If Joe Biden wins the White House, he and his choice for attorney general will quickly face thorny questions about how they plan to address alleged wrongdoing by President Donald Trump and other members of his administration.
But the more immediate and urgent question facing newly appointed Justice Department officials will be what to do with a slew of prosecutions and lawsuits already underway that many current and former DOJ officials regard as ill-advised or unfair.
For starters, there are nearly 300 federal criminal cases stemming from the “law and order” policy Trump and Attorney General William Barr extolled to quell rioting and looting that emerged from some of the widespread protests over the killing of George Floyd in an encounter with Minneapolis police in May.
Lawyers and appointees of various political leanings seem likely to back some of the prosecutions — those aimed at the most egregious acts of violence. But others — like federal felony charges for throwing a police helmet at an officer, for breaking the window of an unoccupied city police car and for kicking at a courthouse window — veer into territory not usually mined by federal prosecutors. And many of the cases raise questions about the role of the federal government in policing street violence usually left to local authorities.
Any dramatic shift is likely to meet with resistance from career officials at the Justice Department, who tend to be loath to drop pending cases simply due to changes in policy priorities from one administration to the next.
“You’re confronting a situation here where they’ve done a number of things, a vast number, that both sides of the aisle have considered to have been inconsistent with and departures from tradition. You’d think that if there’s a transition the new guard would want to just change it, but I actually think that’s not right,” said Harry Litman, a former federal prosecutor who served as U.S. attorney in Pittsburgh under President Bill Clinton. “I think the focus of a Biden Justice Department will be very much on continuity and restoration and continuing with the traditions of the department, which means not just willy-nilly dismissing cases.”
'It’s a little bit like turning the Queen Mary'
An incoming Biden crew would also face quick decisions about whether to press forward with an array of politically tinged civil litigation the Trump administration embarked upon in recent months.
Take the lawsuit filed in June against former Trump national security adviser John Bolton over his tell-all book. The suit claims Bolton breached his non-disclosure agreements and revealed highly sensitive classified information, but he says the national security claims were ginned up by Trump’s political cronies in a bid to suppress a book that contained deeply embarrassing claims from a White House insider.
And earlier this month, the Justice Department brought a suit that drew even more critical scrutiny, moving to seize the proceeds from a book written by White House volunteer Stephanie Wolkoff — a former aide to first lady Melania Trump. DOJ lawyers contend that Wolkoff violated a non-disclosure agreement, but the case has no nexus to national security and seems in tension with the groaning shelves of decades of memoirs from White House advisers.
Getting the Justice Department to back away from those cases won’t be easy, says former White House counsel Greg Craig.
“It is certainly true that the Justice Department is deeply reluctant to change its position in criminal prosecutions and it’s similarly reluctant when it comes to appeals, civil cases and administrative law issues,” Craig said. “It’s a little bit like turning the Queen Mary.”
There are, however, some cases that highlight the issues where shifts between administrations of different parties are more typical, like affirmative action or antitrust. Just a few weeks ago, the Justice Department filed suit against Yale University, accusing it of illegally discriminating against white and Asian applicants. The move delighted conservatives, but the case seems like one a Democratic administration that favors affirmative action would’ve been unlikely to bring and might try to unwind.
One area where the Trump administration’s moves might be seen by an incoming Biden administration as not aggressive enough could involve social media platforms. Just last week, the Justice Department filed a long-awaited antitrust suit against Google, charging it with illegally inhibiting competition in the online search business. But many Biden allies favor a broader legal attack, accusing the company of antitrust violations in a range of arenas and in the way it ties its various services together.
The lawyer who managed nearly all the federal government’s civil litigation during the Trump administration before stepping down in July, Jody Hunt, said there is nothing necessarily suspect about an administration changing position in court.
“Government lawyers representing the United States do not always have to see eye-to-eye over time with respect to the best view of the law,” Hunt said. “And so, even though in the vast majority of cases the government will continue to argue in one administration the position it has taken in the prior administration, there is nothing particularly surprising about the government deciding … to change its legal position or the arguments it presents in support of its position from administration to administration and, frankly, sometimes even during the same administration.”
The upside of churn
DOJ veterans say the greatest resistance to change is typically around existing criminal cases. Even when an administration chooses to prioritize or deprioritize particular enforcement areas, existing cases are typically allowed to run their course.
