The Biden administration kicked off its Department of Justice renewal project with generally well-received nominations at the top. Merrick Garland is so respected that Republicans swore they’d support him for the Supreme Court. Oops. Lisa Monaco built a strong counterterrorism record during the Obama administration, Vanita Gupta has her own strong Obama record and the effort to smear her has backfired spectacularly, and Kristen Clarke has an incomparable civil rights record. It’s not necessarily the DOJ that Biden’s most progressive supporters would have picked, but one that is broadly acceptable while still providing ample experience to please moderate Republicans.
But leadership in Washington only goes so far. Most of the prosecutorial action takes place on the front lines, and that means selecting U.S. Attorneys committed to recalibrating a broken criminal justice system. We’ve already highlighted our skepticism that Garland will shut down the corporate law pipeline to key posts like antitrust, but can he be persuaded to rethink the history of tabbing “career prosecutors” to bring decades of baggage into the most important on-the-ground role in the federal justice system?
A letter signed by more than 30 organizations led by the Revolving Door Project encourages Biden to select U.S. Attorneys from outside the established cursus honorum for plum federal prosecutorial roles.
Unfortunately, many U.S. Attorneys have misused that power by focusing their energies on punitive enforcement of low-level crimes while turning a blind eye to corruption and corporate wrongdoing. Many, notably, have pursued that agenda despite contrary prosecutorial guidance from the Attorney General.
You have made concrete promises to make the country’s criminal justice system less cruel and more just. U.S. Attorneys have the power to make many of those commitments — from avoiding the charging of offenses that trigger mandatory minimums in drug offenses, to more vigorously pursuing cases of police misconduct — a reality. There is, however, little reason to believe that these offices will advance your agenda without a change in leadership.
It’s a cause that might resonate with Biden. In December, reports emerged that the transition team had asked Senate Democrats to begin tabbing public defenders and civil rights attorneys for the federal bench, another job dominated by former prosecutors.
Bringing in outside perspectives is not a magic bullet. Chris Christie, who will never shut up about being “a former prosecutor,” was in fact not a former prosecutor. He was a lobbyist that W. gifted with a U.S. Attorney job managing career prosecutors that Christie has ridden all the way to a hospital bed. On the flip side, Rachel Rollins in Boston is hailed as a model reform-minded prosecutor and earned her criminal law experience as an AUSA.
But just because you can’t know how someone will approach a job until they have it, doesn’t mean you shouldn’t cast a wide net. Approaching a search by rounding up the usual suspects will always taint the process. In some cases, the career prosecutor is going to still be the best fit for the job, but it’s impossible to know without meeting with lawyers coming at the job from different angles.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.