By Noah Feldman / Bloomberg Opinion
It’s too soon to say with any confidence that Joe Biden will be the next president of United States.
But it’s not too soon to start determining what he needs to do on Day One if he is elected. Once you get beyond addressing the coronavirus pandemic, it’s pretty clear that the highest priority Biden should have is reversing the disastrous direction that the Department of Justice has taken under President Trump.
To regain its credibility, the department needs leaders who will publicly and systematically demonstrate that they are committed to restoring the values, norms and practices established in the nearly half-century since Watergate.
The near-total failure of the Justice Department to engage the pressing concerns raised by the Black Lives Matter protesters is only the most recent and dramatic manifestation of how rudderless the once-great department has become. Looking at the violent clashes between federal agents and protesters this summer, you would hardly know that the Department of Justice once worked to desegregate schools and prosecute civil rights violations in the South.
Trump’s Department of Justice has taken its cues from a president who ran for office by directing the “lock her up” chant at his opponent. It has increasingly undermined the all-important principle that enforcement, investigation and prosecution should be removed from partisan politics.
Trump’s project of delegitimizing the department through politicking goes back to his extended efforts to paint the Russia investigation as politically motivated. His goal was to convince ordinary people that the FBI and DOJ were already completely partisan, to undercut any evidence implicating him or his campaign. Hence Trump’s pressure on Attorney General William Barr to break Department of Justice norms and reveal the progress of his investigation of the Russia investigation. The very existence of this investigation is a terrible sign of how Trump has successfully turned the initial investigation of Russian interference in the 2016 election into a political football.
Much, much more could be said about all the ways that Trump has undercut the Department of Justice. But I won’t bore you with a recap. The question now is, what can be done to restore norms that have been systematically gutted?
The first is something not to do. Namely, barring some spectacular new evidence of overt criminality, the Department of Justice should not pursue criminal charges against Donald Trump after he is out of office. This will be a bitter pill to swallow for those who care about the rule of law, but the only way to put the department back on a legitimate, apolitical footing will be to resist the temptation to go after Trump or his associates. It’s much better to leave that task to the Manhattan District Attorney’s Office for the office of the New York State Attorney General, both of whom have open investigations against Trump. And it would be much more constructive for the DOJ to focus its efforts on aggressively enforcing civil rights laws and curbing the overuse of lethal force by police.
Second, the Department of Justice needs the right kind of new leadership. The ideal appointee would be someone who would signal a return to the department’s core value of de-politicization. One obvious candidate would be Sally Yates, the former deputy attorney general under President Obama and holdover acting attorney general under Trump. You will recall that Yates was fired by Trump after she refused to defend the Muslim travel ban, which she correctly deemed to be unconstitutional. This was a principled act in the greatest traditions of the department. It alone would signal to the world that, under Biden, the department would be able to operate with sufficient independence in matters of fact and law.
Yates was a career Department of Justice employee, who worked there from 1989 until fired by Trump in 2017. Even better, she ran the department’s fraud and public corruption section in the 1990s. What better pedigree to show that Biden is repudiating the corruption of the Trump administration?
Preet Bharara, the former U.S. attorney for the Southern District of New York, also stood up to Trump and was fired for it. He, too, would have the capacity to reimpose the tradition of independence.
To be sure, there’s a good chance the Biden administration will be tempted to offer the attorney general slot to a political rival like Sen. Elizabeth Warren, D-Mass. (disclosure: she’s also a former Harvard Law colleague). There’s a certain logic to this: Biden owes Warren for her support and would benefit from bringing her inside his administration, rather than leaving her outside where she might critique him. In contrast, the Biden administration does not owe Yates or Bharara anything. Notwithstanding Warren’s brilliance, intensity and passion, there is strong reason to think that the leader who can do the most to restore the Department of Justice to its pre-Trump status of nonpartisan independence is an apolitical departmental insider.
Rebuilding the credibility of the department isn’t going to be easy. But it might be the single most important thing that a Biden administration could start doing on its first day in office.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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