Caldwell Apologizes to U.S. Attorney’s Offices for Comments at the Federalist Society

Leslie-Caldwell

Assistant Attorney General Leslie Caldwell raised some eyebrows with her comments last week at a panel discussion at the Federalist Society. She expressed concern about the wide variety of the “quality of the lawyers” at U.S. Attorney’s offices and claimed that Criminal Division attorneys get “far more robust” training than attorneys in the field.

But today The Wall Street Journal reported that Caldwell has sent a “Dear Friends and Colleague” letter to all U.S. Attorney’s offices apologizing profusely for her remarks at the Federal Society event:

I did not have prepared remarks for the event, and I certainly should have. Instead, I overreacted to the criticisms—which I strongly believe were not an accurate reflection of the Department’s work—by defending the Department in a way that inappropriately suggested that the care taken by U.S. Attorney’s Offices and others in making prosecutorial decisions was less than that taken by attorneys in the Criminal Division. And by making unscripted references to isolated issues in my recent experience, I realize that, rather than defending the reputation of the entire Department, I appeared to be criticizing U.S. Attorney’s Offices, Assistant U.S. Attorneys and other components. I deeply regret my remarks and the genuine hurt that they have caused. As a federal prosecutor for 19 years, including 16 years as an Assistant U.S. Attorney in two different districts, I know better.

Click here to review The Wall Street Journal Law Blog “Justice Department’s Crime Chief Apologizes for Put-Down of Colleagues and letter of apology:  wsj-article-and-letter-of-apology

AAG Caldwell Cites Lack of Experience and Oversight at Some U.S. Attorney’s Offices

Leslie Caldwell

Leslie Caldwell

Leslie Caldwell, Assistant Attorney General for the Criminal Division, expressed some surprising views yesterday at a Federalist Society event on criminal overreach at the National Press Club in D.C.

As reported by Jody Godoy of Law 360,

She observed that the “quality of the lawyers” and resources varies greatly between U.S. attorney’s offices.

“I acknowledge there are cases that get filed that shouldn’t be filed. There are districts where the oversight is not what it should be. The experience level is not what it should be,” Caldwell said.

She said DOJ Criminal Division attorneys get “far more robust” training than federal prosecutors out in the states do. And when asked about how the DOJ enforces a provision in the U.S. attorney’s manual advising prosecutors to consider noncriminal options, Caldwell replied that the manual is “much more regularly used in Washington, in the Criminal Division, than it is in the field.”

She encouraged attorneys to raise concerns with DOJ headquarters, known as Main Justice, and gave a couple of anecdotes illustrating how higher-ups killed ill-conceived cases.

In one instance, Caldwell said, Main Justice put the brakes on an attempt by an unnamed U.S. attorney to indict two partners at a major Chicago law firm who were representing a corporate client. The lawyers had attempted to get more time to respond to a subpoena and were nearly hit with an obstruction-of-justice charge.

“That prosecutor had never had that conversation before with a defense lawyer. That prosecutor didn’t know that that’s how things work … supervisory ranks did not recognize that that was not obstruction of justice,” Caldwell said, adding “thank goodness” a review by Main Justice was required.

Another time DOJ higher-ups stepped in, according to Caldwell, was when a small district attempted to indict all the adult residents of a town on racketeering charges since they were members of a religious sect that got its income through government program fraud.

In another example Caldwell gave, the DOJ in Washington played a mitigating role when a U.S. attorney tried to get high penalties for a bank facing treasury sanctions violations.

The cases illustrate that escalating concerns with a case can sometimes be effective, Caldwell said.

“It’s not always going to work when you appeal beyond the line attorney, but we recommend that if you feel strongly about a case, you at least ask to be heard,” Caldwell said.

John Richter

John Richter

NAFUSA member John Richter, another member of The Federalist Society panel remarked, according to Godoy, that even at DOJ headquarters, other sections lack criminal experience. Richter, a partner at King & Spalding, had represented Vascular Solutions, Inc., a medical device company that was acquitted of criminal off-label promotion earlier this year in a case prosecuted by a U.S. Attorney’s office and a unit from Main Justice.

