January 6, 2021 may have been the infamous date of the attack on the United States Capitol, but it was also the day President Elect Biden announced four key nominations for the Department of Justice. Judge Merrick Garland of the United States Court of Appeals for the District of Columbia, is Biden’s choice for Attorney General.

Judge Garland is the former Chief Judge of the DC Circuit and has served on the that Circuit since 1997. He attended Harvard University for his undergraduate and legal education. He served as a law clerk to Judge Henry J. Friendly of the Second Circuit and for Justice William J. Brennan Jr. of the Supreme Court. Judge Garland also served in the Department of Justice as a special assistant to Attorney General Benjamin Civiletti, 1979-1981. In 1989 he returned to the Department as an Assistant United States Attorney in the DC’s U.S. Attorney’s office. In 1993, he became a deputy assistant attorney general in the Criminal Division at Main Justice and in 1994 was named the principal deputy associate attorney general under DAG Jamie Gorelick.

Lisa Monaco will be nominated to serve as Deputy Attorney General. She served in the Department of Justice for fifteen years, spending the majority of her time as a career federal prosecutor and eventually being appointed Associate Deputy Attorney General; Principal Associate Deputy Attorney General; and the first woman confirmed as Assistant Attorney General for National Security. She has also served as Counsel and Chief of Staff to then-FBI Director Robert Mueller and White House Homeland Security and Counterterrorism Advisor. She earned her Juris Doctor at the the University of Chicago Law School.

Vanita Gupta will be nominated to serve as Associate Attorney General. She has served as the Acting Assistant Attorney General for Civil Rights in the Obama-Biden Administration. She is the president and chief executive officer of The Leadership Conference on Civil and Human Rights Civil Rights Coalition. She earned her Juris Doctor at New York University.

Kristen Clarke has been named to serve as Assistant Attorney General for Civil Rights. She started in career as a career attorney in the Civil Rights Division. She is currently the president and executive director of the National Lawyers’ Committee for Civil Rights Law and has served as the head of he Civil Rights Bureau for the New York State Attorney General’s Office. She earned her law degree from Harvard University.

On July 9, 2020, the Supreme Court ruled that much of eastern Oklahoma falls within an Indian reservation. In McGirt v. Oklahoma, the court ruled, 5 to 4, that Indigenous people who commit crimes on the eastern Oklahoma reservation, which includes much of Tulsa, cannot be prosecuted by state or local law enforcement, and must instead face justice in tribal or federal courts.

Jimcy McGirt, a Seminole man was found guilty in a state court of sex crimes that occurred within the Muscogee (Creek) Nation’s historical boundaries. Justice Neil M. Gorsch, wrote the opinion, siding with the court’s more liberal members. He wrote that “the land these treaties promised remains an Indian reservation for purposes of federal criminal law.” McGirt is expected to be retried in federal court.

As a result, local prosecutors are referring murders, robberies and sexual assaults to federal prosecutors. who have responsibility for major crimes on tribal lands. Lesser cases are being referred to tribal courts. The U.S. Attorney’s office in Tulsa files about 250 felony cases annually, compared with the 6,000 felonies that churn through Tulsa’s county courts each year. “It’s unprecedented,” R. Trent Shores, the United States Attorney for the Northern District of Oklahoma told the New York Times.

President Trump declared today his intent to nominate Justin E. Herdman, who currently serves as the United States Attorney for the Northern District of Ohio, to become the next United States Attorney for the District of Columbia. Herdman has also served as the Vice Chair of the Attorney General’s Advisory Committee (AGAC) since January.

Attorney General William P. Barr announced that Timothy J. Shea, the current U.S. Attorney for the District of Columbia, will be designated Acting Administrator for the Drug Enforcement Administration (DEA).

“I am pleased that the President has chosen Justin Herdman as the nominee to be the next United States Attorney for the District of Columbia.  Justin has taken an increasing role in the leadership of the Department and this nomination is a reflection his sharp intellect, sound judgment, and dedication to the mission of the Department of Justice,” said Attorney General William P. Barr.  “Justin has proven himself to be a fair prosecutor, capable litigator, and excellent manager, and I look forward to his confirmation by the Senate for this important position.  I would also like to express my gratitude to Tim Shea, who has served as the United States Attorney since February 2020.  I look forward to working with him as he assumes the role of Acting Administrator of the Drug Enforcement Administration.  I would also like to thank Uttam Dhillon for his service as the Acting Administrator.  Throughout his tenure, Uttam has proven to be a great colleague and a dedicated and thoughtful leader.  I look forward to working with him as he assumes a senior leadership role in the Department.”

Attorney General William P. Barr today announced that Erin Nealy Cox, U.S. Attorney for the Northern District of Texas, has been elevated from Vice Chair to Chair of the Attorney General’s Advisory Committee (AGAC).

Attorney General Barr also announced Justin Herdman, U.S. Attorney for the Northern District of Ohio, will become the new Vice Chair.

“Erin Nealy Cox has shown herself to be a leader in the U.S. Attorney community, a fierce advocate for the rule of law who has spearheaded prosecution efforts targeting domestic abusers and other violent criminals,” said Attorney General Barr. “Justin Herdman has also been a leader at the forefront of the department’s fight against the deadly trade in fentanyl and other dangerous drugs. I am pleased to have them leading my AGAC team.”

