“Looking Forward” Will Be Harder for President Biden than It Was for President Obama

NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

  • The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
  • The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
  • Other foreign agent charges against Rudy
  • The investigation into Erik Prince for selling his private mercenary services to China
  • False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
  • Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
  • Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
  • The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.

89 replies
  1. Vinnie Gambone says:

    No justice at Biden’s DOJ ? Double mother fuck that shit.

    Fixing the problem means prosecuting the crimes.

    Playing games already. I’m sick .

    • bmaz says:

      I think people are WAY overreacting to this. If Biden truly leaves it to the DOJ and, unlike Trump, stays out of it, that is all you can ask for.

      • BobCon says:

        I agree — the AG isn’t even chosen yet, let alone all of the people under her/him.

        I think some people are jumping to conclusions about what kinds of cases are out there and what evidence is available.

        I honestly don’t know whether there are any quick slam dunks, but my guess is few if any. But I wouldn’t be surprised if the first rounds take place with evidence disclosures somewhere like Treasury instead of prosecutions by DOJ. For all we know, it might be the USPS where it all starts.

    • earlofhuntingdon says:

      It’s not all on Joe Biden. Ms. Pelosi’s House, for example, could still pursue its oversight hearings, no longer stymied by Steve Mnuchin’s Bill Barr-like stonewalling of IRS compliance with statutory disclosure law.

      Those are crucial to remedying gaps in the law and compliance structure, which Trump took advantage of. If nothing else, the threat of them would be a useful cudgel to wield against Mitch’s unwillingness to approve Biden’s nominees.

      I’ll just mix my hot toddy, stand at the bus stop with Didi and Gogo, and wait for those hearings to restart.

  2. harpie says:

    Considering the certainty of McConnell Obstruction (MO), what are Biden’s options for getting DOJ up and running as quickly as possible?

    • Pete T says:

      Might it start with winning the two GA Senate runoffs? I admit it’s a big ask to get two, but darn all hands on deck.

    • earlofhuntingdon says:

      For a start, he should have scores of interim appointments ready to go on January 20th. Immediate replacements for Alex Azar, Bill Barr, Chris Miller, Steve Mnuchin, Mike Pompeo, and Chad Wolf would be high on the list.

      • Marinela says:

        This is why the transition period is so important. And this is why they try to slow him down, and obstruct the transition.

        About Emily W. Murphy, I was surprised to read she was confirmed unanimously.
        Do they have a timeline on when she is going to lift the block on transition?
        Does this block have a time limit on it?

    • Norskeflamthrower says:

      What are Biden’s options on getting the DOJ up and running as quickly as possible?”

      There is only one option: win both Georgia Senate seats.

      • earlofhuntingdon says:

        Biden can make interim appointments immediately. I would expect him to make several dozen on January 20th. He needs to remove destructive, incompetent ideologues. He needs to stop their across-the-board, lame duck spoliation. He also needs to kick-start an irresponsibly delayed transition, and to begin work on the mountainous backlog of stuff Trump’s people will have ignored for four years.

        Medium term, however, Biden will need Senate confirmations. His COS, Ron Klain, should be a help here. If McConnell runs the Senate, the horse trading is likely to be a shit show, resulting in considerable compromise, also involving many collateral issues, such as the budget and Covid aid.

        If Schumer runs the Senate, Biden should have more leeway. But he will still have to contend with the preferences of the blue dogs and Republican-lite Senators, such as Manchin, who has sworn a blood oath to defend the filibuster and other minority-aiding rules in the Senate.

        The resulting compromises, though, should be fewer. If not, Schumer should have his head proverbially handed to him. (In any case, I expect he will face multiple primary challengers in 2022, regardless of how much money Wall Street throws his way.)

        • Norskeflamthrower says:

          Like I should have said, Biden’s only real chance to get the DOJ up and running for the long haul and anything else for that matter is to win 2 senate seats in Georgia. The whole enterprise rests on that.

        • Buford says:

          with respect to Georgia, we must anticipate this will not go the way we want it to go…prepare for the worst, and hope for the best, is about what we have now…

        • bmaz says:

          Why in the world would you say that? Even with the recount ongoing, the margin in favor of Biden is 13,000 votes. That is not going to flip.

