Amid worry about Trump, calls for career Justice Dept. staff to stay
Attorney General Merrick Garland is seen in 2023. (Bill O'Leary/The Washington Post)
Attorney General Merrick Garland and top Justice Department officials are encouraging career staffers to remain in their jobs through the next administration, stressing that institutional knowledge is important as new leaders take hold, according to people familiar with those conversations.
The weeks since President-elect Donald Trump’s victory have been filled with uncertainty and tumult for many of the more than 100,000 individuals who work at the nation’s largest law enforcement agency, according to people familiar with the situation, many of whom spoke on the condition of anonymity to discuss information that has not been made public.
As top officials inside the Justice Department have led meetings about transition protocols, Trump and his allies have continued their vows to fire career staffers and seek retribution on those they consider their political enemies.
Trump’s initial announcement that he would nominate as attorney general former congressman Matt Gaetz (R-Florida), an outspoken loyalist with limited legal experience, was met with angst and shock throughout the department, the people familiar with internal conversations said.
Gaetz’s abrupt withdrawal from consideration amid sex-trafficking allegations—and the subsequent nomination of former Florida attorney general and Trump loyalist Pam Bondi—brought some relief, those people said, tinged with uncertainty over whether Trump would erase existing firewalls between the White House and the Justice Department’s criminal investigations.
Then, on Saturday night, Trump announced that he wanted to replace FBI director Christopher Wray with Kash Patel, a Trump loyalist who has dismissed the bureau’s investigations around Trump as political and has vowed to dismantle the FBI. Bureau directors are supposed to serve 10-year terms that span presidential administrations, so Trump would have to fire Wray—or Wray could quit—for a Patel nomination to go forward.
Trump has announced earlier in November that his personal defense lawyers, who represented him in his criminal cases, would be nominated for top Justice Department jobs. While some people interviewed said that those lawyers’ relevant job qualifications for the jobs were reassuring—two are former prosecutors—they were also concerned about whether Trump would expect the would-be officials to act like his personal counsel.
Nearly a dozen current and former Justice Department employees interviewed for this story in recent weeks—ranging from political appointees to career staffers—said there’s not yet a mass exodus bursting from agency headquarters on Pennsylvania Avenue NW. They said the transition so far appears to be operating as it would during any administration change and there’s been little mention of Trump and his nominees in the transition meetings. Many career employees worked for Justice during the first Trump administration and are waiting to see who is appointed to head different divisions before deciding how to proceed.
“Now, for myself, I may be coming to the end of my tenure at the Justice Department, but I know that all of you will continue,” Garland said in a mid-November speech to staffers at the U.S. Attorney’s Office of the Southern District of New York.
“You will continue in the department’s mission, what has always been its mission: to uphold the rule of law, to keep our country safe and to protect civil rights. You—the career lawyers of this district, the career lawyers of all the U.S. attorney’s offices, the career lawyers of the Justice Department as a whole—you are the institutional backbone of this department.”
The people interviewed for this article said the private legal market couldn’t swallow up a huge number of departing Justice Department staffers, adding that most prosecutors, FBI agents and other career staffers would rather stay put and do work that they believe serves the public good.
“The clear intent is to scare career staffers out, but you know career prosecutors are tough, and agents are tough,” said a senior Justice Department official. “So good luck with that.”
Still, more Justice Department employees than usual appear to be exploring jobs outside the government.
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On the Dec. 1 Sunday shows, lawmakers signaled a contested confirmation battle for President-elect Donald Trump’s FBI pick Kash Patel.
Mary McCord, a former Justice official who runs the Institute for Constitutional Advocacy and Protection (ICAP) at Georgetown University, said she’s received many calls from agency lawyers interested in openings at ICAP. She said Justice Department employees may be asked to help Trump carry out aspects of his agenda that could be legally questionable, including pledges of mass deportations, prosecuting political enemies and deploying the military domestically.
“All of the worst things that Trump has said he would do will require the Justice Department,” said McCord, who served as acting assistant attorney general for national security during the Obama administration and the beginning of the Trump administration. “People are afraid they will be asked to do things that they can’t do.”
Legal recruiter Sarah Van Steenburg said she is hearing from more Justice Department employees at the onset of this Trump administration than she did during the first one.
