In medicine, when a patient has a serious adverse event or dies, doctors conduct a morbidity and mortality conference to assess what went wrong, to learn from their mistakes, make necessary changes to their approach to treatment, and save lives in the future. We need to undertake a similar assessment with our democracy – starting with the Department of Justice.
We now know beyond any doubt that the Trump administration brought U.S. democracy to death’s door. Indeed, recent reporting has unearthed smoking-gun evidence of overt attempts by former President Trump and his White House staff to use the Department of Justice (DOJ) to overturn the will of voters in the 2020 election and revealed the possibility that the DOJ may have targeted Democratic Members of Congress in a criminal leak investigation at Trump’s behest. This misconduct behind the scenes was followed by misconduct in public: a violent insurrection on January 6, 2020, in broad daylight enabled by Trump, elected Senators and Members of Congress, and state-level elected officials. And all of this is very likely the tip of the iceberg.
The new president – who promised to defend democracy in his inaugural address mere days after the insurrection – and his administration owe it to the American people to searchingly review what happened during this dark era and determine what needs to be done so that U.S. institutions can withstand future attacks.
The Department of Justice was a primary target of Trump’s abuses and carries deep wounds from the past four years. In some respects, the DOJ withstood Trump’s basest efforts to use its law enforcement powers for his own corrupt purposes. In others, it buckled. The damage to the Department manifests externally in a loss of integrity and perceived integrity; internally in the personnel lost, spirits crushed, and precedents set. Leadership often treated DOJ – its prosecutors and civil attorneys alike – as the president’s henchman. Precedential legal advice codified that approach and a generation of new lawyers at DOJ were inculcated into it.
Healing these wounds will require active attention. Under the leadership of Attorney General Merrick Garland, the Department has already set a new tone, prosecuting the perpetrators of the January 6th attacks, investigating policing practices, aggressively charging alleged hate crimes, signing off on properly justified search warrants even for high profile figures, such as Rudy Giuliani, and launching litigation to protect voting rights. And the attorney general has repeatedly made clear his personal commitment to maintaining an independent Department of Justice that acts in the interests of the American people, not the political interests of the president. He has also voiced his respect for the DOJ’s career staff and insisted that he will not allow their work to be politicized on his watch.
We do not doubt the attorney general’s personal integrity or the sincerity of his expressed desire to restore the so-called “norms” of nonpartisan law enforcement that DOJ’s post-Watergate leaders developed and implemented. However, the Trump administration showed us that a mere restoration of those norms, which were in place when Trump took office, will not be sufficient to protect the Department – or its career staff – from abuses by a future president with autocratic impulses. For that reason, the attorney general’s recent statements suggesting that he is not inclined to direct a comprehensive review of Trump-era abuses, ostensibly to avoid further politicization of the Department’s work and to be “fair to the current employees,” are deeply concerning and run counter to his purpose.
As former DOJ attorneys, we know firsthand that fortifying the Department so that it can protect the rule of law and withstand future authoritarian assaults will require both a comprehensive understanding of the ways in which the Trump administration abused the Department and the implementation of direct and robust measures to address the damages sustained and weaknesses identified over the past four years. Far from disrespecting or politicizing the career staff, a two-pronged approach to accountability and reform is necessary to ensure that the career staff can effectively uphold their constitutional oath of office and serve as a bulwark against improper political interference. Most importantly, accountability and reform are necessary to ensure that the Department is not an even more dangerous weapon in the hands of a future Trump-like president.
In this spirit and based on our experience, we outline below some of the measures the attorney general should take to mirror the transformational leadership of his post-Watergate predecessors, elevate the role of career staff in protecting the Department from politicization, and leave the Department in a stronger condition at the end of his watch.