  3. John Forde says:

    I am very curious as to promises McConnell might demand in return for supporting an AG nominee. It seems like a list with hundreds of items. How badly would it hurt if Biden countered, “pick any three”?

    • Alan Charbonneau says:

      Barr stated that dangling a pardon would be a crime, but then said Trump’s commutation of Stone’s sentence “We require a reliable predicate before we open an investigation. I consider it a very Rube Goldberg theory that you have”

      So Biden’s AG should make promises to Moscow’s Bitch McConnell and claim any failure to honor those promises are fine. Anyone complaining is invoking a Rube Goldberg theory! Of course, this won’t happen and I’m not sure it’d be productive even if it were possible, but I’ve gotten to the point where I hate Mitch even more than Barr and nearly as much as Trump, so I fantasize about it.

      • Mitch Neher says:

        Biden can make all the promises he likes to McConnell.

        But Biden can’t even negotiate anything with Trump, let alone promise anything to Trump, while Trump/Barr is still in office.

        Barr would immediately construct a Rube Goldberg theory of “bribery” with which to impeach Biden before Biden was even inaugurated . . . (if that’s even possible).

        [Yes I did know I’m totally paranoid.]

  4. Peterr says:

    And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

    The pardon power is absolute, but bribery is still a crime. If Trump grants pardons to people who have . . . cough cough . . . expressed their profound gratitude . . . cough cough . . . that might put Trump in jeopardy even as the original pardon would stand.

        • bmaz says:

          I do not know. I have never thought such a move ethical, even if purportedly Constitutionally acceptable. If had to guess, think Biden’s DOJ would probably take a pass unless said self pardon was attempted to be formally entered in a court proceeding. Not sure though.

      • Peterr says:

        The Obama/Biden DOJ went this direction when it prosecuted Blago. His use of the governor’s appointment power was not in dispute, but using it to enrich himself was the basic theory of the case.

        (And yes, I know what you think of that case and whether DOJ proved their case sufficiently, but the logic employed there is essentially what I’m talking about here.)

    • Rugger9 says:

      I think it’s doubtful unless DJT does yet another pardon so outrageous that it cannot be ignored. For example, pardoning himself, Ivanka, Jared, DJTJ (and maybe Eric) to prevent federal prosecution, then loudly demanding that the pardons also apply to the states under the Supremacy Clause would fit in with AG Barr’s unitary executive worldview and would get DJT off the hook if he succeeds.

    • emptywheel says:

      Right, but that wouldn’t affect the validity of the pardons. It would mean that Trump bribed someone. That’s what I think the Assange pardon investigation is about.

  5. Bay State Librul says:

    Waiting for Godot or waiting for the name of the new Attorney General.
    Who is on the short/short list?

    • Rugger9 says:

      I’m hoping for Yates, and am aware of bmaz’s point that the new AG needs to be someone respected and experienced in DOJ but not tainted with DJT stink. However, Yates would be seen by the GOP (proclaimed loudly) as a score-settler although I think she has too much integrity for that.

      I would think someone from the field offices with some time in or connections to Main Justice would work, and as a name from the past I offer David Iglesias who was cashiered by the Bushies for refusing to prosecute Democrats in the USA purge in 2006. He was also a JAG who was (officially) fired for absenteeism while he was on his reserve duty which is legally protected. He’s GOP and an evangelical, but I think he would be more likely to act with integrity than most.

      Perhaps our crack legal team might have some names to give to Biden’s camp for apolitical straight arrows with the requisite knowledge. It might be harder with all of the burrowing being done now by AG Barr.

      • bmaz says:

        Yates is fucking horrible on mass incarceration, the DP, criminal justice reform and clemency. She would be a truly horrid choice.

        • earlofhuntingdon says:

          I would hope there are Democratic Party affiliated lawyers who are experienced, capable, and willing to take on the running of a DoJ that has been thrown into such decrepitude by Trump and Trumpism.

