As the Justice Department under Attorney General William Barr continues to be accused of doing President Donald Trump’s dirty work, former Vice President Joe Biden has an opportunity. He should make rehabilitating the image of the department a major theme of his campaign and, if elected, his administration.
In doing so, Biden should look to the example of a former president who served in the aftermath of Watergate — a scandal that saw John Mitchell, who had served as President Richard Nixon’s attorney general before resigning to head Nixon’s reelection committee, sentenced to prison.
The president I have in mind is not Jimmy Carter, who was elected in 1976 after promising a government as good as the people. During his campaign Carter proposed taking the attorney general out of politics and prescribing a term of six years. But that idea went nowhere.
No, the president whose example Biden should follow if elected is the incumbent Carter defeated, Gerald Ford. Amid the crisis in confidence left by Watergate, Ford chose as his attorney general not a political intimate such as Mitchell (or Robert F. Kennedy, who was President John F. Kennedy’s brother) but an apolitical legal scholar. Edward H. Levi, named attorney general by Ford in 1975, had been president of the University of Chicago and before that dean of its law school.
There is no perfect template for a U.S. attorney general. That’s because the office is a hybrid. The attorney general is at the top of the prosecutorial hierarchy, but he or she is also a member of the president’s Cabinet entrusted with pursuing the administration’s legislative and prosecutorial priorities. (Even Levi agreed that the policies of the Justice Department should be the president’s policies.)
Thus Robert Kennedy advocated for civil rights legislation; Jeff Sessions, Trump’s first attorney general, supported Trump’s policies on immigration. (That didn’t spare him from Trump’s wrath over his entirely proper recusal from supervising the investigation of Russian meddling in the 2016 election.)
Theoretically, a President Biden could choose as his attorney general someone with a prominent political profile — Sen. Amy Klobuchar (D-Minn.) or Sen. Kamala Harris (D-Calif.) — who could nevertheless prove to be scrupulous about keeping politics out of prosecution decisions.
But, like Ford, Biden would be taking office after a period in which the Justice Department lost much of its credibility.
Granted, attorneys general with experience in the Justice Department can also act in ways that undermine the office’s credibility. Barr wasn’t a politician and previously served as attorney general under President George H.W. Bush. Loretta Lynch, Obama’s second attorney general, was an experienced federal prosecutor who nevertheless was swept into political controversy by meeting with Bill Clinton while Hillary Clinton was under FBI investigation. (Lynch also allowed FBI Director James B. Comey to eclipse her in the decision not to bring charges.)
Still, the best way for Biden to repair the damage to the Justice Department would be to look for a contemporary version of Ed Levi, even if such a person might not be the most eloquent or effective advocate for Biden’s policies on criminal justice. Restoring the image of the Justice Department must come first.