Ensuring Internal Accountability
The Trump administration perpetrated widespread abuses of power (including potential criminal acts) both within the Department of Justice and throughout the executive branch. Career staff were co-opted into participating in many of those abuses (although many also pushed back). If there is no internal accountability, the same lapses will happen again – and everyone knows it. The Department, primarily under Attorney General Bill Barr’s leadership, acted several times to aid President Trump politically, interfering in ongoing criminal prosecutions to favor Trump allies, using the power of the Department to target Trump’s perceived enemies and critics, making improper public statements, giving illegal orders to and illegally deploying federal law enforcement officers, being less than completely forthright with courts, enforcing a human rights-violating policy of separating families at the southern border, and generally acting to represent the personal interests of former President Trump rather than those of the office of the presidency and the country (and this is by no means a comprehensive list).
As a result, the Department has suffered a serious blow to its actual and perceived integrity, requiring that it take steps to repair its reputation and rebuild public trust in its capacity to carry out its functions impartially and consistently. In addition, the Department’s career personnel need information and guidance on how their colleagues responded to the various abuses, to include which responses were appropriate and which were not. Likewise, this information is vital to the Department’s leadership in determining what additional tools will enable the career staff to honor their oaths in the face of any future pressure to do otherwise.
DOJ should not rely only on piecemeal investigations by the Inspector General to perform these repairs, as Attorney General Garland has suggested. The Inspector General’s office (OIG), while an important accountability mechanism, is not well positioned to conduct the kind of wide-ranging review that this moment requires. It cannot investigate attorney professional misconduct (that’s under the Office of Professional Responsibility (OPR)); neither the OIG nor OPR can compel former government officials to provide them with information; both offices have severely limited resources and a limited number of full-time staff; and often the OIG moves quite slowly – for example, OIG is still allegedly investigating possible leaks from the FBI field office in the Southern District of New York to Guiliani during the 2016 campaign.
Instead, the department should conduct a thorough review of actions directed by Attorneys General Sessions and Barr, and other senior political appointees, to determine whether improper political considerations and interference affected DOJ’s investigative and prosecutorial decisions. This is not about punishment or second-guessing of career staff by a new administration – it’s about understanding what went wrong, identifying processes that failed, and holding individuals who made highly improper decisions accountable, so that such actions do not recur. Given the breadth of the inappropriate actions in the last administration, a Department-wide review, one supported by the attorney general and authorized to make referrals and public findings, is best positioned to conduct the wide-ranging inquiry needed. If instead such a review is conducted solely by existing offices – such as OIG and OPR) – Attorney General Garland should at a minimum provide these offices with additional support to ensure they are able to do their jobs effectively and specifically encourage them to be comprehensive in their approach.
Department decisions and actions that DOJ should review include, but are not limited to:
- The assessment of whether Trump obstructed justice in connection with the Mueller Report;
- The role of DOJ personnel, both political and career, in misrepresenting the Mueller Report and providing a justification for Barr’s decision to clear Trump of obstruction;
- Actions relating to the prosecutions of Roger Stone, Paul Manafort, and Michael Flynn, and in particular, the decisions to argue for a reduced sentence for Stone and to attempt to dismiss the prosecution of Flynn;
- The attempts by the D.C. U.S. Attorney’s Office to indict former FBI Deputy Director Andrew McCabe;
- Actions relating to the Southern District of New York’s (SDNY) investigation of potential campaign finance violations associated with Trump’s 2016 campaign, including the disposition of any potential charges against Trump;
- Whether the administration imposed any improper constraints on SDNY investigations, such as the investigation into Turkey’s Halkbank;
- The antitrust actions filed against AT&T and Google;
- The litigation in support of adding a citizenship question to the 2020 Census;
- The litigation defending the Trump administration’s policy of denying access to Global Entry and other Trusted Travelers Programs to New Yorkers;
- The decision by DOJ to defend Trump in his personal capacity in cases that appear to not include legitimate governmental equities.
- The Trump administration’s attempts to use DOJ to overturn the results of the 2020 election and to corruptly persuade state election officials to change results;
- DOJ’s actions in issuing subpoenas that obtained information from members of Congress and others who criticized or otherwise opposed the former president.
