Democrats Are Already Buzzing About a Merrick Garland Successor

The contest between Vice President Kamala Harris and former President Donald Trump remains up for grabs , but one thing seems clear regardless of who wins in November: This is likely Merrick Garland’s last year as attorney general.

That outcome is obvious if Trump wins, but as Democrats contemplate a potential Harris presidency, the party’s political-legal establishment is already buzzing about who might replace Garland if Harris wins — and how that person should steer a post-Garland Department of Justice in new ways.

I found an interest in change at DOJ to be a key takeaway from speaking with about a half-dozen prominent Democrats at the Democratic convention and elsewhere in recent weeks, people who have served in the Justice Department, on Capitol Hill and at the White House. Most were granted anonymity in order to candidly discuss the performance of the sitting attorney general and some of the contenders who might plausibly replace him.

“My assumption is that members of the cabinet and sub-cabinet will move on and that, if Kamala is elected, she will want to put in her own team,” said former Deputy Attorney General Jamie Gorelick, who has known Garland since they attended college together and brought him in as a senior official to the Clinton Justice Department. She praised Garland for restoring “the integrity and morale of the department” and for being “staunch and successful” on fighting crime and protecting national security.

Others in the party have far less charitable assessments of Garland’s tenure. They point to a series of perceived missteps that include the appointment of special counsel Robert Hur to investigate President Joe Biden’s handling of classified documents; the indulgence of special counsel David Weiss and his dubious criminal cases against Biden’s son Hunter; and, most controversial of all, the delay in seriously investigating and ultimately prosecuting Donald Trump over his alleged effort to steal the 2020 election .

It is a remarkable turn for a man who was once hailed as something of a hero and martyr by Democrats after Senate Republicans blocked his appointment to the Supreme Court, and who was largely welcomed as Biden’s attorney general.

The Justice Department declined to comment on whether Garland intends to stay on if Harris takes the White House. If he were to remain, he’d be following in the rare footsteps of Dick Thornburgh, who was appointed attorney general by President Ronald Reagan late in Reagan’s second term and kept on by President George H.W. Bush.

So, who might succeed Garland? My conversations make clear there are plenty of names of potential Democrats in the mix — some of which have been previously reported and others that have not.

They include people like Tony West , Harris’ brother-in-law and a former high-ranking official in the Obama Justice Department, whose name has already shown up in some early reports . Other possible contenders who have thus far largely flown under the radar include North Carolina Gov. Roy Cooper , who previously worked as the state’s attorney general and introduced Harris at the Democratic convention , and Massachusetts Gov. Maura Healey , another former state attorney general and convention speaker .

But just as important as the question of who might replace Garland in a Harris administration — and don’t worry, we’ll get to more names shortly — is the question of what, exactly, Harris should be looking for in an attorney general amid a politically fraught time in the department’s history. As a former state attorney general herself, she likely has a good idea of what the job entails along with some ideas for how it should be done.

One common theme is that what the department needs (what the department lacks in Garland) is a more politically confident and adept figure — someone who will not shy away from taking assertive positions in politically charged cases even if doing so upsets wide swathes of the public, and someone who can effectively defend those decisions in the political arena.

That doesn’t mean dropping the Justice Department’s vaunted independence from the president. But it does mean a sustained focus on continuing the prosecution of Trump, even if he’s considered less viable as a political force after another electoral defeat.

“She should be looking for an attorney general who will aggressively — but within the law and the evidence — finish the uncompleted work of securing convictions against all those responsible for Jan. 6, including at the very top,” said a former Obama administration official who has previously helped vet Democratic candidates for attorney general.

Several other people echoed that view, which underscores what is perhaps the central criticism of Garland. He has done an admirable job re-centering the department’s priorities along conventional center-left lines — particularly in areas like illegal immigration, policing and civil rights enforcement. He has also overseen the steady pursuit of those who participated in the siege of the U.S. Capitol on Jan. 6, 2021. Indeed, you could also construct a credible case — rooted in experience and continuity — for Harris to keep Garland on if she wins.

But it is his handling of Trump’s conduct surrounding the 2020 election, leading up to Jan. 6 itself, that overshadows all the rest. The department could — and should — have investigated Trump quickly and aggressively after he left office, but that is not what happened. The delay in getting the investigation of Trump’s conduct up and running in earnest , coupled with the subsequent and repeated trial delays following Trump’s indictment, have created a situation in which the country now finds itself facing the distinct possibility that Trump will return to power at least in part thanks to Garland’s failure to act quickly enough.

To some, that alone is an unforgivable sin, but even if Trump loses and he does ultimately face accountability for his election subversion efforts, there remain serious questions about whether Garland is the right person to lead the department through the conclusion of those cases. (On Tuesday, special counsel Jack Smith filed a superseding indictment in order to remove and revise allegations in the wake of the Supreme Court’s decision granting Trump partial immunity.)

After all, if Harris wins, the Justice Department’s Trump prosecutions will move forward, and that may require some difficult — and truly unprecedented — decisions. If, for instance, the Supreme Court affirms the dismissal of Smith’s prosecution against Trump in Florida on the theory that Smith’s appointment was unconstitutional, should the department have an in-house prosecutor refile the classified documents and election subversion charges? Even more striking: If Trump is eventually convicted on one or more of the pending federal charges, should the department try to send him to prison ?

None of this will matter if Trump wins. He’ll quash the federal criminal cases against him one way or another. But if Trump loses, the attorney general will have to see those cases to their conclusion — and may have to court a level of public and political controversy that would make Garland’s tenure look practically tranquil by comparison.