When the Obama administration arrived in 2009, it backed away from a modestly staffed George W. Bush administration effort to prosecute obscenity cases involving X-rated adult videos. But DOJ allowed a couple of pending prosecutions to proceed. One failed. One succeeded. And another was shifted across the country after the initial prosecution was seen to violate DOJ policy. But no more cases were filed.
Still, for some defendants, a change in administration can be a big boon or even a windfall.
During the Bush era, the Justice Department embarked on a groundbreaking prosecution of two pro-Israel lobbyists for trafficking in classified information. The former American Israel Public Affairs Committee officials were hit with Espionage Act charges for passing sensitive information about Iraq from a Defense Department official to other U.S. government officials, journalists and Israeli diplomats.
Critics said the case was unprecedented because it arguably opened the door to criminal charges against journalists, who frequently seek out classified information and then publish it.
The case was battled over for almost four years, running up millions of dollars in legal bills. It was nearly ready for trial when Obama came into office in 2009. Less than four months into the new administration, the Justice Department abruptly announced it was abandoning the case. A DOJ statement blamed rulings from the judge, but the new administration’s views also appear to have played a role.
One criminal defendant who may have benefited from the most recent change in administration is former Rep. Aaron Schock (R-Ill.) Schock resigned under pressure in March 2015 following reports in POLITICO and elsewhere about spending irregularities, including inflated mileage reimbursements and unusual expenses for redecoration of his Capitol Hill office. In November 2016, the former congressman was indicted on 24 federal felony counts, including wire fraud, mail fraud and filing false tax returns.
After the Trump administration came into office and following criticism of the lead prosecutor by a federal judge, Justice Department officials took another look. The review resulted in an extremely favorable plea deal that saw all the criminal charges against Schock dropped outright in exchange for a largely symbolic misdemeanor plea by his campaign committee.
Schock’s attorneys called the original charges overkill, but the Justice Department has never offered a detailed explanation for the extreme contrast between the original indictment and the meager settlement approved last year.
Another high-profile criminal case that a Biden Justice Department would inherit is the ongoing effort to extradite WikiLeaks founder Julian Assange from England to face charges the U.S. of conspiracy to hack government computers and to violate the Espionage Act by distributing national security secrets. Assange’s lawyers say their client is being prosecuted on a theory rejected by the Justice Department officials just a few years ago during the Obama era.
Although Obama officials were more skeptical about the case, it’s unclear whether skepticism alone would be enough to scuttle a legal process much of the U.S. national security establishment is now heavily invested in. Assange’s role in publishing Hillary Clinton-related emails in the 2016 election — allegedly as part of a Russian-led effort to undercut her — has also won him few friends in Democratic legal circles.
Judges get a vote
Although a new administration might like to take its time to reassess its approach, in pending cases the timetable for such reviews will largely be dictated not by new officials’ desires, but by federal judges. In 2009, Obama’s new White House found itself struggling to shift Bush-era policies while keeping up with a relentless series of court-imposed deadlines in legal cases involving Guantanamo prisoners, as well as litigation seeking to force the public release of photos of abuse of detainees at Abu Ghraib. Sometimes the exigencies of the court cases led the administration to adopt legal arguments that angered its allies, like the LGBTQ community.
“There will be tension between trying to implement those policy changes with respect to specific cases and having the time to do that in an orderly, thoughtful way while confronting and dealing with court deadlines at the same time,” Craig said. “There was a lot of scrambling to deal with that tension.”
Indeed, complaints from Chief of Staff Rahm Emanuel that the deadlines sometimes blindsided people at the White House contributed to Craig’s early departure and led to internal turmoil at the Justice Department.
A spokesperson for Biden’s transition team declined to comment on its plans for pending cases, but on the campaign trail, Democratic nominee Biden has vowed that he will reverse what he describes as improper political considerations influencing Justice Department decisions.
“It's the most dangerous thing that has happened so far: the politicization of the Department of Justice,” Biden said during a September appearance in North Carolina. “It's become the Department of Trump, and that's wrong.”
The urge to purge
Vows to purge the Justice Department of political influence are far from new. Attorney General Eric Holder made similar pledges after Obama came into office and Attorney General Jeff Sessions did the same after Trump won eight years later. Each suggested the traditional independence of the law enforcement agency had been sullied by their predecessors and resolved to change course.
