And the Next Attorney General Is

will Joe Biden pick as his attorney general? Joining me as former federal prosecutor Robert Mints a partner in McCarter In English? Bob, how much damage has been done to the Joice Department during the last four years, damage to its inner workings and the public's perception of its integrity and credibility. Almost from the outset of the Trump administration, there have been allegations that the President has attempted to exert political influence over decisions made by the Department of

Justice and its Attorney General. Historically, the depart and of Justice acts independently of the president. Because the Department of Justice is often investigating individuals who may have some political connections to the President or to the president's political party.

So it's important that those decisions are made by individuals who have no connection directly to the president, and there must be an appearance that the Department of Justice is making decisions solely on the basis of the merits of these cases and not for any other reasons. Many Attorney general's offices have been accused of being politicized, and it's certainly an element of politics and all this, but just

how politicized has the Trump Justice Department been. Attorney General bar has been criticized for being overly political, and in the past, all Attorney generals are certainly the most recent ones have all been accused of at times making decisions

that were more political than legal. But in this case, critics have said that Mr Trump made clear almost from the outset he viewed the Department of Justice and the FBI as organizations that should be acting in his best interests and not necessarily in the interests of the country.

He repeatedly pressured the Attorney general, for example, to investigate Mr Biden, to investigate former President Barack Obama, to investigate former Secretary of State Hillary Clinton, only to be frustrated when Attorney General Barr didn't comply, but there are instances that Mr Bard did succumb to the pressure that was being applied by Mr Trump. For example, Mr Bard did move to reduce the sentencing recommendation for the President's longtime

friend and advisor, Roser Stone. He assisted the President, at least according to his critics, in overturning the guilty pleas of the President's former national security advisor at Michael T. Flynn. This was done over the objections of career prosecutors, some of whom even resigned in protest over this decision, and then Mr Trump ultimately went even further by commuting the sense of Mr Stone after he was convicted and sentenced

to jail. More recently, it's interesting that the President has soured on Attorney General bar and Mr Trump had been calling the election a fraud and saying that mail in voting was not reliable, and yet there was nothing but silence out of the Departmative Justice until recently when Mr Barr came out and actually said that he saw no evidence of voting fraud. What kind of qualities and background

should a new Attorney general have. The decision of who to appoint as Attorney General is one of the most consequential that any president makes in his or her cabinet. It's important because the attorney General has so much power over so many important decisions that affect the lives of Americans. Typically, the president will pick somebody who they know, who they trust, but it's also important that that person acts independently, and

so there's the balancing act. Somebody who the president believes in, who the president believes has a good sound judge and will act in the best interests of the country. But also there has to be the perception that the attorney general is not so close to the president, that the attorney general is not acting in the best interests of the country and maybe shading decisions in a way that

might be politically beneficial to the president. One of the people discussed as a possible candidate for attorney General is Sally Yates, the former Deputy Attorney General and the Obama administration. One of the top contenders is Sally Yate, who was fired by President Trump for refusing to defend his executive order banning entry to the United States for those from

Muslim majority countries. She is one of the people who a lot of career prosecutors uh currently in the office and former federal prosecutors like because she knows the inner workings of the office, she'll hit the ground running. She's well versed in the big national security threats that are currently facing the country, and she also the strong civil rights record, which is something that is clearly going to

be a top priority for the Biden administration. The main challenge in tackling these civil rights issues is going to be to find somebody who has credibility both in the civil rights community but also with police because ultimately, at the end of the day, in order to achieve any progress in this area, you have to work with both civil rights advocates and also police officers who are on

the front line in dealing with crime. So she's somebody who many people believe has those qualities and would make a good attorney general. Since civil rights, as you mentioned, and racial inequality is so much in the forefront these days, is it important to have somewhat of color perhaps in the role of attorney general. Well, there are some people who believe that someone of color should be the attorney general.

