One of the most important Cabinet positions President-elect Joe Biden has yet to fill is that of attorney general. Biden must consider myriad factors in making that momentous choice, from diversity in the Cabinet to an appointee’s ability to advocate effectively for criminal justice reform and other high-priority initiatives.
But one objective ought to be paramount: ensuring that the next head of the Department of Justice is not viewed as the president’s personal lawyer.
William Barr, who abruptly resigned as attorney general Monday, was accused of playing exactly that role, although Barr insisted that actions he took that pleased Trump were objectively correct and not dictated by politics. It was just a coincidence, Barr suggested, that the Justice Department intervened to soften a sentencing recommendation for Trump crony Roger Stone after Trump complained that Stone was being unfairly treated. (Barr also complained at the time that Trump’s tweets about the Justice Department “make it impossible for me to do my job.”)
Sadly, the Stone episode typified Barr’s handling of cases affecting Trump or those close to the president. Before the release of special counsel Robert S. Mueller III’s report on the Russia investigation, Barr offered a summary that downplayed or omitted Mueller’s most troubling findings, drawing a public rebuke from the special counsel (a federal judge later called Barr’s account of Mueller’s conclusions misleading). Barr also sought an 11th-hour dismissal of a charge against former Trump national security advisor Michael Flynn (whom Trump later pardoned).
To his credit, Barr publicly undermined Trump’s claims of massive fraud that could have altered the outcome of the presidential election. But that reality check came after the attorney general floated a baseless theory about the possibility that foreign countries would flood the United States with counterfeit mail ballots. And in his fawning letter of resignation, Barr seemed to be trying to get back into Trump’s good graces by reminding the president that allegations of voter fraud “will continue to be pursued.”
Intentionally or not, Barr gave Trump the sort of fealty he’d expected since taking office. By contrast, witness how the president berated his first appointee to that position, Jeff Sessions, for recusing himself — properly — from the investigation of possible ties between Russia and the 2016 Trump campaign, in which Sessions served as an advisor. Trump eventually booted Sessions for his perceived disloyalty.
This troubling legacy of the Trump Justice Department makes it vital that Biden choose an attorney general who will be independent of the White House when it comes to the enforcement of criminal laws — and who will be seen as independent. That quality would be important in any event, but there are specific reasons why Biden must not nominate a friend, a political confidant, a campaign surrogate or anyone seen as having a score to settle with the Trump administration.
Hunter Biden, the president-elect’s son, has acknowledged that his “tax affairs” are being investigated by the Justice Department. The younger Biden insists that a review will establish that he acted “legally and appropriately, including with the benefit of professional tax advisors.” But the existence of the investigation underlines the importance of a strict wall between the White House and the Justice Department investigations.
The next attorney general should also be someone who would be trusted to be impartial in the event that accusations of criminal wrongdoing are made against Trump or members of his family or his administration. Biden addressed this possibility during the campaign, saying, ” I will not interfere with the Justice Department’s judgment of whether or not they think they should pursue the prosecution of anyone that they think has violated the law.” It’s important that, if such a circumstance does arise, the attorney general is someone the American people can trust not to be swayed by politics.
We aren’t arguing that the president should have no influence or control over the Justice Department, or that the AG be an apolitical figure. It’s legitimate for a president to expect that the attorney general will align with the administration’s view of legal issues, from civil rights to antitrust enforcement to immigration to priorities in the deployment of scarce federal law-enforcement resources.
What an attorney general must not do is favor the president’s friends or target the president’s opponents — or take actions that cause reasonable people to suspect that there are two systems of justice. Biden must choose someone who can credibly make that assurance.