In late August, the Justice Department’s Civil Rights Division announced that it had issued requests to New York, New Jersey, Pennsylvania, and Michigan concerning their handling of the coronavirus in nursing homes. The unspoken threat, it seemed, was that the department could file lawsuits against these states—all run by Democratic governors—related to nursing home deaths. The requests were transparently political, considering both the dubious use of the statute—a provision that provides civil rights protections for people in government-run group settings that the department has not used to investigate, say, the handling of the pandemic at prisons and jails—and the conspicuous election-season timing of the news. Meanwhile, states run by Republican governors were not only spared such requests, but the department praised Florida for its coronavirus efforts, despite the fact that it recorded more nursing home Covid-19 deaths than Michigan.
This little-noticed incident exemplified two central themes of the Justice Department during Donald Trump’s term—the deterioration and politicization of even once-obscure offices in the department, as well as the deafening silence from career officials regarding work that, in any other administration, would have been scandalous. President-elect Joe Biden will inherit a troubled and disgraced Justice Department, one that lacks the approval of 40 percent of the country and demands the concerted attention of incoming leadership at every level.
The consensus among anti-Trump commentators is that the Biden administration should pursue a meaningful reform agenda at the department. Their recommendations range from a vaguely defined internal “fumigation” to an internal investigation focused on identifying “politicization,” to more targeted enhancements to the powers of “the department’s watchdogs and ethical advisers” and reforms to the department’s Office of Legal Counsel.
These proposals are all well motivated but, in their own ways, oddly sanguine about the breadth and depth of the problems at the department. They fail to reckon with the distinction between the actions of political appointees and career officials; overestimate the capabilities of the department’s internal mechanisms for accountability; and underestimate the poisonous effect that misconduct can have within a bureaucracy, particularly over a sustained period of time.
The country urgently needs a systematic and comprehensive
reform effort to rehabilitate and strengthen the department. After four years
of the Trump administration—after all of the damage wrought by Trump, his two
attorneys general, and the many people within the department who appear to have
facilitated the disastrous mismanagement of the agency—the department is in its
worst condition in decades. The harm to the institution has been considerable
and widespread, and the department has significantly depleted perhaps its most
critical asset for the functioning of our democracy—its credibility.
There is also serious reason to worry about the extent to which some (possibly many) career officials participated in this mess—perhaps because they saw openings to get ahead in the most corrupt administration in modern history, because they wanted to keep their jobs, or because they were willing to tolerate and perhaps even support unethical and sometimes morally depraved work. To make matters worse, the offices tasked with internally policing the department did not escape this corrosion, so we cannot rely on them to do the job that they have utterly failed to do for four years.
A Brief and Incomplete Survey of the Wreckage
Jeff Sessions, Trump’s first attorney general, had two principal objectives, which he pursued quickly and aggressively. The first was reintroducing the department’s rigid and harsh treatment of drug crimes—a significant contributor to the gross racial disparities in our criminal justice system. The second was the reduction of illegal immigration—a capstone to a career marked by hostility to immigration both legal and illegal.
In addition to rescinding the Obama-era Deferred Action for Childhood Arrivals program—which prevented the deportation of undocumented immigrants brought to the country as children—Sessions implemented a “zero-tolerance” policy for people entering the country illegally beginning in April 2018. At the time, the administration insisted on holding parents and children caught entering the country illegally separately, so several thousand children were separated from their parents in the following months (though if you include those who were separated before the official implementation of the policy, the figure exceeds five thousand). Sessions and other administration officials made clear that one purpose of the policy was to deter immigration—an objective that could be achieved precisely because of how cruel the family separation element was.
The “family separation” policy was one of the most morally abhorrent government policies of the last 20 years. After a public outcry, the government ended it in June 2018, and a court has been overseeing the reunification of separated families since then. We recently learned that the government still has not managed to locate the parents of more than 500 children whom it separated from their parents.
