Home > News > Biden can’t instruct the new U.S. attorneys on how to prosecute the Capitol rioters. But they’ll listen to his signals.
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Biden can’t instruct the new U.S. attorneys on how to prosecute the Capitol rioters. But they’ll listen to his signals.

That’s been true at least since the 1990s, our research finds

Since the U.S. Capitol riot, the Justice Department has been debating whether to forgo bringing charges against some of the rioters and offering leniency if others give evidence against the most serious offenders. President Biden has emphasized that Justice officials’ loyalty should be to the law and not to him personally. But those officials will nevertheless weigh the Biden administration’s priorities heavily when deciding how to treat the rioters.

Our new book, “The Politics of Federal Prosecution,” suggests that Biden’s 93 chief federal prosecutors — U.S. attorneys — around the country will be watching the administration for cues on what’s important. We analyzed data from the 1990s to the present to see whether partisan politics affect U.S. attorney staffing and decision-making. The answer: It does.

Here’s what you need to know.

There’s a long, troubling history behind the Capitol attack

A president’s law enforcement priorities influence U.S. attorneys’ decisions

In 1968, Republican presidential nominee Richard M. Nixon campaigned on his call to launch a war against “merchants of crime and corruption in American society.” Nearly 15 years later, President Ronald Reagan asked, “Can we honestly say that America is a land ‘with justice for all’ if we do not now exert every effort to eliminate this confederation of professional criminals, this dark, evil enemy within?” When a president’s speeches telegraph a “tough on crime” stance, we find, U.S. attorneys make harsher decisions on charging, bargaining and sentencing.

One way that a president influences those decisions is by controlling who holds those offices. Many Trump-appointed U.S. attorneys have resigned or announced plans to do so. Biden is likely to follow the lead of Presidents Donald Trump, George W. Bush, and Bill Clinton by removing all remaining Trump-appointed U.S. attorneys within the next few months, and by beginning to nominate his U.S. attorneys in short order, presumably selecting nominees who share his priorities. We can expect the Democratic-controlled Senate to move quickly to confirm Biden’s new U.S. attorney nominees.

Christian nationalists and QAnon followers tend to be anti-Semitic. That was seen in the Capitol attack.

Biden’s law enforcement priorities are very different from Trump’s

Once the new U.S. attorneys are in place, expect them to make decisions that implement the new administration’s law enforcement priorities.

Among the most important decisions is whether to bring criminal charges. Our research indicates that when a president signals that it’s important to be tough on federal crimes of violence such as murder, assault, bank robbery and firearm possession or use, federal prosecutors are as much as 9 percent more likely to bring charges in such cases. In other words, it is not a surprise that during the Trump administration, U.S. attorneys charged many more defendants under border-related immigration laws than they did during the Obama administration, with immigration defendants totaling nearly 29,000 in 2018 vs. 22,000 in 2016. As the Biden administration changes the government’s policy on immigration, Biden’s U.S. attorneys are unlikely to continue this pattern.

U.S. attorneys’ decisions about which cases to take to trial and how much leniency to offer defendants during negotiations are also swayed by political concerns. Plea bargains — or agreements in which the defendant pleads guilty to some charge or charges but avoids a trial and a potentially more serious sentence — are commonplace in federal courts; nearly 90 percent of criminal cases end with such an agreement. But the deals offered defendants vary widely.

We find that when the president wants a crime treated harshly, prosecutors strike tough bargains. By examining over 300,000 cases involving an alleged violent crime from 1996 to 2011, we found that U.S. attorneys have been nearly 10 percent less likely to reduce the number of charges faced by a defendant when the president regularly speaks about his commitment to fighting violent crime, as Clinton often did, compared to a president who speaks less about this topic, like Barack Obama.

Historically, African American and Hispanic defendants received more severe treatment during this charging and bargaining process than did White defendants. For example, one study found that from 1990 to 1992 in Los Angeles, while African Americans made up 58 percent of arrests for the sale of cocaine, they composed 83 percent of the prosecutors’ cocaine sale charges. Given the Biden administration’s promise that the Justice Department’s actions will be racially equitable, expect his U.S. attorneys to work to lessen racial disparities in charging decisions like this.

With Democrats in charge in Washington, expect red states’ policies to get redder

Expect Biden’s U.S. attorneys to seek more lenient punishments, on average, than their Trump counterparts

Trump’s first attorney general, Jeff Sessions, issued a memo instructing federal prosecutors to charge “the most serious, provable crimes carrying the most severe penalties.” He further rescinded an Obama-era policy that directed prosecutors not to charge defendants with crimes that carry “mandatory minimum” sentences — stringent punishments that a judge or prosecutor cannot reduce, no matter what mitigating circumstances they might find. Merrick Garland and the Biden U.S. attorneys will probably reinstate the Obama-era policy and look for other ways to reduce and eliminate prison sentences.

Accepting his nomination as attorney general, Garland emphasized that, in the Biden Justice Department, there will “not be one rule for Democrats and another for Republicans; one rule for friends, another for foes; one rule for the powerful and another for the powerless.” This notion of prosecutorial neutrality is a powerful, and common, sentiment. But it is difficult to achieve.

In the coming days and months, the Justice Department must make politically loaded decisions on how to best proceed in prosecuting the Capitol rioters. While the federal prosecutors are likely to be mindful of what Biden thinks should be done, this isn’t new. Politics have always affected U.S. attorney prosecutions, and there is every reason to expect the same will be true during the Biden administration.

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Christina L. Boyd (@TheCLBoyd) is an associate professor of political science at the University of Georgia.

Michael J. Nelson (@mjnelson7) is the Hyde Early Career professor of political science at Pennsylvania State University.

Ian Ostrander is an assistant professor of political science at Michigan State University.

Ethan D. Boldt is an assistant professor of political science and public policy at North Dakota State University.

Together, they are the authors of “The Politics of Federal Prosecution” (Oxford University Press, 2021).