By Perry Stein, Tyler Pager, The Washington Post (c) 2024
When President Joe Biden picked Merrick Garland to be attorney general in 2021, he handed the longtime federal judge a mandate to restore norms and trust in a Justice Department roiled by the tumultuous presidency of Donald Trump.
Nearly four years later, an attorney general in a potential Kamala Harris administration would have a different mandate.
The high staff turnover at the Trump Justice Department has steadied under Garland, Justice Department officials have said. The sprawling investigations around the Jan. 6, 2021, attack on the U.S. Capitol and the two federal indictments against Trump that drew so much attention to the department are making their way through the court system.
If Harris is elected the next president, she would probably want her Justice Department to act as a bulwark against laws from Republican governors restricting abortion, voting and transgender rights – and laws from Congress, if Republicans control both chambers – people familiar with the Democratic nominee’s transition team’s thinking said. While the legacy of a Harris Justice Department could also hinge on the outcome of the Trump cases, legal experts said that many of the big decisions around those cases have already been made, and the next administration would largely chart the course set by Garland and special counsel Jack Smith.
Garland is known for his meticulousness in making decisions. But some critics say his vow to run a law enforcement agency insulated from politics wasn’t realistic at a time when Trump demonized the department and claimed it was biased against him.
Historically, attorneys general can be more public when discussing civil rights cases and policies than ongoing criminal investigations. The people close to Harris and the transition efforts, speaking on the condition of anonymity to discuss private conversations, said she wants an attorney general who would take a public role in explaining and forcefully defending the Justice Department’s policies and legal decisions.
“Every leader has the right to make out her or his own team or their batting order,” said Anthony Coley, the former top spokesman under Garland.
Plans for a potential Justice Department in a Harris presidency are still in their nascent stages, and it’s unclear how involved – if it all – Harris is in these early personnel deliberations. Many of the names being circulated as potential attorneys general are people with strong Democratic Party ties.
While she wants to install her own person as attorney general, getting someone confirmed could be difficult if Republicans take control of the Senate. In that scenario, Harris could ask Garland to stay on for a while, according to people familiar with the deliberations.
Garland has been leading the Justice Department for four years – far longer than most of the nation’s past attorneys general.
“There is no transition without a successful campaign and that is the top priority right now,” Adam Hodge, a spokesman for the transition team, said in a statement. “The Vice President is focused on the election, and any guesses about what she is looking for in an Attorney General is nothing more than speculation.”
Whether Trump or Harris wins Tuesday’s election, the leader of the Justice Department will be one of the highest-stakes and highest-profile Cabinet picks.
Trump’s running mate, Sen. JD Vance (R-Ohio), has said the attorney general will be the country’s most important job after the president and will be tasked with making sure people believe “we have a fair and equitable administration of justice.” If elected, Trump has said he would make sure Smith – who is heading the prosecution of the Justice Department’s two criminal cases against him – is fired. He also has said he may use the Justice Department to prosecute his enemies.
Harris, a former prosecutor, would inherit from Garland an agency that is fighting unprecedented cyberattacks from foreign adversaries; has revived police accountability investigations halted during Trump’s term in office; and has drastically expanded its antitrust division, lodging major lawsuits against Google, Apple and Ticketmaster.
The department, along with the FBI and its Bureau of Alcohol, Tobacco, Firearms and Explosives, also has expanded new gun tracing technology that officials say has contributed to a drop in crime.
Eric Holder, who was attorney general under President Barack Obama, and Tony West – Harris’s brother-in-law, who held the No. 3 position in the Justice Department under Obama – have taken on informal roles planning for the agency’s transition if Harris wins, according to multiple people familiar with the transition efforts. Dana Remus, former White House counsel under Biden, is playing a leadership role as an adviser to the transition operation for a Harris White House and its executive agencies, including the Justice Department.
Some people close to Harris have mentioned Vanita Gupta as a potential pick for attorney general. Gupta, a longtime civil rights attorney, served as the No. 3 official under Garland for much of the Biden administration.
But Gupta faced a bitter and often ugly Senate confirmation process in 2021, when the Democrats narrowly controlled the Senate, and she could be portrayed by Republicans as weak on crime. Still, Gupta allies argue that she forged strong relationships with local and state law enforcement groups while at the Justice Department that could help her squeak through. The Fraternal Order of Police celebrated Gupta’s tenure when she left the department last year.
Roy Cooper, the Democratic governor of North Carolina, could be a safer attorney general pick, those familiar with the Harris transition efforts said. Cooper served as the North Carolina attorney general when Harris was the California attorney general, and the two are close friends, these people said. Cooper was on Harris’s short list for vice president.
Others said that U.S. Attorney Damian Williams, who heads the prestigious Southern District of New York prosecutors’ office, could be a contender for one of the top leadership positions at Justice Department headquarters. They cautioned that Williams – who clerked for Garland when he was a federal judge in D.C. – has limited additional experience working in the nation’s capital.
Gupta, Williams and Cooper either declined to comment for this article or did not respond to requests for comment.
Much of what Harris has said about her potential Justice Department has aimed at differentiating how she says she would lead from how Trump has said he would serve as president. She has derided Trump for suggesting he would prosecute his enemies. Both the Biden administration and a potential Harris administration have said that the Justice Department should have independence to lead criminal investigations.
While Trump has said his administration would get rid of Smith and would be likely to dismiss the classified-documents and election-interference cases against him, Harris has not said what she would do. But historically, legal experts said, incoming administrations do not remove special counsels who have ongoing investigations. Justice Department regulations state that an attorney general should only remove a special counsel for “good cause.”
When asked by NBC News whether she would consider pardoning Trump to bring the country together if she is elected, Harris declined to answer. “I’m not going to get into those hypotheticals,” Harris said. “Let me tell you what’s going to help us move on. I get elected president of the United States.”