It’s far too soon to posit anything like an actual short list for Harris’ attorney general if she is elected, but there are plenty of names that are already in circulation among Democratic legal veterans.

An obvious one is Tony West , who recently took leave from his job as the general counsel of Uber to work on his sister-in-law’s campaign . Several people I spoke with cited West’s experience as a line prosecutor and later as a senior official in the Obama Justice Department, where he led the Civil Division and eventually rose to the position of associate attorney general (the department’s third highest-ranking position).

There are at least two considerable obstacles, however. One is that a federal anti-nepotism law would appear to prohibit Harris from appointing her brother-in-law to the position even if they both wanted him to serve. Even setting aside the legal question, it is hard to imagine Harris appointing a family member to the position given the arguably Trumpian political optics of having a relative serve in the post, notwithstanding the fact that West, unlike the Trump family members who served in his administration, is clearly qualified for the job and is well-regarded by his professional peers .

“Tony would be at the top of a list if he weren’t Kamala’s brother-in-law,” Gorelick said.

Another group of contenders includes former DOJ officials who have served either as deputy attorney general or associate attorney general in Democratic administrations.

“ Vanita Gupta would be the obvious choice,” Rep. Ro Khanna (D-Calif.) told me. Gupta stepped down as associate attorney general earlier this year and led the department’s Civil Rights Division during the Obama administration.

“She’s phenomenal,” Khanna said. “She has a record on civil rights. She’s served at the highest levels. She has a lot of support in Congress. She’s brilliant, and she’s someone who would be trustworthy.”

Others, however, might argue that it’s critical for the next attorney general to have hands-on experience working on criminal prosecutions, or at least a more extensive track record overseeing complex criminal cases.

Deputy Attorney General Lisa Monaco , for instance, could fit the bill, given that she has worked in high-ranking prosecutorial and intelligence positions. But privately, multiple people told me that she may be unlikely to receive serious consideration because of her association with Garland’s tenure and their perceived foot-dragging related to the investigation of Trump’s efforts to remain in power after losing the last election.

Sally Yates , who served as Deputy Attorney General during the Obama administration after a decadeslong career as a federal prosecutor, does not have that baggage. She emerged as something of a Democratic legal celebrity after being fired by Trump because she refused to defend an early iteration of Trump’s “Muslim ban” in court and remains well liked among many Democratic lawyers.

Some prominent current and former U.S. attorneys could also be in the mix. Among them are Preet Bharara , the Obama-era U.S. attorney in Manhattan, whom Gorelick described as “very smart, very able, very articulate, brilliant.” She also noted that Bharara might get the support of Senate Democratic Majority Leader Chuck Schumer, whose office Bharara once worked in. At the same time, Bharara, who has a popular podcast , is seen by some as too eager to seek the spotlight.

One long-shot contender is Damian Williams , the current U.S. attorney in Manhattan. According to multiple people familiar with some of the jockeying behind the scenes to succeed Garland, it is no secret in Democratic circles that Williams, who clerked for Garland when he was a judge, wants the job. But while his tenure as U.S. attorney has been solid, he may be too politically inexperienced to make the leap to attorney general without some more stops along the way.

Ultimately, several people told me, Harris may be drawn to someone with a professional background similar to her own — a lawyer-politician who feels comfortable operating in both legal and political settings.

Among this cohort, Doug Jones , the former Democratic senator and U.S. attorney from Alabama, still rates well in some circles. Like Yates, he was also under consideration by Biden before Garland was selected, and he remains well liked among fellow Democratic lawyers.

“The next group of people that you really need to think about are her former colleagues as state AGs,” Gorelick told me at one point during our discussion. “That was a pretty tight group, and the very top of that list is Roy Cooper .”

Cooper gave Harris an energetic introduction at the convention — referring to her as “my friend Kamala” and touting her work as California’s attorney general — and, perhaps conveniently, he is term-limited as governor in North Carolina and will be out of a job at the end of the year. He was also considered a potential Harris running mate before he removed himself from contention .

Other state attorneys general-turned-governors also came up in the course of my discussions, including Maura Healey of Massachusetts and Josh Shapiro of Pennsylvania. It’s an open question whether they would seriously entertain the idea since either of them would need to step down as governor, and Shapiro in particular may have his eye on a future White House run, but both have supporters who give them high marks for comfortably traversing the nominal line between law and politics.

The makeup of the Senate may also play an important role in any decision. If Harris has a slim Democratic majority, that’s one thing. But if she needs to rely on Republican votes, that could force her to select someone who is relatively more moderate.

Ultimately, and perhaps most importantly, Harris would need “someone whose judgment she trusts,” Gorelick told me. Throw in the need for intellectual chops and an ability to make difficult decisions, and someone that Harris sees as “a leader.”

My own two cents: The media tends to overrate the resumes and specific professional profiles of contenders in this area. There is no question that experience matters, but the attorney general is not a robot who mechanically applies a clearly identifiable body of law and professional norms.

The most challenging decisions are those where there is no direct guidance or clear precedent — the situation that Garland confronted with Trump — and where values, principles and political priorities have to fill in the gaps . Lawyers in the political arena generally do not like to admit this, particularly the ones who aspire to hold the most powerful positions, but in the hardest of cases, the law is often indeterminate and uncertain, and a great deal turns on personal judgment, risk management and character — things that cannot be fully litigated in the press.

If elected, Harris has an enviably long roster of serious potential candidates to consider as her attorney general — some of whom, almost certainly, I have not even identified. The decision would easily be one of her most important, one of her most closely watched and one of her most personal.

But first, she has to beat Trump.