New Senior DOJ Vacancies Force Quick Biden Decisions in Senate

The Biden administration is running short on time to fill three newly-created top Justice Department vacancies with Senate confirmed leaders as the 2024 election approaches.

The White House this month announced a nominee to head the Office of Legal Counsel while the Criminal Division and the Office of Legal Policy await word about who might be nominated to lead them.

Acting heads often fill such roles on an interim basis and both the Civil and Tax divisions have had interim leadership throughout Biden’s tenure. Getting permanent leadership in any of the slots, including the three roles vacated this summer, will become harder the closer it gets to the end of President Biden’s first term.

The departures of three assistant attorney generals at an advanced stage in Biden’s first term force tough decisions on DOJ and the White House on which openings to prioritize for confirmation battles and which offices can thrive with acting officials in charge.

“You have to think about the challenges of the confirmation process and the collision between DOJ nominees and the confirmation of judges on the Senate Judiciary calendar,” said Jamie Gorelick, who was deputy attorney general in the Clinton administration and is closely aligned with Attorney General Merrick Garland. “It’s just very hard.”

The Criminal Division opening, the most public-facing of the three and overseeing the largest bureaucracy, is likely to receive a nominee in the coming weeks, predicted several DOJ observers. Any later into the fall, however, would make it tough to include a nominee in the traditional end-of-year package negotiated to give expedited confirmation votes to political appointees throughout the federal government.

“I know they are looking for a head of the Criminal Division because I know some people who have talked to them,” said Gorelick, who now chairs the regulatory and government affairs department at WilmerHale

Even though OLC has a head start, it’s no given that the Senate will devote time this year to vote on nominee Christopher Fonzone, currently the general counsel at the Office of the Director of National Intelligence. If the confirmation process for any of the appointments drags into 2024, that would only add to the difficulties, former department officials said.

“The sense was that no one would be doing any favors to an administration that was trying to get folks confirmed in the last year,” said William Levi, who was chief of staff to Attorney General Bill Barr in the Trump administration’s final year. “I assume that will be the same this cycle. And so they shouldn’t expect an easy process in the same way that we didn’t see one.”

A Justice Department spokeswoman declined to comment on the vacancies.

Quiet Exits

The department is balancing the political hurdles of confirmation against the benefits for each component’s mission of having a Senate-confirmed leader.

The Criminal position opened when Kenneth Polite stepped down in August for a return to private practice. His exit drew more public attention than Hampton Dellinger’s departure from the Office of Legal Policy in June and Christopher Schroeder’s July retirement from OLC.

The prominent litigating division, with responsibility for prosecuting a wide range of white-collar and violent crimes, is now run on a temporary basis by Nicole Argentieri, a veteran Brooklyn prosecutor who Polite initially hired last year as his chief of staff.

Meanwhile, Legal Policy has the smallest staff of the three and has undergone previous periods without a Senate-confirmed head. Through functions of reviewing all DOJ regulations, advising the attorney general on policy, and coordinating judicial nominations and confirmations, the office can have considerable reach.

But OLP lacks enforcement or litigation duties, nor does it get tasked to draft urgent legal opinions. That makes expediting a nominee less of a priority, multiple former DOJ officials said.

The sequencing of OLC as the first DOJ agency to receive a White House selection doesn’t necessarily equate to its ranking in significance. Fonzone was already vetted and Senate confirmed earlier in this administration for ODNI, facilitating a faster appointment.

That said, the legal office’s responsibilities handling difficult legal questions made it unsurprising for the Biden administration to move with haste, said lawyers who’ve overseen past DOJ confirmation battles.

OLC addresses “legal issues for which there has literally never been a definitive answer on, and I think that, when the office is puzzling through what the right answer is for the whole executive branch, it is really helpful to have leadership that has the imprimatur of being Senate confirmed,” said Emily Loeb, who handled the congressional portfolio as an associate deputy attorney general earlier in the Biden administration.

Credible Actings

Another consideration is the credibility of the new acting heads and their relationships with career staff and DOJ leadership.

For instance, Susan Davies, the former OLP deputy who took over as acting in June, has a long history at DOJ and is a mentor to many at department headquarters, several former DOJ officials said. She’s also known Garland for years.

OLC’s interim head, Benjamin Mizer, is similarly perceived as highly capable inside the building from his stints as principal deputy to current Associate AG Vanita Gupta and acting Civil Division AAG in the Obama administration.

Anthony Coley, who was the public affairs director under Garland until earlier this year, said he sees the impediments of having multiple new acting chiefs. But he pointed to the respect accorded to Civil Division longterm interim leader Brian Boynton as a reason he’s not overly concerned.

“It certainly does serve some level of benefit,” Coley said of the desire to find Senate-approved picks, but 2.5 years into an administration, there’s already a “rhythm.”

“In some cases,” Coley added, “it might make sense to just keep the acting leadership in place.”