Whoever Joe Biden picks for attorney general is in a lose-lose situation. Why is that job so hard? At least three reasons stand out:
- The ongoing criminal investigations of Joe Biden’s family
- A boiling cauldron of divisive legal questions facing the new administration, particularly immigration and gun control
- Pressure to investigate everything the Trump administration ever did
All those will land in the attorney general’s lap. The first one, involving the Biden family, is especially vexing.
The probe into Biden’s grifting kin will face the AG immediately. The President-elect’s son Hunter and brother James both grew rich by trading on the family name. That, in itself, is not illegal. What they did to earn the money may be, though, and both Hunter and James are currently being investigated for serious crimes. Hunter, in particular, seems to be targeted for non-payment of taxes on foreign income, money laundering and more. Looming over the investigations is whether Joe Biden himself played a direct role, either as Barack Obama’s vice president or after leaving office. He has flatly stated he did not.
Hunter’s former partner in a Chinese energy venture, Anthony Bobulinski, has said Hunter and his father spoke frequently about business. More damning is Bobulinski’s statement that he met with Joe Biden twice, with Hunter and James present, to discuss their business projects. He has said the discussions were fairly general, but they were clearly about the Chinese business venture. (He has since spoken with the FBI and presumably told them the same thing.) President-elect Biden, for his part, has repeatedly denied discussing any business dealings with Hunter but has not said if he ever met Bobulinski. The press hasn’t bothered to ask.
Attorney General Barr has previously said that there were no investigations of either party’s presidential or vice presidential candidates. That means Joe Biden has not been implicated. If his name turns up later in the investigations of Hunter or James Biden, the DoJ’s standing rule is that a sitting president cannot be indicted.
It is important to note that these investigations of the Biden family are not a political vendetta launched by the Trump administration. They seem to be normal criminal inquiries conducted by the US attorney for Delaware, David C. Weiss, who has served in the department for years. Senior political appointees at ‘Main Justice’ do not appear to be deeply involved, except to make sure no word of them leaked before the November election.
Outgoing AG William Barr has said he will not appoint a Special Counsel to ensure the Biden investigations continue in the next administration. That decision falls, then, to the new attorney general and possibly a new US attorney for Delaware, if the Biden team chooses to replace Weiss. Replacing him is their prerogative, but it’s politically risky because it might look like interference in a criminal probe.
At a press conference Tuesday, Joe Biden said he would not be involved in such decisions, that he would leave them entirely to his Department of Justice. His transition team had already announced the President-elect would not ask potential nominees how they would deal with the investigation of Hunter and James Biden.
Even if we assume the President-elect sticks with those promises and potential nominees don’t tell his associates what they would do, the job promises to be tough and thankless. If the new AG remains aloof from the family investigations and the president’s son and brother are actually indicted, the attorney general is bound to face a chilly reception in the Oval Office. President Biden will blame him for wrecking his family and possibly endangering the president himself. On the other hand, if the attorney general inserts himself, limits those investigations and leaves any fingerprints, he will become the latest version of John Mitchell, Nixon’s attorney general, who left the department a corrupt shambles.
Whoever Biden nominates will face blunt questions about these issues from the Senate Judiciary Committee and will undoubtedly pledge to leave prosecutorial decisions about the Bidens to career professionals, not political appointees. If the nominee served in the Obama-era DoJ, he or she will have to explain the department’s role in the Russia collusion investigation and FISA-abuse scandals as well. Those questions will be much harsher if Republicans control the Senate after the Georgia runoffs.
The job promises to be tough for other reasons, as well. Some of the most divisive issues in American politics are legal ones. Take immigration, where millions of young people brought to the US illegally as children are still in limbo. Congress has not passed any laws to resolve their fate, and they have been subjected to conflicting presidential orders by Obama and Trump. Dealing with them will be high on the new AG’s agenda. So are other hot-button issues, such as gun control, where progressive Democrats want more extreme solutions than the party leaders.
What unites Democrats across the political spectrum? Investigating and prosecuting senior members of the hated Trump administration, especially the former president himself. There aren’t many who remember Gerald Ford’s wise, but politically unpopular, decision not to prosecute Nixon. Going after Trump would inevitably be seen as political retribution and encourage the next Republican administration to do the same to their Democratic predecessors. The prospect of tit-for-tat investigations and prosecutions of former administrations is not a happy one.
All these issues will face the next attorney general. The job has always been a difficult one, caught between being a political appointment, responsible to the president and tasked with carrying out his priorities, and being an independent judicial officer, above partisan politics. With the Biden family already under investigation, the job of the next attorney general promises to be even tougher.
Charles Lipson is the Peter B. Ritzma Professor of Political Science Emeritus at the University of Chicago, where he founded the Program on International Politics, Economics and Security.
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