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The Most Important Role in a Biden (or Sanders) Administration

Whoever gets tapped as the next Democratic attorney general could potentially define a presidency and reset a wayward Justice Department.

Win McNamee/Getty Images

With only two major candidates left in the Democratic primary, speculation is turning to who might potentially serve as the next vice president. At this early stage, Joe Biden and Bernie Sanders have kept their cards largely hidden—though both expressed a generic interest in adding a woman to their respective tickets to broaden their demographic appeal. Given both men’s ages—Biden is 77, Sanders is 78—whoever they choose will immediately be scrutinized as a potential successor to lead both the party and the country.

Vice presidential nominees can make or break a presidential bid. John McCain’s choice of Sarah Palin in 2008, for instance, backfired when her gaffes and lack of experience became apparent. By comparison, choosing Biden that same year helped Barack Obama offset concerns about his lack of foreign policy experience as well as bolstering his standing among working-class whites. More recently, President Donald Trump’s choice of Mike Pence four years ago solidified his standing with Christian conservatives.

If Biden or Sanders wins in November, however, they will have an even more consequential choice to make: the nation’s next attorney general. The Justice Department’s top official will be a key player in many of the most significant policy decisions that a future Democratic president would make, including immigration reform and criminal justice policy. That influence also raises a critical question: Will they install a loyalist enforcer atop the nation’s law enforcement apparatus, or will they choose someone who maintains the department’s once-traditional independence at all costs?

The last 10 years have been generally brutal for the Democratic Party’s backbench. But the relentless lawfare of the Trump era has offered Democrats no shortage of potential DOJ chiefs. State attorneys general like California’s Xavier Becerra and New York’s Tish James rose to prominence through lawsuits against the Trump administration. House members like California’s Adam Schiff and Florida’s Val Demings served ably as prosecutors in Trump’s impeachment trial last month. Massachusetts Senator Elizabeth Warren and California Senator Kamala Harris, two former 2020 rivals, have extensive legal backgrounds.

Some potential nominees are already being discussed internally. Axios reported on Monday that Sally Yates, the Obama-era deputy attorney general who was fired by Trump for refusing to defend the Muslim ban in court, is one of the names said to be circulating in Biden’s inner circle for the post. Last December, Politico reported on discussions in Sanders’s camp about the potential Cabinet he would try to build if elected. Among his possible AG picks were Fordham law professor Zephyr Teachout, a prominent anti-corruption scholar, as well as New Jersey Senator Cory Booker and Minnesota Attorney General Keith Ellison.

Whoever becomes the next attorney general will have to make a career-defining choice on their first day in office: whether to investigate and prosecute Trump himself. I’ve noted before that the president and his family currently enjoy de facto immunity from prosecution at the federal level. But that protection expires the moment he leaves office next year or in five years. There’s a taboo in democratic countries against prosecuting one’s defeated political rivals, for better or for worse. The Obama administration’s refusal to aggressively prosecute CIA officials who took part in Bush-era torture programs, for example, may have fostered a culture of impunity since then.

Unfortunately for Trump, his constant efforts to investigate and prosecute political rivals broke the seal. During her presidential bid, Warren released a plan to establish a Justice Department task force that would “investigate violations by Trump administration officials of federal bribery laws, insider trading laws, and other anti-corruption and public integrity laws, and give that task force independent authority to pursue any substantiated criminal and civil violations.” Other Democratic candidates have expressed varying levels of support for holding Trump accountable in some fashion.

The next attorney general will also face immediate pressure on immigration. Under Trump, Jeff Sessions and William Barr both adopted a draconian posture toward undocumented immigrants inside the country and asylum-seekers who sought refuge at the nation’s southern border. In 2018, Sessions, a longtime immigration hard-liner, led the push to separate families at the border in order to deter people from claiming asylum. Barr has picked up the torch in more subtle ways, whether by asserting more direct control over the nation’s immigration courts or by setting up a DOJ task force to pursue denaturalizations.

It’s virtually certain that any Democratic president would roll back the worst of the Trump administration’s policies on the border. But the next attorney general will likely face considerable pressure from activists to take more proactive steps as well. Both Biden and Sanders have pledged to halt deportations if they win, though both campaigns have, in recent weeks, started to walk that back. And where Trump’s attorneys general used their control of the immigration courts to raise new barriers for asylum-seekers, their Democratic successor may be pressured to wield those powers to make it easier for applicants to prove their cases to immigration officers.

In some areas, the next attorney general would be poised to revive DOJ functions that have been moribund or underused in the Trump era. New investigations opened by the department’s Civil Rights Division have plunged by 60 percent since Obama left office, signaling a more laissez-faire approach to police brutality cases and voting-rights enforcement. The few civil rights cases spearheaded by the division often cater to right-wing causes célèbres like campus free speech. The DOJ is also prosecuting fewer white-collar crimes than ever, with new cases hitting a nearly three-decade low last year.

There are limits to what attorneys general can do. Both Democratic candidates have pledged to take action on mass incarceration, though their powers in that sphere will be somewhat limited. The vast majority of criminal cases in America are prosecuted at the state level, where presidents and attorneys general have minimal influence. At the national level, the next attorney general will be poised to restore Obama-era guidance for federal prosecutors on low-level drug offenders or potentially extend them even further. They will also have an opportunity to fully implement congressional reforms like the First Step Act, which has faced resistance in Barr’s DOJ despite Trump’s personal support.

The greatest test for the next attorney general won’t be any individual case or policy. Trump spent most of the last three years at war with the DOJ itself, eager to assert his influence over an institution that generally viewed itself as independent. He harangued and pressured Sessions for two years over the Russia investigation before ousting him in 2018. He then installed Barr, a partisan loyalist who helped smother special counsel Robert Mueller’s findings. Trump wants Barr to serve as his sword and shield against political foes—a role that the attorney general has publicly derided but has privately fulfilled.

The result is a DOJ that argues for limitless expansions of executive power to the courts, refuses to honor subpoenas issued by Congress, argues for lighter sentences on behalf of the president’s friends, and waters down findings that might embarrass him. It’s unclear whether the wall of separation that once existed between the department and the White House can be fully restored. Now that Trump has broken the taboo, future presidents might also be tempted to hold the DOJ more closely than their predecessors. Whether the next attorney general keeps their independence or bends it at the White House’s whim will define the executive branch for presidencies to come.