          Enough with Dems giving Goopers top slots. Republicans just had four years in office and look how that went. If the Goopers want to reform their party along more responsible lines, let them do it themselves.

        • Rugger9 says:

          I would think McConnell would do anything to stop any D, but then Biden would just appoint them as “acting” on a rotating basis like DJT did with many of his staff. It’s probably what will happen as time goes on.

          2022 is when the GOP has to defend 22 Senate seats (IIRC) to the D’s 12. What Biden needs to do is show he tried to work with McConnell and to pin all of the delays where they belong, on Mitch. As POTUS he has the bully pulpit to do it.

          To bmaz’s point, it would seem that the Venn diagram of integrity, GOP acceptability and DOJ experience seems to have zero population.

        • Rugger9 says:

          I think the Venn diagram intersection of integrity, GOP acceptability, willingness to clean house and prosecute WH crimes has zero population.

          McConnell has to defend 22 seats in 2022 IIRC vs 12 for the Ds and so needs to be highlighted as the actual obstruction that he has been. Biden can try, but must be willing to appoint active AGs on a merry go round if necessary (or recess appoint if possible) to restore the rule of law at DOJ.

          That means WH people need to point out at every opportunity that McConnell is sitting on 400+ bills including the next round of CARES that had been worked out with Mnuchin and Pelosi.

        • earlofhuntingdon says:

          Much less than ideal, but I would hope the Dem bench is deep enough that Biden can rotate Dems into important interim slots for as long as necessary. Continuity suffers, but that can be ameliorated through planning and extensive transition prep.

          That would be far better than accepting miserable nominees just because McConnell promises to go along with them, especially as McConnell can be expected to tie that acceptance to harsh concessions on unrelated legislation. That would amount to continued Republican rule.

  6. harpie says:

    MARCY: And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

    Just to add some ground glass to the above dose of REALITY:

    […] In the incoming Senate, Democratic senators will represent at least 20,314,962 more people than their Republican counterparts — and that’s if we assume that Republicans win both runoff elections in Georgia. If the two Georgia seats go to the Democrats, the Senate will be split 50-50, but the Democratic half will represent 41,549,808 more people than the Republican half. […]

    America’s anti-democratic Senate, by the numbers
    If the United States chose its leaders in free and fair elections, Republicans would be firmly out of power.
    Ian Millhiser Nov 6, 2020

    • earlofhuntingdon says:

      Joe Biden has telegraphed he wants both to restore DoJ independence and that his administration heal and unite America. In other words, he would prefer not to emphasize past disagreements or wrongful conduct by prosecuting it.

      Biden hasn’t announced his pick for AG. But what are the odds that person will agree with him on that fundamental point?

  7. earlofhuntingdon says:

    It’s past time for the MSM to move beyond characterizing Trump’s failure to allow transition planning as a temporary “temper tantrum.” Refusing to cooperate with others is lifelong behavior.

    Trump won’t concede or cooperate, not in any meaningful way. His pattern is to double down and withhold whatever his opponent wants. It’s all he has left. Trump is a psychopath. He doesn’t care how much harm that might do. He didn’t care about the first quarter million dead, he won’t care about the next quarter million.

    • Chris.EL says:

      a little off topic; this thread illustrated, again, my gut feeling that Trump has not had a case of the novel coronavirus, covid-19:
      an ICU nurse’s account of her last hours on shift:

      Trump probably had an attack of gout.

      Again it’s completely pathetic the US government spends so much money supporting this cheating, pompous, felonious liar when people are living on the streets, not getting medical care and enough to eat.

      • Rugger9 says:

        Even allowing for the top-notch care he received as POTUS, the fact he went home after barely a weekend made me rather suspicious of what DJT really had. After all, he had all of the COVID-19 complicating factors (age, obesity, poor diet, etc.) outside of race, and the treatment used is not as much of a magic bullet as he claimed it was.

        It reminds me of how charlatans in the past would claim to be cured of devastating diseases using their own special formulations (available for a fee, of course) and the rubes would slurp it up.