Click here to view video of The Federalist panel discussionhttp://www.fed-soc.org/multimedia/detail/the-limits-of-federal-criminal-law-event-audiovideo

Bharara Expects To Remain as U.S. Attorney Under Trump

Prett Bharara/ Sam Hodgson for The New York Times

Prett Bharara/ Sam Hodgson for The New York Times

The New York Times reported this morning that Preet Bharara, the United States Attorney for the Southern District of New York, said on Wednesday that he intended to remain in office under President-elect Trump’s administration.

Bharara was appointed in 2009 by President Obama and has served for seven years. He made the announcement after meeting with Trump at the Trump Tower. Bharara said he was asked to stay on by the president-elect and by Senator Jeff Sessions, who is the choice for attorney general.

See Bharara Says He Will Stay U.S. Attorney Under Trump.

Sessions is Trump’s Pick for AG

Sessions with Selden and Smietanka

Senator Jeff Sessions of Alabama is the choice of President-elect Donald Trump to be the next attorney general of the United States, according to press reports citing “officials close to the transition.” If confirmed, Sessions would be the third former United States Attorney in a row to serve as AG. From 1981 to 1993 he served as U.S. Attorney for the Southern District of Alabama. He has been a senator from Alabama since 1997, currently serving on the Senate Judiciary Committee.

Sen. Sessions is shown above with NAFUSA members Jack Selden and John Smietanka at the NAFUSA 2013 annual conference in Washington, DC.

Concerns Raised Over Comey Letter to Congress

On Friday, October 28, 2016, F.B.I. Director James B. Comey, sent members of Congress a letter that his agency was looking into a potential new batch of messages from Hillary Clinton’s private email server. On October 30, nearly 100 former federal prosecutors and high-ranking officials of the Department of Justice published an Open Letter From Former Federal Prosecutors and High-Ranking Officials of the U.S. Department of justice: 20161030_doj-letter-with-signatories.

As former federal prosecutors and high-ranking officials of the U.S. Department of Justice, we know that the impartiality and nonpartisanship of the United States justice system makes it exceptional throughout the world. To maintain fairness and neutrality, federal law enforcement officials must exercise discipline whenever they make public statements in connection with an ongoing investigation. Often, evidence uncovered during the course of an investigative inquiry is incomplete, misleading or even incorrect, and releasing such information before all of the facts are known and tested in a court of law can unfairly prejudice individuals and undermine the public’s faith in the integrity of our legal process.

For this reason, Justice Department officials are instructed to refrain from commenting publicly on the existence, let alone the substance, of pending investigative matters, except in exceptional circumstances and with explicit approval from the Department of Justice officials responsible for ultimate supervision of the matter. They are also instructed to exercise heightened restraint near the time of a primary or general election because, as official guidance from the Department states, public comment on a pending investigative matter may affect the electoral process and create the appearance of political interference in the fair administration of justice.

It is out of our respect for such settled tenets of the United States Department of Justice that we are moved to express our concern with the recent letter issued by FBI Director James Comey to eight Congressional Committees. Many of us have worked with Director Comey; all of us respect him. But his unprecedented decision to publicly comment on evidence in what may be an ongoing inquiry just eleven days before a presidential election leaves us both astonished and perplexed. We cannot recall a prior instance where a senior Justice Department official- Republican or Democrat-has, on the eve of a major election, issued a public statement where the mere disclosure of information may impact the election’s outcome, yet the official acknowledges the information to be examined may not be significant or new.

Director Comey’s letter is inconsistent with prevailing Department policy, and it breaks with longstanding practices followed by officials of both parties during past elections. Moreover, setting aside whether Director Comey’s original statements in July were warranted, by failing to responsibly supplement the public record with any substantive, explanatory information, his letter begs the question that further commentary was necessary. For example, the letter provides no details regarding the content, source or recipient of the material; whether the newly- discovered evidence contains any classified or confidential information; whether the information duplicates material previously reviewed by the FBI; or even “whether or not [the] material may be significant.”

Perhaps most troubling to us is the precedent set by this departure from the Department’s widely- respected, non-partisan traditions. The admonitions that warn officials against making public
statements during election periods have helped to maintain the independence and integrity of both the Department’s important work and public confidence in the hardworking men and women who conduct themselves in a nonpartisan manner.

We believe that adherence to longstanding Justice Department guidelines is the best practice when considering public statements on investigative matters. We do not question Director Comey’s motives. However, the fact remains that the Director’s disclosure has invited considerable, uninformed public speculation about the significance of newly-discovered material just days before a national election. For this reason, we believe the American people deserve all the facts, and fairness dictates releasing information that provides a full and complete picture regarding the material at issue.

