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Biden’s attorney general pick will need to depoliticize the Justice Department

President-elect Joe Biden speaks after the Electoral College formally elected him as president on Dec. 14, 2020, at The Queen theater in Wilmington, Del. AP Photo by Patrick Semansky

Whoever assumes the role of attorney general in the Biden Administration will have to lower the political temperature at the Justice Department and juggle several high-profile federal investigations—including one involving President-elect Joe Biden’s son, says Jeremy Paul, former dean of Northeastern’s School of Law.

Biden has pledged not to interfere in the operations of the Justice Department, Paul notes. And any of the leading candidates for the top prosecutor’s job seems likely to stand up for principle and protect the government’s career prosecutors, says Paul, who now teaches constitutional law, property, and jurisprudence.

According to media reports, the top contenders for attorney general include Sally Yates, an Obama Administration appointee who served as acting attorney general in the early days of the Trump administration; Doug Jones, a former Democratic senator from Alabama; and Merrick Garland, a judge nominated by Obama for a seat on the Supreme Court who never received a confirmation hearing by the Republican-led Senate.

Jeremy Paul, former dean of Northeastern’s law school and constitutional law, property, and jurisprudence professor. Northeastern file photo.

All of the three “would be fine choices from the perspective of depoliticizing the Justice Department,” Paul says. But he thinks Jones may have the edge for political reasons. Even though he recently lost a re-election bid, “he did better than Democrats normally do in Alabama,” says Paul.

Jones got to know many senators on both sides of the political aisle during his term in the upper chamber, so the senators who will scrutinize his nomination already know him, Paul says. “If they were to confirm him, and I suspect that they would, that would suggest a good starting point in confirming someone that they know,” Paul adds.

Sen. Richard Shelby, an Alabama Republican, spoke of his friendship with Jones during the Democrat’s farewell ceremony on the Senate floor, and seemed to signal that Jones’s public service career may not be over.

“I think we will hear more from him in the weeks ahead, in the months ahead,” Shelby says. “I certainly hope so. He has a lot to give.”

Another advantage Jones has is his longtime friendship with Biden; the two have known each other for decades. If he gets the nod it would not be surprising, Paul says, given some of the  president-elect’s other choices for his inner circle of senior advisers. 

Paul also says Jones, a former U.S. attorney, has a strong record of prosecuting civil rights cases, highlighted by his prosecution of the Klansmen who bombed a Birmingham church in the 1960s. “From the church bombing case to a Senate election in Alabama, I fought for those causes because I believe in hope,” Jones said at his Senate goodbye. “I believe in redemption. I believe in the possibility.”

Yates has more experience at Justice than Jones and would be a qualified candidate, Paul says, but she may have a tougher path to attorney general because of her role in the FBI’s 2016 Russia investigation.

“No,” said Republican Sen. John Cornyn of Texas when asked if he thought Yates would be confirmed if the GOP holds the majority, according to The Hill. Cornyn sits on the Judiciary Committee that vets judicial nominees.

Paul questions how much political capital Biden would be willing to spend fighting for her. The president-elect, himself a former senator, is going to have only so many fights with the Senate, Paul explains. “Is this one that he wants to have?”

Among the first matters a new attorney general could face is an investigation of Biden’s son, Hunter, over his taxes. The probe is being led by the U.S. attorney’s office in Delaware. It was opened in late 2018 and has included inquiries into potential criminal violations of tax and money laundering laws, according to the New York Times, citing people close to the matter.

“I am confident that a professional and objective review of these matters will demonstrate that I handled my affairs legally and appropriately, including with the benefit of professional tax advisors,” the younger Biden said in a statement carried by multiple news outlets. Trump is mulling the appointment of a special prosecutor, according to the Associated Press, which would ensure the probe continues in the Biden administration.

Paul says such a move may be warranted if Justice officials find significant evidence to proceed moving forward. “But if this is all trumped up stuff, no pun intended, then I think that appointing a special counsel would be really inappropriate.”

Another major task awaiting the new attorney general is the investigation into the origins of alleged Trump-Russia collusion—headed by a special counsel, John Durham, the U.S. attorney in Hartford, Conn. The case was opened after another special counsel, Robert Mueller, completed his yearlong investigation into whether the Trump campaign colluded with the Russians to influence the 2016 presidential election. Mueller ultimately did not find enough evidence to charge Trump or any of his close associates.

Paul was previously the dean at the University of Connecticut law school, where Durham was an active and highly regarded alumnus. “So I know him, and I’ve always had high respect for him,” Paul says.

An FBI lawyer has already pleaded guilty as the case continues. Paul says it’s a good sign that, despite Trump’s predictions that the probe would be wrapped up by Election Day, prosecutors  didn’t rush to meet that deadline. “The more investigating Durham does, the less he’s going to find,” Paul predicts.

The Northeastern professor says people need to understand that the attorney general in any administration doesn’t work directly for a president, even as a political appointee, but for the American people under the aegis of the Constitution.

“What we want is an attorney general who can show what it means to have an independent Department of Justice,” says Paul.

Paul says Trump’s first attorney general, Jeff Sessions, tried to create a figurative wall from White House political pressure by recusing himself in the Russia election meddling investigation led by special prosecutor Robert Mueller.

“Trump excoriated Sessions for it,” Paul says.

Trump later fired Sessions and replaced him with William Barr, who himself is now stepping down before Christmas after numerous legal attempts to uncover election fraud turned up empty.

An attorney general can send a strong message by resigning in the face of political pressure, Paul says. That’s what Elliot Richardson did in 1973 after President Richard Nixon ordered him to fire the special prosecutor in the Watergate burglary affair that ultimately led to Nixon’s resignation.

“If a president, any president, is too meddling, the most powerful tool that the attorney general has is to resign,” Paul says. “That hurt Nixon a lot and that would hurt any president a lot.”

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