Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG

In recent days, President-elect Joe BidenJoe BidenBiden authorizes up to 0M for Afghan refugees Poll: 73 percent of Democratic voters would consider voting for Biden in the 2024 primary Biden flexes presidential muscle on campaign trail with Virginia's McAuliffe MORE has stated that his attorney general (AG) will not be "the president's lawyer," adding that he promises his Justice Department "will be totally on its own making its judgments about how to proceed."  

And who could disagree? The attorney general is the top cop in the land, and no person, not even the president, as Richard Nixon once claimed in a famous interview with British journalist David Frost, is above the law. 

But Biden's AG shortlist says quite the opposite of his declaration of AG independence. 

ADVERTISEMENT

Take Sally YatesSally Caroline YatesSally Yates: I never thought that I'd be saying, 'Yeah, go Liz Cheney' ABC lands first one-on-one TV interview with Garland since confirmation Appointing a credible, non-partisan Jan. 6 commission should not be difficult MORE, the former federal prosecutor who has become a media darling in recent years for the same reason almost everyone else has: her resistance efforts against President TrumpDonald TrumpPoll: 73 percent of Democratic voters would consider voting for Biden in the 2024 primary Biden flexes presidential muscle on campaign trail with Virginia's McAuliffe Has Trump beaten the system? MORE while using the kind of soaring rhetoric one would expect in your average Aaron Sorkin production.  

"Put simply, [Trump] treats our country like it’s his family business. This time, bankrupting our nation’s moral authority at home and abroad," Yates said during her endorsement speech of Biden at the Democratic National Convention. "But our country doesn’t belong to him. It belongs to all of us. Joe Biden embraces that. He has spent his entire life putting our country first." 

"He has never backed down from a challenge or a bully," she continued. "He summons the best in us and lives by the values that define us as Americans: service, integrity, courage, compassion." 

Yup. Yates is just the person to lead the Justice Department given that perspective and rhetoric. And we can be totally sure that if Biden asked her not to pursue any investigation of his son Hunter Biden any further than the current FBI investigation that has been ongoing for more than a year, she'll completely resist doing so in the name of service and integrity, right? 

Rhetorical question. 

How about New York Gov. Andrew CuomoAndrew CuomoAs Biden's America becomes less safe, the violence and crime could cost Democrats New York gun rights case before Supreme Court with massive consequences  New York bans underage marriages, raises age of consent to 18 MORE (D)? The 2020 Emmy winner is reportedly on Biden's shortlist as well.  

"If I wasn’t governor of New York, I would have decked Trump. Period," Cuomo told Howard Stern last month in response to a question regarding Trump calling his brother Chris "Fredo," a reference to the hapless "Godfather" character. "I mean, he was attacking me. He was attacking my family. He was anti-Italian."

ADVERTISEMENT

This is the same Cuomo who said the following of Trump even considering returning to his home state of New York. 

“He can’t have enough bodyguards to walk through New York City,” Cuomo told reporters in September in a not-so-veiled threat to a sitting president. “Forget bodyguards. He better have an army if he thinks he’s going to walk down the streets in New York.”  

Meanwhile, Cuomo has resisted at every turn calls for an independent investigation into his order to send coronavirus-positive patients back into nursing homes, resulting in the deaths of thousands. Fortunately for those looking for the truth, the Justice Department has expanded an investigation into the matter, which Cuomo calls "a political charade." 

As for the whole work-independent-of-Biden thing, Cuomo, who never met a camera he didn't like, also spoke at the Democratic National Convention in August and endorsed Biden. 

Yup. This is just the guy to serve as the top cop in the land. 

Another candidate being considered is Alabama Sen. Doug Jones (D), who only served as Alabama co-chairman of Biden's first run for president in 1988 (the candidate dropped out due to a plagiarism scandal). Jones has stayed close with Biden through the years, per NBC News. 

"As both became more active in state and national politics, they stayed in close touch," a 2017 profile reads. "When Biden waged his first campaign for the presidency in 1988, Jones served as his Alabama co-chairman. When Biden ran again in 2008, Jones helped raise money for his campaign and organized some events for him in southern states." 

“I promised Doug I’d campaign for him or against him, whichever will help the most,” Biden joked at a Jones campaign rally in 2017.

Yup. Another independent choice in the same way then-Attorney General Eric HolderEric Himpton HolderBiden under pressure to pick new breed of federal prosecutors Obama says Senate will vote again on voting rights Obama: Voting rights bill must pass before next election MORE was a "wingman" (his words) to the president during the Obama-Biden administration. 

Given the aforementioned choices, the only logical choice for Biden as AG is Merrick GarlandMerrick GarlandHas Trump beaten the system? Biden administration moves to withdraw death penalty requests in seven cases Federal gun trafficking strike forces launched in five cities MORE. A long search finds nothing in the way of partisan or provocative public comments and/or any prior personal friendship with the president-elect. Many Democrats and even some Republicans see Garland as a martyr in getting screwed five years ago after Mitch McConnellAddison (Mitch) Mitchell McConnellHas Trump beaten the system? Yellen to Congress: Raise the debt ceiling or risk 'irreparable harm' The Hill's 12:30 Report - Presented by Goldman Sachs - Tokyo Olympics kick off with 2020-style opening ceremony MORE (R-Ky.) declared any Supreme Court appointment to be null and void that year, which was his right as Senate majority leader. 

Biden also insists that he and Vice President-elect Kamala HarrisKamala HarrisJD Vance takes aim at culture wars, childless politicians Poll: 73 percent of Democratic voters would consider voting for Biden in the 2024 primary Ron Johnson: 'I may not be the best candidate' for 2022 midterms MORE represent the moderate wing of the party (despite GovTrack ranking Harris as the Senate's most liberal member). Choosing Garland, whom most objective observers see as a moderate, would underscore that contention. 

Where Biden runs into trouble here, however, is in regard to Garland's criminal justice positions, which run counter to the party progressive wing's designs on a massive overhaul of the way law enforcement does its job. 

Per The Washington Post on Thursday: "As Garland draws increasingly serious consideration, some defense lawyers and criminal justice reform advocates say they worry Garland’s record on the bench shows he is too deferential to the government and law enforcement — and perhaps would not be as aggressive about implementing the kind of dramatic changes they had hoped for." 

ADVERTISEMENT

"There are no solutions. There are only trade-offs," Thomas Sowell wrote in the great book "A Conflict of Visions: Ideological Origins of Political Struggles."  

Selecting Yates or Cuomo or Jones practically guarantees the creation of a special counsel to look into Hunter Biden's overseas business dealings and tax issues that serves as the basis of the current FBI investigation. 

For the same reason Trump should have never selected Jeff SessionsJefferson (Jeff) Beauregard SessionsDemocrat stalls Biden's border nominee Garland strikes down Trump-era immigration court rule, empowering judges to pause cases Unsealed documents detail Trump and Biden efforts on reporter records MORE — a Trump campaign surrogate — as his attorney general, Biden cannot select Yates or Cuomo or Jones. It would be far too easy for Republicans to point to Democratic opposition to Sessions as a partisan AG in justifying the special counsel. And as we saw with Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE, special counsels can eat years of time and millions of dollars and dozens of human resources that could ultimately result in, well, not much in the grand scheme. 

Choose Garland as your attorney general, Mr. President-elect, regardless of the backlash from progressives in the party you likely barely recognize anyway.  

Because there are no solutions, only trade-offs. 

Joe Concha is a media and politics columnist for The Hill.