WASHINGTON – President Joe Biden took office this week facing a series of legal complications left by former President Donald Trump.
Each presidential transition involves decisions about how to roll out policies that the new administration does not support, but the Trump era was unusual in how many actions taken by the last administration – not to mention Trump’s personal legal messes – are still in court with government lawyers in the mix. . Less than a day after Biden’s oath, judges in these cases began issuing orders asking the Justice Department to explain what would happen next.
In many cases, it won’t be as simple as government lawyers raising their hands and saying the department has made a mess of Trump. Biden and his new political appointees may disagree with Trump’s policies, but Justice Department lawyers will be cautious in saying that the former president and government officials had no legal authority to adopt them and that the DOJ was wrong to defend Trump individually against legal exposure issues while he was in office. The department has long struggled to protect the flexibility of any White House to exercise its power, as well as to protect the president.
“Your first instinct as a new politician [appointee] it’s just saying, ‘Forget it, we were wrong’ and get rid of that litigation, and you’re immediately hit by people who say, ‘You can’t do this,’ ”said Ian Gershengorn, who led the Department of Federal Programs Section. Justice at the beginning of former President Barack Obama’s first term in 2009. “They claim that our job and the Department of Justice’s job is to defend the presidency and not the president.”
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The Biden government is facing cases that stem from Trump’s far-reaching exercises in executive power on everything from immigration to regulating social media platforms, as well as mixing his personal legal problems with his position as president. The Biden government will now have to decide what to do.
A few weeks after Trump lost the election, the Justice Department appealed a decision denying his effort to take Trump’s personal defense against a defamation suit filed by a writer who accused him of rape. Last year, then-candidate Biden criticized the DOJ’s involvement in the defamation process of writer E. Jean Carroll, saying that Trump was trying to turn the department into his “own law firm”. A judge refused to allow the government to take on Trump’s defense against the Carroll lawsuit, and the Justice Department filed an appeal on November 25, along with Trump’s private attorney; the department argued that there were broader institutional interests, in addition to Trump’s personal involvement in the case, about when federal officials can be prosecuted. The case is still pending.
There are also longstanding litigations in the California federal court on behalf of families separated at the border by the Trump administration. A judge will continue to oversee and oversee government efforts to locate parents, reunite families and find out what happens to children who remain in the United States. The Biden government will also have to respond to new lawsuits from plaintiffs who claim to have been harmed by these Trump policies – on Friday, a lawsuit was filed on behalf of a father and son who were separated at the U.S.-Mexico border in 2018 , seeking compensation from the US government for this trauma.
A Justice Department spokesman declined to comment on how new employees are sorting out pending Trump-era cases.
Some cases will be easier to close than others. Biden this week overturned a series of executive orders from Trump that are still the subject of active litigation; this could make these cases debatable and offer the Department of Justice a clean outlet. In his early days in office, Biden rescinded Trump’s policies, including the national emergency declaration that allowed him to redirect federal funds to build a border wall; excluding undocumented migrants from Census data; the travel ban that applies widely to Muslim-majority nations; and restrictions on diversity and racial sensitivity training for federal employees and government contractors.
Biden signed a memorandum on his first day in office instructing the Department of Justice and the Department of Homeland Security to “preserve and strengthen” the Deferred Action for Childhood Arrivals program; the Supreme Court revived the program after Trump tried to end it. But a lawsuit challenging the DACA filed by the Texas attorney general’s office is pending and it is unclear what effect Biden’s memorandum will have on this – during a hearing last month, United States district judge Andrew Hanen in Texas signaled that he does not think Biden is taking office would change the legal stance of the case.
“How they can change what happened eight years ago,” said Hanen, according to the coverage of the hearing by Politico.
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Biden’s immediate suspension of Trump’s policies is also already spurring legal action of his own – Texas Attorney General Ken Paxton, a Trump ally, announced on Friday that he sued over Biden’s temporary freeze on deportations while the new government reviews the immigration policies they inherited.
For rules and regulations that Biden cannot quickly withdraw through executive action, the Justice Department will likely ask judges to suspend proceedings while authorities use normal channels to undo them, which can take months or even years. There are dozens of cases in federal courts across the country challenging Trump-era policies and personnel decisions, including a series of immigration restrictions; The reversal of Trump’s rules protecting LGBTQ people, consumers and the environment; the dismissals of Andrew McCabe and Peter Strzok, former senior FBI officials involved in the Russian investigation; his decision to label New York, Seattle and Portland as “anarchist jurisdictions”; and its revival of the federal death penalty.
The Justice Department can reverse the course and change its position in the middle of a case; it happened under Obama and under Trump. But this approach can create a new set of problems. There is a risk of giving up a point or presenting an argument that could be used against Biden in the inevitable judicial challenges to his administration; the risk of judges questioning how to give weight to contradictory government positions; and the risk that Republican state attorney generals and other external parties will intervene to resume advocacy for Trump-era policies once the federal government has moved away.
Washington State Attorney General Bob Ferguson, a Democrat who has filed several lawsuits against the Trump administration over the past four years, released a statement on Thursday making it clear that his office would continue to press the cases on Trump’s actions until that the policies in question were formally withdrawn or they won in court.
“It is too early to know how the Biden administration or Congress intends to address each topic, but you can be sure that we will not abandon this work until we have a complete resolution,” said Ferguson in a follow-up statement to BuzzFeed News.
Acting officials are taking on leadership positions in the Justice Department until Biden’s nominees are confirmed; the Senate has yet to schedule hearings for Judge Merrick Garland, Biden’s nominee for Attorney General and a handful of other high-profile positions. No candidate has yet been announced to lead the Civil Division, which deals with most litigation against the government; employees learned this week that Brian Boynton, who had served in the department under Obama, would be taking over in the meantime.
And there are cases that concerned Trump on a personal level, including Carroll’s defamation suit. Justice Department officials under Biden will have to decide whether to drop these cases and, if so, how to do so.
The Justice Department has a pending petition asking the U.S. Supreme Court to reconsider decisions against Trump in the fight over whether he violated the Constitution by maintaining his commercial interests during his term, and there are still active cases in which the DOJ supported the disputes over Trump to the subpoenas issued by Congress and the New York district attorney’s office for his financial records and the testimony of former White House officials in the first impeachment investigation. It was not immediately clear what will happen with these cases and the Justice Department’s role in them, now that Trump is no longer president.
On January 19, Trump’s last full day in office, the Justice Department filed a petition with the Supreme Court saying that a pending case on whether Trump, as president, could block criticism on Twitter would become debatable once Biden took over. office. But the department also asked judges not to comply with the lower court’s ruling against Trump, arguing that this would maintain the precedent in the books “harmful … to the Presidency itself and other government officials”. That petition was signed by Jeffrey Wall, who served as acting head of the attorney general’s office during Trump’s last few months in office; on Wednesday, Wall was replaced by the lawyer hired by Biden to serve as the new interim attorney general, Elizabeth Prelogar.
The lawyers who sued Trump filed papers on Thursday, arguing to keep the previous decision intact, saying that any future action on how Biden and his administration managed Twitter would be judged on its own terms, but that the opinion in the Trump case provided “a sensible structure” for future presidents to use the platform. Judges were scheduled to consider whether they would take the case at their conference on Friday.