Analysis

Noms And Norms: How Biden Could Fix A Damaged DOJ

Law360 (November 8, 2020, 5:16 PM EST) -- President-elect Joe Biden will inherit a U.S. Department of Justice battered by repeated accusations of politicization by the Trump administration, and experts say restoring public confidence in what is meant to be a relatively nonpartisan institution won't be an easy task.

Biden prevailed in the presidential race Saturday after his projected win in Pennsylvania, and while President Donald Trump has vowed to continue fighting the results in court, the former vice president said he was moving forward with his transition plans.

Under the leadership of Attorney General William Barr, the DOJ has moved aggressively to intervene in politically sensitive cases brought by several U.S. attorney's offices involving allies of President Donald Trump, sparking backlash from both outside and, at times, within the government's ranks.

Among the most controversial was the bid to dismiss a criminal case against former Trump national security adviser Michael Flynn, as well as the decision to seek sentencing leniency for Trump's longtime friend Roger Stone, whose three-year sentence the president later commuted.

Experts say the incoming Biden administration will likely pursue swift personnel changes as part of a very public effort to restore the DOJ's reputation and internal morale while returning to some of the norms in existence since the 1970s.

It's a daunting project that may outlast Biden's presidency.

"I think there will be a lot of energy spent reversing the approach that AG Barr took," said Mark Miller, a political science professor at Clark University. "Some of the political decisions will be easily reversed. Others are more difficult. But I think there will be a lot of guidance from the top about how political decision-making will stop, and I think that President Biden and his new AG will make a big deal of publicizing that different approach."

Traditionally, the president sets broad priorities for the DOJ but does not get involved in specific cases or investigations. Policies intended to preserve this quasi-separation can be traced back to the Watergate scandal, which prompted reforms to ensure the DOJ has a measure of political independence.

Typically, a new presidential administration will appoint a new attorney general, and it may also appoint new U.S. attorneys in districts across the country.

Todd Haugh, an associate professor of business law and ethics at Indiana University's Kelley School of Business, expects changes at the top levels of the DOJ. But he said the Biden administration's efforts could backfire if there is a departmental purge of sorts.

"There's some real tension there because if you change too much or start to purge people in a housecleaning manner, that can almost feel like exactly what has been going on for the past three years," he said. "I think it's going to be hopefully a little more nuanced than that. Look at who's been doing their job, who's been trying to do the right thing, who has tried to resist the politicization of the DOJ over the past couple years."

Barr's time as AG has been riddled with controversy and allegations of political interference in certain DOJ matters.

Beyond the Flynn and Stone cases, Barr's DOJ has been criticized for aggressively fighting the Manhattan district attorney's attempts to secure Trump's tax returns. In an especially unusual move, it also sought to intervene in journalist E. Jean Carroll's defamation suit against Trump over an alleged sexual assault in the 1990s, arguing that Trump was acting in his official capacity in denying her claim. A federal judge rejected the gambit, which would have effectively ended Carroll's suit because government employees are typically immune from defamation claims.

Barr's faceoff with and firing of Manhattan's former U.S. Attorney Geoffrey Berman raised suspicions that he plans to intercede in the Southern District's investigations into Trump's personal attorney Rudy Giuliani and his former lawyer Michael Cohen, who is accused of using Trump Organization money to pay off two women who claim they had affairs with Trump.

Just ahead of the 2020 presidential election, Barr was criticized for public remarks warning about the danger of widespread voter fraud involving mail-in ballots. Such unsubstantiated claims echoed Trump's own on the subject.

Rehabilitating the DOJ won't happen overnight, experts said. Regardless of how much the Biden administration achieves over the next four years, it will take time for the department to repair its reputation — likely even beyond Biden's term in office, said Patterson Belknap Webb & Tyler LLP partner Harry Sandick.

"People need to know that the prosecutor in their case isn't making decisions based on what is favorable to the president or his friends or his campaign contributors," he said. "To clear that mistrust will take a sustained period of good behavior by the next president and by the presidents to follow."

Sandick described those checks as "parchment barriers."

