Could Joe Biden's Best Answer to His Attorney General "Problem" Be a Republican?

Democratic National Convention via AP

Joe Biden has an Attorney General problem, and his name is not Bill Barr.

Hunter Biden is the “vexing” issue for which Joe Biden seemingly has no good answer.  An active and broad-based investigation of Hunter Biden — if no Special Counsel is named — will be a problem for a Biden Administration Attorney General because no subordinate Department of Justice Official is going to make a decision on whether or not to indict the son of a sitting President without the approval of the Cabinet Officer atop the Department.

Now, who would want THAT job?

Former Obama Administration Deputy Attorney General Sally Yates was thought to be the frontrunner in the immediate aftermath of Joe Biden appearing to be the winner.  But she was actively involved in the first seven months of the Crossfire Hurricane investigation, including meetings and discussions with many people who were key decision-makers in that matter.  She would certainly have to recuse herself as AG over the Durham Special Counsel investigation because she is a witness at least.  That sets up the possibility of a “Rod Rosenstein” problem for Joe Biden — now he would have no choice but to pick a Deputy Attorney General who has no connection to the final year of the Obama Administration, and who is otherwise not controversial in the perpetuation of the “Russia Hoax” over the course of the Trump Administration.

A very interesting question exists with regard to how much Durham will tell the Biden Transition team working on DOJ, because the scope of his investigation is likely to impact people the Biden team might want to consider for DOJ positions — including Attorney General.  Since a Special Counsel only consults with the Attorney General, Durham would probably be limited to speaking with whoever is named “Acting” Attorney General until a nominee is confirmed. Who might be named as “Acting” is anyone’s guess.

Soon-to-be former Alabama Senator Doug Jones has also been suggested as a potential nominee — maybe based on the expectation that his time serving in the Senate, and the fact that he had no involvement with the Obama Administration DOJ might make him easier to confirm.  He was the US Attorney for Alabama, but that was 20 years ago, during the final four years of the Clinton Administration.  That is a huge gap in time, and it’s a big step within DOJ to go from running the District of Alabama, to running the 100,000+ employee DOJ.

But with Hunter’s newly confirmed problems, Doug Jones might now have some complications. During his first two years in the Senate — 2017-2018 — he was on the Homeland Security and Governmental Affairs Committee.  That is the Committee Chaired by Ron Johnson that put out the report on Hunter Biden’s troubling business connections in Ukraine and China.  I’m not certain when the Committee first started the investigation into Hunter Biden, but Jones could face some difficult questions from the GOP members of that Committee regarding whether he agreed or disagreed with the reports issued.

Two new names mentioned in a Politico article on Saturday were Deval Patrick and Judge Merrick Garland.  Patrick was head of the Civil Rights Division during the Clinton Administration from 1994 to 1997.  In 2007, he was elected Governor of Massachusetts, and served two terms, meaning he, too, has no connection to the Obama Justice Department.

Judge Garland has been on the DC Circuit Court of Appeals for 23 years. But he was a prominent figure in the Clinton Justice Department, serving as the Principal Assistant Deputy Attorney General for Jamie Gorelick — whose authority in the Clinton Administration far surpassed anything Sally Yates accomplished in her time as Deputy Attorney General.

Judge Garland’s meaningful chance to ever be nominated to the Supreme Court has probably passed.  After 23 years on the DC Circuit, he might view this as a good opportunity to transition out of the Judiciary, and then after serving as AG move into a likely very lucrative private practice for the remainder of his career.

One name recently floated is New York Governor Andrew Cuomo.

I give that 0.00% of ever happening, for two reasons:

First, Cuomo’s performance as New York Governor in handling the COVID-19 pandemic would be a non-stop topic of discussion during confirmation hearings.

Second, Cuomo is planning a 2024 Presidential run and would challenge Kamala Harris who, if she’s not already President by then, will certainly be running as a “quasi-incumbent” for the nomination.  She is not going to want him anywhere inside the Administration in advance of such a contest.  Whether she’s got the pull with Biden to keep Cuomo out of the Administration is a good question, but I can’t see Biden creating an intra-Administration fight to succeed him by naming Cuomo to such a high-level position — unless it is intended to hinder Harris.

Which brings me to the headline of this story — how many problems does Biden solve for himself if he finds a GOP nominee who he can live with as Attorney General?  He had a long tenure on the Senate Judiciary Committee and worked with many Republicans as a result.  I don’t see anyone currently in the Senate who might fit the description of someone who would mollify the GOP on some of these problems, while at the same time being able to gain the acceptance of left-wing interest groups who will be expecting a Biden DOJ to take the lead on the issues like “police reform.”  But Pres. Trump did Biden a great favor by already passing “criminal justice reform”, and Biden can probably leave that alone.  He’s going nowhere near “Defund the Police”, so he doesn’t need someone open to that.

But the big problem with this option is simply the fact that Joe Biden himself is likely to become drawn into any investigation of Hunter Biden’s finances.  Having a Republican Attorney General, someone who will be responsible for overseeing the Hunter investigation — especially if it is handled by a Special Counsel — puts Joe Biden at the mercy of that person.  With a “loyal” Democrat Attorney General there is at least the prospect of the Attorney General being someone who will serve as a “brake” to limit the scope of any inquiry involving Hunter’s dealings in order to minimize Joe’s exposure.

It seems to me that Biden has no choice but to reach back to the Clinton Administration and pick Garland or Patrick.  Of the two, if he is prepared to leave the DC Circuit, the better choice would be Garland.