112 Former U.S. Attorneys Urge Senate to Support Sessions (Updated January 3, 2017)

Sen. Jeff Sessions talks to reporters at Trump Tower (Jewel Samad/AFP/Getty Images)

Sen. Jeff Sessions talks to reporters at Trump Tower (Jewel Samad/AFP/Getty Images)

In a letter date January 3, 2017, to Senators Grassley, Leahy and Feinstein, 112 former United States Attorneys, most of them members of NAFUSA, urged the Senate Committee on the Judiciary to support the confirmation of Senator Jeff Sessions as Attorney General of the United States. Click here to view letter and list of signatories: usa-ltr-sessions-2

As former U.S. Attorneys, we are in a unique position to evaluate the qualifications of Senator Sessions to serve as our nation’s Attorney General. United States Attorneys are the top- ranking federal law-enforcement officials of their jurisdictions, tasked with setting enforcement priorities, building trust with the communities they serve, and protecting the public while respecting federalism, the separation of powers, and the individual rights enshrined in the Constitution. It is not an easy job, but it is one in which Senator Sessions excelled.

 

Senator Sessions’ record reflects his priorities clearly, and none of his work as U.S. Attorney was more impactful than his sustained effort to eliminate segregation in rural Alabama and break the back of the Alabama Klan. In addition to bringing and supporting civil rights cases to fight against voter suppression and school segregation, Senator Sessions supported the investigation into the brutal murder of an African American teenager, Michael Donald. His efforts, in coordination with state authorities, ensured that the perpetrator – the son of the Alabama Klan’s leader – received a capital sentence. Sessions’ office also prosecuted an accomplice in that case, who pled guilty and received a life sentence, the maximum penalty available in federal court at the time. These successful prosecutions helped the victim’s mother win a $7 million lawsuit against the Klan, effectively crippling it as a political organization within Alabama.

 

Senator Sessions served for a remarkable twelve years as U.S. Attorney. His lengthy tenure alone is impressive given the burdens of the job, which we well know. Senator Sessions’ conspicuous service to the law and all citizens has continued as a United States Senator. In his work as a leader on the Senate Judiciary Committee, he has espoused a consistent understanding of the Constitution, a commitment to the rule of law, and an unwavering respect for the mission of the Department of Justice.

 

During his 41 years of public service, Senator Sessions has proved to be a leader of strong principles and firm beliefs. His support for the 25-year extension of the Civil Rights Act in 2006 is evidence of this. He also has proved to be a leader who appreciates positions that differ from his own and who learns from the scrutiny that comes with public life. His openness to different thinking and other worldviews is evidenced by the recent statements in support of his nomination from colleagues across the political spectrum and his support for Eric Holder’s nomination as Attorney General in 2009.

 

As former U.S. Attorneys, we worked with and for many Attorneys General, each different, each with his or her own unique strengths. We have no doubt that Senator Sessions can do the job well, bringing to this critically important office his own unique and extraordinary strengths of courage, humility, experience, and an inviolable promise to treat all people equally under the law.

 

 

 

DOJ Collects More Than $15.3 Billion in FY 2016

Attorney General Loretta E. Lynch announced today that the Justice Department Collects More Than $15.3 Billion in Civil and Criminal Cases in Fiscal Year 2016. This total represents more than five times the approximately $3 billion appropriated budget for the 94 U.S. Attorneys’ offices and the main litigating divisions of DOJ combined in that same period. The largest settlements derived from cases related to the financial crisis. The total includes all monies collected as a result of Justice Department-led enforcement actions and negotiated civil settlements. Of the total, more than $12 billion was paid directly to DOJ and the remainder to other federal agencies, states and other designated recipients.

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.”