Daval Patrick, the former governor of Massachusetts, is in the running, but doesn't seem to be a top contender at this point. President Biden seems to be looking to people that he knows and trust and has has some history with, and that may be why daval Patrick is not on the top of the list. At the end of the day, you want somebody who has the trust of the people

who are going to be involved in these issues. Someone of color would certainly be sending a message to the public, to the country that the department is going to be run by somebody who is going to be sensitive to civil rights issues. But it's most important that the person has the trust of both sets of parties here, both the civil rights advocates and law enforcement, because that's the way progress is going to be made. Senator Doug Jones has been mentioned a great deal as a possibility. How

do you see his chances? Doug Jones, the Senator from Alabama, is a former U S attorney. He won a special election in seventeen but was recently defeated for the United States Senate in Alabama, who is a deeply Republican state. But he's at the top of the list because he's

known Joe Biden for forty years. He's also someone who has some credibility within the civil rights community because as the U. S. Attorney for the Northern District developed im he prosecuted to Ku Klux Klans members involved the nineteen sixty three church bombings in Birmingham. And he also has the virtue of somebody who is most likely to receive Senate confirmation, having spent one term in the United States Senate. He reached across party lines and actually has some significant

report from Republicans. So if President elect Biden is looking to pick somebody who is most easily going to be confirmed, Doug Jones maybe at the top of that list. The U. S. Attorney in Delaware has disclosed that there's an investigation into Hunter Biden for possible tax crimes. How much does that

complicate Biden's selection of an attorney general. This certainly ratchets up the pressure on the appearance of somebody who was going to be impartial, who's going to be independent, and is going to have some distance from the White House. The fact that there is a current investigation into a member of the president his immediate family is not something that the country has never faced. For example, Jimmy Carter's brother, Billy Carter, was investigated for lobbying for the government of

Libya while he Jimmy Carter was president. George Bush's son Neil Bush, was faulted by regulators in connection with the collapse of a savings and loan and President Bill Clinton ultimately partnered his own brother, Roger Clinton, for drug charges. So there is some history here for immediate family members of presidents being investigated while their family member is president of the United States. Mr. Trump's children have been caught

up in multiple legal matters during his presidency. For example, during the investigation of Special Counsel Robert Mueller, there was an allegation that Donald Trump Jr. Held a meeting with the Kremlin connected lawyer during the nineteen During the sixteen campaign, there was also an allegation regarding Jared Kushner, his son in law and senior advisor, who was stripped of his top secret security clearance. So there is this history here.

At the end of the day, what matters most is that there is a feeling that whoever is the Attorney general, and ultimately, however this matter is handled by the Attorney General's office, it is done fairly and partially and without

political influence. So on one level. President elect Biden has already stated that one of his major missions with the Department of Justice is to restore integrity, to restore the morale of members of the Department of Justice, and to restore the public space that the Department of Justice is acting independently and is not simply an arm of the

White House. But certainly the announcement of this investigation into his son's will put added pressure on anybody who is nominated for this position that during the confirmation process, we can expect that they will be asked questions about how they will handle this investigation going forward. Some people are suggesting that the new Attorney General appoint a special counsel to handle the Hunter Biden matter in order to cabin off this politically sensitive case. Are we appointing too many

special councils? Should the Justice Department just be able to handle these kinds of cases. There's been a history of appointing special counsel in any case in which there is an allegation that there's a conflict of interests between the Department of Justice and the investigation, So it happens all

the time. But there has been some concern that there have been too many special councils appointed, and that the Department of Justice ought to be able to handle politically sensitive investigations on their own through a number of means. For example, anybody who's involved in the case in some way re chooses them felt from that case, you can

have career prosecutors who run these cases. There have been past examples where the U. S. Attorney from the prior administration is allowed to stay on into the next administration to complete that investigation. That's exactly what happened. For example,

during the investigation into John Edwards. Eric Holder, who was then the Attorney General for Barack Obama, allowed the current U. S. Attorney in North Carolina who is investigating the John Edwards case, to stay on even though he was a Republican appointee,

until he completed that investigation. So many people believe that there are many mechanisms in place that will allow the Department of Justice to handle any kind of political politically sensitive investigation without necessarily going so far as to appoint a special counsel. I was looking at the most simplistic terms, Is it basically Joe Biden just going back in time four years with the Justice Department, or does he need to do more to overcome what's happened in the last