Trump fired Sessions following the 2018 midterms, after publicly and privately berating his first attorney general for failing to protect him from Robert Mueller’s investigation into the Trump campaign’s coordination with Russia in 2016. William Barr eventually took the helm after sending the department a long and unsolicited memo criticizing Mueller’s investigation into whether Trump had obstructed justice.
The memo was an unsubtle indicator that Barr would be willing to use the department to advance Trump’s personal and political interests, perhaps most notably when he disingenuously spun the Mueller report prior to its release and chose not to pursue criminal charges against the president. In May 2019, he assigned John Durham, the U.S. attorney for Connecticut, to investigate the origins of the FBI’s Russia investigation. In February of this year, senior department officials intervened to reduce the sentencing recommendation for Roger Stone after he was found guilty of witness tampering and lying to Congress—a decision that prompted the four career prosecutors on the case to withdraw and one of them to leave the department altogether. In May, the department moved to dismiss the case against former national security adviser Michael Flynn after he pleaded guilty to lying to federal investigators—an unprecedented decision based on a paper-thin rationale.
Barr also appointed someone to investigate the allegedly improper use of intelligence “unmasking” as part of the Russia investigation—another Trump talking point—and under Barr’s direction, the department undertook a futile effort to stop the publication of an embarrassing book by one of Flynn’s successors, John Bolton. (Both of these initiatives came up empty—the unmasking inquiry quietly fizzled out, and Bolton’s tell-all became a New York Times bestseller.)
Meanwhile, the Justice Department’s work in critical areas was severely compromised and warped as a result of ideology, incompetence, or both. The department’s white-collar criminal enforcement program is in its worst condition in decades. The number of environmental crime prosecutions is lower than it has been in over 20 years. The department’s work on policing reform is a cruel joke—from rolling back Obama-era reforms to the tear-gassing of peaceful protesters in Lafayette Park, to the seemingly deliberate efforts to provoke and intimidate protesters by dispatching federal law enforcement to major American cities during the protests sparked by George Floyd’s death over the summer. That crackdown, in response to largely peaceful protests, confirmed many of our worst fears about the administration’s hostility to constitutionally protected dissent and its disdain for political opposition, and it predictably resulted in many dubious prosecutions.
Meanwhile, the department’s pandemic response has been a mess. For months, the department waged a losing legal battle to fight public health restrictions imposed by Democratic politicians—despite the Supreme Court’s repeated rejection of such claims—under the guise of civil liberties concerns. The department created a task force to combat the supposed hoarding of medical equipment that has produced virtually nothing—suggesting that the problem, at least within our own borders, was overhyped to begin with, perhaps to distract from the administration’s own deadly failure to stockpile PPE. It has also pursued fraud in the Paycheck Protection Program—the federal program designed to help businesses stay open by providing them with forgivable loans to fund payroll costs—while, to date, managing to identify no fraud whatsoever in other pandemic lending operations, such as the hundreds of billions of dollars routed through the Federal Reserve and the Treasury Department in order to provide lifelines for large industries. Nor has it done anything meaningful about the rampant virus-related consumer fraud in the country or the huge international fraud that may have cost state unemployment agencies billions of dollars.
The credibility of the department and its lawyers is in shambles. The Senate Intelligence Committee eviscerated many of Barr’s claims about the origins of the Russia investigation, and Barr cannot seem to get through the most simple interview—like the one in early September with Wolf Blitzer—without saying things that are outrageously false. Earlier this year, a judge concluded that Barr had misled the public in his public summary of the Mueller report—a conclusion backed by four former presidents of the D.C. Bar Association who argued that Barr should be investigated for ethical misconduct. But the problem goes well beyond Barr: The department has repeatedly made arguments to support government actions that the Supreme Court has rejected as pretextual excuses, and even the much-vaunted U.S. attorney’s office in Manhattan was recently rebuked after a judge described a series of mistakes and episodes of professional misconduct in a high-profile case that the government was forced to dismiss—what the judge called “manifold problems” that “cry out for a coordinated, systemic response.”