Whatever the chosen methods of excavation, the Biden administration cannot responsibly avoid an accounting of the ways in which the Department was abused, and the identities and actions of its abusers. Allowing the past four years’ politicization and misuse of the Department to go without a clear-eyed review does a disservice to the career civil servants who attempted to live up to their oaths during a challenging period. It simply cannot be the case that investigating Department attorneys for pursuing politicized criminal indictments or civil enforcement actions, or for making charging or sentencing decisions for political reasons – in clear violation of the Justice Manual – is itself a “politicized” act. To the contrary, turning a blind eye to these possible abuses suggests that career attorneys are mere functionaries who simply “follow orders” from above and thus lack agency over or responsibility for their actions. Such a view is both disrespectful of their actual role and cedes profoundly dangerous power to a future Trump-like president.
Restoring Checks and Balances by Respecting Congress’s Role
During the Trump administration, Congress was one of the only institutions capable of and willing to check the president’s lawlessness. Recognizing this, the DOJ under Trump blocked Congress from conducting oversight at every turn. The Biden administration, helmed by a multi-decade veteran of the U.S. Senate, should be proactive in restoring the separation of powers by respecting Congress as a co-equal branch and therefore empowering robust congressional oversight. In particular, the American people have a right to full DOJ compliance with congressional investigations of the events of January 6th, including Speaker Pelosi’s newly announced Select Committee to investigate the insurrection and recent reports concerning the involvement of people close to the former president in the attack on the Capitol.
To protect against the next authoritarian president, the attorney general should start by pledging to honor Congress’s “broad” power to obtain information in exercising its legislative and oversight powers, and to cooperate in good faith with congressional requests for information and testimony.
As previous administrations have done, the Biden administration should adopt a policy of declining to assert executive privileges over documents and information substantiating allegations of wrongdoing when they are requested by Congress. Doing so would not impair the administration’s ability to assert those privileges in the future, because executive privileges apply only as to particular documents and information – declining to assert it over one document does not preclude future assertions of privilege (unlike subject matter waiver as to presidential communications or deliberative process privileges).
Next, the administration can review the Trump administration’s responses to congressional requests, and supplement those responses with additional materials, where appropriate. In a more forward-looking manner, DOJ should alter its policies on congressional oversight. At a minimum, DOJ should explicitly repudiate the extreme positions taken during the Trump administration concerning the requirements for the valid exercise of the congressional subpoena power – for instance, in the Mazars case, the Trump DOJ took the unprecedented position that subpoenas must be tied to specific contemplated legislation and that subpoenas must be authorized by the whole House. DOJ should also undertake a comprehensive review of its Office of Legal Counsel precedent and litigating positions regarding congressional oversight, including the OLC opinion concluding that the Internal Revenue Service could refuse a statutorily-authorized congressional request for President Trump’s tax returns and various analytically suspect opinions connected to Trump’s misconduct.
Not the President’s Henchmen: Promoting Fair and Impartial Enforcement of the Laws
Bill Barr, in the words of one independent report, openly “us[ed] the powers of the DOJ as a vehicle for supporting the political objectives of President Donald Trump.” To Barr, “[l]aw serves at best as a rhetorical tool for enhancing power rather than as a source of constraint on that power.” This view of DOJ and its role stands in stark contrast with the primary mission of the Department, which is “to ensure [the] fair and impartial administration of justice for all Americans.” As the Trump administration’s weaponization of the DOJ made painfully clear, the career staff must be empowered to protect that mission.
While the president and political leadership quite appropriately set its policy priorities, DOJ career staff’s overarching duty is to their own oaths of office and the Constitution. They must always safeguard the Department’s mission in accordance with the prescriptions and limitations contained in both. The Department’s staff takes an oath to “support and defend the Constitution” and they derive their prosecutorial discretion from the president’s Article II duty to “take care that the laws be faithfully executed.” That discretion is at all times limited by their ultimate duty “not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to government at all; and whose interest, therefore, . . . is not that it shall win a case, but that justice shall be done.” They are likewise bound by the constitutional provisions commanding that every subject of a Departmental investigation be afforded due process of law.
