President-elect Joe Biden routinely criticized President Donald Trump during the campaign for turning the Department of Justice into his own “private law firm.” But with three weeks until his inauguration, Biden has yet to nominate an attorney general to lead the beleaguered department, just as it is set to investigate some of the most politically sensitive cases in decades.
“I don’t know,” Chuck Rosenberg, a former U.S. Attorney and senior Justice Department staffer, told The Daily Beast when asked why such a critical role hasn’t been filled yet. “I don’t doubt that Biden is sincere in his quest for DOJ independence, thank goodness. The current president made a mess in that respect, [but I’m] not sure why that quest, in and of itself, would slow down the selection process.”
By historical standards, Biden’s attorney general nomination is extremely late in the making. Trump nominated then-Sen. Jeff Sessions (R-AL) to lead the Department of Justice on Nov. 18, 2016, just 10 days after he won the general election. President Barack Obama named Eric Holder as his nominee on Dec. 1, 2008, one of his first top-level Cabinet nominations. Meanwhile, private chatter that the Biden transition would announce an attorney general nominee by Christmas has come and gone.
Some Justice Department veterans insist that the president-elect’s team is being appropriately deliberative. Given Biden’s condemnation of the politicization of the Justice Department during the Trump administration, thoroughly vetting potential AG nominees is a no-brainer.
“I think what we are seeing in the very deliberative process by the Biden administration in selecting a new attorney general is a recognition that this is an extremely consequential decision that will send a message to the country about how this president views the institutions of government,” said Robert Mintz, an attorney and former federal prosecutor who specialized in organized and white-collar crime. “This will not likely be a controversial nominee, but rather more of a consensus choice who can garner some bipartisan support.”
Biden’s methodical selection process for an attorney general may be a reflection of the importance he places on the position, as a former public defender and member of the Senate Judiciary Committee. It could also be the sensitivity he feels to consider a diverse group of potential nominees. But it’s making some in his party anxious, if, for nothing else, the way it illuminates the complicated legal and political landscape he is set to inherit.
Perhaps the most prominent feature of that landscape is the recently disclosed investigation by the Delaware U.S. Attorney’s office into Biden’s son, Hunter, for potential tax crimes. It’s an investigation that Democrats say has put an extra onus on the transition to ensure that Caesar’s wife—or, in this case, Caesar’s top law enforcement official—is beyond reproach.
“It’s not a terrible idea to let the dust settle for a few weeks after the U.S. attorney investigation became public before naming the person who will oversee that same investigation,” one former Biden campaign adviser said.
But while Hunter Biden’s saga may have complicated and delayed his father’s search for an attorney general, it’s hardly the only factor at play. Democratic legal vets say that the incoming president is being hampered—in, perhaps, a good way—by the Trump years; being tasked not only with choosing an attorney general whom he trusts but one who he believes can restore institutional respectability.
“The ethical morass of the most recent administration may actually have raised the standards for the incoming one,” said one former employee of the Obama-era White House counsel’s office, who pointed to the ethical tangle of potential federal legal cases as a good reason for caution.
That caseload will also present some potential complications for the Biden White House. The Department of Justice is reportedly currently investigating both Biden’s son and Rudy Giuliani, Trump’s personal attorney, and a special counsel inquiry into the roots of the FBI’s investigation of potential links between the Trump campaign and the Russian government’s attempts to interfere in the 2016 presidential election is set to continue.
Some Democrats are already pressuring Biden’s nascent Justice Department to investigate Trump’s allies—even Trump himself—for a grab-bag of potential crimes, including campaign finance fraud as alleged by former fixer Michael Cohen.
Biden has been publicly wary of making his entire first-term agenda about investigating his predecessor. In August, he told reporters that prosecuting a former president would be “a very unusual thing” and “probably not very good for democracy,” before adding that he would “not interfere” with whatever Justice leadership decided.
For that reason, any attorney general pick will inevitably be asked during confirmation hearings about whether Trump investigations would be on or off the table. And part of the delay in choosing a nominee could very well be due to a calibration for how those confirmation hearings could go. Democrats still have a chance to take over power in the Senate, which would make some nominees less risky.
Camille Rivera, a partner at the left-wing firm New Deal Strategies, said that the issues Biden’s nominee prioritizes are more important than the timing element. “I’m glad that he’s taking time to be able to really think about this. But it’s not just about the appointment. What is the vision of the new attorney general’s office?” Rivera said. “For progressives, what we want to see is some fast action on the de-carceral system. And we need some fast action on issues related to abuse by police. Biden has to walk very carefully on this specific issue.”
Already, progressive Democrats are applying pressure to the Biden transition team to choose an attorney general who prioritizes key policies like police reform.
In an interview with The Daily Beast on Tuesday afternoon, progressive Rep.-elect Marie Newman (D-IL), who ousted conservative-leaning former Rep. Dan Lipinski (D-IL), said that she talked privately with members of Biden’s transition team earlier this month to make her agenda items for the Cabinet post known up front.
“It’s really critical that this AG understand that the economy is not fair, that they understand that racial equity cannot—underline ten times—be kicked down the road any further, and that we need health care for all. Those three things intersect with a critical fourth piece: addressing the climate crisis,” Newman said. “If we don’t treat all those in an intersectional way, particularly from a legal perspective, we are going to be in a horrible situation.”
One of the most pressing topics being discussed in progressive circles is the question of what comes immediately after Biden announces his selection, including when he starts to fill the second and third tier positions that are likely to have major roles in helping to shape the overall direction of the cabinet.
And some on the left are already warning about staffing issues on the horizon. Max Berger, a former top aide for Sen. Elizabeth Warren’s (D-MA) presidential campaign, warned that when looking to fill the most critical spots in the attorney general’s office, Biden officials might prefer to default to those with more traditional legal experience, including in prior administrations. That, Berger argued, would leave less room for progressives with diverse backgrounds in activism or those who can be a bridge to a newer generation within the department.
“The best-case scenario would be that President-elect Biden chooses a nominee who’s going to go for the mat for racial justice and is also willing to take on corporate power,” said Berger. “But at this point, we’ll probably take one or the other.”