What's the best thing a new attorney general can do? Not be the current guy

There’s a whole lot at Bill Barr’s Justice Department that needs undoing, but some things should be left alone

Published December 13, 2020 5:00AM (EST)

US Attorney General William Barr speaks on Operation Legend, the federal law enforcement operation, during a press conference in Chicago, Illinois, on September 9, 2020. (KAMIL KRZACZYNSKI/AFP via Getty Images)
US Attorney General William Barr speaks on Operation Legend, the federal law enforcement operation, during a press conference in Chicago, Illinois, on September 9, 2020. (KAMIL KRZACZYNSKI/AFP via Getty Images)

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This week, we're expecting to hear about a new attorney general nominee with more than average attention on the candidate's ethnicity and desire for justice.

We know the outlines of the bigger issues. There will be more emphasis from the Joe Biden administration on civil rights and policing changes than on restoring firing squad executions and attacking so-called sanctuary cities.

What faces any candidate for the Justice job is a long list of challenges toward re-balancing what the department is there to do. He or she must restore any sense of public trust in an agency that has been openly dismissive and even deceitful in public and in court on cases that have had perceived bearing on Donald Trump's political fortunes, about the work of its professional legal staff and the work of the FBI.

The serving attorney general lied publicly to mislead about the findings of the Mueller Report, tried to defend Trump's against mpeachment and argued against existing law to denounce Obamacare in federal suits. Attorney General William P. Barr ultimately may be tossed from his job for failing to find legal grounds to make criminal filings about Trump's fantasies about election fraud.

Hearings on the new appointment will force public attention on all that.

What attracts my attention today are actions that new Justice leadership can take toward righting the listing ship by simply standing down.

Just stand down

Here are several examples, that don't involve some giant legislative or prosecutorial shift:

  • Against all legal or political logic, Barr decided to commit the Justice Department to intervene in the New York state civil suit over charges of defamation from columnist E. Jean Carroll. She alleged  Trump raped her in a Bergdorf Goodman department store long before he was president. This is a civil complaint that in calling her out, Trump had defamed her. She claims the truth of the original details and is seeking both a Trump deposition and DNA. Barr decided that it was the business of the Justice Department to protect the president – despite the fact that this is not in federal court and happened before Trump was in office. The judge in the case has refused to throw out the complaint, as Trump and Justice asked. But a new attorney general should simply stop – and butt out of the case.
  • The same is true for New York State demands for tax returns from Trump and his companies – all from years preceding the presidency. The new attorney general should simply get out of the way and let the state courts operate.  Those tax returns would seem evidence for schemes to avoid paying taxes both to the federal government and to the state. There are other lawsuits pending as well – all of which should proceed without the involvement of the Justice Department. Just doing nothing to insist that the White House disregard for law here would be an action worth note.  It applies to policies as well.
  • The decision in a federal court in Brooklyn ordering the Trump administration to restore fully restore the DACA Dreamers (Deferred Action against Childhood Arrivals) case would be appealed immediately under Barr. An incoming attorney general can simply let it exist and follow the law.
  • Likewise, the incoming attorney general should halt the efforts of the Justice Department in a case accepted for argument before the U.S. Supreme Court over-interpreting the Medicare and Medicaid statutes. Trump sees the programs as tools to require efforts to get work – during a pandemic and widespread joblessness – in return for health benefits. The timing is such that the case likely will proceed, of course, but the point is that the federal solicitor general who argues these cases can stand down in the name of making Trumpism into law.

Attitudes on political prosecution

The Washington Post editorial board pointed at another such case. Under Trump, the administration "has thwarted justice at every turn for Bijan Ghaisar, the unarmed 25-year-old accountant shot to death in 2017 by two U.S. Park Police officers following a fender bender near D.C. despite the fact that he posed no threat." The editorial advised the Biden administration could send an early signal that it is committed to accountability when police wrongly kill civilians — even or especially if the police happen to be federal officers – by dropping the case for a negotiated settlement.

Biden himself has said he has little personal interest in pursuing prosecution of Trump administration officials. He has said forcefully that Trump is abusing pardon powers by protecting his own campaign associates and friends, as illustrated by the pardon for former National Security Adviser Michael T. Flynn.

Yet, in a note of special obsession, Barr has extended the term of U.S. Attorney John Durham by making him a special counsel in continuing to investigate the origins of the Russia investigations growing out of Trump's 2016 campaign. That effort is aimed, of course, right at adversary and predecessor Barack Obama and Biden, James Comey and the FBI.

What one side sees as political prosecution apparently doesn't apply to the other side.

Today's homily: Maybe doing nothing in these politically tinged cases is sufficient at this point.

By Terry H. Schwadron

MORE FROM Terry H. Schwadron

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Attorney General Bill Barr Commentary Dcreport Department Of Justice Joe Biden Trump Administration