        I don’t think it was just gout (which can affect his walking) but also possible ischemic strokes (due to his craziness, especially lately) but I’m not a doctor so take this with a boulder of salt. His diet is basically a uric acid factory so I’d be surprised if he doesn’t have kidney stones.

    • skua says:

      Mary Trump has it that 45 is for the first time in his life in circumstances where money and “favours” can’t stop him being a failure.
      So we get to see what a very powerful, very enabled, spoilt slob does when faced with the end of his supreme competence.
      If Pelosi et al have not got 25th Amndt and impeachment procedures ready to go at 5 minutes notice then they are derelict.

  8. GKJames says:

    Do both: the president looks forward, the AG cleans up. And even if no indictment ensues, there is value to the body politic — whose relationship to adherence to laws has always been ambiguous — of creating a public record of the facts. Make it impossible to argue that the people didn’t know.

    • earlofhuntingdon says:

      That’s a choice and a viable approach. But will Biden make it?

      It has implications across government, beyond whether the AG investigates or prosecutes past wrongs. It affects the effort and priority given to restoring the bureaucracy, rewriting corrupted regulations, undoing past deals and giveaways, especially those relating to environmentally destructive resource extraction.

      • GKJames says:

        A challenge, no question. I wonder, though, whether the conduct we’ve seen for 4 years is so beyond the Pale that a robust reassertion of fundamentals will be welcome, especially by civil servants who’ve been abused by the current Administration. Of course, the 72 million aren’t going to buy in.

        • earlofhuntingdon says:

          As a point of comparison, those bureaucrats were hoping to see light, reforms, and rebuilding at the end of the long abusive BushCheney tunnel.

          Instead, the ObamaBiden administration rebuilt slowly, reformed little, and instigated an unprecedented number of prosecutions against whistleblowers. I hope Team Biden adopts a more activist, progressive approach to solving the problems created by Donald Trump.

          But, the bureaucracy could be forgiven for adopting a once bitten, twice shy approach to Team Biden.

        • Ken Muldrew says:

          Well sure, but the investment banks were back on their feet and earning bonuses within days. Not everyone had to put up with slow rebuilding.

  9. graham firchlis says:

    Took a moment to refresh my memory on the ICC war crimes investigation. Appears the inquiry into US acts will be limited to the 2003-2004 period. Prosecutors specifically state they will not investigate acts after Obama rescinded torture policy and imposed Geneva Convention constraints.

    Further, as the US is not an ICC participant there will be no cooperation from American resources. That and the passage of time make firm findings unlikely, and prosecution of American citizens near impossible.

    Biden should promptly reverse Trump sanctions on ICC staff, then ignore the process. Right or wrong, American voters will little note nor long remember the eventual findings.


      • graham firchlis says:

        Other than bad press, but this investigation won’t touch Obama/Biden. So stop the elevation, end the sanctions and make no further statement. Literally nothing to see here.

      • BraveNewWorld says:

        The US ratified the US Charter and has denied it even exists ever since. The US hasn’t signed the Rome Statutes but barks orders at the ICC and killed the investigation into Israel/Palestine dead in it’s tracks. If you have the biggest guns you have your way. If you don’t your are about to get run over. Justice will not be allowed. That is the world the US has created.

  10. earlofhuntingdon says:

    We’re not going to know how important this desire for a “look forward” policy is to Joe Biden until we know more about the sources for this article.

    Establishment Democrats, in particular, the kind most esteemed by access journalists, seem to favor getting ahead of the opposition, setting policy and settling scores, and engaging in political combat via media cutouts.

  11. Alan Charbonneau says:

    Is there any possibility that DOJ investigators already have a case against Giuliani, Prince, or others close to Trump but haven’t indicted them because they are waiting for a change of administrations? It’d be nice to see Giuliani arrested shortly after Inauguration Day.

  12. Diogenes says:

    Regardless of what Biden actually *intends* to do: this is smart politics I’d argue is more tailored to the urgency of the current moment than the specifics of how he would navigate the thicket up ahead. It telegraphs to the intransigent Trump– or, more probably / precisely his inner circle — that they’ll be allowed to walk away . . .*if* they walk away.

