Professor Andrew Kent examines whether or not the Biden administration will criminally investigate President Trump and those close to him, and how that decision is made in a Lawfare blog post.
Besides traditional considerations—such as the policy fit with the president, management experience, confirmability and demographics—Biden seems to have another, more singular requirement for his attorney general. The president-elect appears to want an attorney general who will decline to criminally investigate or prosecute Donald Trump and his close associates, and who will be credibly seen as having made that decision on his or her own, without direction from Biden. As the saying goes, personnel is policy.
The Department of Justice is an enormous organization with many and varied responsibilities, and the attorney general’s role is correspondingly broad. But Biden’s pick will confront one issue of surpassing importance: whether to criminally investigate and possibly charge Trump, members of his family, or close business or political associates. Relatedly, Biden must also decide who will be the ultimate decision-maker on any investigation or prosecution: the president himself or the attorney general.
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Based on the public record, I don’t know enough to speculate usefully about which of the people who have been floated would best fit Biden’s needs. It is possible to say, however, that given Biden’s laudable goal of reducing the appearance and reality of the politicization of the Justice Department—one of the goals that surely influenced his announcement that he would delegate to the attorney general on Trump criminal issues—picking current DNC chair Perez does not seem like a good idea. Becerra, Jones and Patrick also have political backgrounds, though not on the level of a national party chair. Another consideration is that Yates, who was fired as acting attorney general by Trump for insubordination regarding the travel ban, might have to recuse herself from decision-making about Trump were she to get the nod from Biden.