The department has also made a mockery of congressional oversight. It facilitated the White House’s successful effort to stonewall the impeachment inquiry by fighting congressional subpoenas in the courts, and Barr himself made no effort to hide his disdain for the oversight process when he appeared before the House Judiciary Committee this summer. Weeks later, the department sent a letter to the committee saying that it was rejecting the committee’s request to hear from senior officials about police misconduct and the election—whining that members had “squandered” their “opportunity” to hear from Barr and had instead used the time to “air grievances.”
The Breadth of the Rot’s Spread
Barr’s behavior has drawn the greatest attention, but in fact, wide swathes of the agency have been implicated in some of the department’s worst legal and ethical transgressions.
The Trump administration’s family separation policy could not have been developed and implemented across the government without the work of many lawyers—likely including career officials at the Justice Department—yet no one in the department involved in the effort came forward to resign in protest or even to publicly object. There has been little public reporting on these lawyers’ role—much less about any internal concerns about the immorality or illegality of the policy—but some insight can be found in the obscene spectacle of a senior career official telling a court last year that the government is not required to provide children in custody with soap, toothbrushes, or beds. The apparent lack of interest in making the immigration system faintly humane has extended to the obscure Justice Department office called the Executive Office for Immigration Review, which oversees the immigration courts and whose records are now, according to an analysis by Syracuse University, “incomplete and garbled.”
In 2018, the department’s normally staid Civil Division refused to defend Obamacare’s individual mandate in the courts—a decision that prompted two senior career lawyers to withdraw in apparent protest and one to resign—and it has since worked to gut the law. Lawyers in the same office defended the administration’s efforts to include a citizenship question in the 2020 census, even after the Supreme Court concluded that the administration had lied about its motive, which was probably to provide Republicans with an electoral advantage by deterring households with undocumented immigrants from responding to the survey. A new team of lawyers—comprised of both political and career officials—was brought in to try again. A similar group of both political and career officials has been handling the department’s effort to dismiss the defamation case brought against Trump by E. Jean Carroll—who has alleged that Trump sexually assaulted her in the 1990s and who was on the cusp of getting crucial pretrial discovery from Trump when the department intervened on his behalf at the White House’s request. (The presiding judge rejected that effort in late October.)
The solicitor general’s office, which is supposed to represent the United States in the Supreme Court, has also seen its standing diminished by its willingness to provide a veneer of legal legitimacy to political work. Most recently, the office—including several career lawyers—defended the department’s ongoing effort to drop the case against Flynn by claiming that judges cannot even ask questions in such cases. The position was correctly rejected by the full D.C. Circuit Court of Appeals after a prolonged interim appeals process facilitated by the department that was itself unprecedented.
A rotating cast of U.S. attorneys and career prosecutors in the District of Columbia has undertaken questionable and at times preposterous efforts in support of the president’s personal vendettas. Prosecutors in the office pursued a case against former FBI Deputy Director Andrew McCabe—whom Trump has publicly vilified—but after the prosecution stalled last year, another set of career lawyers tried (unsuccessfully) to resuscitate it. When Trump wanted to muzzle Bolton, prosecutors tried to stop his book from being sold—a laughable legal position that was also practically impossible, since copies were already in the hands of reviewers and the press by the time the lawsuit was filed. (The department has since opened a criminal investigation into Bolton’s publication of the book.)
There have also been suggestions of politicization within the department’s Antitrust Division. Earlier this year, a career lawyer named John Elias presented evidence to the House Judiciary Committee indicating that Barr’s personal animus toward the cannabis industry had prompted a series of intensive investigations into mergers in the industry. That was bad enough, but things got worse when the department made a concerted effort to discredit Elias—one that, on a close reading, actually seemed to confirm his allegations. More recently, the office filed an antitrust complaint against Google over the objections of career lawyers who, according to news reports, were concerned that the investigation was being improperly rushed so that it could be filed before the November election. (The Google case was just one part of what appeared to be a broader preelection push to falsely suggest to voters that the department had been vigorously pursuing corporate crime during Trump’s term.)