In order to ensure maximum adherence to the Department’s mission – and to ensure that the public sees the Department to be adhering to that mission – DOJ leadership should develop transparent guidance to govern the separate but intertwined roles of both the political and career staff in the nonpartisan administration of justice. Relying only on the wherewithal of individual employees and political appointees to stand up for the Department’s principles is not a sufficient defense against an abusive administration determined to exploit the Department’s powers.
That guidance should cover a few key topics.
Implementing a Contacts policy
As previous administrations have done, and as our organization called on the Trump administration to do, Attorney General Garland should issue a policy governing all communications between representatives of the Department on the one hand, and representatives of the White House and Congress on the other, and procedures intended to implement those guidelines. As Professor Andrew Kent explained in The Atlantic, this policy was a key component of post-Watergate reforms, implemented by then-Attorney General Griffin Bell.
Attorney General Eric Holder’s Memorandum, issued in 2009, is an appropriate guide. The Holder Memorandum generally limits communications between the White House and the Department regarding pending investigations and cases (civil and criminal) to designated senior-level officials, while permitting routine communication on matters not related to a specific case (policy, legislation, administration, public affairs, etc.) The key anti-corruption purpose of a contacts policy is to recognize that it is entirely appropriate for elected officials (e.g., the president) and political appointees in the White House to give guidance to the Department on policy directions, but not on the specific outcome in individual cases. For example, instructing the Department to take a stricter view on anti-trust enforcement is entirely appropriate; instructing the department to go after a particular company for an anti-trust violation (perhaps because the president perceives that company as a political enemy) is not. One of the benefits of a clear contacts policy is that not only does it identify prohibited contacts, it also identifies appropriate and proper communication between the White House and DOJ, and directs that communication to appropriate channels.
But the Holder Memorandum should be strengthened in several ways. For example, the Biden administration’s contacts policy should expressly memorialize President Biden’s oft-stated pledge not to interfere in the DOJ’s enforcement actions. In addition, the guidance should make clear that indirect White House interference in specific cases (rather than broad policy directives, such as President Biden’s recent comments on media subpoenas) in the form of public statements by the president on social media or elsewhere are inappropriate. The policy should also specify that comments by the president on pending specific federal criminal matters are potentially prejudicial to the rights of subjects and defendants and could jeopardize the Department’s cases in court. The guidelines should further specify curative actions the Department will consider under those circumstances.
Importantly, the Department should also make the policy memorandum public and take that opportunity to connect this public policy statement to an effort to restore integrity to the DOJ. Having a public, clear contacts policy not only establishes an important precedent for the Department going forward, it offers a prophylaxis for the Biden administration against allegations of improper political interference. It also educates current DOJ and White House staff on appropriate and inappropriate interactions. And because any policy is only as strong as its enforcement mechanisms, and can be rescinded by any future administration, the Biden administration can help ensure that future administrations likewise play fair by endorsing the Protecting Our Democracy Act, which would codify in law transparency mechanisms relating to White House-agency contacts (disclosure: our organization, Protect Democracy, has advocated for and continues to endorse this package of legislative reforms).
As of this writing, as far as we are aware, Attorney General Garland has not issued any contacts policy despite his personal commitment to protect the Department from politicization. While the attorney general has provided no reason to question that commitment, refraining from issuing a written, publicly available policy sets a worrying precedent for future administrations whose views of the relationship between the DOJ and the White House resemble those held by former President Trump and former Attorney General Barr.
Empowering Staff to Recognize and Report Improper Political Interference
Because improper politicization of the Department’s work can take many forms, not limited to inappropriate communications between DOJ and the White House, the Department’s staff must be trained to recognize improper political interference and empowered to bring it to light.