Former Attorney General Eric H. Holder led the list of signatories, which also included 15 NAFUSA members: James Cole, Larry Thompson, Wayne Budd, Lourdes Baird, Paul Coggins, Jenny Durkan, Melinda Haas, Tim Heaphy, Scott Lassar, Mike McKay, Neil MacBride, Bill Nettles, Tim Purdon, Don Stern, and Anne Tompkins.

In a related development, The New York Times Sunday, October 30, quoted NAFUSA member George Terwilliger,

“There’s a longstanding policy of not doing anything that could influence an election,” said George J. Terwilliger III, a deputy attorney general under President George Bush. “Those guidelines exist for a reason. Sometimes, that makes for hard decisions. But bypassing them has consequences.”

He added, “There’s a difference between being independent and flying solo.”

Jim Robinson Remembered

Former NAFUSA President Jim Robinson died six years ago on August 6, 2010. The DOJ Criminal Division remembered Jim in This Week in the Criminal Division Bulletin (August 22,2016).

 

SPOTLIGHT ON JAMES K. ROBINSON

james-k-robinson

James K. Robinson served as Assistant Attorney General of the Criminal Division from 1998 to 2001.

Mr. Robinson was born in Grand Rapids, Michigan, in 1943.  He graduated from Michigan State University and earned a law degree from Wayne State University in Detroit in 1968.  Mr. Robinson then clerked for Judge George Edwards of the United States Court of Appeals for the Sixth Circuit.  He subsequently became an associate at a Detroit law firm and later a partner at another, where he specialized in litigation.

In 1975, Mr. Robinson began service on the five-member committee of the National Conference of Bar Examiners that drafts the evidence questions for the Multistate Bar Exam.  In 1977—at the age of 33—he was named United States Attorney for the Eastern District of Michigan, which had one of the heaviest caseloads in the nation at that time.  In 1981, Mr. Robinson returned to his Detroit law firm, Honigman, Miller, Schwartz & Cohn.  While in private practice, he chaired the committee that drafts the Michigan Rules of Evidence and he co-authored a three-volume treatise and a courtroom handbook on the rules of evidence.

Mr. Robinson was named Dean and Professor of Law at the Wayne State University Law School in 1993.  That same year, Chief Justice William Rehnquist appointed him to the Advisory Committee on the Federal Rules of Evidence.

In August 1995, Assistant Attorney General Jo Ann Harris resigned her position in the Criminal Division.  For almost three years, John C. Keeney served as Acting Assistant Attorney General until President Bill Clinton nominated Mr. Robinson in April 1998.  Mr. Robinson faced a skeptical Senate Judiciary Committee at his nomination hearing.  The Committee expressed dissatisfaction with the uneven prosecution of narcotics offenses, leaks of grand jury material, and potential prosecution of elected officials for purportedly political reasons.  The Washington Post reported that Mr. Robinson “deflected the thunder by promising to apply the law even-handedly.”  He was confirmed a few months later.  As Assistant Attorney General, Mr. Robinson increased the Division’s focus on transnational crime and stationed attorneys at U.S. Embassies throughout the world.  He also helped expand the Division’s resources for drug trafficking and computer crime.

Mr. Robinson left the Division in 2001 and became a partner at Cadwalader, Wickersham & Taft in Washington, D.C.  From 2001 to 2002, he was retained as a consultant by the United Nations Center for International Crime Prevention in Vienna to conduct a global study on the transfer of funds of illicit origin with respect to the negotiation of the United Nations Convention Against Corruption.

On August 6, 2010, Mr. Robinson died at the age of 66 of cancer.  He left behind two children, five grandchildren, and his widow, Marietta “Marti” Robinson, who is now a commissioner with the Consumer Product Safety Commission.  In a condolence letter to Mrs. Robinson, then-Attorney General Eric Holder wrote, “As Assistant Attorney General, Jim embodied the steady and steely resolve under pressure that we need and expect from our public servants.  Every action that he took, and every decision that he made, reflected his singular desire to do justice and serve the people of this nation.”