The department’s Public Integrity Section—which prosecutes public corruption—has long held one of the worst track records in high-profile litigation in the department, but the need to placate Trump has taken it to a new low. Last year, career prosecutors in the office were asked to review the memo summarizing Trump’s call with the Ukrainian president in July 2019—the one that led to Trump’s impeachment—to determine whether a criminal investigation should be opened. Without interviewing a single person, they opposed an investigation. There is also no indication that they are investigating recent reports about meetings between Trump and wealthy campaign donors who used their time with him to successfully lobby for their parochial corporate interests.
The Office of Legal Counsel, which is supposed to provide legal advice to the executive branch on significant matters, has seemed more interested in reaching predetermined conclusions than conducting rigorous analyses of complex legal issues. When Barr somehow concluded within a matter of days that the evidence described in Mueller’s 450-page report did not support an obstruction of justice charge against Trump, Barr cited the advice of lawyers from OLC. Lawyers at OLC also concluded that the report of the Ukraine whistleblower did not need to be forwarded to Congress—a contention that suffered from glaring legal defects—and advised the White House that it could categorically reject the subpoenas issued during the House’s impeachment inquiry.
Even the department’s Office of Public Affairs—the public relations department—has fallen into disrepute. Among other things, the office coordinated the disclosure of text messages designed to undermine the Mueller investigation (between former FBI lawyer Lisa Page and agent Peter Strzok) on the condition that reporters not identify their source. This use of the department’s media apparatus to promote a political narrative using raw material from an ongoing investigation was highly unusual, to put it mildly.
Beneath the Surface
One underappreciated feature of the high-profile Justice Department scandals is how many of them—like the interventions in the Stone and Flynn cases—were the result of information that the department itself made public. Just imagine how much we don’t know about.
Debates about the state of the Justice Department often seem to proceed from the premise that career employees are incorruptible and, perhaps, that most have quietly objected to the worst impulses of this administration. This is an oddly naïve view of the world, considering that the country has maintained a fairly consistent 40 percent approval rating for Trump and that he still acquired 48 percent of the popular vote against Joe Biden at the latest count, that the administration has had no difficulty recruiting people to serve as U.S. attorneys throughout the country, and that prominent former career prosecutors like Rudy Giuliani, Michael Mukasey, and Trey Gowdy have largely supported the president.
In early August, for instance, the authors of a New York Times op-ed encouraged career prosecutors to report and potentially resign if Durham tried to charge anyone prior to the election; nine days later, Durham’s team filed its first charges, with no discernible internal pushback. (A senior prosecutor on the investigation later quietly resigned in September, reportedly over concerns about pressure from Barr to produce something more before the election, but no one else followed, and she never spoke publicly.) Several career prosecutors have recently voiced concerns in local press in Boston and San Diego, but as Trump’s presidency comes to a close, it does not take a great leap to infer that there are many people in the department who like and have supported Trump and Barr’s legal agenda.
Research by scholars who study behavioral legal ethics—the practical reality of how lawyers behave as an ethical matter—has also explained that the ethical conduct of lawyers, like anyone else, can deteriorate over time. One reason is that the tone from the top of an organization matters, so when leaders are willing to stretch the truth or abuse their authority for improper purposes, this tacitly permits subordinates to do the same. You can see why someone watching what Barr has done for Trump might not think twice about doing that sort of thing.
Lawyers are also susceptible to ethical “slippery slopes,” in which their conduct degrades gradually over time, perhaps to a point that would have been unrecognizable at the start. The problem of “ethical fading” or “moral disengagement” can also lead lawyers to ignore the fact that their work has ethical and sometimes moral components—the difference between, say, structuring a family separation policy to comply with statutory obligations and recognizing that what you are doing is abhorrent regardless of how you go about it.
