widespread notice when Corinthian Colleges Inc. closed. That for-profit organization broke the dam on scrutiny for such non-traditional campuses and gave the Obama Administration an opportunity to reposture policy toward such groups. Of the 338,062 applications submitted since then, roughly 1 in 5 has been successful through the end of November, according to Education Department data. The plaintiffs in the case at hand say the DeVos-era Education Department slow-walked their claims while rushing through others, with little transparency or explanation.

The case is moving ahead against the Education Department, with the Justice Department doing its job as defense counsel. With DeVos no longer serving as Secretary of Education, it potentially opened her to some legal exposure. And that’s why DOJ signed onto DeVos’ attorney’s motion to stop her inclusion in the case.

There’s always been a sense of rarified fraternity among Cabinet members and elite Washington insiders who get to wield power largely without the nuisance of accountability. It’s why you can’t sue the President when your tax returns are audited. Yes, these individuals are in charge, but you also can’t expect them to answer for everything done under their auspices. Doing so would open every Secretary of Education to litigation for every microaggression in a lecture hall, discriminiation in every athletic department and fight on a playground. The inevitable bad deeds would all but prohibit anyone worth their salt from ever signing up for government service. It would be like every fender bender ending up on Pete Buttigieg’s new Transportation Secretary desk.

The Biden DOJ motion isn’t groundbreaking for its substance. It’s actually a pretty routine filing. But it’s something we didn’t see for four years under Trump, who wanted to weaponize his Justice Department against his enemies and deploy its lawyers as personal counsel.

The very fact that we’re noting this — at the very moment Trump’s new lawyers are mounting his defense in a Senate impeachment trial — says the government is starting to return to normal. For even the most liberal corners of Washington, a DOJ defense of DeVos is something to celebrate in service of that goal.

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