What the Justice Department could look like under a Kamala Harris presidency

WASHINGTON — Kamala Harris’ team is quietly considering potential nominees for attorney general, looking at who could serve as America’s top federal law enforcement official if she defeats Donald Trump, the federal criminal defendant who sent the Justice Department spiraling into chaos during his presidency and as he tried to overturn his 2020 election loss.

Harris, a former prosecutor herself, is known to have a good relationship with Attorney General Merrick Garland, who has overseen the sprawling investigation into the Jan. 6 attack on the U.S. Capitol and appointed special counsel Jack Smith, who brought two criminal cases against Trump.

But Garland has already spent more than 3 1/2 grueling years leading the Justice Department and is slowly climbing the list of longest-serving attorneys general in American history. And Harris has said that her potential presidency would not be a continuation of President Joe Biden’s administration.

There are lots of variables in the air, including the timeline of a theoretical Garland departure at a critical juncture for the department, when many career employees are on edge about what DOJ's future looks like if Trump wins, or falsely declares victory, as he did in 2020. Garland — who oversaw the Justice Department in the wake of its biggest crisis since Watergate, when Trump tried to enlist Justice Department appointees to overturn his election loss — is likely to stay on at least long enough to ensure a smooth transition.

Another chief factor is the party makeup of the Senate, which would need to confirm any potential Harris nominee if she takes the White House.

Still, a few names have surfaced for the position of 87th attorney general of the United States.

Four sources familiar with the Harris campaign’s discussions told NBC News that there are three main names under consideration: North Carolina Gov. Roy Cooper, who was on Harris' vice presidential short list; former Associate Attorney General Vanita Gupta, who served as the No. 3 official at the Justice Department until earlier this year; and U.S. Attorney for the Southern District of New York Damian Williams.

Another name in the mix is Sen. Catherine Cortez Masto, D-Nev., two sources said, although she is less than two years into the six-year term she was elected to in 2022, which would complicate matters given that the Senate is expected to be closely divided in the next session. If Cortez Masto left the Senate to become attorney general, Nevada’s Republican governor would then get to pick the state’s senator through the next general election.

Three Harris team officials said that potential names are being floated for attorney general, but that discussions are still preliminary because Harris is focused on campaigning and winning the election in 12 days.“The Transition is not doing any personnel selection pre-election and any speculation to the contrary is fiction,” a spokesperson for the Harris transition team told NBC News in a statement. “Instead, we are focused on setting up the infrastructure necessary to be ready.”

Cooper, who long served as North Carolina’s attorney general, is finishing his second term as the state’s governor and is term-limited from running again this year. Cooper backed out of consideration to be Harris’ vice presidential nominee over the summer, saying the timing was wrong. (Democrats had worried about a state law that might have allowed North Carolina's far-right lieutenant governor to take over in Cooper's absence as he campaigned across the country). The governor had a speaking slot at the Democratic National Convention this summer, where he spoke about Harris’ leadership.

Gupta, who won Senate confirmation on a 51-49 vote as associate attorney general in 2021, is a former American Civil Liberties Union lawyer who headed the Justice Department's Civil Rights Division during President Barack Obama’s second term.

Despite her close confirmation vote, Gupta has strong relationships across the aisle, having won praise from many conservatives and law enforcement officials, including the Major Cities Chiefs Association, the International Association of Chiefs of Police and even the National Fraternal Order of Police, which has thrice endorsed Trump. The head of the national FOP said ahead of Gupta's departure as DOJ's No. 3 official that she had "brought people together" and "earned the trust and respect of the FOP and our membership." Grover Norquist, the founder and president of Americans for Tax Reform, previously said Gupta was "strongly qualified, effective, principled, and driven by a desire to seek common purpose and consensus."

Williams has served as the first Black U.S. attorney for the Southern District of New York — an office jokingly referred to as the “Sovereign District of New York” due to its size and perceived independence from Justice Department headquarters — since 2021. He was confirmed to the job on a unanimous voice vote in the Senate.

Williams has overseen numerous high-profile prosecutions including the conviction of Sen. Bob Menendez, D-N.J., on corruption charges; the ongoing prosecution of Democratic New York City Mayor Eric Adams; and cases against prominent figures like Sean "Diddy" Combs, cryptocurrency fraudster Sam Bankman-Fried and sex trafficker and Jeffrey Epstein associate Ghislaine Maxwell.

Harris’ campaign features numerous Justice Department veterans, including Tony West, her brother-in-law who, like Gupta, served in the No. 3 position at the Justice Department. In the closing days of her campaign, Harris is navigating tricky waters related to DOJ: having to make a case against Trump to the American people while simultaneously not making any comments that Trump’s defense team might use in a future court filing that might further delay or complicate the DOJ-appointed special counsel's election interference case against him, a case Trump already managed to kick back past the 2024 election.

On Tuesday, Harris is scheduled to make her “closing argument” to voters across the country with a speech at the Ellipse, where Trump lied to his supporters about the 2020 election on Jan. 6, 2021, urging them to go to the Capitol and “fight like hell.”

Trump regularly downplays the violent attack on the U.S. Capitol and praises the criminal defendants who carried it out, promising to pardon an untold number of them during his first days in office. In a recent filing, Smith’s office said Trump bears responsibility for the Jan. 6 attack, saying the Republican nominee “willfully caused his supporters to obstruct” the certification of Biden’s victory.

While many Jan. 6 defendants have told courts they were “duped” by Trump’s lies about the 2020 election and regret that they were gullible enough to fall for them in the first place, Trump has not backed down from the election falsehoods, which his lawyers have maintained were based in good faith and “not unreasonable at the time.”

The Harris campaign is preparing for the possibility that Trump once again claims victory regardless of reality, as even some of his allies expect him to do. Trump has been setting the stage, focusing his ire on majority-nonwhite cities in swing states, including Detroit and Philadelphia.

This article was originally published on NBCNews.com