Michael Swartz / Feb. 12, 2021

The Biden Justice System Takes Shape

He begins with mass firings of U.S. attorneys and will move to remake the judiciary.

It’s often said that a new broom sweeps clean, and nowhere is that more apparent than in the federal judicial system. Judicial appointments are always a primary factor in presidential elections, of course. But as has also become traditional for changes in presidential administration, President Joe Biden’s Justice Department is seeking the resignation of the remaining 56 U.S. attorneys appointed by President Donald Trump, out of a total of 94. Many of the other 38 appointees had already left once the election was decided. This combination of events means justice is going to being looking very different.

While this was an expected request, a bipartisan trio of senators objected to both the timing and the lack of consideration Team Biden gave to home-state senators. One key example was John Lausch, the U.S. attorney for the Northern District of Illinois, who is conducting a probe into allegations of wrongdoing involving Illinois House Speaker Mike Madagan. The request for Lausch’s resignation irked both members of the state’s Senate delegation.

“While the President has the right to remove U.S. Attorneys, there is precedent for U.S. Attorneys in the Northern District of Illinois to remain in office to conclude sensitive investigations,” wrote Senators Dick Durbin and Tammy Duckworth in a joint letter. “We believe Mr. Lausch should be permitted to continue in his position until his successor is confirmed by the Senate, and we urge the Biden Administration to allow him to do so.” Likewise, other affected U.S. attorneys are conducting similar investigations into corruption in their states and districts.

On the other hand, Iowa Senator Chuck Grassley gave a brief history lesson on hypocrisy. “You are obviously within your rights to do this, but four years ago a similar action by then-Attorney General Sessions caused my Democratic colleagues to sound the alarm,” wrote Grassley. “Senator Feinstein observed at the time, ‘Under previous administrations, orderly transitions allowed U.S. attorneys to leave gradually as their replacements were chosen. This was done to protect the independence of our prosecutors and avoid disrupting ongoing federal cases.’ Senator Schumer expressed similar views, saying, ‘By asking for the immediate resignation of every remaining U.S. Attorney before their replacements have been confirmed or even nominated, the President is interrupting ongoing cases and investigations and hindering the administration of justice.’ Senator Warren went so far as to say, ‘You can’t fire the rule of law, @realDonaldTrump. You can’t shut down ongoing investigations by career prosecutors.’”

It should be noted, though, that Biden left two key appointees out of his request. One of them, John Durham, is able to leave his post as U.S. attorney since he’s also the special counsel for the investigation into the botched FBI inquiry into Russian influence in the 2016 election. The other is David Weiss, the U.S. attorney for Delaware. Weiss may be better known as the guy investigating Hunter Biden’s alleged tax evasion, so he’s safe based on the whiff of impropriety that would otherwise be emitted.

Given that changing out U.S. attorneys has become more or less a ritual whenever the White House changes parties, this will likely just be a speed bump on the road to justice. Then again, a longer-lasting change began taking shape immediately after Biden was sworn in as a score of federal judges have transitioned to senior status, which allows the new regime to select their eventual replacements.

Biden began his term with 57 vacancies on the federal court, and that number has grown thanks to a group of jurists — mainly those appointed by Bill Clinton a quarter-century ago — taking advantage of the opportunity to have a like-minded judge carry on their legacy. In that same vein, leftists are also trying to convince 82-year-old Supreme Court Justice Stephen Breyer to retire so a younger black woman can take his place.

Yet there are a couple of other wild cards at play here. While the Democrats made the unpopular vow to pack the Supreme Court, they curiously didn’t bring up the constitutional possibility of crafting more circuit and district courts and judgeships, creating and constituting “tribunals inferior to the Supreme Court.” It’s been pointed out that few cases a year reach the Supreme Court, meaning the judge’s word is law in a lot of instances.

Trump may have appointed a lot of jurists in four years, but there’s a lot of damage to be done by Biden’s appointees. Firing a few U.S. attorneys is just the tip of the iceberg.

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