In his inaugural address, US president Joe Biden made a decisive break in both substance and style from his predecessor, Donald Trump. Nowhere will that change of tone be more stark than at the US Department of Justice (DOJ), which experienced a tumultuous four years under the mercurial Republican president.
The heavyweight team being assembled by Biden, led by his appointee for Attorney General (AG), Merrick Garland, includes senior lawyers from O’Melveny & Myers, Morrison & Foerster and Linklaters.
On nominating Garland, Biden said: “You won’t work for me. You are not the president or the vice-president’s lawyer.”
The reference to Trump could not have been more pointed. The now former president had a caustic relationship with the traditionally largely apolitical DOJ, with harsh criticism often expressed over social media, leaving its career lawyers feeling increasingly demoralised.
He regularly squabbled publicly with his first AG, Jeff Sessions, and criticised deputy AG Rod Rosenstein for his handling of the Muller Report. Sessions’ replacement, veteran Kirkland & Ellis partner Bill Barr, courted controversy by criticising his own prosecutors and with his attempt to dismiss Geoffrey Berman, the US Attorney for the Southern District of New York, which was followed through by Trump.
Barr ultimately resigned after refusing to support Trump’s unsubstantiated claims of widespread election fraud, leaving antitrust lawyer Jeffrey Rosen as a short-lived acting AG.
Enter Garland, who brings with him judicial gravitas – he is the current chief judge of the court of appeals for the District of Columbia – the second most significant circuit after the US Supreme Court, having been nominated in 2016 by the then president, Barack Obama.
Garland – a former partner at Arnold & Porter – worked for the DOJ in senior roles in both the George HW Bush and Clinton eras, joining the bench in 1995. This will give him more federal judicial experience than any AG in recent memory.
While Garland awaits confirmation, Monty Wilkinson, a career DOJ lawyer, has been appointed acting AG in a move welcomed by former US Attorney for the Southern District, Preet Bharara, and Hogan Lovells’ co-head of Supreme Court litigation, Neal Kaytal.
Supporting Garland as Deputy AG will be Lisa Monaco, whose public service has ranged from being counsel to, and chief of staff at, the FBI, to acting as Barack Obama’s homeland security adviser. She has also enjoyed long service as a career federal prosecutor and previously held an assistant Attorney General role.
The current co-chair of O’Melveny & Myers’s data security and privacy group, Monaco has bi-partisan experience – having worked in both Republican and Democratic administrations. This may ease her confirmation by the Senate, much as Garland’s moderation, and past judicial tenure, is also likely to help his cause, especially with control of the Senate now resting with the Democrats.
Also leaving Big Law to join the DOJ are MoFo partners John Carlin and David Newman, who will become acting deputy attorney general and associate deputy attorney general, with Carlin deputising for Monaco, pending her appointment by the Senate.
Linklaters, meanwhile, will bid farewell to Matt Axelrod, who is re-joining the DOJ as a senior counsellor. The white collar investigations partner previously spent thirteen years at the DOJ, including seven at its Washington DC headquarters.
A day after the storming of the US Capitol by Trump supporters, Garland observed that “the rule of law is not just some lawyer’s turn of phrase”.
Law firm leaders, several of whom publicly called for Trump's removal from office under the 25th Amendment, will be looking forward to a return to less turbulent times at a DOJ stocked with experienced legal talent.