four years. Yeah, that's a great question. I think the answer is more has to be done because we're not now today where we were four years ago. There has been so much unprecedented criticism of both the career people within the Department of Justice career people at the FBI, that there's been a real erosion of confidence that the

public has in these institutions. And it's really important for the Department of Justice to function well, for the FBI to function properly, for federal prosecutors to be able to take cases to trial, that people believe that they're acting in good faith. They may not be perfect, and that's not to say that prosecutors don't occasionally make mistakes. They do, but there really needs to be the belief that they're acting in the pursuit of justice and that they're not

acting for some ulterior political motive. And so in order to restore that faith, I think the Department of Justice and whoever the next Attorney General will will be, will have to take extraordinary steps to try to bring people back to a place where they believe that the Department of Justice is fair, that those career people in the office are doing what's right for the country and that ultimately the goal here is to pursue justice and nothing

less and nothing more. There are questions about how the new Department of Justice should handle investigating President Trump or his inner circle, and some people have said that Biden has no appetite for investigating Trump and bringing that into his administration, but others say that the Department has to pursue criminal cases without fear or favor. What's your take

on that question. One of the most interesting challenges for the new Department of Justice will be the question of whether or not they will pursue any investigations into President Trump or his immediate family. There are those who say that nobody is above the law and that those investigations need to be impartially pursued. Whether there is anything ultimately to them or not, we just don't know at this point.

But there are also others, including President LEC. Biden, who wants to turn the page on this and move forward.

I think there are some who understand that any investigation into the Trump administration at this point will be so divisive and will further erode confidence that people have in the Department of Justice, and so that will be the ultimate question as they bounced decisions about whether to pursue those cases or whether to simply move on and bring the Department of Justice into the next phase where it's forward looking, trying to restore confidence, that is, pursuing cases

for reasons of justice only. Thanks for being on the Bloomberg Law Show, Bob. That's former federal prosecutor Robert Mints, a partner McCarter and English Attorney General William Barr is stepping down with a little more than a month left and the Trump administration. Bar cross President Trump on two issues in recent weeks, an investigation into Joe Biden's son and Trump's unsubstantiated claims of voter fraud in the election.

My guess is Brad mass Apartment Mark Zaide bar was one of Trump's greatest allies until he wasn't Do we know the full story yet of what happened been to cause him to resign or might we not know for a while. I certainly think it could be some time until we get the full details about I think it's certainly possible that William Barr was frustrated for a while about the President's public remarks that were sort of disrupting

and interfering in Justice Department investigations and operations. Saw that when the roger Stone matter came out and when the President was constantly tweeting about it and trying to publicly pressure the justicepartments to go easy on his former friend and ally roger Stone, and Bar went public about that about the frustrations, and we've seen that again going into the election and now in the aftermith with all the

voter fraud conspiracies. That while William Barr certainly was an ideological ally the president, when it came to the power of the executive branch and it's sort of ability to inflate itself from outside scrutiny, there were limits to what even he was willing to do, especially when it came to the idea of trying to pursue some voter fraud prosecution when the evidence complete isn't there, and that obviously

is what brought this to an end for him. What do you make of the toty ing in his resignation letter. I think that's certainly, you know, William Barr wanting to keep things civil and on, you know, a cooperative public faiths with the president. I mean, that's very much what people in this administration tend to do when they still have that is desire is to stay in Donald Trump's

good graces. You you talk him up, you flatter him, you talk about how great he is, and how great everything he did was, and how everyone who went after him was the evil in facing it all off, you know, lies. So William Barr still wants to be able to give speeches, will write books, or hold any kind of events to you know, still have a career, and not that they hasn't had already a lustrous one, but to still be able to make money going forward the next few years.

That he needed to stay in Donald Trump's good graces.

