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Acting Civil Division Chief Faces Thorny Red State Tests Ahead

Sept. 7, 2022, 8:45 AM

The temporary leader of the Justice Department’s largest litigating division is outlasting his expected tenure without becoming a target of the left or right while facing off against red states over abortion, guns, and immigration.

Brian Boynton, who has quietly helmed DOJ’s Civil Division since President Joe Biden’s inauguration, is technically a political appointee. But he’s one who past colleagues say manages as an institutionalist caretaker, not an advocate.

In his court filings and oral arguments on some of the nation’s most divisive issues, the First Amendment specialist has repeatedly balanced Biden’s policy goals against DOJ’s desire for consistency before judges. That’s meant staking out positions that both parties have criticized, whether it’s defending former President Donald Trump in a defamation suit brought by a woman accusing him of rape or supporting the House Jan. 6 committee’s right to obtain Trump’s records from the National Archives.

“He’s not an agenda-driven person. He’s a person who cares about the law. And I think in the Civil Division, almost as much as anywhere else, there’s an appreciation for people who take the law seriously and understand the government’s role,” said David Ogden, who ran the Civil Division in the Clinton administration and was Boynton’s partner at Wilmer Hale.

Avoiding public scrutiny could become more difficult in the months ahead as litigation between the Justice Department and Republican-led states intensifies.

Boynton has stayed on as interim assistant attorney general longer than intended after the administration’s first nominee, Javier Guzman, bowed out abruptly in July 2021. The White House has been in no hurry to name a replacement to undergo the Senate confirmation process, although Boynton is unlikely to get picked, said four sources familiar with the selection process

The department declined to address Boynton’s future or whether it plans to nominate a new Civil Division leader.

“Brian Boynton is successfully leading the Civil Division as it litigates extraordinarily complicated cases and protects the government’s interests,” Associate Attorney General Vanita Gupta, who oversees the division, said in a prepared statement.

DOJ didn’t make Boynton available for an interview.

Established Relationships

Much of the Civil Division’s work, such as suing companies for fraudulently billing the government for services, is politically neutral or involves defending agency actions, which isn’t discretionary.

Boynton inherited a team of 1,000 plus lawyers previously led on an acting basis by Jeffrey Clark, who made headlines for plotting to overturn the 2020 election to keep Trump in office.

Boynton didn’t directly address Clark’s tenure, instead beginning his service by seeking out the opinions of career attorneys and deferring to their expertise, two former DOJ employees recalled.

He lacks the clout of a Senate confirmation, which can be useful when the Civil chief is tasked with resolving disputes among agencies and with the White House. But Boynton joined the Biden administration with established relationships formed during prior service in the Justice Department under Barack Obama. He was a deputy in the Office of Legal Counsel and a counselor to Attorney General Loretta Lynch. Boynton has worked closely with Stuart Delery, who is now Biden’s White House counsel.

In his current role, Boynton has routinely helped decide whether to revise Trump-era legal positions while protecting the executive branch’s interests for future administrations.

He signed a brief maintaining the prior administration’s defense of Trump in a defamation suit, arguing that Trump’s comments about plaintiff E. Jean Carroll were “crude and disrespectful” but were still protected because they came as part of his government service.

Boynton subsequently declined to intervene on behalf of Rep. Mo Brooks (R-Ala.) in response to a lawsuit accusing him of inciting the Jan. 6 Capitol mob. This time, Boynton said Brooks’s pre-insurrection speech was campaign activity conducted in his personal capacity.

In his brief and oral argument before the US District Court in DC, Boynton made the case that Brooks isn’t immune to civil liability. He stated it would be inappropriate for the government to defend Brooks while never taking a view on whether his remarks did in fact instigate the riot as the plaintiff, Rep. Eric Swalwell (D-Calif.), had claimed.

Such politically-sensitive decisions are often made by the attorney general, not a Civil Division head. It’s unclear who made the ultimate call on the Trump cases, but Boynton, unlike some previous acting Civil Division chiefs, does have the ear of Attorney General Merrick Garland and other top DOJ leaders, said Rupa Bhattacharyya, a veteran senior career official in the division who left in April.

Biden Priorities

Although former coworkers in and out of government say Boynton favors restraint over splashy litigation aimed at a political outcome, his moves so far suggest a willingness to advance Biden priorities.

The Civil Division has sued Republican-led states over orders banning the transport of migrantsnd local enforcement of federal gun laws. More recently, Boynton filed suit against Idaho’s law restricting abortion access, convincing a judge to temporarily freeze part of the policy.

Boynton could face even thornier cases as Republican-led states take further advantage of recent Supreme Court decisions to restrict abortion access, allow concealed firearms in public, and challenge the administration’s rulemaking authority.

If Republicans take majority control of either chamber of Congress this fall, the Civil Division would defend the president and White House staffers from any subpoenas. Boynton could also face pressure from the left for more aggressive action to combat conservative causes.

His allies say Boynton’s non-ideological nature makes him uniquely suited to navigate the Civil Division through potential challenges ahead.

“I worked closely with Brian for years and I don’t think I ever heard him express a political opinion about anything,” said Reginald Brown, a Republican attorney who practiced with him at Wilmer Hale. “It will be very hard for anyone to demonize Brian or dismiss him as a partisan. If Attorney General Garland has a younger doppelganger, it’s Brian Boynton.”

Boynton has been an “effective administrator” while keeping his “head down low,” said Stuart Gerson, the Civil Division’s assistant attorney general under President George H.W. Bush. But as political conflicts intensify, prompting the administration to consider more DOJ-initiated litigation, “it’s sensible to have a confirmed assistant attorney general there,” Gerson added.

For the foreseeable future there are no signs of a leadership shakeup.

“It’s a very, very busy job and part of me feels sorry for Brian,” Bhattacharyya added, “that he has to do this incredibly hard job without even the title behind his name and no ‘honorable’ going forward.”

To contact the reporter on this story: Ben Penn in Washington at bpenn@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com