'Morale has been gutted': can Biden restore the DoJ's battered reputation?

When Bill Barr was invited to speak at the conservative-leaning Hillsdale College, Michigan, in September, he leapt at the chance to respond to criticism that he had politicized the justice department that he led in order to benefit his political master, Donald Trump.

The then US attorney general, who stepped down from the post last month , began his speech by arguing that there had to be political input at the top of the Department of Justice (DoJ) in order for it to be publicly accountable. Then he turned to his own staff and, in response to recent complaints that he had improperly overruled the decisions of career prosecutors, gave them a good tongue-lashing.

“Name one successful organization where the lowest-level employees’ decisions are deemed sacrosanct,” he said. “Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.”

Comparing hard-working, highly trained public servants to kindergartners might pass as motivational leadership in the Bill Barr school of management. But to many DoJ attorneys, it summed up life in the Trump era.

For four years, they have watched the president trash the historic norm of the agency’s independence from White House interference. Trump has referred to the DoJ as “the Trump justice department”, and made repeated vicious attacks on top officials, including the attorney generals whom he himself appointed.

Senior officials have resigned in unprecedented numbers after Trump attempted on multiple occasions to use the justice department as his own personal weapon in battles with his political enemies.

Barr, who was Trump’s longest-serving attorney general, behaved in similar fashion, leaving the impression with many observers that the department under his leadership was in the pocket of the president. He sought a more lenient sentence for Trump’s buddy Roger Stone, and moved to drop the criminal case against the former national security adviser Michael Flynn.

“The morale and the reputation of the department has been gutted because of undue political influence on the decisions of career staff,” Vanita Gupta, a former head of the DoJ’s civil rights division, told the Guardian. “Barr literally compared career prosecutors to toddlers.”

Barr’s derisive comment is symbolic of the challenge now facing President-elect Joe Biden as he seeks to restore confidence in this battered and bruised pillar of American democracy.

“The department needs to be rebuilt by new leadership committed at every turn to decisions made on the law and on the facts, and not on what the president wants,” said Gupta, who now heads the Leadership Conference on Civil & Human Rights.

The first priority for Biden as he seeks to put the DoJ back on the rails will be to show to the American people, in both word and deed, that he intends to respect the independence of the agency with respect to specific criminal cases. Where Trump stated that he had the “absolute right to do what I want with the justice department”, Biden has pledged to take a different path.

In a joint CNN interview with the vice president-elect, Kamala Harris, Biden guaranteed that he would avoid telling the justice department how to do its job. “Any decision should be based on the law, should not be influenced by politics,” was how Harris put it.

Biden may well find his best intentions sorely tested early on in his presidency. The Trump administration has been busy planting legal landmines in his path.

Last month, the US attorney in Delaware – a Trump appointee – opened an investigation into the tax affairs of the president-elect’s son, Hunter Biden. What happens to that inquiry once the new administration takes office may define just how much independence the 46th president is willing to grant his attorney general.

In any case, merely abiding by the traditional norm of DoJ prosecutorial independence may be insufficient to repair the damage of the Trump era. Gupta said: “We came dangerously close to our democratic norms being undermined, so it won’t be enough to go back to the old ways – it’s going to be incumbent on the new administration to learn the lessons and act on them.”

Bob Bauer, who was White House counsel from 2010 to 2011, also believes that special measures are now needed to shore up the independence of the agency. “You cannot expect everything to return to normal just because Donald Trump has left the scene,” he said.

Bauer took a leave of absence as a law professor at New York University to advise Biden during his presidential campaign. Speaking to the Guardian in a personal capacity, he said that he was fearful that norms that just about survived the Trump onslaught could be shattered if a more efficient demagogue entered the White House in future.

“Somebody could come along and execute on the threat to use the department to pursue political enemies more effectively than Trump did. Rather than wait for a more shrewd, deft, competent Trump to appear, it makes sense to deal with this as an institutional crisis that needs addressing.”

In his new book, After Trump: Reconstructing the Presidency, Bauer and his co-author Jack Goldsmith set out reforms they would like to see put in place to protect the DoJ from any future authoritarian president. They include introducing a new executive rule that would overtly instruct all 115,000 employees of the justice department to “answer in all their actions not to partisan politics but to principles of fairness and justice”.

The authors also propose that Congress put in writing that any prospective attorney general must satisfy the Senate confirmation process that they are a “person of integrity”. Changes would be made to the special counsel system to clarify in what circumstances presidents can be investigated, and to shield the investigators from White House efforts to remove them.

Any move by the Biden administration to introduce new rules on DoJ independence is likely to face opposition. Michael Mukasey, a former federal judge who served as US attorney general under George W Bush, told the Guardian that in his view any such measures would be unnecessary and unfounded.

Mukasey said that criticism that the DoJ had been politicised in its decision making within the Trump administration was inaccurate. “There have been many actions by the justice department that were directly contrary to the president’s wishes.”

He pointed to the decision of Trump’s first attorney general, Jeff Sessions, to recuse himself from the investigation into Russian collusion – an action which mightily displeased the president. He also cited Barr’s lament to ABC News in February that Trump’s tweets were making it “impossible for me to do my job”. “That was hardly consistent with the White House view,” Mukasey said.

In Mukasey’s analysis, attempts by the incoming administration to try to change the department either through internal procedures or legislation would be misplaced. “I think we in this country sometimes have a fascination with mechanical solutions to problems – if we tinker with this or that, we can fix things.”

Instead, the focus should be on finding the right caliber of personnel to fill top jobs. “The principal lesson of the past four years is that we need good, sound people in all positions from the White House on down. If you have them you are fine, if you don’t have them, then you can have all the mechanical bells and whistles you like” but they won’t make a difference.

The Biden administration will also be under pressure to restore the central role played by the DoJ in combatting police brutality and discrimination in the wake of the George Floyd protests. Under Trump, the department’s engagement in policing reform has withered on the vine.

On his final day in office as attorney general, Sessions issued a memo that scrapped consent decrees – court-backed agreements that allowed the DoJ to drive through essential reforms within police forces found to be engaging in racial profiling, excessive use of force, or unjustified killing of unarmed black men.

Under Barack Obama, 14 consent decrees were imposed on wayward police agencies; under Trump, there have been none.

Gupta said that the Biden administration needed to withdraw the Sessions memo on day one. “The gutting of civil rights enforcement across the board has been such a setback for communities around the country, and restoring it has to be a priority,” she said.

Similarly, Gupta urged the incoming Biden team to move swiftly to rebuild the civil rights division as a key defender of the right to vote. In the Trump era, that feature of the justice department’s work faded too, with Barr accommodating the president’s baseless claims of massive voter fraud in the election by allowing federal prosecutors to investigate the matter – prompting another high-profile resignation. Barr waited until well after the 3 November election to announce publicly that there was no evidence of widespread voter irregularities.

“It’s high time in this country that we stopped politicizing voting rights and treat it like it is – a core value,” Gupta said.