Democratic presidential candidate Joe Biden has made a number of pledges that will see the Justice Department shift vastly from the one under President Donald Trump, especially in the area of civil rights and policing.
Biden this week told reporters that, if elected, he plans to bring the DOJ’s civil rights division into the White House as a way to “elevate its standing” and will ensure that the division’s presence will be elevated in the department so that it will have “access and transparency” into all police department activities across the country.
“I’d make sure there’s a combination of the Civil Rights Division having more direct authority inside the Justice Department and be able to investigate, than in fact it has now,” he said while speaking at an economic summit for black business people in Charlotte, North Carolina, on Wednesday.
Trump and Biden have offered divergent views on civil rights issues, especially in relation to law enforcement. Since taking office, the Trump administration has rolled back a number of Obama-era civil rights enforcement tools and limited the role of the federal government in these areas while focusing the department’s energy on upholding constitutional freedoms.
The Trump administration has repeatedly expressed support for police officers and has committed resources and funding to assist in reducing violent crime across the country. Trump and Attorney General William Barr have both condemned calls to “defund the police” and are against limiting legal protections from civil lawsuits against police officers. Trump’s Justice Department has reinstated the death penalty and has instructed federal prosecutors to charge defendants with the most serious and provable crimes.
Yet the Trump administration is open to police reform and has taken steps to address issues of police misconduct, which officials have said are often isolated instances. Trump signed an executive order on police reform in July, which encourages the use of the latest standards for use of force and sending social workers to some police calls geared toward homeless people and people with mental health and addiction problems.
The Justice Department has also launched several civil rights investigations to see whether officers in recent shootings involving African Americans violated any federal laws. Moreover, Barr believes that there is work to be done to restore the confidence of black communities in law enforcement but does not believe police departments are systematically racist, as has been claimed by a number of politicians and groups.
The Biden campaign, in contrast, has highlighted “racial, gender, and income-based disparities” in policing and the criminal justice system as a priority area to address, pledging to bring back the Obama-era pattern-or-practice investigations and consent decrees to address allegations of systemic police misconduct.
Biden has previously said that he does not support defunding police departments but is in favor of conditioning funding such as Byrne grants to departments based on their willingness to adopt reforms. Byrne grants are “the leading source of federal justice funding to state and local jurisdictions,” according to the Justice Department.
“If they don’t eliminate chokeholds, they don’t get Byrne grants; if they don’t do the following, they don’t get any help,” Biden said in an interview with NowThis in July.
The Democrat nominee has also vowed to award $300 million in grants to focus on community-oriented policing, through the Community Oriented Policing Services (COPS) program. The Trump administration has also awarded multiple grants to the COPS program, with a recent focus to allow local and state agencies to hire more law enforcement professionals and expand community policing initiatives.
On the other issues, Biden has pledged to eliminate the death penalty, to decriminalize the use of cannabis and expunge all prior cannabis use convictions, and to make it easier for individuals to sue police officers for civil claims by limiting qualified immunity. He is also advocating to broadly use clemency for certain nonviolent and drug crimes.
“There will be a new enthusiasm towards enforcing civil rights allegations and violations,” Professor Jeff Swartz told The Epoch Times. Swartz teaches criminal law and criminal procedure at Western Michigan Cooley Law School and is currently on the Biden campaign’s legal team for the west coast of Florida.
Swartz, who served as a county court judge for Miami-Dade County, Florida, said that he believes a Biden DOJ will make “some real efforts” in enforcing the federal civil rights statute, which poses some challenges for prosecutors.
“The statute right now is very narrowly drawn, it is very difficult to enforce it,” he said. “Because it is so narrowly drawn, prosecutors have to jump through tremendous hoops to prove things that are very difficult to prove … in particular, in the criminal justice area.”
Swartz said a potential Biden DOJ would also bring some uniformity in the way police departments are investigated in order to ensure that “there is not at least discernible systemic racism or bias in the way that the police do their job,” through reinstating consent decrees.
