Of all the messes in all the departments that the Biden administration will need to clean up, none will be more of a challenge than the Justice Department. Consider all the questions the new attorney general must face:
• Whether to investigate President Donald Trump and, if so, for what crimes.
• Whether to investigate other members of the Trump administration for obstruction of justice, perjury or other crimes.
• Whether to attempt to compile a definitive narrative of the Russia scandal and Ukraine affair.
• How to determine if any Justice Department attorneys misrepresented facts to the court, assisted in any illegal activity or violated their code of professional ethics.
• Whether to investigate current members of Congress. (Did Sen. Lindsey Graham ask Georgia Secretary of State Brad Raffensperger if state officials could throw out ballots?)
• Whether to investigate improper political interference in the prosecutions of Trump confidant Roger Stone or former national security adviser Michael Flynn.
• Whether to investigate pardons issued by Trump.
• How to re-establish proper boundaries between the White House and prosecutors on enforcement or investigatory matters.
• Whether to revise the Justice Department’s guideline prohibiting prosecution of a sitting president.
• Whether to revise guidelines governing a special counsel.
• How the federal government should address police shootings and unnecessary use of force, as well as other issues relating to racial bias in the criminal justice system.
Given all that, President-elect Joe Biden should consult with his highly regarded pick for White House counsel, Dana Remus, about potential conflicts of interest for attorney general nominees that could arise from their prior work in, or knowledge of, matters during the Trump administration.
The knotty issues that the next attorney general will have to untangle come on top of a slew of policy decisions and reallocation of resources — some of which may require legislation, voting rights enforcement, antitrust enforcement, drug enforcement, criminal justice reform, actions on environmental crime and dozens of other matters. The new attorney general may need to fire all or most of the U.S. attorneys hired by Trump and fill those vacancies with competent men and women of sterling character.
Unlike Trump, Biden understands the proper role of the attorney general — and of the White House counsel, for that matter. Neither is his personal lawyer. NBC reports: “President-elect Joe Biden has privately told advisers that he doesn’t want his presidency to be consumed by investigations of his predecessor.” In addition, “Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.”
In other words, he must select someone whose judgment and character are impeccable, and whose priorities sync up with his own. The model should be Edward Levi, the first attorney general after Watergate, who instituted a slew of reforms and restored the department’s reputation.
Biden should not ask prospective candidates if they will investigate Trump (avoiding the appearance of picking someone to investigate his political opponents), but he should feel free to ask how they might make that decision. He would be wise to avoid telling a potential pick how to clean house at the Justice Department, but he certainly should inquire as to that pick’s thinking on the topic. Biden should offer full cooperation on preventing politicization of individual enforcement matters and instruct his choice to immediately report any improper attempts to interfere with prosecutorial judgments.
Given all that will be on the attorney general’s plate and the deep ethical problems ahead, Biden should be looking forward to someone who will have instant credibility within the department, with courts and with the public. After vice president, this will arguably be Biden’s most important personnel decision.
Jennifer Rubin writes reported opinion for The Washington Post.