This creates competing realities for Biden. He must get an attorney general confirmed by a Senate that could be controlled by Republicans, some of whom tell CNN they will only vote for a candidate who pledges to continue an investigation into the 2016 election.
On the right, there’s a new hurdle for Biden to clear, following the appointment of John Durham as special counsel investigating whether intelligence and law enforcement violated the law in investigating the 2016 presidential campaign. Senate Republicans are signaling they will require any attorney general nominee to commit to keeping Durham in place. A source familiar with the deliberations inside the transition said Thursday that the ongoing Durham probe “won’t impact” who Biden selects for attorney general.
Others said to be in contention include Deval Patrick, former Massachusetts governor and former Justice Department civil rights chief; Jeh Johnson, the Homeland Security secretary under Obama; California Attorney General Xavier Becerra; and Lisa Monaco, a former Homeland Security adviser in the Obama White House and who previously worked at the FBI and as top national security prosecutor at Justice.
Biden, along with Vice President-elect Kamala Harris, are interviewing contenders and weighing the decision. They are not expected to announce a decision until next week at the earliest, people familiar with the matter told CNN, but with a goal of doing so well before the holidays. The timing is also contingent on the nomination of a Secretary of Defense.
The job, for whomever Biden picks, will be a heavy lift. The pick will be stepping into a Justice Department damaged by the Trump administration and with low morale among career officials, many of whom have been publicly called out by President Donald Trump, Barr and other Republicans.
Sen. John Cornyn, a Texas Republican who sits on Senate Judiciary, told CNN on Thursday that the next Attorney General nominee “absolutely” must commit to keeping Durham as special counsel.
“It’s non-negotiable,” he said.
The nominee will also be tasked with overseeing Biden’s attempts to tackle questions about race and policing, an issue that dominated the political conversation over the summer in the wake of George Floyd’s killing in May and the subsequent widespread protests, as well as calls to protect the right to vote and use the power of the Department of Justice to combat climate change.
Biden said Thursday he will make sure his Justice Department operates independently, he told CNN’s Jake Tapper in an exclusive interview. “I’m not going to be telling them what they have to do and don’t have to do. I’m not going to be saying go prosecute A, B or C — I’m not going to be telling them. That’s not the role, it’s not my Justice Department, it’s the people’s Justice Department.”
Yates and Jones
Yates, multiple sources told CNN, had long been one of Biden’s leading contenders for the job, with the longtime official reflecting Biden’s focus on career officials in the picks he has already made.
But her nomination could be contentious.
Yates’ order for the Justice Department to refuse to enforce Trump’s first travel ban prompted her firing in January 2017, making her a “Resistance” hero to liberals and served as a highlight for Yates in a speech to the Democratic National Convention in August, during which said Trump “trampled the rule of law, trying to weaponize the Justice Department to attack his enemies and protect his friends.”
As quickly as Yates has become a hero to the left, she has become a villain on the right — Barr, then a private citizen, wrote that her decision was “incoherent and untenable” — a fact that could complicate her nomination to a Republican Senate. If nominated, Republicans are likely to revisit that episode, as well as the fact that the FBI launched its investigation of ties between Russia and the Trump campaign during Yates’ tenure. In recent months, Yates sat for a hearing before the Senate Judiciary Committee to discuss some of the mistakes the FBI made during that probe.
Sen. Chuck Grassley, who is in line to chair Senate Judiciary in a GOP majority, told CNN on Thursday that Durham’s probe into the 2016 election will be key to the consideration of a new nominee.
“Yes, from this standpoint,” Grassley said when asked if keeping Durham would be central to the nomination. “Everybody came to me when I was chairman of the committee and wanted to make sure that I would take action to make sure that Trump didn’t fire Mueller.”
After noting he sponsored legislation aimed at protecting special counsels, Grassley added: “What’s good for the goose is good for the gander, so I want to make sure that Durham gets the same respect.”
Sources also told CNN that Biden is serious about his intent to move beyond the Trump era in hopes of unifying the country and wonders whether Yates could be too divisive of a nominee to lead the Justice Department and her confirmation could be complicated by Senate Republicans.
Jones is seen as someone easier to confirm. The current senator from Alabama who lost his bid for reelection in November previously worked as the US Attorney for the Northern District of Alabama and was the lead prosecutor suing KKK members responsible for the 16th Street Baptist Church bombing, strong selling points to advocacy organizations.
Both Yates and Jones, however, are White, an issue for an incoming administration seeking diversity among its appointees that could be compounded by picks Biden has already made.
