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“Every administration tries to do it, one way or another. You always run out of time before you’re done doing everything you want to do,” said Doris Meissner, the Justice Department’s top immigration official under President Bill Clinton. “They did put a lot of things into place and it’s not just the volume, it’s the way they are interconnected and, we use the word layered. … The procedural stuff has been kind of hidden from sight.”
A spokeswoman declined to elaborate on what Barr has in store for his remaining days at the helm of the Justice Department. But DOJ observers are keenly watching to see whether Barr’s final days at the department produce new hurdles for the Biden appointees who will take the keys on Jan. 20. Here are five places they’re looking:
1. Personnel and burrowing
The end of an administration typically brings about a wave of departures and such an exodus is underway, but some curious late-term arrivals have spurred questions about whether the Justice Department still has some surprises in store.
In October, a controversial economist who has long promoted more widespread gun ownership, John Lott, was hired at the Office of Justice Programs as a senior adviser for research and statistics. He’s been the target of complaints from Congressional Democrats, who’ve criticized his research methods and disputed his findings.
And just in recent days, DOJ signed up the acting head of Commerce’s National Telecommunications and Information Administration, Adam Candeub, for a top post in the Antitrust Division. Candeub was named as deputy associate attorney general there starting Monday, POLITICO reported. The political appointment does not require congressional confirmation.
This is the season when some officials across the government may be “burrowing,” pursuing a longstanding tactic of taking a civil service job to avoid being shuffled out during a change of administration. Candeub’s slot is a political one, so he could be readily forced out by Jan. 20. DOJ has declined to say if Lott is in a civil service job or a political one.
One counterpoint: The Justice Department under Barr does seem to have resisted some alleged excesses in the White House’s ongoing effort to install loyalists in jobs across the government and police their actions. In recent weeks, Justice officials reportedly locked a White House liaison out of the headquarters building after she allegedly sought information on election fraud inquiries, but another complaint was that she’d extended job offers to political allies for top DOJ jobs without proper approvals and sought to engage in the hiring process for career positions.
2. A key court test for DACA looms
Barr has set his departure for one day after a major milestone in what could be one of the most momentous court challenges of the Biden administration: a lawsuit trying to finish off the Deferred Action for Childhood Arrivals program.
Biden seems certain to try to continue the program, but a federal judge in Texas who ruled against a related program several years ago is set to hear arguments on Tuesday — the day before Barr’s exit — in a Texas-led suit challenging DACA, which provides quasi-legal status and work permits to about 600,000 immigrants who entered the country or remained in it illegally as children.
The suit was brought by Texas and other red states, but the Justice Department under President Donald Trump has agreed that the program is illegal. (A Supreme Court decision in June blocked Trump’s effort to rescind DACA, but didn’t rule on its ultimate legality.)
There’s no sign Barr is micromanaging the litigation, but he has said he viewed Trump’s decision to shut down DACA as well-justified given grave doubts about the legality of the Obama-era executive action.
“Given that DACA was discretionary — and that four Justices apparently thought a legally indistinguishable policy was unlawful — President Trump’s administration understandably decided to rescind DACA,” Barr said last year.
DACA critics note that aspects of the program seemed intended by the Obama administration to make them hard to dismantle. At one point, DHS began sending out three-year work permits before Judge Andrew Hanen accused them of defying his order and forced them to be recalled.
If the courts ultimately strike down DACA, Biden may have to scramble for legislation to replace it. But some backers of Trump’s policy think the Biden team will find a way to use executive power to defuse the situation.
“None of these people are actually going to end up losing their work permits,” said Mark Krikorian of the Center for Immigration Studies, which favors restricting immigration. “There’s zero chance of that.”
3. Durham
Barr has already blindsided the incoming administration once, revealing recently that he had — back in October — elevated U.S. Attorney John Durham into a full-fledged special counsel investigating the origins of the FBI’s Trump-Russia probe. There have been signs that Durham is preparing some further investigative action, but it’s unclear whether anything of significance will be ready before Barr’s Christmas-eve-eve departure date.
Democrats have long viewed Durham’s review, initiated by Barr in 2019, as an effort at retribution by Trump for the Russia investigation, which later became special counsel Robert Mueller’s two-year probe. But by granting Durham special counsel authority, Barr has ensured that removing him would be no easy task, even in a Biden administration — and would certainly carry a heavy political cost.
Special counsels cannot be removed without good cause under the existing regulations, and while Biden’s Justice Department could revise those regulations, Republicans — who may still control the Senate next year — have promised to treat any such efforts as obstruction of justice. Trump himself was accused of obstruction for his efforts to constrain or remove Mueller, and Republican lawmakers have made clear they will respond in kind to any incursions on Durham.
But Barr’s departure also comes amid Republican pressure to name at least two additional special counsels: one to investigate Biden’s son Hunter’s foreign business dealings and one to examine unfounded claims of “irregularities” in the 2020 election process. Trump has endorsed both calls, but Barr has not indicated he’ll grant them.
4. Unsealing more secrets
Trump made a big show of last year of granting Barr sweeping authority to declassify documents related to the Trump-Russia probe, part of a counteroffensive he deployed to undercut the investigation.
Barr has, since then, released tranches of information that have helped bolster Trump’s claims, even if they have been selectively curated and edited.
In the aftermath of Trump’s election defeat, the president’s closest allies have urged him to unleash anything he might have held back in the months before the election. Trump responded favorably: “I have been doing this. I agree!” he tweeted, in response to a call from a supporter on Friday to “declassify everything.”
If Barr plans to bless a controversial document dump, his week-long denouement is his window. And in his resignation letter to Trump, he made clear that the president’s antipathy for the Russia probe was both a centerpiece of his tenure and a fury they shared.
5. Thorny cases for Biden team to tackle
The bread and butter of the Justice Department is litigation: criminal cases and civil suits. And a wide range of these will present tricky choices for the incoming administration. Changing the department’s position on them isn’t impossible. Under the Trump administration, U-turns in the Supreme Court became commonplace.
Criminal prosecutions of figures like WikiLeaks founder Julian Assange may not be ones Biden appointees would have brought, but they also may find them tough to back away from. So, too, for suits like the one the Justice Department filed against former national security adviser John Bolton for allegedly spilling secrets in his tell-all book about the Trump White House.
There are also hundreds of federal criminal cases stemming from the protests and civil unrest that followed George Floyd’s death earlier this year. Biden appointees could face criticism for dropping cases over assaults on police or damage to police cars, even if they are cases federal prosecutors rarely file.
Barr vocally endorsed those cases and he could add to the pile of criminal or civil litigation in the coming days in ways that Biden officials find uncomfortable.
There are also decisions looming on business-related litigation like antitrust suits against the tech industry. Two weeks before the election, DOJ sued Google, accusing it of illegally using its monopoly power in the search engine field. But Google critics want more, and a coalition of states is finishing an antitrust lawsuit against Google focused on its power in the online search market that could be filed this week.
Barr may wind up handing some of those final decisions off to his temporary successor, Jeffrey Rosen. The deputy attorney general has played a large role in antitrust matters anyway and may wind up deciding what the feds will and won’t do before Biden’s people take over.
Rosen’s friends say that if Barr passes the final decisions on some or all of those issues to him, don’t expect drama.
“Jeff is a very conservative guy. He’s politically experienced, but he’s not a game player,” said one Rosen ally who asked not to be identified. “He’s going to wrap up things they think should be wrapped up and can be wrapped up, but he’s not going to do anything strange.”
Leah Nylen contributed to this report.
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