President-elect Joe Biden has vowed to restore integrity to the Justice Department and allow it to run independently, free of White House meddling. But if the experience of his predecessors is any guide, that lofty pledge is easier said than done – even if a president’s own son were not the subject of a federal investigation.
Although naming a new attorney general is the most pressing judicial personnel matter Biden faces, it’s not the only one. A potentially fraught decision is whether to replace David Weiss (pictured), the federal prosecutor investigating Hunter Biden’s tax returns and business dealings in China and Ukraine.
In his dual role as a supportive father and the president-elect in a deeply divided nation, Joe Biden issued a terse response to his son’s disclosure last week that he was under investigation. Biden said, as he has in the past, that he’s proud of a son who has “fought through difficult challenges,” including “the vicious personal attacks of recent months, only to emerge stronger.”
On Wednesday a reporter asked if he’s confident that Hunter did nothing wrong.
“I’m confident,” Biden replied.
Nonetheless, news of the Hunter Biden investigation has added an unwelcome complication to the incoming president’s choice of the nation’s top law enforcement officer – one who will inherit the Hunter Biden mess. Joe Biden plans to announce his attorney general nominee by next week, sources familiar with transition deliberations told RealClearPolitics. Top candidates include New York Gov. Andrew Cuomo, outgoing Sen. Doug Jones of Alabama, U.S. Circuit Judge Merrick Garland, and former Deputy Attorney General Sally Yates.
All of this is taking place against the chaotic backdrop of the current administration’s waning days and the sudden resignation this week of Attorney General William Barr. Trump’s once-trusted legal chieftain’s abrupt decision not to finish out the administration’s term came after President Trump openly railed against some of his actions (or lack thereof). The president denounced Barr’s statement that he hadn’t seen enough evidence of election fraud thus far to overturn the presidential outcome. Trump also expressed displeasure with Barr’s decision to keep the Hunter Biden investigation, which began in 2018, under wraps throughout the 2020 campaign.
With nearly five decades of public life in Washington that includes time serving as chairman of the Senate Judiciary Committee, Joe Biden has a special vantage point in sizing up how previous presidents have handled their relationships with their hand-picked attorneys general. Biden has also taken public positions on whether former presidents properly fired slates of U.S. attorneys chosen by predecessors and who were involved in politically charged investigations and prosecutions.
All of those statements will be used as a way to evaluate whether his actions impacting the Justice Department are consistent with his previous stances. For starters, Biden and Vice President-elect Kamala Harris have harshly criticized the way Trump has treated his attorneys general. Trump publicly excoriated his first, Jeff Sessions, for recusing himself from the Russia probe, and Barr for failing to investigate or prosecute his political opponents.
“We will not tell the Justice Department how to do its job,” Harris said in a joint interview she and Biden gave to CNN in early December. She added that “any decision coming out of the Justice Department … should be based on facts, should be based on the law, should not be influenced by politics. Period.”
Biden underscored the pledge: “I guarantee you that that’s how it will be run.”
As a senator, Biden was particularly critical of another Republican president, George W. Bush, and what he regarded as the politicization of the attorney general position. In 2007, Biden publicly called for then-AG Alberto Gonzales to resign in part over the decision to fire eight U.S. attorneys amid allegations of Republican meddling in some of their investigations. Several GOP senators said they also had lost faith in Gonzales, and he eventually stepped down.
That criticism prompted some scrutiny at the time. In an interview on Fox News in April 2007, Chris Wallace pressed Biden on whether he had criticized Republican presidents and their Justice Department decisions while giving President Clinton a pass, especially when it comes to the firings of U.S. attorneys.
Most presidents, either when assuming office or at other points in their presidency, dismiss the U.S. attorneys chosen by the predecessors. But firing them en masse prompts allegations of partisanship from the opposing party. Presidents Trump, Bush and Clinton all did so at the beginning of their time in office, and Eric Holder, President Obama’s attorney general in May of 2009, announced plans to dismiss a “batch” before backing off and gradually replacing them over time.
In his interview with Wallace, Biden defended his call for Gonzales to step down, arguing that the U.S. attorney firings were politically motivated.
Biden added that he believed Gonzales had become a “creature of the president, not the attorney for the people as well as representing the president.” And he went so far as to say the Bush White House even exceeded the Nixon administration in installing loyalists in the U.S. attorney jobs.