“I don’t think they can politically do that,” said a source familiar with the transition. “I don’t think they can get away with that.”
Attorney General, like other nominations to the Cabinet, is hardly made in a vacuum, so the likelihood of Biden picking Johnson, Patrick and Becerra could increase if Biden has not already chosen a Black nominee for another top Cabinet post.
Biden is seriously considering Patrick, believing he could have a smoother path to confirmation, sources told CNN. Patrick was viewed to be an attorney general candidate in the latter years of the Obama presidency, but instead went into the private sector before mounting an ill-fated presidential bid late in the nomination process. His relationship with Biden could be strained, however, after Patrick largely ran for president by arguing none of the other candidates — including Biden — had what it took to beat Trump.
Johnson is someone Biden knows from his time in the Obama administration, where he led the Department of Homeland Security from 2013 to 2017 and previously as the general counsel of the Department of Defense. And Johnson is also said to be under consideration by Biden for other positions, including Defense Secretary.
“I like how Jeh Johnson handles himself,” Grassley said Thursday.
But Johnson comes with some baggage for the left, particularly how the Obama administration handled the deportation of undocumented immigrants during his tenure at Homeland Security. Biden has sought to distance himself from that record, including explicitly saying he would handle deportation differently than President Barack Obama.
Becerra is also under consideration, people familiar with the matter say, and has many allies inside the Biden transition. He served in Congress for more than two decades and despite his criticism and myriad lawsuits against the Trump administration, officials believe at least a handful of Republicans would join Democratic senators in confirming him.
Monaco, like Johnson, has been considered for other Biden administration roles. If Trump fires FBI Director Christopher Wray, as he at times mused that he might, then Monaco is a top candidate as the first woman to fill that vacancy. She was on the shortlist for the job when Obama picked James Comey in 2013.
Whoever Biden picks for attorney general will inherit a Justice Department damaged by perceptions of politicized decision-making, thanks to Trump’s Twitter rantings, and low morale among career employees.
Taking on the job is likely to be a major challenge, particularly because the Justice Department’s top job in recent decades increasingly has become the focus of partisan fights between Congress and the White House no matter who holds it. And many in the Democratic base want to see the Department of Justice do more to combat systemic racism in policing, protect the right to vote and crack down on the kinds of financial abuses that were seen to run rampant during the Trump administration.
After four years of Trump, some Democrats are also hungry for the Department of Justice under Biden to prosecute some of the decision made during Trump’s tenure.
Biden has largely resisted those calls and plans to try to put distance between the Department of Justice and his White House by issuing an executive order “directing that no White House staff or any member of his administration may initiate, encourage, obstruct, or otherwise improperly influence specific DOJ investigations or prosecutions for any reason.” The move is a rejection of the Trump administration, which saw Trump repeatedly lean on the Department of Justice for political reasons, especially under Barr.
Justice employees welcomed Barr to his second stint as attorney general, with hopes high that he would protect the department from the steady diet of attacks from Trump, who regularly criticized Jeff Sessions, his first attorney general. Instead, Barr has embraced Trump’s rhetoric, doing damage to the department’s reputation with the courts, the public and its own employees, current and former Justice officials say.
After months of complaining privately about career prosecutors resisting his demands, Barr used a September speech to a conservative college audience to compare career officials to Montessori pre-schoolers. The point of the speech was to underscore that political appointees are the bosses, but Barr used demeaning terms to complain about career civil servants who serve under Republican and Democratic administrations.
Barr’s defenders say he has done as much as possible to keep politics out of the department in an unorthodox presidency. Under public pressure from Trump to target Biden and Obama over what Trump claims were spying violations against his campaign, Barr publicly said the department wasn’t doing that. People close to Barr also say his conduct in office isn’t evidence of doing Trump’s bidding, but more a reflection of a deeply conservative Republican attorney general who believes the political left was out to get Trump.
“His excuse on the Flynn case on the standard of materiality was as stupid as what Trump said about injecting bleach into your body,” Halpern said in an interview. “It’s a lie, it’s offensive.”
A future attorney general will have to restore trust, Halpern said.
Other current and former officials say the department’s civil rights enforcement and voting rights sections will require work after the Trump era. And after months of protests over police conduct and accountability, the Justice Department under Biden will be under pressure to help encourage changes to policing.
And the pick will be tasked with what to do about special ongoing probes launched under Barr, in an apparent effort to placate Trump. These include the investigation by John Durham into the origins of the Trump-Russia investigation.
And that could be the first test of Biden’s pledge to take a hands-off approach with the Department of Justice.
But the special counsel investigation will now be waiting for Biden.