Still another problem is an omission bias that leads lawyers to believe that if they are merely passive observers to misconduct, then they are less responsible for it—or perhaps not responsible at all. Some lawyers may have rationalized this sort of thing because they wanted to keep their jobs or to maximize their chances for post-government private sector work. But when the shoe is on the other foot, the Justice Department generally does not excuse people who participate in or tolerate misconduct because of financial or institutional pressures. (For instance, the department’s policies recognize the value of “holding accountable all individuals who engage in wrongdoing” because doing so “deters future” misconduct, “incentivizes changes” in behavior, “ensures that the proper parties are held responsible for their actions, and promotes the public’s confidence in our justice system.” As applied to the Justice Department itself, this principle suggests that no one—up to and including attorneys general and their most senior deputies—should be exempt from scrutiny.)
You can see these problems even in the rare accounts of Justice Department whistleblowers, like Aaron Zelinsky, a prosecutor who testified about apparent political pressure in the Stone case. His account was robust and credible, and it could have been corroborated (or denied) by the many career prosecutors who were involved in the events that he described. Where were these people?
Some lawyers may also have calculated that this would be a fine time to keep their heads down and get promotions—a process that, under Trump, seems to have benefited even the most unremarkable white men, some of whom have already moved on to federal judgeships. During my own tenure at Justice, I saw firsthand how mediocre but ambitious senior and mid-level department lawyers who had recently been promoted felt free to abuse their authority, with disastrous results. When I was on the receiving end of such treatment, several former colleagues made it clear that they were reluctant to speak up in my defense because they did not want to jeopardize their own jobs.
The implications of all this are not pretty: A basic understanding of how large organizations work suggests that misconduct and slippery lawyering at the upper echelon of the department created a permission structure for misbehavior all the way down its hierarchy—including within the ranks of career management and perhaps even prosecutors making crucial calls on how best to direct department resources and labor. The question is how many people took advantage of it.
Moreover, many career employees may have ignored or perhaps even actively facilitated misconduct that we do not yet know about—due to some combination of ideological sympathy, fear of economic insecurity, or the prospect of professional advancement. Regardless of the reason, if department lawyers kept quiet about misconduct that they witnessed, then they violated their affirmative legal obligations to report misbehavior in real time. There may be good reasons to sympathize with their predicaments, but we cannot simply ignore such missteps, since these duties exist precisely to prevent people from seeing themselves as passive bystanders to inappropriate conduct.
The Accountability Vacuum
Another cause for serious concern is that the traditional accountability mechanisms at the Justice Department are in exceedingly poor repair—a fact that has two critical implications. The first is that we should not assume that they served as effective outlets for the handling of misconduct within the department during the Trump administration, and the second is that we should not assume that they will be effective in safeguarding against future potential abuses now that Biden has won.
In recent years, the Inspector General’s office—which is broadly tasked with investigating misconduct and preventing whistleblower retaliation in the department—has produced reports criticizing former FBI Director James Comey, former FBI Deputy Director Andrew McCabe, and those involved in the department’s surveillance of Carter Page, but the office believes that it lacks the authority to investigate on-the-job misconduct by attorneys. Pending legislation may change that, but even if it takes on this key mandate, the office has fewer than 40 attorneys to oversee 10,000 federal lawyers across the country.
The Inspector General’s office has also been criticized for a partisan skew in the work that it has pursued during the Trump administration. A report from the Center for American Progress last year concluded that “after three years of almost unceasing scandals related to the department,” the office has “focused on political conspiracy theories advanced by President Trump and his allies” without identifying a single “instance of corruption or abuse of power by a Trump appointee” in any investigation that has been completed to date. That assessment appears to remain true, though at some point the office is supposed to be releasing a critical report on the department’s involvement in the family separation policy—a report that, very conveniently for Trump, the office did not manage to finalize before the election.
