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If you search for the Civil Division of the Department of Justice (DOJ) on Google, you’ll find an overwhelming majority of search results are for the Civil Rights Division. That’s unsurprising — the average person is typically more aware of the Civil Rights Division’s work. And it makes sense: As the “crown jewel” of the DOJ, the division performs the crucial work of enforcing the laws that prohibit discrimination.
But progressives and activists should be tuned into both the work of the Civil Rights Division and the Civil Division, the latter of which has just as much potential to align with progressive priorities, like holding corporations accountable. Civil enforcement actions play a significant role in the DOJ’s larger corporate enforcement efforts. Progressives have justifiably pushed for a civil rights-minded attorney general, an empowered Civil Rights Division, and a whole-of-government approach to civil rights. The sweeping litigation responsibilities of the Civil Division often slip under the radar — but they’re just as relevant to the public interest.
Case in point: two recent lawsuits against Texas. While the Civil Rights Division is handling the lawsuit against Texas for its discriminatory electoral maps, the Civil Division is handling the lawsuit against Texas for its novel abortion ban.
People consistently overlook the breadth of law and policy that the DOJ touches, and the Civil Division’s lack of visibility is a pertinent example. Among the DOJ’s eight litigating divisions, Civil is the largest, with over 1,000 attorneys working in six different arenas.
Civil Division attorneys represent the United States and federal government departments, agencies, and employees in both civil and criminal court cases. Civil and criminal attorneys are mandated to collaborate with each other, and often undertake parallel actions to hold corporations accountable (or not) on both civil and criminal charges. As civil cases have more discovery tools than criminal cases, and parallel suits have become the norm, the expansive toolkit for civil investigations has ramifications for a vast swath of cases.
The Civil Division takes on many of the longest, most significant and most complex cases that the government sees. It handles the cases which are “so massive and span so many years that they would overwhelm the resources and infrastructure of any individual field office.” It is also charged with ensuring that the federal government “speaks with one voice in its view of the law,” preserving the “intent of Congress,” and “advancing the credibility of the government before the courts.”
The way that Civil Division attorneys choose to represent the government’s voice and stance before the courts helps define an administration. They consult and advise other DOJ divisions and the more than 200 federal agencies they represent, from the Department of Education to the Federal Trade Commission.
Lawsuits always proliferate with the transition of power between political parties. In the year since Biden replaced Trump, hundreds of court cases have sought to challenge Trump-era policies and their repeal, as well as new Biden policies. The Civil Division is often in the thick of these lawsuits, arguing the government’s side. But how they’ll argue isn’t set in stone. Attorneys within the Civil Division are the ones that build and argue the cases. These attorneys are an under-scrutinized mouthpiece for the administration, and how they articulate the positions of the country, the government and its agencies has lasting impact.
The DOJ was criticized in June as Civil Division attorneys continued to defend Trump against a woman who accused him of raping her, raising the question of how far the DOJ has emerged from the long shadow of its Trump-era malfunction. But even as Attorney General Merrick Garland stresses the DOJ’s independence from the White House, the DOJ’s actions are connected to the administration’s larger agenda. For example, attorneys from the Civil Division and the Office of the Solicitor General wrestled this summer with whether it should be the position of the Biden administration that Guantánamo detainees have due process rights. Eventually, they took no position, which is itself a position.
The political leanings and industry ties of DOJ officials also deserve scrutiny. The Revolving Door Project has previously criticized Civil Division head Brian Boynton’s connections to predatory for-profit colleges, and Civil’s Federal Programs Branch head Brian Netter’s record defending corporate wrongdoing. As a basic principle, those in charge of enforcing corporate accountability should not have spent their careers shielding corporations from being held accountable.
It is worth looking more closely at the Civil Division’s internal structure to get a sense of its considerable responsibilities. Civil Division attorneys work across six branches: Federal Programs, the Appellate Staff, Commercial Litigation, the Office of Immigration Litigation, Consumer Protection, and Torts. Each of these branches covers significant ground.