“I am determined to ensure that there shall be a new day for the dedicated career professionals I am once again honored to call my colleagues,” Holder said as he was sworn in in 2009 — by then Vice President Joe Biden. “There shall be no place for political favoritism. … We will restore the institution.”
Beyond the posturing, insiders say the truth is that the rule at DOJ is always more one of continuity than change. Indeed, the bureaucracy sometimes is reluctant to follow through on marching orders from a new administration or even directly from a president.
Even before a potential change in administration, there are already signs that Trump’s bluster promising grave punishment for lawbreakers in the recent urban unrest may far outstrip the reality of the consequences facing alleged vandals and most of the others arrested.
“My Executive Order to protect Monuments, Statues etc., IS IN FULL FORCE AND EFFECT. In excess of a 10 year prison term. Please do not put yourself in jeopardy. Many people now under arrest!,” Trump declared in a July tweet. In another message, the president falsely suggested that people had already received decadelong terms for such crimes.
As the flurry of cases begins to grind its way through a justice system still in low gear due to the coronavirus pandemic, punishment for most of the alleged offenders remains months or even years away. Resolution of nearly all the cases could be left to a new administration.
“It would be unusual if a large number of protester cases were tried this fall,,” said Lisa Hay, the chief federal defender in Oregon, where about 100 people face federal criminal charges stemming from months of protest and unrest. “There’s already a bottleneck from all the regular criminal cases that have been delayed. One defendant who was set for trial in March didn’t get a trial until the end of September due to the coronavirus.”
Already, some defendants in unrest cases have been offered much more lenient terms than Trump’s tweets or the Justice Department’s get-tough rhetoric might have led some in the public to believe.
After allegedly spray painting an outcropping of the Lincoln Memorial back during Black Lives Matter protests in May, Micah Avery, 26, was hit with a charge Trump has touted for damaging public property. In theory, it does carry up to 10 years in prison, but during a hearing last week on Avery’s case, it emerged that prosecutors entertained letting Avery off without any jail time and without a felony on his record.
But Avery balked at the proposed deal, apparently insisting that he wouldn’t be pleading guilty to anything.
It wasn’t the first sign of trouble for the government in the case. At an earlier hearing that has not been previously reported, a federal magistrate judge issued a highly unusual ruling dismissing all charges against Avery for lack of probable cause. Days later, prosecutors reinstated the “depredation” of property charge through a grand jury indictment.
A Biden Justice Department could face sharp criticism for pushing ahead with a largely unheard-of charge prosecutors have wielded against dozens of defendants in recent months: violating the federal Anti-Riot Act. It makes almost any act of interference with law enforcement a federal felony, if it occurs during a “civil disorder” that affects commerce.
“There’s a real concern about using this statute, on many levels,” said Hay, the Oregon defender. “It’s vague. It’s over broad. Free speech could be chilled. And the legislative history in the time leading up to passage of that statute is massively, overtly racist.”
A Huffington Post story last month noted that the drive to insert the anti-riot measure into the 1968 Civil Rights Act was led by segregationist lawmakers, including Sen. Strom Thurmond (R-S.C.), who said the measure was needed to target Black activists they portrayed as radicals.
That’s more of a moral argument against the statute than a legal one, although there, too, there have been signs of trouble.
In a case filed Texas in June, a federal magistrate judge balked at signing a criminal complaint against an alleged rioter on the grounds that it wasn’t clear how the civil disorder impacted interstate commerce. The judge relented after prosecutors turned in a more detailed argument on the point.
Some of the challenges the unrest-related prosecutions are already encountering point to another way the Biden Justice Department could make many of the cases go away without much fuss: agree to lenient plea deals that quietly end the cases without abandoning them altogether.
That may be difficult in some cases, particularly given Biden’s campaign-trail message opposing looting and resisting liberal proposals to “defund the police."
If prosecutors downgrade the charges in exchange for guilty pleas, that could also be portrayed as soft on violence toward cops — a stance that seems at odds with Biden’s decadeslong allegiance to public safety workers like police and firefighters.
Still, Biden appointees may regard such deals as their best option.
“Even if you believe it was stupid or overtly political grandstanding to indict some of these cases as civil unrest, they’re most likely to be not dismissed outright, but through negotiations plea bargained out the way you always do it,” Litman said. “I think when push comes to shove, eventually cooler heads prevail.”
CORRECTION: An article attributed in the text to BuzzFeed was actually from the Huffington Post.