Every presidential transition involves decisions about how to unwind policies that the new administration doesn’t support, but the Trump era was unusual in just how many actions taken by the last administration — not to mention Trump’s personal legal messes — are still in court with the government’s lawyers in the mix. Less than a day after Biden was sworn in, judges in these cases began issuing orders asking the Justice Department to explain what happens next.
In many cases, it won’t be as simple as government lawyers throwing up their hands and saying the department messed up under Trump. Biden and his incoming political appointees may disagree with Trump’s policies, but Justice Department lawyers will be wary of saying on the record that the former president and administration officials lacked legal authority to adopt them at all and that DOJ was wrong to defend Trump individually against legal exposure while he was in office. The department has long fought to protect the flexibility of any given White House to exercise its power, as well as to shield the president.
“Your first instinct as a new political [appointee] is just to say, ‘Forget it, we were wrong,’ and get rid of that litigation, and you are immediately hit with the career people who say, ‘You can’t do that,’” said Ian Gershengorn, who led the Justice Department’s Federal Programs Branch at the start of former president Barack Obama’s first term in 2009. “They make the point that our job and the job of the Justice Department is to defend the presidency and not the president.”
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The Biden administration is taking on cases that stem from Trump’s far-reaching exercises of executive power on everything from immigration to regulating social media platforms, as well as the mingling of his personal legal troubles with his position as president. The Biden administration will now have to decide what to do.
A few weeks after Trump lost the election, the Justice Department appealed a decision denying their effort to take over Trump’s personal defense against a defamation lawsuit brought by a writer who accused him of rape. Last year, then-candidate Biden criticized DOJ’s involvement in writer E. Jean Carroll’s defamation suit, saying Trump was trying to turn the department into his “own law firm.” A judge refused to let the government take over Trump’s defense against Carroll’s suit, and the Justice Department filed an appeal on Nov. 25, along with Trump’s private attorney; the department argued there were broader institutional interests, beyond Trump’s personal stake in the case, about when federal officers can be sued. The case is still pending.
There’s also longstanding litigation in federal court in California on behalf of families separated at the border by the Trump administration. A judge will continue to oversee and enforce the government’s efforts to locate parents, reunify families, and figure out what happens next to children who remain in the United States. The Biden administration will also have to respond to new lawsuits from plaintiffs alleging they were harmed by those Trump policies — on Friday, a lawsuit was filed on behalf of a father and son who were separated at the US–Mexico border in 2018, seeking damages from the US government for that trauma.
A Justice Department spokesperson declined to comment on how incoming officials are sorting through pending Trump-era cases.
Some cases will be easier to wrap up than others. Biden this week revoked a series of Trump executive orders that are still the subject of active litigation; that could make those cases moot and offer the Justice Department a clean exit. In his first days in office, Biden rescinded Trump policies including the national emergency declaration that allowed him to redirect federal funds to build a border wall; excluding undocumented immigrants from Census data; the travel ban that largely applied to majority-Muslim nations; and restrictions on diversity and racial sensitivity training for federal employees and government contractors.
Biden signed a memo on his first day in office directing the Justice Department and Department of Homeland Security to “preserve and fortify” the Deferred Action for Childhood Arrivals program; the Supreme Court had revived the program after Trump tried to end it. But a lawsuit challenging DACA brought by the Texas attorney general’s office is pending, and it’s not clear what effect Biden’s memo will have on that — during a hearing last month, US District Judge Andrew Hanen in Texas signaled that he didn’t think Biden taking office would change the legal posture of the case.
“How can they change what happened eight years ago,” Hanen said, according to coverage of the hearing by Politico.
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Biden’s immediate halt of Trump policies is also already spurring legal action of its own — Texas attorney general Ken Paxton, a Trump ally, announced Friday that he had sued over Biden’s temporary freeze on deportations while the new administration reviews the immigration policies that they inherited.
For rules and regulations that Biden can’t swiftly pull back through executive action, the Justice Department will likely ask judges to put lawsuits on hold as officials go through the normal channels to undo them, which could 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 slew of immigration restrictions; Trump’s rollback of rules protecting LGBTQ people, consumers, and the environment; the firings of Andrew McCabe and Peter Strzok, former senior FBI officials involved in the Russia investigation; his decision to label New York, Seattle, and Portland “anarchist jurisdictions”; and his revival of the federal death penalty.
The Justice Department can reverse course and change its position in the middle of a case; that happened under Obama and under Trump. But that approach can create a whole new set of problems. There’s the risk of conceding a point or making an argument that could be used against Biden in the inevitable legal challenges to his administration; the risk of judges questioning how to give weight to contradicting positions from the government; and the risk of Republican state attorneys general and other outside parties stepping in to pick up the defense of Trump-era policies once the federal government has stepped aside.
Washington state Attorney General Bob Ferguson, a Democrat who filed numerous lawsuits against the Trump administration over the past four years, released a statement on Thursday making clear that his office would keep pressing cases over Trump's actions until the policies at issue were formally withdrawn or they won in court.
“It is too soon to know how the Biden Administration or Congress intends to address each topic, but you can be sure that we are not going to abandon this work until we have full resolution,” Ferguson said in a follow-up statement to BuzzFeed News.
Acting officials are taking over leadership posts at 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-level posts. No nominee has been announced yet to lead the Civil Division, which handles the bulk of 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 then there are the cases that concerned Trump on a personal level, including Carroll’s defamation suit. Justice Department officials under Biden will have to decide if they want to back out of these cases, and if so, how to do it.
The Justice Department has a pending petition asking the US Supreme Court to reconsider rulings against Trump in the fight over whether he violated the Constitution by holding onto his business interests while in office, and there are still active cases where the DOJ backed Trump’s challenges to 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 wasn’t immediately clear what will happen to those cases, and the Justice Department’s role in them, now that Trump is no longer president.
On Jan. 19, Trump’s final full day in office, the Justice Department filed a brief in the Supreme Court saying that a pending case about whether Trump, as president, could block critics on Twitter would become moot once Biden took office. But the department also asked the justices to still strike the lower court’s ruling against Trump, arguing it would keep precedent on the books “harmful...to the Presidency itself and to other governmental officials.” That brief was signed by Jeffrey Wall, who had been serving as acting head of the solicitor general’s office during Trump’s final months in office; as of Wednesday, Wall was replaced by the lawyer tapped by Biden to serve as the new acting solicitor general, Elizabeth Prelogar.
The lawyers who sued Trump filed papers on Thursday arguing to keep the previous decision intact, saying any future lawsuit over 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 framework” for future presidents’ use of the platform. The justices were scheduled to consider whether to take up the case at their conference on Friday.