  13. El Cid says:

    This approach (leave the DOJ to follow up) seems to assume that we actually have any idea of the scope of crimes, harms, & wrongs done by the Trump hacks when in power.

      • El Cid says:

        There are likely an enormous number of harms committed which must be investigated (if for no other reason than to assess damage) which may not be in the nature of a criminal investigation and may not yet be anywhere near the awareness of anyone at DOJ.

    • earlofhuntingdon says:

      Understated, but a good essay. Obama is still brand building, in this case, to boost book sales and to help Joe Biden get through and into the White House.

      I was as shocked as Sullivan, who recalls that when she joined the WaPo in 2016, Obama had not given the paper an in-depth interview since he entered the Oval Office in 2009. That’s severe message management. I would modify Sullivan’s description of it as Transparency Lite. I would call it a Transparency Lie.

  14. Eureka says:

    Can one of Biden’s first acts be to DPA some oxygen concentrators? Probably too late by then. (But it would help with home recovery options. Good to have for many reasons, not least of which would be full hospitals/lack of staff.)

    Most everyone will be focused on aid and assuagement of COVID.

    Biden-Harris admin needs a surfeit of ethical institutionalists to work on all of these other problems at DOJ and such in the background while relief at home and repair of our relations abroad take center stage.

  15. sand says:

    Trump and those closest to him live high but don’t seem to have much in net assets. Many will need to keep criming after they leave office to maintain their lifestyles. Pardons for past crimes will be nice to have, but they won’t pay the bills.

  16. BraveNewWorld says:

    While the part emptywheel quoted from the NBC part was what it really should be. It is the beginning of the story that should terrify every one. If the plan is to give a free pass to Trump and crew then here is what follows.

    Half the country believes a deep state doctored, destroyed documents in an evil act to get the one true orange patriot in the country. If Biden waves the magic wand to make all of that go away then he has just confirmed for them that it really was a plot run by Hillary out of bunker in Russia and Trump was right all along and he was probably right about the Democrats stealing this election. The truth has to come out in a court. If it is just some talking head on CNN no one will believe it.

    If you don’t punish things like appointing heads of departments illegally, using the government as an arm of the Republican party campaign committee etc then you are telling them do double down on that wrong doing the next time.

    How many career government workers have had their lives torn apart for simply doing their job? How many will stick their necks out going forward knowing Democrats won’t have their backs if they do the right thing. Democrats, born to lose. But hey the old, all war all the time, gang is getting back together so maybe the Democrats can convince the American people that justice, fairness and the truth aren’t really what they need. What they really need is more war, but I really doubt that will be a winning strategy in 2022 or 2024.

  17. Zirc says:

    That’s a long list of criminal investigations. I hope at least some of them are pursued, but I’m more worried about counter-intelligence investigations. It seems evident between Rosenstein’s separate direction to Mueller and the FBI that some of the investigation of who did what when as far as Russian intelligence services are concerned wasn’t sufficiently explored. As much as I would like to see as many of Trump’s confederates in jail, I’d much rather know that we’ve plugged any holes with regard to Russian attempts to acquire intelligence and sow discord.


    • tinao says:

      As much as I am chompin on the bit to to see criminals get their just disgraces and convictions, I think you are right Zirc. I think more of the country could understand the need to protect democracy itself. Then after the infection is made clear, something akin to South Africa’s Truth and Reconciliation Commission could be a way to start loves hard work to know the truth, and start to put in place legislation to prevent future attempts by smarter criminals like cheney.

        • tinao says:

          Maybe some written word/news papers as well. Shit the media octupi.
          I’ll light a candle for it this winter.
          We need to work for state constitutional standards folks,
          after this ratfuckery.

  18. Chris.EL says:

    for me, the best thing about Biden’s new administration coming in is getting rid of Pompeo; he gives me the heebee jeebies! Oh and Miller will get the boot too; what a nut case! McEnery will be shown the door! Merry inaugural day to you! Ha!

    Almost forgot Barr! He’ll be walking off into the sunset playing a mournful tune on his pipes! Ta-ta!

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