“And as recently as today, there’s an article in one of the major newspapers out that this administration, more than any other, and that covers a lot, including Nixon and others, went out and put U.S. attorneys in spots who were the cronies – wrong word, that’s not fair – who were the employees of the White House and the Justice Department who were loyal directly to Gonzales and to the political people in the White House,” Biden argued. “That is highly, highly unusual.”
Wallace wasn’t satisfied with that answer. He pointed out that Biden declined to hold hearings when he was Judiciary committee chairman back in 1993 into the propriety of President Clinton’s firing of 93 of 94 U.S. attorneys, including “several who were involved in politically sensitive investigations.”
At the time, Senate Republican leader Bob Dole pressed Biden to hold hearings into the firings because he regarded the dismissals as “a severe blow to the administration of justice.”
The U.S. attorneys being fired included one who was investigating Democratic Rep. Dan Rostenkowski, the powerful chairman of the Ways and Means Committee, for corruption.
In Clinton’s case, Biden said there was no political meddling in the investigations, noting that Rostenkowski was convicted and served time in jail, a prosecution carried on by the dismissed U.S. attorney’s replacement.
Several former Justice Department officials who spoke to RealClearPolitics said they fully expect Biden to fire some or all of the U.S. attorneys appointed by Trump, including the one investigating his son. Guy Lewis, a former U.S. attorney in Florida who also served as a director of the Executive Office for U.S. Attorneys during the Bush administration, said most dismissals of holdover federal prosecutors create a blowup politically but should be considered a matter of routine presidential prerogative.
“Almost without exception, say, in the past four or five [presidential transitions], U.S. attorneys have been relieved of their positions,” Lewis told RCP. The dilemma Biden faces with his son under investigation is truly “extraordinary,” Lewis added, predicting that Biden will leave the decision on whether to dismiss the U.S. attorneys to his AG.
“In order to demonstrate the independence and arms-length promises – everything he’s been preaching -- I think he’ll say, ‘Attorney General, you make the call. It’s your call,’” Lewis said. “Isn’t that the safest play?”
That decision-making role fell previously to Stuart Gerson, who served as acting attorney general during the early months of the Clinton administration after his role as assistant attorney general for the civil division during President George H.W. Bush’s time in office. It was Gerson who had the job of firing a slate of U.S. attorneys at the beginning of the new administration, including one in Tennessee who was in the midst of a controversial trial.
“You have certain people who were partisan political people who were seeking the office but somehow viewed themselves as having a right to stay on in the new administration, and they don’t,” Gerson told RCP.
The key to ensuring that justice continues to be carried out after the firings, Gerson said, is having ready replacements, either new U.S. attorneys already vetted and poised to start work, or court-appointed acting U.S. attorneys or interim U.S. attorneys who can continue the investigations or prosecutions already underway.
Determining whether the U.S. attorney who launched the Hunter Biden investigation will remain in his job is far more politically and personally fraught than any other presidents’ decision on retaining or dismissing U.S. attorneys, Gerson acknowledged.
“I think there’s a high political risk for President-elect Biden when he becomes president to interfere in that case, having criticized Trump for interfering in cases involving people close to him,” Gerson said.
One possible turn of events, he said, would be for the acting attorney general, Jeffrey Rosen, to name Weiss as a special counsel charged with carrying out the Hunter Biden investigation. Trump is reportedly considering pushing to have a special counsel named and is consulting with top advisers on whether do so. Naming Weiss to that role would mirror Barr’s decision to elevate John Durham, who was investigating the origins of the Justice Department’s Trump-Russia collusion probe as a U.S. attorney, into a special counsel role, a move that presumably will ensure the integrity of his work in a Biden administration.
“When Durham was declared to be a special counsel, it got a lot of publicity as being a major event,” Gerson said. “But I don’t believe it’s a major event. Durham is a person of good reputation, who had always been known to take his time before doing anything, and that’s clearly the case now.”
Although Weiss was appointed by Trump, he is not known for his partisan leanings. A decade ago, however, he did prosecute a fundraiser who engaged in a scheme to use political donations to gain favor with an influential senator. The identity of that senator? Joe Biden of Delaware.