1/6/20 2:05 EST Update: President-elect Biden has decided to select Judge Merrick Garland for the position of Attorney General, according to Politico. Although Garland was seen to be harder to replace on the appellate court he currently sits on, Politico reports that given the performance of Democrats in today’s Georgia Senate runoffs, Biden choose Garland over Jones and Yates because a majority in the Senate would make it easier to confirm a replacement for Garland.
As of January 5th, President-elect Joseph R. Biden has not yet chosen an Attorney General to head the Department of Justice (DOJ), a position that is very important to whistleblowers and the proper prosecution of whistleblower cases. The Attorney General has the power to direct the DOJ towards or away from prosecuting certain cases, or types of cases, and even to drop them. Speaking to reporters on December 22, Biden said that “There’s not an obvious choice in my mind,” indicating that he may not make a pick soon. According to sources close to the transition process, the top contenders for the job include former Deputy Attorney General Sally Yates, federal judge and former Supreme Court nominee Merrick Garland, and Senator Doug Jones.
Senator Jones, a former U.S. Attorney for the Northern District of Alabama, has the most conspicuous record of publicly supporting whistleblowers and pro-whistleblower policies. After being appointed to the U.S. Attorney position in 1997, Jones gained a reputation for reexamining and prosecuting Civil Rights Era crimes, most famously the Sixteenth Street Baptist Church Bombing of 1963. In a brief interview during the 2019 Ukrainian whistleblower scandal, Jones voiced his support for the anonymous Ukraine whistleblower and specifically the whistleblower’s right to confidentiality. He added that he is “…Probably the only one in the Congress – certainly I’m the only one in the United States Senate — that has represented whistleblowers. And I’ve represented people on the other side of a whistleblower complaint. That whistleblower law is there for a reason: to encourage people to come forward without reprisals.” This validation of whistleblower struggles and the importance of whistleblower laws is an encouraging sign for how he might treat whistleblower cases, were he to be tapped for the position.
Merrick Garland has also shown support for whistleblowers and judicial expansion of whistleblower protections during his career as a judge. Garland is a judge serving on the United States Court of Appeals for the District of Columbia Circuit. In 2016, Barack Obama nominated Garland to fill a vacant seat on the Supreme Court. Controversy quickly arose over whether a president should be able to appoint a justice in the last year of their term. Garland’s nomination was blocked in the Senate and the seat on the Court was eventually taken by Neil Gorsuch. In a 2004 dissenting opinion on the case U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488, Garland argued for expansion of the scope of the False Claims Act. Garland’s dissenting opinion argued that the False Claims Act allows the United States to recover federal funds lost by false claims to federal grant recipients. This suggests that Garland may tend towards interpreting the False Claims Act as an expansive, anti-fraud provision. In 2008, his interpretation of False Claims Act expansion was vindicated at the level of the Supreme Court in Allison Engine Co., Inc. v. U.S. ex rel. Sanders. Garland has also defended a strong preexisting definition of retaliation against whistleblowers, helping them to be compensated or reinstated when they have been unjustly retaliated against.
Sally Yates served as the Deputy Attorney General in the Obama administration and took over as the Acting Attorney General for 10 days at the end of the Obama presidency. Her record on whistleblowers and whistleblower policy is the most unclear of the three apparent candidates. However, she did send a September 2015 memo to high ranking members of the DOJ suggesting that individuals involved in corporate fraud must be held to a higher standard of accountability to retain public trust in the DOJ. The memo, titled Individual Accountability for Corporate Wrongdoing, focuses mostly on methods of targeting individuals instead of corporations when prosecuting or investigating corporate fraud, and highlighting the benefits of those methods. While it is unclear how these views on individual accountability for corporate crimes translates to Yate’s positions on whistleblowing, the fact that she encourages stronger prosecution of corporate fraud is encouraging.
Attorneys General rarely interfere with individual whistleblower cases, but they do decide the direction of the DOJ. Their opinions of whistleblowers may make the difference between a DOJ that sees protecting and encouraging whistleblowing as a priority, and a DOJ that does not.