The attorney general’s guidance should therefore include a definition of improper political interference, which in our view occurs whenever the Department employs its investigative or law enforcement powers or exercises its prosecutorial discretion in specific enforcement or other matters for the purpose of achieving political ends in a way that it would not have done absent the political motivation. While the line between appropriate political priorities and improper political interference will not always be bright, as a rule, Department staff should be mindful of disparate treatment of the subjects of the Department’s enforcement actions, the timing of those actions (including in close proximity to an election), and whether anyone from the administration has made public statements in connection with the actions.
The guidance should also highlight existing mechanisms for reporting and responding to misconduct. After all, improper political interference in the Department’s work is an egregious form of professional misconduct and attorneys have a professional duty to report it. These mechanisms include:
- Reporting to an immediate supervisor;
- Seeking guidance from the Professional Responsibility Advisory Office;
- Reporting to the Office of Professional Responsibility;
- Reporting to the Office of the Inspector General;
- Reporting to Congress in accordance with the Whistleblower Protection Act.
The guidance should also expressly state that anyone who discloses information concerning improper political interference to any of the sources named above will be protected from retaliation.
In addition to raising concerns internally to a DOJ office, DOJ attorneys who litigate also have the option of signaling ethical and legal concerns by withdrawing from a particular case. Recent examples demonstrate that DOJ personnel sometimes use withdrawal as a response to what they perceive as improper political interference. For example, in July 2019, a team of DOJ attorneys withdrew from a case defending the Trump administration’s efforts to place a citizenship question on the census after they made a series of representations that were later undermined by President Trump or identified by the court as untrue. In February 2020, four DOJ attorneys withdrew in the prosecution of Roger Stone after the DOJ reduced its sentencing recommendation by more than half following public criticism by President Trump. While attorneys who remain at DOJ after such a withdrawal generally do not speak out to explain their decision, one of the attorneys in the Stone case resigned from the Department, later writing, “I believed the [D]epartment had abandoned its responsibility to do justice in one of my cases.”
While withdrawal is recognized as a means of registering concern, the Department does not currently provide guidance on when withdrawal is appropriate, offer formal protection against retaliation to attorneys who exercise this option, or provide a channel for attorneys to explain the purpose of or reason for their withdrawal. During the Trump administration, political leadership and career supervisors may have also pressured attorneys not to exercise this right of withdrawal.
To make withdrawal a more powerful and effective means for DOJ personnel to resist improper political interference, DOJ should draft guidance memorializing that DOJ attorneys are permitted to withdraw when they believe in good faith that the Department’s actions have been altered because of improper political interference. The Department should also issue a standing authorization for personnel withdrawing from a case to explain to the court the basis for their withdrawal in a submission to the court. Such an authorization could include procedures that mitigate the legitimate concerns that might accompany such an authorization – such as allowing the Department to review a proposed submission before filing, allowing the Department to require that the attorney move that the submission be made under seal (which the court could grant or deny, and could unseal at its discretion), and allowing the Department to file a response concurrent with the submission. However, there should in every case be some provision for attorneys to provide a short, publicly available explanation for their withdrawal, in addition to anything filed under seal. And of course, the guidance should memorialize that retaliation against attorneys who withdraw in compliance with Department procedures is prohibited, as specified by relevant laws (if applicable), and this Departmental policy.
Finally, Department of Justice personnel often cite confidentiality and attorney-client privilege obligations as a reason for reluctance to report misconduct by Department officials. The attorney general’s guidance should expressly state that these obligations do not bar reports of misconduct to any of the sources set forth above.
Rebuilding the public’s trust in the Department requires that measures to prevent improper political interference be transparent. Accordingly, the new guidance on preventing and responding to political interference should be incorporated into its own chapter in the Justice Manual, which is available on the DOJ’s website. The attorney general should also make a public announcement launching the guidance and explaining its significance.