“The difference is this time is we’re hearing from rank-and-file civil servants who thought they would retire in the government,” said Steenburg, a recruiter at the firm Major, Lindsey & Africa. “A lot were there during the first Trump administration. They’re trying to prognosticate what the next administration would look like and what the market is looking for.”
There have been a few out-loud references to the big changes that could be afoot. At a charity event in Washington in mid-November, Natalie Bara, president of the FBI Agents Association, alluded to the possibility that Trump could fire FBI Director Christopher A. Wray before his 10-year term is complete.
“Boss, by my count, you have three years left in your term,” Bara said as she introduced Wray. The hundreds of current and former FBI employees in attendance cheered in support of their director.
While there was constant controversy at the top ranks of the Justice Department during Trump’s first administration, much of the department - including the criminal division, antitrust division and most of the U.S. attorney’s offices - ran fairly typically, with qualified people running big sections.
The civil rights and environmental divisions usually experience the sharpest shift in priorities between Republican and Democratic administrations, and people interviewed said they expect that change to be even more drastic when Trump takes office than it has been in the past.
The Bureau of Alcohol, Tobacco, Firearms and Explosives—which is part of the Justice Department—could be gutted, some people said, with Republicans in Congress calling to defund the agency over its gun-regulation effort.
Some said they expected the highest turnover in those divisions.
So far, Trump has announced just one pick for the nation’s 93 U.S. attorney positions—political appointees who oversee thousands of federal prosecutors in cities across the country. Trump said he would nominate Jay Clayton, his former Securities and Exchange Commission chief, to head the prestigious Southern District of New York. U.S. Attorney Damian Williams, who currently leads that office, announced last week that he will step down in mid-December, leaving his deputy in charge until a successor is confirmed by the Senate.
In Trump’s first term, he largely adhered to the standard way to pick U.S. attorneys, following the recommendations of the senators in those states.
But some said they believe this time around could be different.
In Arizona, several lawyers with mainstream Republican backgrounds have told friends or said in interviews in recent weeks that they are not interested in serving in Trump’s Justice Department out of concern that they would be asked to take actions contrary to legal ethical rules.
Others said they worry about being asked to carry out actions that could be viewed as retaliatory against those in Arizona who were critical of Trump’s efforts to overturn his 2020 defeat. The attorneys and their confidants spoke on the condition of anonymity to avoid angering Trump or his allies.
At the same time, several other Republican attorneys in Arizona have expressed interest in the job of U.S. attorney—including two lawyers who represented Republicans who in 2020 cast Trump, rather than Joe Biden, as the rightful winner of Arizona’s 11 electoral votes in 2020.
“I’d be willing to serve the president in any way he sees fit,” said one of the lawyers, Alexander Kolodin, who is also a state lawmaker.
Lawyer Dennis Wilenchik, who says he helped former Maricopa County Sheriff Joe Arpaio (R) obtain a pardon from Trump during his first administration, said he has submitted information to Trump’s transition team.
“To me, it’s a great personal sacrifice to do it,” he said. “I just feel like this is the time that I’ve got to step up. I’ve never been interested in politics. This is a post where I think I can make a difference. Regardless of what anybody thinks of the president, I like his policies and I think we’ve got to do something about the border.”
Even as Trump and his team vow to clean house at the Justice Department, advocates are trying to remind government workers that it’s not simple to fire career employees who have civil protections. A simpler tactic would be reassigning people they want to push out to less-desirable positions.
Before Trump left office in 2021, he passed an executive order known as “Schedule F,” which would have reclassified huge swaths of career government employees and made it easier to fire them. Biden reversed that order when he entered the White House, and his administration finalized rules through the Office of Personnel Management bolstering protections for career staffers.
Trump has vowed to reinstate Schedule F once he is sworn in. If he does, it could take years to implement the rule, as the untested issue of firing masses of federal workers makes its way through the courts.
“We think the Biden regulations are pretty strong regulations and they will—at least we hope they will—initially delay any type of actions Trump takes related to Schedule F,” said Rushab Sanghvi, general counsel of the American Federation of Government Employees, which represents some Justice Department employees, though not prosecutors. “The protections that Biden put in will help, but it will be a fight.”