There has also been no indication that the office is investigating several high-profile matters of interest to congressional Democrats—such as the scope of the FBI’s supplemental investigation into Brett Kavanaugh’s background or the release of the Page-Strzok text messages—and a years-long probe into leaks from the FBI’s New York field office concerning the Hillary Clinton email investigation appears to remain outstanding. Even worse, a recent report from The New Yorker described how the Inspector General’s office had been used to retaliate against a veteran prosecutor who objected to the department’s (apparently illegal) use of CIA intelligence to prosecute domestic criminals—first by opening a seemingly frivolous investigation into whether the prosecutor had improperly disclosed classified information internally in the course of raising his concerns, and then, more remarkably still, by proposing a settlement in which the office would drop its investigation if the whistleblower apologized to the CIA and stopped pursuing the matter. These actions appear to have been directed by senior agency officials, but these were two different efforts at whistleblower retaliation involving an office that is supposed to prevent whistleblower retaliation—a notion that would have shocked me if I had not experienced something similar myself.
All of this suggests the uncomfortable possibility that it was more than an oversight that allowed the head of the office to escape the Trump administration’s purge of inspectors general throughout the government earlier this year.
The other internal mechanism for oversight at the department is the Office of Professional Responsibility, which is nominally tasked with investigating reports of on-the-job misconduct by prosecutors. The office has long been viewed skeptically for its seeming unwillingness, or inability, to meaningfully investigate serious misconduct—particularly at the highest levels of the department—owing, at least in part, to the fact that the office reports directly to the attorney general.
OPR’s failure to aggressively respond to the “torture memos” prepared by lawyers in the Office of Legal Counsel during the George W. Bush administration remains a permanent stain on the office’s credibility, but even more recently, the office’s review of the complaint filed by John Elias—the attorney who alleged that Barr’s distaste for the cannabis industry had prompted a series of antitrust investigations—concluded that “even if” the “allegations were true,” these investigations “would not have violated any relevant laws, regulations, rules, policies, or guidelines.” That conclusion is obvious nonsense—ethical rules and federal regulations prohibit lawyers from acting dishonestly—and it provided further reason to question the office’s ability to operate even semi-independently, particularly since OPR usually does not make public its findings when it concludes that misconduct has not occurred.
Congress’s ability to provide meaningful oversight—both retrospectively and prospectively—is also doubtful. Congressional Republicans have hobbled every effort to probe misconduct at the agency unless it somehow helps Trump—going so far as to turn hearings into shouting matches. At the hearing with Elias and Zelinsky, they tried to depict the two—ridiculously, if you actually watched the whole thing—as disgruntled partisans. They will almost certainly try to hobble any future investigation that might reflect poorly on Barr or Trump.
At the same time, the output of congressional Democrats—even after they regained control of the House in 2018—has been less than stellar. There were obvious lines of inquiry to pursue in the wake of the Elias-Zelinsky hearing that seem to have gone nowhere. Those might have included subpoenaing the political officials in the department’s Antitrust Division to ask them what had actually prompted them to begin the highly unusual and extensive review of cannabis industry mergers that (according to Elias) were in fact motivated by Barr’s personal hostility toward the industry, or subpoenaing the supervisors in the D.C. U.S. attorney’s office, who (according to Zelinsky) said that the department’s intervention in the Stone prosecution was driven by politics, in order to ask them whether they had received direct instructions on this point, and if so, from whom. It took over a year for Democrats to get Barr to appear before the House Judiciary Committee in July, and the hearing was mostly a series of five-minute speeches rather than an effort to elicit useful new information. In light of all this, the resulting disincentive for whistleblowers to work with the committees—which are already stretched thin and under-resourced—is undeniable.
The Personnel Problem
As I have explained in my earlier analysis of the department’s white-collar enforcement regime, many well-qualified conservative former prosecutors were unwilling to come back to the department under the Trump administration, and there were people who filled that void—including underqualified and sometimes grossly incompetent people who managed to obtain political appointments and to get promoted within the department at the career level. I suspect the same pattern has unfolded in many other parts of the department.
In addition, at the most senior career levels, promotions are guided by political appointees, so they can also permanently shape the bureaucracy by advancing people who explicitly support their priorities or are so pliable that they can be counted on to do so.