And that's what that letter did. Besides of our statements to a p about the validity of the election, another thing at angered President Trump is that Barr didn't publicly announce the ongoing two year investigation into Hunter Biden before election day, and right now AP is reporting that Trump has already consulted on the matter with White House Chief of Staff Mark Meadows and White House counsel Pat Cipoloni to see whether or not he can put a special

counsel in to investigate Hunter Biden. Yes, so, and again this was one of those things where William Barr's whole thing was about restoring the order and sort of the integrity of the Just Department. He felt that politics had become too imbued in it. The Bureau in particular with James Comeey and Andrew McCabe, whether not too or not, they felled. The Just Department under Lorella Lynch had gotten a little too close to the political side, and so that was sort of his view with how to bring

it back in line. Um, and so when the President got was pushing whether it was I'm sure privately as well else, but also you know, publicly to have details about this Hunter Biden probe disclosed that would run against

everything William Barr had stood for. Especially this was what had led to all the criticism of James Comey, who actually served as part of the basis for uh, the former Deputy Attorney General to to read that memo ordering Comy fired over having gone public about the details the Clinton investigation in twenty sixteen, making public overt moves on that investigation in the final days of the election, which a lot of political data analysts said helped to push

Trump over the top in those final days with independence and sort of the persuadable moderate Republicans, and so to have gone public with the Hunter Biden details, whether it was in twenty nineteen, long before the election itself and still be to disclose the existence of an investigation, which is something d o J doesn't do, or to have specifically done it in the final weeks of the election in hihilation of those very rules that had cost James

Comey's job, would have just defied everything William Barrs took for it, and so I'm sure that was part of what pushed him again over the edge, saying this is what I'm trying to restore. Whether or not there was anything to restore or not, it's a separate discussion, but this is what he was trying to stand for with the Department, and the president's um public remarks were undermining that. One also questions why there's been a two year investigation

into Hunter Biden over taxes. That seems pretty political. So looking at the reporting, and obviously we only know about what's come out with reporting, it sounds like the original scope of the investigation was broader than the taxes. Sounds like there was a money laundering aspect of potential foreign lobbying, an all manner of issues tied to hunter Biden's somewhat questionable private industry activities over the last few years, particularly

in Ukraine. And of course you know that also came up in the context of the impeachment Daga and the President trying to extore at the Ukrainian president to launch a public investigation. So it's certainly not surprising that the Just Department would have had an original, rap large, wide

ranging inquiry into this. But from the sounds of it, all that's left, all that they think is worthy of continued investigation is whether or not there is a tax matter here, and certainly committing a criminal tax felony is a serious issue, and if that is what hunter Biden did, then he should face all manner of criminal liability and

scrutiny for that, and he'll have his Dame Court. But the original concept and everything that the Trump team was trying to push out on Hunter Biden, that this was all tied to money for Joe Biden, in the end, none of that seems to be playing out in this do J Probs brad One of the greatest unrestrained powers that Trump has left now is the pardon power and their speculation that there's a January surprise being planned and that that was a reason why bar might have wanted

to get out as well. But after pardoning former National Security advisor Michael Flynn and commuting the sand tins of Roger Stone, aren't we sort of expecting Trump to pardon anyone associated with the Muller investigation. I think it'll even go further than that. But yeah, I think we can expect as we get into the final days of the Trump administration, when when you go past January six and then he last stand that his allies and Congress will make to try to stop um the certification of Joe

Biden as the president elect. When he knows that he's on his final days, he'll use anything and everything he wants from that power to just laugh out at What he needs is the deep state and all the people

who oppose them. So not only is it going to be you know, the Rudy Giuliani's and its family and people like that, kind of preemptive pardons of any number of federal probes that could be going on into them, but I would look to see a pardon of Edward Snowden that's been bandied about a lot, potentially Julian Assange, who we know was involved in leaking all the kinds of emails and documents in the election, and there's an

ongoing to fight over that. I would look for a ray change of highly controversial parts that Donald Trump can put up as fighting back against the evil deep State and just having fun trolling everyone who opposed him, because that's Donald Trump at the end. Well, Bar has been here before. He recommended pardons for Iran contra figures at the end of George H. W. Bush's term that ended

the investigation and so sort of insulated Bush. So I'm wondering whether the pardon that would really cause so much controversy that bar might want to get out from under it before it happens, is a self pardon that Trump might pardon himself. That's certainly possible that there's paperwork ordy been drafted and research, no doubt by the White House Council's Office of whether or not a self pardon would even work, whether it would hold up in court. I