[Photo: Grand Rapids Press]

Hartunian and McQuade to Lead AGAC

Richard Hartunian

Richard Hartunian

Attorney General Loretta E. Lynch announced today the appointment of U.S. Attorney Richard S. Hartunian for the Northern District of New York as chair of the Attorney General’s Advisory Committee of U.S. Attorneys (AGAC).  Attorney General Lynch also appointed U.S. Attorney Barbara L. McQuade for the Eastern District of Michigan to serve as vice chair.  Both appointments are effective immediately.

“The Attorney General’s Advisory Committee plays an essential role in shaping the Justice Department’s policies, implementing its programs, and ensuring that equal justice and the rule of law are upheld throughout the United States,” said Attorney General Lynch.  “As a former chair of the AGAC, I know firsthand the significant duties required of the committee’s leaders, and I am certain that U.S. Attorneys Richard Hartunian and Barbara McQuade are ready to assume the responsibility of chairing such an important and distinguished body.  They are both seasoned prosecutors, exemplary law enforcement officers, and devoted public servants, and I look forward to benefitting from their long experience and wise counsel as we advance the department’s vital work in the months ahead.  I congratulate them on their new posts, and I once again thank former U.S. Attorney John Walsh for his outstanding service as AGAC chair over the last 20 months.”

U.S. Attorney Hartunian has been the vice chair of the AGAC since January 2015.  He was appointed to the AGAC in 2013 and has served as the co-chair of the Border and Immigration Subcommittee, as well as a member of the subcommittees focused on Native American issues, Health Care Fraud and Environmental Crimes.  He has served as U.S. Attorney for the Northern District of New York since January of 2010.  Before that, he had been an Assistant U.S. Attorney there since 1997 and the district’s Narcotics Chief and Organized Crime Drug Enforcement Task Force Coordinator since 2006.

U.S. Attorney Hartunian is a 1983 cum laude graduate of Georgetown University and a 1986 graduate of the Albany Law School of Union University.  He was engaged in the private practice of law in Albany from 1987 to 1990.  He served as an Assistant District Attorney in Albany County from 1990 to 1997, where his work on narcotics and violent crime cases led to his designation as a Special Assistant U.S. Attorney in 1994.

In May of 2010, U.S. Attorney Hartunian was honored by the Armenian Bar Association as the first U.S. Attorney of Armenian descent.

Barbara McQuade

Barbara McQuade

U.S. Attorney McQuade was appointed to the AGAC in April 2013 and has previously served as co-chair of the Terrorism and National Security Subcommittee.  She also served on subcommittees addressing civil rights and border security.  She became the first woman to serve as U.S. Attorney for the Eastern District of Michigan when she took office in January of 2010.  She was an Assistant U.S. Attorney in Detroit, Michigan, for 12 years, including service as Deputy Chief of the National Security Unit.

U.S. Attorney McQuade is a 1987 graduate of the University of Michigan and a 1991 graduate of the University of Michigan Law School.  Before becoming a federal prosecutor, she practiced law in a Detroit firm and served as a law clerk to a U.S. District Judge.  From 2003 to 2009, U.S. Attorney McQuade was as an adjunct law professor at the University of Detroit Mercy School of Law.

While U.S. Attorney McQuade replaces U.S. Attorney Hartunian as vice chair, U.S. Attorney Hartunian replaces former U.S. Attorney John Walsh for the District of Colorado as chair.

The AGAC was created in 1973 to serve as the voice of the U.S. Attorneys and to advise the Attorney General on policy, management and operational issues impacting the offices of the U.S. Attorneys.

Georgetown Announces the Janet Reno Endowment

Janet Reno

On June 20, 2016, Georgetown University announced a new endowment focusing on disadvantaged children, and youth and families involved in the juvenile justice, child welfare and related care systems to honor “Janet Reno’s legacy as America’s first female Attorney General and her advocacy for justice and equality”.

“Janet Reno is a passionate, lifelong advocate for children and families,” said McCourt School of Public Policy Dean Edward Montgomery at Georgetown. “Georgetown and the McCourt School are honored to support and sustain her legacy through the establishment of this endowment.”

The Distinguished Advisory Committee includes former AG Eric Holder, former DHS Secretary Janet Napolitano, former Governor Deval Patrick, former Associate AG Tom Perrelli, and  former AAG Laurie Robinson.

NAFUSA is a Founding Donor of the Endowment, having made a $10,000 contribution.

Click here for more information and to view the 11 minute video of her career.