Susan Walsh/AP Photo
President Biden listens as Attorney General Merrick Garland speaks during an event in the State Dining Room of the White House, June 23, 2021.
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
Nearly six months into President Biden’s tenure, his Department of Justice is understaffed and unprepared to tackle the pressing issues facing the administration. Under Attorney General Merrick Garland’s leadership, the Justice Department has remained without a nominee or appointee for several key posts, including the solicitor general, director for the Executive Office for Immigration Review, and assistant attorneys general for the Office of Justice Programs and the Antitrust and Tax Divisions.
Equally disappointing is the Biden administration’s failure to put forth even a first round of nominees to fill what will ultimately be 93 U.S. attorney positions. The impact of these vacancies can be seen in the Justice Department’s failure to reverse Donald Trump’s disastrous legacies. Even worse, in many cases Biden’s DOJ has argued to uphold the former president’s positions. The DOJ’s ability to carry out Biden’s agenda in key areas like criminal justice reform, voting rights, immigration, tax policy, and antitrust relies on the presence of strong, public-minded officials.
As the murder of George Floyd and the summer of protests that followed showed, there is an urgent need to revamp policing in the United States. While many of the necessary changes will need to occur at the local level, the Justice Department, particularly through the Office of Justice Programs (OJP), has the power to respond to this imperative in important ways. The OJP administers the Bureau of Justice Statistics, and is the route forward to reinstating the Arrest-Related Deaths (ARD) program and the Contacts Between Police and the Public statistics, which can keep the public informed of ongoing police misconduct. However, without permanent leadership for OJP, or for that matter for the Bureau of Justice Statistics, the office is less likely to take these steps.
Similarly, acting Solicitor General Elizabeth Prelogar’s record repeatedly defending Trump-era positions, including one that invited a massive expansion of police power, should make nominating and confirming a permanent replacement an urgent priority. In the Supreme Court case Caniglia v. Strom, Biden’s DOJ, led by acting Solicitor General Prelogar, argued in favor of expanding police power to enter a citizen’s home “to protect” and serve as “community caretakers” so long as police act “reasonably.” Arguably even more egregious, the police officers defended their actions as protected under the doctrine of qualified immunity, a position that Prelogar explicitly endorsed in her brief to the Court. The Court, for its part, unanimously rejected this expansive reading of the “community caretaker” function.
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Prelogar’s tenure as acting solicitor general is also notable for her failure to defend voting rights amid an onslaught of voter suppression laws being passed across the country. In a landmark voting rights case, the Trump administration filed a brief supporting state rules about ballot collecting, despite a lower-court ruling finding that the measures disproportionately harmed minorities. Acting Solicitor General Prelogar recused herself from the case for unknown reasons, and without further leadership, Biden’s DOJ notified the Court that although the brief did not “represent the current views of the United States,” it would not “seek to make a further substantive submission in these cases.” The Supreme Court ruled in line with Trump’s view.
Further stymieing Biden’s criminal justice agenda are vacancies in U.S. attorneys offices. After asking 56 Trump-appointed U.S. attorneys to step down in February 2021, Biden has yet to nominate replacements (leaving, in many cases, Trump officials’ first assistants in charge). As our colleague Mariama Eversley noted in the Prospect back in March, the Trump DOJ removed non-loyalists, so the ongoing presence of Trump-aligned individuals is a major roadblock to a public-interest agenda. U.S. attorneys are responsible for law enforcement on issues ranging from civil rights and police misconduct to white-collar crime and drug charges, with significant discretion over what to prioritize with their limited resources and which crimes to charge defendants with. Nominating progressive and reform-minded U.S. attorneys would be a major step toward building a more equitable justice system. The delay needlessly extends an easy-on-corporate-wrongdoing, tough-on-crime status quo.
Unfortunately, that is not the only harmful status quo that remains intact under this DOJ. Surprisingly, one of the Biden administration’s early moves on immigration policy was the appointment of 17 Trump-approved officials, including former Immigration and Customs Enforcement (ICE) prosecutors and counselors, to the country’s immigration courts. These Trump-aligned judges now possess the immense power to approve or (more likely, given their ideological inclinations) deny requests by migrants to remain in the country, imperiling the lives of thousands of immigrants. Just last year, the immigration courts under the Trump administration denied a staggering 72 percent of asylum claims. Now, some of those same prosecutors who argued against granting asylum have the power to decide cases.
The Biden administration needs to turn the page here, and promptly hiring an individual who believes in a just and humane immigration system to serve as the director of the Executive Office for Immigration Review (EOIR) would be a great start. Working with the Attorney General’s Office, a new EOIR director would need to draw up plans to root out white supremacy, adequately staff the immigration system, and drop unnecessary cases brought forward by Trump-era officials.
Another area where the Justice Department has an opportunity to create transformational change is in anti-monopoly work. Biden’s executive order promoting competition has been lauded as a fundamental shift in how the U.S. views business, but, as the Prospect’s Alex Sammon noted, the key position in the Justice Department, the assistant attorney general for antitrust, remains vacant. The executive order explicitly calls for increased enforcement from the Federal Trade Commission and the DOJ’s Antitrust Division to challenge prior bad mergers and “vigorously” enforce antitrust laws, but without a confirmed AAG, the division will struggle to quickly and effectively deliver.
The final AAG spot without a nominee or appointee is the assistant attorney general for the Tax Division, who will be charged with enforcing the nation’s tax laws through both civil and criminal litigation. As ProPublica’s recent series highlights, the implementation of the tax code is deeply flawed, with most of the country’s wealthiest individuals paying unbelievably low effective tax rates. The Biden administration has already promised to beef up the Internal Revenue Service and raise the corporate tax rate. Strengthening enforcement at the Department of Justice will be key to implementing these changes.
A robust Justice Department is pivotal to Biden’s promise to “build back better.” The department is bound to play a major role on various issues including criminal justice reform, voting rights, immigration, tax, and antitrust policy. Biden ran on the goal of moving the country away from the disastrous Trump years toward a fair, equitable, and prosperous future. But the sluggishness of appointing progressive leadership at the offices tasked with handling these issues is a real constraint. Biden must act quickly to hire public-minded individuals eager to begin the urgent task of reorienting the trajectory of the country back toward the goal of equal justice under law.