For those who might want to reverse some of these personnel changes in a Biden administration, the obstacles are significant. Civil service protections are based in part on the laudable principle that political transitions should not determine the fates of people within the federal bureaucracy, and although the Trump administration was openly hostile to them—Trump recently issued an executive order that would strip such protections from tens of thousands of federal employees—these protections should be taken very seriously. Many—perhaps even the vast majority—of the promotions within the department were probably well justified.
But a small number of sub-competent lawyers in influential persons can wreak considerable havoc, either deliberately or through their own ineptitude. They can set or pursue misplaced priorities, bring dubious charges, provide preferential treatment to particular parties, skirt defendants’ rights, or lose winnable cases.
In addition to installing a new set of political appointees, a new Biden administration could cautiously use three other tools to ensure that the department’s senior career ranks are staffed by qualified and ethical people. The first is to restructure and reallocate responsibilities among senior career positions if there is a question about the capabilities of people currently in important roles (though, generally speaking, people must still maintain the pay levels that they had). Biden’s transition team has signaled that the administration will be prepared to use this authority to address a related issue—where political appointees may have “burrowed” into career positions in order to stay in government—but the problem may be broader than that.
Second, certain events can trigger “suitability reviews” that can lead to suspensions or firings. They include verified cases of misconduct, negligence, or dishonesty in the course of employment, as well as the legitimate mishandling of highly sensitive information. For instance, earlier this year it appears that there may have been a leak of market-moving information about the status of an investigation into a large American company by officials whose work had been called into question days earlier by a news report—the sort of thing that, at least officially, is not supposed to happen.
Finally, there are harsh penalties—including removal—available when senior officials have engaged in whistleblower retaliation. One of the first orders of business for a Biden Justice Department should be to strongly encourage people to come forward with such accounts.
What Can Biden Do?
A recent report from nearly 20 former officials published by the Center for American Progress—entitled “Restoring Integrity and Independence at the U.S. Justice Department”—seemed to approximate all the ingenuity and ambition of a joint Brookings-AEI report. Some of the report’s 11 proposals were sensible enough responses to Trump-era abuses, like creating formal policies on election-year prosecutorial activity and on when the department must defend an act of Congress in court. Others resembled bureaucratic clichés—like the proposal to “prioritize restoring trust in the justice system by coordinating at the departmental level,” or the recommendation to “adopt better goals and metrics.”
The report reflects several regrettable sets of real-world limiting factors. First, a lot of the damage wrought by the Trump Justice Department—both externally through its work and internally to the bureaucracy—may be irreversible. Second, much of it—how much of it is impossible to say—may remain unknown. Third, and worse yet, there are already political constraints on incoming leadership at the Justice Department. But, among other problems, a decision to forgo a serious reform effort could make it look like years of criticisms—of the department’s failure to uphold the rule of law, of its use as a partisan instrument, its disruption to our civic and political order—was really a kind of political grandstanding.
A more comprehensive reform plan would need to be much more searching and much more ambitious. Here are some ideas.
First, and most obviously, the choice of an attorney general is crucial. A critical qualification for any nominee should be a demonstrated commitment to depoliticization and to reinforcing the importance of ethical comportment in lawyering throughout the department. Obama’s former Deputy Attorney General Sally Yates is likely to be a leading contender because she demonstrated well-calibrated professional and ethical judgment in difficult circumstances both under Obama (in connection with the Flynn investigation) and in the brief period in which she served Trump (when she was fired after refusing to defend his Muslim ban). As someone who devoted virtually her entire career to the department, starting as a line attorney in Georgia, she understands the internal workings of the institution as well as anybody. But there are plenty of other well-qualified people. Vanita Gupta used to head the Civil Rights Division—experience that is particularly valuable because the department needs to become far more active on anti-discrimination and voting rights work—and she was well liked even by conservative activists. Doug Jones would also be a welcome choice given his prior work as a prosecutor, including on the landmark case concerning the bombing of the 16th Street Baptist Church.
Second, the attorney general should task a senior official—ideally someone who is currently not in the department—with overseeing a considered reform process and agenda. The two should develop a detailed framework concerning the scope of that work and the process by which it will be conducted, and they might also want to take the unusual step of making some version of it available for public consumption so that the country has some visibility into that process.
