DANIELS: Ups and downs in a new DOJ administration

May 6, 2017

After two stints at the U.S. Department of Justice, I remain loyal to the agency and the impressive attorneys who work there. The career lawyers of DOJ are bright, professional and non-partisan in the conduct of their duties.

There are certainly philosophical changes from one administration to the next, particularly in relation to the work of some of the divisions of the department. For example, the Obama administration filed a record number of lawsuits against police departments.

Were similar cases brought under the George W. Bush administration? Yes—there were several. But the Bush administration also entered into cooperative arrangements with police departments, known as memoranda of understanding. They were geared toward accomplishing the same goal as a lawsuit culminating in a consent decree, but were less onerous, less accusatory of the police, and less expensive for the community.

Attorney General Jeff Sessions has announced that he will review all the existing cases of alleged police misconduct to determine whether the department might meet its goal of improving police practices by working with the police departments on specific improvements, under the assumption that many agencies are interested in improvement—rather than requiring a years-long, expensive process that treats the police agency as the enemy.

This proposed review causes concern to members of the Black Lives Matter movement and others; but I would advise a wait-and-see approach. If done properly, involving community members with the police and the Justice Department in the interest of better relations, this “trust but verify” approach might work better in many cases than the harsher method that assumes the police are untrustworthy.

I have been pleased to see this shift in focus, and applaud Sessions for taking a second look at the policing cases.

Occasionally, though, something has happened in the new Justice Department administration to give me pause.

U.S. attorneys, though political appointees, have a collective reputation for respecting the non-partisan nature of the prosecutorial role. Investigations begun under one administration generally continue under the next, regardless of the party in power.

That is why I was surprised and disappointed to see the current administration follow the example of the Clinton administration, requesting the immediate resignation of all Obama-appointed U.S. attorneys.

In March 1993, Janet Reno was appointed attorney general by President Clinton. Not 10 days after she was sworn in, Reno held a news conference announcing that all Reagan and Bush-appointed U.S. attorneys were to resign immediately. Those of us serving at that time, including Sessions, were stunned. While we understood the obligation to resign by the time our successors were appointed, the request for immediate mass resignations was unprecedented and disruptive.

So I was equally surprised when Sessions, as attorney general, made the same request without warning in March. Forty-six U.S. attorneys were out overnight, with no replacements named.

One was David Capp, a career prosecutor who had worked in the U.S. Attorney’s Office for the Northern District of Indiana since 1985, serving as first assistant to multiple Republican U.S. attorneys and as interim U.S. attorney three times before President Obama finally appointed him to the job in 2010.

Capp was characteristically classy as he stepped down, just months before he had planned to retire. He is a lawyer’s lawyer, lauded by prosecutors and defense counsel alike for his professionalism, integrity and civility in the courtroom while being tenacious in holding corrupt public officials accountable.

It’s unfortunate that Capp was caught up in the new administration’s purge. I wish him all the best.•


Daniels, managing partner of Krieg DeVault LLP, is a former U.S. attorney, assistant U.S. attorney general, and president of the Sagamore Institute. Send comments to ibjedit@ibj.com.


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