These agreements between the Justice Department and a police department with allegations of misconduct allow for greater federal oversight over the targeted police department, but were criticized for tying down local police departments and making their work more difficult.
John Feehery, a Republican strategist and columnist, told The Epoch Times that he believes prosecutors would be more active under a Biden DOJ but their enforcement would go beyond seeking accountability in policing. He said prosecutors would likely have a large appetite in enforcing environmental and voting issues, and cases against corporations. He added that this would likely make businesses go on the defensive, which could result in a slowdown of the economy.
“If businesses have to hire lawyers instead of hiring employees, you know, they don’t invest in economic growth, they invest in trying to protect themselves from lawsuits,” he said.
Feehery also said Biden, who he believes isn’t really anti-police, is likely trying to appeal to the far-left by pushing his police reform agenda. Communities could see a decline in public safety as a result, he said, as police officers may lose their confidence in the government providing the support needed. A number of police departments have already seen a drop in morale amid the George Floyd protests and calls for defunding police.
Meanwhile, Trump has chosen to run on a law-and-order platform as his re-election strategy. He promises to fund and hire more police and law enforcement officers, increase criminal penalties for assaults on police officers, prosecute drive-by shootings as domestic terrorism, bring violent extremist groups like Antifa to justice, and end cashless bail.
A number of police organizations have endorsed Trump for re-election including the nation’s largest police union, the Fraternal Order of Police, and New York’s Police Benevolent Association, which represents tens of thousands of New York City police officers.
Criticisms of Trump’s DOJ
Biden has sought to contrast how he would run his DOJ with Trump by stating that it would be “totally independent” of him. Trump’s DOJ has received criticism for a number of decisions involving politically sensitive high-profile cases involving Trump associates, such as former political adviser Roger Stone and former national security adviser Michael Flynn, as well as the dismissal of U.S. Attorney for the Southern District of New York Geoffrey Berman.
Critics have accused Barr of acting as the president’s personal attorney and politicizing the DOJ. Meanwhile, many former DOJ employees have also expressed concern over the cases.
Barr defended his decisions to intervene in those cases, saying that he was never directed by the president to get involved and that his decisions were influenced by his responsibility to uphold the rule of law and to apply a consistent standard of justice across the board.
Last week, the attorney general delivered a rebuke toward some federal prosecutors who he says are too invested in prosecuting prominent public figures, rather than serving justice to the people.
Barr said it was thus important to have layers of supervision to evaluate the conduct of individual prosecutors in order to ensure that the “fair-handed administration of justice” is being delivered.
“Individual prosecutors can sometimes become headhunters, consumed with taking down their target. Subjecting their decisions to review by detached supervisors ensures the involvement of dispassionate decision-makers in the process,” Barr said.
On Wednesday, Biden leveled criticism at the Justice Department during his speech, calling it the “Department of Trump,” while taking issue with the department’s decision to defend Trump against rape accuser and columnist E. Jean Carroll.
Biden said that he would stay out of prosecutorial decisions and leave it up to his attorney general, implying that that’s not the case with Trump. “The Justice Department, under my administration, will be totally independent of me. I will not direct who to prosecute, how to prosecute, what to prosecute,” he said.
Swartz said this would be “bringing morale back to the department,” which he believes, after talking to former DOJ employees, had taken a hit due to discontent under the direction of the current administration. He said that if Biden is elected, he would “recreate the type of Department of Justice that we had for decades” before Trump came into office.
Meanwhile, Feehery said he expects Biden to have a “cozier relationship” with the DOJ because bureaucrats are likely to be less adversarial toward political insiders. He said Biden’s career in Congress, on the Judiciary Committee, and in the White House would likely mean that there would be more people who would be politically loyal to him in the department.
“I think that [Attorney General] Barr has been trying to get control over the bureaucracy, [while] I think Biden will be much cozier with the bureaucracy,” he said.