Biden is expected to name a former top Obama-era federal prosecutor to lead the Justice Department's criminal division, sources say

KennethPolite

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President Joe Biden is expected to nominate Kenneth Polite, a white-collar defense lawyer and former top federal prosecutor in New Orleans, to lead the Justice Department’s criminal division, according to two people familiar with the pick.

If the Senate confirms Polite, he will be a Justice Department assistant attorney general supervising a broad enforcement portfolio covering everything from high-profile cases involving politicians to drug trafficking, financial crimes, and other corporate misconduct.

Since the outbreak of the pandemic, the Justice Department’s criminal division has also spearheaded the crackdown on COVID-19-related fraud, bringing multiple cases over suspected misuse of federal relief programs designed to prop up struggling businesses.

And the department’s criminal division has oversight of public corruption cases and other politically sensitive investigations, including any federal inquiries involving former President Donald Trump or his associates. It also is responsible for the sex-trafficking investigation into Republican Rep. Matt Gaetz of Florida.

As one of the youngest US attorneys appointed during the Obama administration, Polite took charge of a federal prosecutor’s office in eastern Louisiana that was reeling from a scandal involving top officials who had commented anonymously on online news stories about cases the office handled. The scandal ended the 11-year tenure of Polite’s predecessor, Jim Letten, who at the time of his 2012 resignation was the longest-serving US attorney in the country.

In Polite’s four-year tenure, the office brought high-profile prosecutions against the former professional football player Darren Sharper and the New York real-estate heir Robert Durst, who has been accused of killing multiple people and was sentenced in 2016 to seven years in prison after pleading guilty to being a felon in possession of a firearm.

Following the Obama administration, Polite joined Entergy as the energy company’s chief compliance officer. Polite later joined Morgan, Lewis & Bockius, where he led the law firm’s role in an American Civil Liberties Union of Louisiana initiative to combat discriminative police practices. 

The Justice Department declined to comment. Polite could not be reached for comment.

A retreat from Trump-era priorities

In a discussion last year with his law-firm partners, Polite said the Justice Department’s investigations into pandemic-relief fraud would “likely bring an uptick of enforcement” under the Biden administration. He also projected that the Biden-era Justice Department would pull away from the aggressive immigration enforcement that Trump appointees prioritized.

“I expect you will see a rollback of that widespread enforcement to a more tailored approach where prosecutions are focused on the worst of the worst: individuals who have a violent criminal history and repeat offenders,” he said.

Polite served earlier in his career as a federal prosecutor in Manhattan.

If confirmed, Polite could benefit from his ties to the US Attorney’s Office for the Southern District of New York, nicknamed the “Sovereign District” for its reputation of independence from Justice Department headquarters.

With a background as a chief compliance officer, he also brings private-sector experience that has increasingly come into play in the Justice Department’s criminal division.

Under the Trump administration, the Justice Department issued further guidance on how corporate-compliance programs should be designed to head off or limit white-collar misconduct. The quality of such programs is frequently a key consideration in whether the Justice Department extends leniency to corporations in white-collar enforcement actions.

Polite emerged as the leading candidate in recent weeks from a pool that included two fellow Obama-appointed US attorneys, Neil MacBride and Willy Ferrer, who served as the top federal prosecutors in eastern Virginia and Miami, respectively.

MacBride, now a white-collar defense lawyer at the law firm Davis Polk & Wardwell, served as a top aide to Biden during his tenure on the Senate Judiciary Committee. After Biden’s electoral victory, MacBride joined the transition team tasked with reviewing the Justice Department and hoped to be nominated for deputy attorney general, according to people familiar with the matter.

At a time when the Justice Department is investigating the financial dealings of Biden’s son and seeking to reestablish its independence on the heels of the Trump era, MacBride’s longstanding relationship with the president came to complicate his nomination prospects, according to people familiar with the selection process.

Diversity in the DOJ ranks

If confirmed, Polite would help diversify the Justice Department leadership working under Attorney General Merrick Garland.

As Biden closes in on his 100th day in office, his pick for deputy attorney general, Lisa Monaco, is awaiting confirmation, as is Vanita Gupta, the former head of the Justice Department’s civil-rights division who was nominated for the third-ranking role of associate attorney general.

Biden has yet to fill several other top Justice Department posts with Senate-confirmed leaders, in a sharp departure from Obama, who named his nominees to lead the antitrust, civil, criminal, and national security divisions by his third day in office. Biden’s picks to lead the civil-rights division and the environmental and natural-resources division are set to appear before the Senate Judiciary Committee on Wednesday for a confirmation hearing.

In the meantime, the Biden-era Justice Department has been led largely by white men, giving rise to criticism in Democratic circles. Among the interim leaders at the Justice Department are acting Deputy Attorney General John Carlin, who led the national security division under the Obama administration, and the former Obama White House lawyer Nicholas McQuaid, who is now serving as the acting assistant attorney general in charge of the criminal division.

Brian Boynton, a former top Justice Department official under the Obama administration, is overseeing the civil division on an acting basis. A holdover from the Trump administration, John Demers, has remained in charge of the Justice Department’s national security division.

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