/Will Biden wage a confirmation battle over attorney general? Some current DOJ insiders hope so

Will Biden wage a confirmation battle over attorney general? Some current DOJ insiders hope so


“That’s not a fight that Joe Biden should shy away from,” one current Justice Department prosecutor told ABC News, speaking on the condition of anonymity because he’s not authorized to speak with the press. “This is the most important pick that Joe Biden’s going to make, and the risks of getting this pick wrong are enormous.”

For the prosecutor, that means he hopes Biden nominates former deputy attorney general Sally Yates, who spent more than two decades at the Justice Department but would likely face significant opposition from Republicans during the confirmation process.

“She’s worth fighting for,” another career federal prosecutor insisted, saying Yates is “a popular favorite” within the Justice Department due to her time as U.S. attorney in Atlanta and then as deputy attorney general in the Obama administration. “I would love for the Biden folks to put up a fight.”

He said two other candidates Biden is reportedly considering for attorney general — federal judge Merrick Garland and outgoing Alabama senator Doug Jones — would “have a learning curve that she doesn’t have” since their time within the department was so long ago.

Other career officials inside the department agreed, with one describing Yates as someone who “could hit the ground running on day one.” But even some of those who aren’t pulling for Yates said they believe Biden should be up for a political fight over his nominee.

“If there was one cabinet position worth having a confirmation battle over, it’s this one,” said another career Justice Department official, who wants Biden to choose a “dark horse candidate” like Preet Bharara, the former U.S. attorney for the Southern District of New York who would be the first Indian American attorney general in U.S. history.

Another Bharara supporter inside the Justice Department similarly said attorney general is “such an important position that it’s worth fighting” for.

For Yates or any nominee to actually become the attorney general, they must receive approval from a majority of the Senate, which is currently controlled by Republicans. That means the Biden team must persuade at least some Republican lawmakers to vote for confirmation — an inevitably arduous process made even more challenging by the heated political environment. A spokesman for Biden’s transition team did not immediately respond to a request for comment from ABC News.

As Biden weighs who should take charge of the Justice Department’s more than 100,000 employees, many former department officials, advocacy groups and lawmakers have publicly expressed individual preferences. But it’s relatively rare for current career officials — whose positions are inherently apolitical and can span several administrations — to weigh in publicly.

Yet another federal prosecutor said that while he hopes Biden will pick Yates, he also “understands the concern” that the Biden team might have over the resistance she likely would face from Republican lawmakers.

President Donald Trump’s allies on Capitol Hill are particularly upset about the last year of her tenure at the Justice Department, when she helped oversee the start of the federal investigation into alleged ties between Trump’s campaign and Russian operatives, and when, as acting attorney general in the first days of the Trump administration, she publicly protested Trump’s executive order blocking travel from Muslim-majority countries.

Similarly, according to the Hill, Sen. Chuck Grassley, R-Iowa, said Yates’ actions were “very worrisome” and there are “plenty of people” available so that Biden “wouldn’t have to take a chance on her.”

Trump himself has publicly attacked Yates, tweeting in August that she “has zero credibility” and “was part of the greatest political crime of the Century.”

Many of the career federal prosecutors who spoke with ABC News balked at the notion that such comments should influence Biden.

“I’ve heard a few people around my office comment, ‘Who’s making this appointment? Is it Joe Biden or [Senate Republican leader] Mitch McConnell?'” one career federal prosecutor said.

Though Garland and Jones are relatively unfamiliar to many current Justice Department employees, the current officials who spoke to ABC News, including those supporting Yates, acknowledged that Garland and Jones have what one official called “tremendous reputations.”

Garland has served on the federal appeals court in Washington for more than two decades. President Barack Obama nominated him to the Supreme Court in 2016, but Republicans blocked the nomination.

During the Clinton administration’s first term, Garland was appointed to serve as a senior Justice Department official, and he helped oversee the prosecution of Oklahoma City bomber Timothy McVeigh. Before that, he served for nearly three years as an assistant U.S. attorney in Washington.

Jones, also during the Clinton administration, served as U.S. attorney in Alabama, where he led the prosecution of two Ku Klux Klan members for their role in the deadly bombing of Birmingham’s 16th Street Baptist Church. He was elected to the U.S. Senate in 2017, filling a void created when Jeff Sessions became attorney general.

But one career federal prosecutor predicted that even if Garland or Jones seems “like a safe, uncontroversial pick,” there’s concern “ultimately Republicans will make an issue of whoever.”

Almost all of the current officials who spoke with ABC News said they felt any of Biden’s choices would be an improvement over recent Justice Department leadership, insisting that the department’s reputation has been battered by years of attacks on the department from the president himself and from several politically charged, high-profile decisions by Trump’s attorneys general.

The current officials said their new boss — whomever it is — needs to reestablish the Justice Department as an independent and credible institution. So, one of the career prosecutors said, although starting that process “with vitriolic, heated hearings would be frustrating, I think it is a position worth picking a fight for … if you really feel like you have someone who will inspire people in the Justice Department to do great work and make them feel like they’re on the right side of justice again.”

The next attorney general, however, will have to navigate a federal investigation into the global business affairs of Biden’s son, Hunter, and a recently appointed special counsel investigating the origins of the Russia probe, which Yates helped oversee at its beginning.

Many of the officials who spoke with ABC News also cited their desire to see the department refocus on matters of civil rights and social justice, and to include women and people of color in leadership positions.

“Trump appointees,” a Yates-supporting prosecutor told ABC News, “have been overwhelmingly white, male.”

That’s one of the reasons the career official supporting Bharara hopes Biden chooses him.

“Make Republicans vote against a historic pick,” the official said.

ABC News’ Alex Mallin and Luke Barr contributed to this report.

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