The 120 attorneys of the Federal Programs Branch represent federal agencies in high-profile litigation. They personally handle “serious or novel” cases in which federal programs are challenged as unconstitutional or unlawful, with “potentially far-reaching implications.” These attorneys work across twelve different litigation areas, including housing, agriculture, energy, labor, transportation, and veteran affairs. They are currently arguing on the United States’ behalf that Texas’ novel abortion ban is unconstitutional. They’re also representing several government agencies, including ICE, the DHS and FBI, in a Freedom of Information Act lawsuit brought by the ACLU to oppose the government concealing its surveillance of people’s online speech.
Since the Appellate Staff work on cases sent to courts of appeals, these are often hotly contested and consequential cases. Appellate Staff attorneys also work with the Office of the Solicitor General to draft papers for filing in the Supreme Court on the United States’ behalf. Appellate Staff attorneys, along with the Solicitor General and head of Civil, defended a doctrine before the Supreme Court this spring that shields the U.S. from liability for sexual assualt in the military. This surprising case saw DOJ lawyers and eight Supreme Court Justices side with the defense, while Clarence Thomas was the sole dissenter on the side of the assaulted West Point student and the ACLU.
The Commercial Litigation Branch is Civil’s largest branch, with 250 attorneys. It brings claims on the United States’ behalf, and defends claims against the US. . Commercial Litigation Branch attorneys worked on the opioid manufacturer Purdue Pharma and the Sackler family’s case, which finally resulted in a controversial $8 billion dollar settlement last fall — a vast sum that still pales in comparison to the multi-trillion dollar cost of the opioid epidemic. After the settlement was widely criticized for granting the Sackler family immunity from future opioid lawsuits, Purdue Pharma pressured the DOJ not to appeal the deal. Another branch of the DOJ, the U.S. Trustee program, or the government’s bankruptcy watchdog, did appeal. The case is ongoing, and illustrates the DOJ’s say in whether the government holds corporations and individuals accountable for making illegal profits at the public’s expense.
Attorneys with the Office of Immigration Litigation represent the government and relevant agencies in immigration matters, from prosecuting denaturalization cases to defending the decisions reached by the nation’s immigration courts. Immigration courts aren’t actually courts within the judicial branch; they are housed within the DOJ’s Executive Office for Immigration Review (EOIR), and the judges are attorneys appointed by the Attorney General. Reform advocates have been pushing for immigration courts to become real, independent courts for years. Anyone with interest in immigration reform should be scrutinizing EOIR and how the Office of Immigration Litigation defends EOIR’s actions.
Civil’s “up-and-coming” Consumer Protection Branch, which has tripled in size since 2017, plays a large role in combating pandemic-related fraud. Current cases include fighting fraudulent COVID-19 treatments, and suing Walmart for its role in the opioid crisis.
And finally, Civil’s largely unpoliticized Torts branch handles claims related to injury and damage to government property. It endured rare scrutiny this year when Torts attorneys intervened on Trump’s behalf in the aforementioned case against a woman accusing him of rape, a move which some have tied to a network of former Kirkland & Ellis lawyers appointed to key Civil Division positions during Trump’s administration. Torts attorneys were also involved in the liability trial against BP for the 2010 Deepwater Horizon oil spill, leading to a record $20 billion dollar settlement. (In that case, Kirkland & Ellis lawyers defended BP.) And Torts attorneys defended the government’s actions when victims of Hurricanes Katrina and Rita were exposed to formaldehyde in the Emergency Housing Units FEMA provided to them.
What should be clear from this diverse smattering of cases is that the Civil Division has a hand in some of the most consequential litigation in which the government is involved. More broadly, the Department of Justice should be seen and scrutinized as a powerful arm of the executive branch. Litigation won (and lost) by DOJ attorneys sets legal precedent which defines — and outlasts — administrations. Even when the DOJ isn’t being contorted and manipulated by a corrupt executive like Trump, it has a say in thousands of matters of public interest each year. Progressives and the public alike should look to the DOJ to understand how the Biden administration will interpret and enforce the law, and for the benefit of whom.
Image of Schumer meeting with Merrick Garland by Senate Democrats is licensed under CC BY 2.0