would be shocked if the President doesn't do it. Anyways, even if it ultimately doesn't hold up. Just to have exercised the power anyway, just to try and shields himself from it, I'm sure that would, uh to an extent, would even upset someone like William Barr. My assumption is that that if there were incoming pardons that were truly upsetting William Barr, it's more along the lines of a potential one for Edward Snowdon and Rudy Giuliani. I think

those would truly have offended William Barr's particular sensibilities. Why pardon Edward Snowdon? So the snowdon't matter because it's partially because it ties into the President's The same for the intelligence community, in his view that there's overclassification, which of course he never actually takes steps to override, which he alone can do. He always backs down when it gets in the court um, and his view that the intelligent

community was always working against him. In Edward Snowdon, with his disclosures back in, had kind of taken the intelligent community up of the woodshed a bit um, exposing some of the grand jewels of the n S A s UM surveillance operations and capabilities, and so there would be again, just the ability to stick it to people he felt never really on his side. By pardoning Edwards Snowden, it would allow him to just jam one more, you know, uh uh, stake into the backs of the intelligence community

on his way out. And I think for him he'd view that as great TV because then he could try to coordinate with Vladimir Putin as a private citizen and helped bring Edwards Snowden back in some you know, arrival ceremony live for TV. Bar's top deputy, Jeffrey Rosen, the Deputy Attorney General, will step into the Justice Department's top

job in an acting role. Even though Rosen is not yet the acting Attorney General, President Trump is already talking about replacing him right According to the Associated Press, Trump is considering whether to replace Rosen if he doesn't appoint a special counsel and has even asked his lawyers whether he has the power to appoint a special counsel himself.

But the Hunter Biden investigation apparently involves several U S attorneys offices and FBI field offices, so it's not so easy, because I mean, there's limits to what he's going to be able to implement. At this late stage and with so little time left, the president can in theory do lots of things. He can order investigations, but he can't

prosecute criminal cases. If that's what he really wants the OJ to do, he could pressure d o J to appoint a special counsel to look in the Hunter Biden, but in the end, unless he's going to literally draft up the order himself, there's little he can do to truly make these individuals do it. A lot of the ones who have the ultimate authority right now are political people who are expecting that they're out the door anyways

in a few weeks. Uh, And in the end, they aren't going to feel much pressure in much at this point because they're already looking for where they're going to be come the beginning of February, and they're less concerned about trying to create some controversial order for a special council into the Hunter Biden. He finally, Bar has named Durham to serve as special counsel in the continuing FBI Russia probe. People have cited that as you know, a parting gift from Bar to Trump, But hasn't that probe

really gone as far as it can Is it going anywhere? Yeah? So, I mean when I saw that, I viewed it strictly as a projection. Almost this is this is very much what Donald Trump and Bill bar do. Some extent they assume everybody else will act the way they would in terms of how they would assert power. Donald Trump assumes everybody else cheats on their taxes and committee power because he knows that's what he does. Um. And so with William Barr, there's a concern that Joe Biden would come

in and just squash the investigation into Hunter Biden. There's no proof or evidence a reason to believe Joe Biden will do any of those things. And I would certainly oppose it if he did, and I'm sure others would too. But by creating the Special Council Provision, he makes it the Oilian farm made it a little more difficult, a little more politically risky, for Joe Bien to try to take any steps to do so. And as far as it concern, that's fine. If there's a crime there, prosecute

the crime. You want to write the report, write the report. But I don't see this going anywhere. That the President, a lot of his allies view this as as you know, some house and snaring people like Joe Biden. There's just no there there. Um. It might look bad, it might be politically damaging, but I don't see a crime outside of whatever Hunter Biden may have done with his taxes. Thanks Brad. That's Bradley Moss Apartment Mark Zad and that's

it for the edition of The Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com slash podcast Slash Law. I'm June Grosso. Thanks so much for listening. Please tune into The Bloomberg Law Show every week at ten pm Eastern right here on Bloomberg Radio.