Guarding Against Improper DOJ Interference in Elections
Among the Trump administration’s most egregious and authoritarian abuses of power were their attempts to use the DOJ to manipulate and even overturn the 2020 election. Enacting internal reforms to prevent interference in this most fundamental democratic institution should therefore be high on the attorney general’s agenda. Once again, providing the career staff with clear guidance they are empowered to enforce is key.
DOJ has several long-standing policies concerning investigative or prosecutorial actions that could interfere with an ongoing election. However, some of the policies are unwritten rules that are not codified anywhere, and moreover, there is no single source of clear guidance to DOJ employees on their election-related responsibilities. This creates a situation rife with opportunities for error or abuse. Indeed, DOJ leadership under the Trump administration violated these policies on several occasions, and attempted to weaken and limit them.
In the months leading up to the election, Attorney General Barr himself violated DOJ policy, including by making false public statements concerning the integrity of mail-in voting; briefing President Trump on an investigation of nine spoiled ballots in Pennsylvania for the purpose of allowing the president and his staff to use the information as a political talking point in their effort to portray mail-in voting as fraudulent; and allowing the United States Attorney’s Office in the Middle District of Pennsylvania to make a public announcement about the investigation and to reveal that seven of the nine spoiled ballots were votes for President Trump, in violation of DOJ’s media policy. Moreover, on Nov. 9, 2020, Barr authorized DOJ personnel to probe “substantial allegations” of voting irregularities while the counting of votes and certification of results was still ongoing, notwithstanding the DOJ policy that provides that overt criminal investigative measures into allegations of election fraud should not ordinarily be taken “until the election in question has been concluded, its results certified, and all recounts and election contests concluded.”
The Department also engaged in even more jaw-droppingly inappropriate and possibly illegal attempts to undermine the results of the election. In December of 2020, the acting head of the Civil Division, Jeffrey Clark, in coordination with the president, pushed the Department to announce investigations into accusations of voter fraud in states that Biden won, notwithstanding that the allegations were groundless. Trump nearly named Clark acting attorney general, where he would have “tr[ied] to stop Congress from certifying the Electoral College results,” according to reports on the incident. To this day, we do not know the extent to which Clark or others in the Trump administration attempted to enlist career DOJ staff in their illegal conduct.
To repair the integrity of the Department, we need to find out the extent of this interference – and strengthen DOJ’s defenses against it. DOJ leadership should formalize to the greatest extent possible the Department’s existing policies prohibiting DOJ personnel from taking actions that have the effect of interfering with an election. An effective and simple step towards realizing that goal would be to compile the Department’s various election-related policies into one centralized resource on election activities. Providing a centralized resource would make it easier for DOJ personnel to consult the relevant guidance for any election-related scenario that may arise and to prevent abuses of power by DOJ personnel. Doing so would also create an important baseline that would make abusive deviations from policy more difficult. Regardless of whether the Biden administration collects these various policies in one location, it is critical that all DOJ election guidance be coherent and interpreted harmoniously.
In addition, we recommend that DOJ make the following changes to its policies around ensuring that legitimate DOJ activity does not interfere with elections:
- Adjust DOJ policy, which prohibits federal prosecutors from sending FBI Special Agents or Deputy U.S. Marshals to “polling places,” to better align with federal law. 18 U.S.C. § 592 prohibits Federal law enforcement officers from being sent to “election sites,” rather than just “polling places.” Make clear that election sites include all locations where votes are being cast, counted, or certified.
- Formalize the 60-day “rule,” an unwritten policy creating a presumption that DOJ personnel should not take public steps (g., filing charges, conducting arrests or searches that are sure to become public) or make public statements about a criminal investigation, within 60 days of an election if doing so could influence the vote. Make clear that the policy takes effect 60-days prior to the casting of votes and continues to apply until the counting and certification of the results are complete.
