WILMINGTON, Del. — The Jan 6. Capitol riot and the pending Democratic control of both the House and the Senate are combining to test President-elect Joe Biden’s desire to avoid having investigations of his predecessor overshadow the start of his administration, according to multiple people familiar with the transition team’s discussions.
Some of President Donald Trump’s actions during his final weeks in office, including presidential pardons, could also influence the Biden administration’s approach to investigations that risk further dividing the country.
“It's a delicate balance, and I don't think that there is a full and complete answer to that question right now because no one knows the full and complete set of facts,” said former Sen. Doug Jones, D-Ala., Biden's longtime friend who worked with him four decades ago as a staffer on the Senate Judiciary Committee. “I just don't think you can say now, ‘Damn the torpedoes, full steam ahead with all these investigations.’ But at the same time, I don't think you can also say, 'let's let the president go to Mar-a-Lago.”
Biden aides had previously telegraphed the president-elect's desire not to see his time in office consumed by Trump-related investigations. But that was before the violent attack on the Capitol and the second impeachment that followed.
Jones, a former U.S. attorney who was on Biden’s short list to serve as attorney general, said that his conversations with Biden’s team about the position never once broached the question of how to handle Trump-related investigations.“I think I got as far as you could go in that process without getting the final call that you are going to be the nominee. And that never, ever came up,” he said.
When Biden announced his team to lead the Department of Justice on Jan. 7, he also offered one of his most stinging rebukes of his predecessor.
“The past four years, we have had a president who has made his contempt for our democracy, our Constitution, the rule of law, clear in everything he has done,” Biden said.
But, in the same moment, he sidestepped again one of the most fraught questions his administration will face starting Wednesday: how to answer growing calls to hold Trump or his administration to account for any wrongdoing.
In choosing Merrick Garland, a former Justice Department official who has spent the better part of his career as a federal judge, Biden aides say the president-elect was making clear his view that his Justice Department would chart its own course, free of political interference. Biden introduced Garland earlier this month as “a man of impeccable integrity” and “one of the most respected jurists of our time.”
“He said he wanted an independent attorney general. Well, it’s very difficult to be independent if you were any kind of player in a political environment,” one Justice Department veteran said. “Really, only a judge who was hived off from politics can be completely independent.”
In one of several executive orders Biden is expected to issue this week, he will make clear that political appointees in the executive branch must never exert influence over any investigations, a transition official told NBC News.
Biden has repeatedly emphasized he would not give any direction to the attorney general about what matters to investigate — or not. The attorney general is expected to be personally read in on every investigation that involves Trump or his relatives or associates, according to two people familiar with the discussions.
That means preserving a firewall between Biden’s White House and the department. The Biden team is concerned about leaks about any federal investigations and is determined to keep them, as one official quipped, in a “black box.”
Trump’s handling of pardons is an aspect of his presidency that’s become more likely in recent days to receive scrutiny after he leaves office, one person familiar with the discussions said.
And even as the Justice Department charts its own course, the Biden White House can play a key role in advancing a myriad of long-bottled up congressional investigations into the Trump administration.
Congressional Democrats are already planning to resubmit their requests for documents and information on a host of issues — particularly Senate Democrats who will regain the majority Wednesday.
But one transition official expressed concern that unleashing a flood of subpoenas in a way could allow Republicans to argue they are simply just trying to find something to show wrongdoing by the Trump administration. It also could distract from governing and advancing Biden’s agenda, the official said. “They’re going to have to coordinate,” the official said of congressional Democrats. “If you go after everything, you look like you’re piling on.”
A top investigator for the soon-to-be Senate majority leader, Chuck Schumer, D-N.Y., is expected to move to a White House role that could help streamline those requests — and ensure greater cooperation from Cabinet agencies in particular to comply with them.
Sen. Sheldon Whitehouse, D-R.I., who is in line to be chairman of the Judiciary Subcommittee on Crime and Terrorism and previously served as Rhode Island’s attorney general, said a first test of the Biden administration will be ending the “blockade of information” from Capitol Hill.
“The Biden Cabinet should be under very firm instructions to rapidly and honestly answer questions from Congress with a priority on the pent-up questions from Democrats in Congress that were deliberately ignored by Trump officials with the full support and connivance of the White House,” he said. “It was clearly policy to refuse to answer questions and to ignore requests. And that policy now needs to be reversed.”
Whitehouse, though, suggested that the Justice Department should consider creating an independent, or at least bipartisan panel of distinguished agency veterans or former judges to help shoulder the burden of its Trump-related investigations.
“You can have a cleanup effort that runs beside the regular operations of the department,” he said, “so there's really not a conflict between going forward and understanding the damage that was done.”
Jamie Gorelick, who served as deputy attorney general in the Clinton administration, said that taking any such probes outside a regular department process would be a mistake.
“The Department of Justice has plenty of independent and fair-minded people in it,” the official said. “I think it is distorting to the system of justice to take it out of the normal process.”
“I have great faith in the career people at the Department of Justice to be able to do those cases and I don't see that a special counsel is necessary because there's really no conflict with the administration,” he said. “If there are criminal acts, they need to be prosecuted.”