U.S. Attorney Nealy Cox replaced former Chair, Jessie Liu who resigned this week as U.S. Attorney for the District of Columbia.

In addition, Attorney General Barr appointed U.S. Attorney John Bash to the Attorney General’s Advisory Committee.

Attorney General William P. Barr announced on September 20, 2019 the appointment of the following nine U.S. Attorneys to serve on the Attorney General’s Advisory Committee (AGAC): David Anderson, Northern District of California; Scott Brady, Western District of Pennsylvania; Maria Chapa Lopez, Middle District of Florida; Halsey Frank, District of Maine; Erica MacDonald, District of Minnesota; Christina Nolan, District of Vermont; Zach Terwilliger, Eastern District of Virginia; Tom Kirsch, Northern District of Indiana; and Nicholas Trutanich, District of Nevada.

The Attorney General also thanked the following U.S. Attorneys who have completed their terms and are rotating off the committee: Louis Franklin, Middle District of Alabama; Robert Higdon, Eastern District of North Carolina; John Huber, District of Utah; Rob Hur, District of Maryland; Jeff Jensen, Eastern District of Missouri; Andrew Lelling, District of Massachusetts; Joshua Minkler, Southern District of Indiana; Richard Moore, Southern District of Alabama; Bryan Schroder, District of Alaska; and David Weiss, District of Delaware.

Chaired by U.S Attorney for the District of Columbia, Jessie K. Liu, the AGAC represents the voice of the U.S. Attorneys and provides advice and counsel to the Attorney General on policy, management, and operational issues impacting U.S. Attorneys’ Offices.

Attorney General Barr also announced that U.S. Attorney for the Northern District of Texas Erin Nealy Cox, a current member, will replace U.S. Attorney John Huber as the Vice Chair of the AGAC.

Those who attended the NAFUSA annual conference in Nashville in 2018 will recall the spirited panel discussion regarding the Tennessee Board of Professional Responsibility ethics opinion 2017-F-163. That opinion held: “Once a prosecutor knows of evidence and information that tends to negate the guilt of the accused, or that otherwise falls within Rule 3.8(d)’s disclosure requirement, the prosecutor must disclose it as soon as reasonably practicable.” (Id. at 4.) On August 23, 2019, the Tennessee Supreme Court vacated ethics opinion 2017-F-163.

However, on August 26, 2019, the Chief Judge of the District Court for the Eastern District of Tennessee, Hon. Pamela L. Reeves, wrote J. Douglas Overbey, the United States Attorney for the district, and advised him that the state court’s decision does not control the district court’s ethical standards.

Writing on behalf of the entire bench, Chief Judge Reeves wrote, “The state court’s decision does not control this Court’s ethical standards.” She concluded, “In this regard, the judges in our district have determined that the laudable sentiments in 2017-F-163 are an expression of what should be expected of attorneys representing the United States in criminal cases. That being the case, it is still our expectation that Assistant United States Attorneys who appear before us will disclose exculpatory and mitigating material to a criminal defendant in the manner described in the referenced ethics opinion, and certainly before any guilty plea.”

Tom Wales

Assistant U.S. Attorney Thomas Wales was shot to death in his home in 2001. The FBI has led an 18-year investigation into the shooting, supported by a $1 million reward announced by the Department of Justice and supplemented by pledges of an additional $525,000 raised by the NAFUSA Foundation. It appears that Wales, who served as an AUSA in the Western District of Washington, was the first federal prosecutor killed in the line of duty in the nation’s history.

In what may be a break in the investigation, an indictment was handed up by a grand jury in June and unsealed this week in Seattle. The indictment charges a woman from Everett, Washington, with making a false declaration before a grand jury in February 2018 and obstruction of justice by obstructing the investigation into Wales’ death.

NAFUSA member John McKay, who began serving as U.S. Attorney for the Western District shortly after the shooting, is quoted in The Seattle Times as saying, “We should all be encouraged by the indictment and arrest if, as it appears, it relates to the murder of … Tom Wales in 2001, because it means the FBI and Department of Justice continue to actively investigate this horrible crime.”

McKay, who held the post until 2007, said the killing was an “attack on our justice system and if this arrest helps identify those cowards responsible for it then it’s not just a good thing – it’s a very good thing.”

Click here to read the full Seattle Times article

Deputy Solicitor General Michael Dreeben announced in June that he will be leaving the Department of Justice where he has served for 31 years in the Office of the Solicitor General. Michael gave the Supreme Court Update at NAFUSA’s 2012 annual conference in Atlanta and was honored in 2016 in San Diego over his service upon having argued his 100th case before the United States Supreme Court on behalf of the United States.

On July 30, 2019, Solicitor General Noel Francisco posted a Tribute to Michael Dreeben (Noel Francisco, Tribute to Michael Dreeben, SCOTUSblog) in which he said, “Michael Dreeben knows more about criminal law than anyone else on Earth. But it’s not only his knowledge that sets him apart. It’s also his talent as an advocate, and his tireless devotion to his craft.”

Most recently, Michael was a leading prosecutor on Bob Mueller’s special counsel team.