- Modify DOJ’s approval and consultation requirements for election-related cases. Existing policies require some offices to seek additional approval before taking specific types of actions or specific types of defendants. Expand these requirements to include a general policy. Specifically, require law enforcement agencies to consult with and seek written approval from at least two career (non-political) attorneys from DOJ’s Public Integrity Section before taking any major investigative step with respect to any candidate for federal office, members of a candidate’s immediate family, or any federal campaign committee.
- Clarify DOJ’s media policy, which applies “to all DOJ personnel, including employees, contractors, detailees, and task force partners.” According to this policy, DOJ officials are generally prohibited from confirming the existence of or otherwise commenting on ongoing investigations. While the current policy should be read to apply to political appointees as well as career staff, Attorney General Barr’s abuses demonstrate that the policy should be amended to expressly apply to the attorney general and all political appointees.
Adopting a Policy on Defending the President in Personal, Rather Than Professional, Interests
The Department of Justice is not the president’s personal lawyer. The Department has (typically) not defended past presidents in litigation involving their purely personal interests, even when that litigation was active during the president’s tenure in office. For example, private counsel (Bob Bennett) represented then-sitting President Bill Clinton in Paula Jones’s lawsuit against him. And while the Department historically has defended presidents in lawsuits filed against them in their official capacity, this is because those suits have historically been directed at the office of the presidency not the president as a person.
This traditional understanding – that suits filed against presidents in their official capacity involve actions taken by the government writ large – broke down during the Trump administration, perhaps due to President Trump’s tendency to conflate the official and the personal, as well as his unwillingness to distance himself from his business during his tenure. As a result, the Department of Justice involved itself in matters that had little or nothing to do with the president’s official duties. For example, the Department defended President Trump in litigation alleging that he is using his office to reap private financial gain, in violation of the Emoluments Clause of the Constitution. And the Department sought to substitute the United States as the defendant under the Westfall Act in a defamation case brought by a private citizen, E. Jean Carroll. (Unfortunately, the Department under the current administration continues to take this position). Although President Trump made the allegedly defamatory statements during his time in office, the underlying conduct pre-dated his presidency by decades and the statements he made about Carroll had nothing to do with his official duties.
These decisions contributed to a widespread perception that the Department served the private interests of President Trump rather than the interests of the country. This criticism was particularly acute in cases where the president’s interests appeared to be in direct conflict with the broader public interest—the Emoluments Clause cases being perhaps the best example. The problem is exacerbated by a lack of public guidelines on when the Department of Justice defends the president and when it does not. To our knowledge, the Department lacks any internal written policy to govern this question, much less any publicly available policy. Rather, decisions appear to be made case-by-case by political appointees based seemingly on an internal common law. While this more ad hoc approach may have sufficed in past administrations, it failed to provide a workable standard given the blurring of the lines between the official and the personal in the Trump administration.
DOJ leadership should adopt a written, clear policy to govern decisions about when the Department will defend the president and when it will not. The attorney general should also conduct a transparent review of the Department’s decision to represent President Trump in certain cases – including those discussed above – and should identify any cases where the decision was not consistent with the new policy. The point of this review is not to embarrass or punish DOJ attorneys for past conduct (and certainly not the career civil servants who defended those cases once the decision was made for DOJ to be involved), but instead, to understand what decisions were made and why, to ensure that these abuses do not recur.
Four years of the Trump presidency put U.S. democracy on life support, and if we have learned anything in the six months since Biden’s inauguration, it is that the threat has not passed. In order to prepare the Department for the next, inevitable onslaught of anti-democratic attacks, it is insufficient to simply reassemble the Department that existed in 2016. After all, that is the Department that was susceptible to such terrifying politicization. The forward-looking approach to the Department’s business the attorney general has recently endorsed will not achieve his (laudable) goal of protecting the career staff, and it certainly will not empower them to do what is most needed: exercise their constitutional duty to stop any future attempts to politicize the Department’s work. Instead, we need to (in President Biden’s own words) build back better and create an infrastructure that can hold back the authoritarian threat when it next knocks on the door.