"At the end of the day, our system is dependent on people acting in good faith and not trying to manipulate the system for political ends," he said.

So what would a Biden DOJ look like? During his campaign, the former vice president promised to establish a federal anti-corruption and ethics watchdog and to give the Inspector General's Office full power to investigate and report any claims of partisan influence on DOJ matters.

He also gave the public a preview of his relationship to the DOJ during an October town hall broadcast on ABC. Taking a dig at Trump, Biden said he will not treat prosecutors as if they are his own "personal lawyers."

"What the Biden Justice Department will do is let the Department of Justice be the Department of Justice; let them make the judgments of who should be prosecuted," Biden said.

Berit Berger, executive director of Columbia University's Center for the Advancement of Public Integrity, called those town hall comments "very encouraging" and described his campaign proposals as "absolutely the right steps."

"The president is certainly entitled to have his priorities and things he wants to focus on, but it should be on that level as opposed to, 'Let me get involved in this particular case and put my thumb on the scale,'" she said.

The previous administration's willingness to flout longstanding norms — including insulating investigations from presidential interference and not politicizing prosecutions through incendiary public statements — could spur Biden to make them law, according to Carissa Byrne Hessick, a criminal law professor at the University of North Carolina.

Congress could address the insulation issue by reviving the independent counsel law that it let lapse in 1999, she said. The controversial statute came out of the 1978 Ethics in Government Act and gave a panel of federal judges the power to appoint a special prosecutor to investigate misconduct by top government officials. Since the law's expiration, that responsibility has shifted to the AG.

Taking on politicized prosecutions is trickier because "one person's politicization is another person's democratic accountability," according to Hessick. But Congress could create whistleblower protections for career prosecutors to come forward in those instances, and it could order the inspector general to investigate those whistleblower reports, she added.

"I would be surprised if we didn't see legislation addressed at the DOJ and transparency and a host of other issues," Hessick said. "That's what we saw in the wake of Watergate as well."

However, if Republicans end up retaining control of the Senate, such legislation would face a high hurdle to reach Biden's desk. 
 
In order to best fulfill his promise to reestablish the DOJ's political independence, Biden will likely need to resist public calls to prosecute Trump or Trump administration officials unless there is overwhelming evidence of a crime, Haugh said.

"There will be many clamoring for those prosecutions, and that increases the risk that the DOJ is seen as this political tool even though the Trump administration is over," he said. "There are other avenues by which those laws can be enforced."

If the evidence is strong and the statute of limitations hasn't run out, though, prosecutions led by state attorneys general or by various U.S. attorneys could achieve similar results without heavy involvement from the main Justice Department, Haugh added. For example, the Manhattan district attorney's ongoing grand jury investigation could result in charges.

One of the first orders of business for Biden will be naming a new attorney general to replace Barr. Experts split on the type of person best suited to pursue the necessary reforms.

Sandick said an AG with prosecutorial experience would be ideal because he or she would understand the workings of the department from the inside out.

Neither Barr nor his deputy, Jeffrey Rosen, were ever prosecutors at either the state or federal level, which Sandick said was evident from the way they ran the department.

"[Barr] never walked into court and had to be present when somebody was tried or sentenced," he said. "It makes a difference to how you see the world to have that experience. If you haven't actually made the decision to seek a higher sentence or a lower sentence or had plea negotiations with defense counsel, I think it's hard to really understand what you're doing."

Advocates for criminal justice reform, however, are likely to push for an attorney general who is not a career prosecutor.

"The people who have been AGs in recent Democratic administrations have not been what I would think of as criminal justice reformers," Hessick said. "There might be an appetite to look further than career prosecutors and appoint someone who would do more to reform."

In any event, Biden's experience on the Senate Judiciary Committee makes him uniquely suited to the task of weighing the credentials of possible appointees, said Haugh.

"If anyone has a sense of who's the most stalwart prosecutor out there that can fill this role and bring some steadfastness and some integrity, he's a good person to make that choice," he said.

--Editing by Adam LoBelia.

For a reprint of this article, please contact reprints@law360.com.

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