Third, incoming leadership would need to get a basic handle on what has happened and what is underway at the department. The sort of conduct and conflict that makes its way into the news is a tiny sliver of what the department does. New leadership should implement a “pencils down” order on any significant and nonurgent charging decisions—including indictments, declination decisions (that is, official decisions not to bring charges), and resolutions of corporate investigations—until it has an opportunity to review them to ensure that they are free of impropriety and inappropriate exercises of prosecutorial discretion. It should undertake a searching review of all new policies and revisions to old policies during the Trump administration—including policies whose introduction and modification never became public—both at the department-wide level (like the Sessions revision to drug-charging policy) as well as at the office and unit level (like the curtailing of the work of the department’s Office of Community Oriented Policing Services or the expansion of leniency in corporate criminal cases).
A similar approach should be taken to evaluating the official and unofficial priorities of the department’s offices—like the pandemic-era hoarding task force or the department’s odd programmatic fixation on flailing and unimpressive white-collar initiatives. A prompt review of all Trump-era opinions from the Office of Legal Counsel—both public and nonpublic—should be undertaken in order to determine which ones need to be withdrawn or replaced as guidance to the executive branch.
Fourth, we need a better understanding of what has gone on within the department’s Inspector General’s office and the Office of Professional Responsibility. Both should be directed to generate detailed reports on their handling of complaints during the Trump administration, with a particular emphasis on providing rationales for those cases in which the complaints were deemed meritless or alleged whistleblower retaliation.
In those cases in which the offices’ conclusions were questionable on their face—like OPR’s response to Elias’s allegations—the work should be redone by new lawyers under new supervision from outside the office. Such a review should be coupled with a thorough update on what has been done to date in all outstanding investigations and what investigative steps have yet to be undertaken, including those that have stalled for no identifiable reason, like the investigation into the FBI’s Clinton-related leaks prior to the 2016 election.
Fifth, the department needs to identify and reevaluate any significant investigative decisions—including, most important, decisions to decline or close cases—that had a potential impact on Trump, his family, his associates, or their companies. Some—like the Public Integrity Section’s recommendation not to even open an investigation based on the summary of Trump’s call with the Ukrainian president—are already known. Any decisions that went beyond the bounds of reasonable prosecutorial discretion should be reopened, and in those cases in which statutes of limitations may have lapsed, the department should consider taking the unusual step of making those historical decisions public.
Sixth, we need to better understand the role of people throughout the department—at every level—in the implementation of the family separation policy. We must treat our approach to the family separation policy and the potential culpability of lawyers involved as the humanitarian disgrace that it was. At the same time, the department needs to strongly reinforce the affirmative legal obligations to speak up when lawyers in the department witness misconduct, including through the imposition of modest disciplinary measures for those who did not comply with those obligations.
Seventh, a review of senior career-level personnel decisions should be considered. Any such undertaking would need to be taken with extreme care in order to avoid even the perception of partisan motivation, and any reasonable doubts about the propriety of a promotion should be resolved in favor of the position-holder. But where the decisions were questionable on their face, legally appropriate options should be considered in order to ascertain the propriety of the decision under the merit-based system that is supposed to govern the federal civil service.
Finally, in those offices—like the U.S. Attorney’s Office in D.C.—where it appears that there have been material breakdowns in ethical comportment or competence, the department should consider appointing outsider lawyers—reputable department alumni who have not engaged in significant political activity—to conduct a broader investigation and to report on their findings to department leadership.
The level of attention that these issues have received from political observers and legal commentators—at least publicly—has been surprisingly modest. But the future of the country’s federal law enforcement apparatus is now in Biden’s hands—together with the urgent mandate to restore Justice’s independence and professional standing after the past four years of politicized abuse and misplaced priorities. It was remarkable to see just how easily the department could be brought low and how insidious the effects of its mismanagement could be, but the proper functioning of the department—and a broad confidence in the work that it does—is vital to this country’s well-being.