For more than a month, a squad of lawyers has been gathering for the first Justice Department transition in the post-9/11 world. Now that their candidate has won, they’re at the gates — or rather, the 20-foot-high aluminum doors of Main Justice — waiting for President-elect Barack Obama and President George W. Bush to finalize the rules for information-sharing and access during the transition.
The Justice Department calls its own preparation unprecedented in modern times. Under a 2004 law, the department has been vetting Obama’s transition team for security clearances for more than two months. And since at least July, the department has been laying the groundwork for a new administration. Attorney General Michael Mukasey appointed his chief of staff, Brian Benczkowski, and Lee Lofthus, the assistant attorney general for administration, to coordinate the transition.
Obama has tapped Wilmer Cutler Pickering Hale and Dorr’s David Ogden, the assistant attorney general for the Civil Division under President Bill Clinton, to lead the transition team. His deputy, Thomas Perrelli, managing partner of Jenner & Block’s Washington office, is another Clinton administration alum. Perrelli worked under Ogden in the Civil Division as deputy assistant attorney general, supervising the Federal Programs Branch.
The transition will be twice as long as the last one and — it’s hoped — at least twice as disciplined as the one before that. Obama’s first task, the selection of the next attorney general, is likely to be fraught with the memories of Zoe Baird and Kimba Wood, whose botched nominations got Clinton’s Justice Department off to a wobbly start.
The most-discussed candidate for the top spot is still Covington & Burling’s Eric Holder Jr., one of Obama’s top campaign advisers. But when Legal Times asked Holder in June whether he’d accept the job if offered, he said: “That ain’t gonna happen.” (It’s unclear whether he was referring to the overture or his response were an overture to be made.)
Others mentioned are Arizona Gov. Janet Napolitano, an early Obama supporter who is now a member of his transition advisory board, and Virginia Gov. Tim Kaine, who was reportedly on the short list for vice president. Newsweek reports that Charles Ogletree, a Harvard Law School professor who mentored Obama, is also in the running.
A dark horse: Judge Merrick Garland, of the U.S. Court of Appeals for the D.C. Circuit, who served as principal associate deputy attorney general under Clinton.
Lawyers close to the transition effort say both Ogden and Perrelli have an argument for deputy attorney general, the department’s No. 2 spot, but only if Obama appoints an attorney general with strong criminal law credentials (that’s usually a prerequisite for the DAG) as a counterweight to their backgrounds in civil law.
Justice Department officials caution against drawing inferences from the composition of the transition team. Often, they point out, a transition team is a single-use crew that scatters throughout the administration after inauguration. But there are notable exceptions. Baker & McKenzie’s Paul McNulty, who directed the Justice Department transition in 2000, estimates that half to two-thirds of his team served in the department, either immediately or eventually. McNulty, for one, was appointed U.S. Attorney in the Eastern District of Virginia, and later, deputy attorney general.
The 2000 transition was exceptional in other respects: The ballot battle in Florida and ensuing 36-day legal back-and-forth ate much of the clock. It wasn’t until mid-December that McNulty began meeting with Justice Department officials. He and a team of about 20, ferrying information between their ad hoc space in the Robert F. Kennedy building and the various components, compiled a “transition notebook” for the next attorney general — in about two weeks. Bush nominated John Ashcroft as attorney general on Dec. 22, 2000, though he wasn’t confirmed until Feb. 1, 2001.
“We had a very compact transition process,” McNulty says, with understatement.
Mukasey and Obama, who had his DOJ working group in place weeks before the election, would seem at an advantage. The Justice Department has been preparing since July, when Mukasey pledged before Congress to “take every step to ensure a smooth transfer of custody and responsibility for our nation’s security.”
To hasten the transfer, the FBI and the Justice Management Division’s Security and Emergency Planning staff pre-screened members of each campaign for interim security clearances to use during the transition. Senior Justice Department officials say the efforts began about 2 1/2 months ago, and each campaign was allowed to submit about 100 names. The clearances will allow Obama’s Justice Department transition team to tap into the department’s vault as soon as the White House and the president-elect forge a memorandum of understanding for the transition, officials say.
Each of the department’s 40 components has generated a list of “must-know” items and policy topics for the incoming administration, senior Justice Department officials say. They include recent court decisions, ongoing investigations, statute of limitations issues, and warrants in the Foreign Intelligence Surveillance Court. Officials have also identified career employees, principal deputies in most cases, to run the various offices and divisions as the Republican political appointees leave the department. People involved in the transition say members of Obama’s DOJ team have all been assigned to a component.
There’s some question about how Democrats and Republicans will get along, considering the events of the last two years. Three reports by the Justice Department’s watchdogs found that political appointees improperly injected politics into hiring decisions. A fourth report, concentrating on the department’s Civil Rights Division, has yet to be released.
Latham & Watkins’ Philip Perry, a former acting associate attorney general who helped McNulty with the last transition, says he expects this one to be about as genteel as the last, which took place after one of the most hotly contested presidential elections in the nation’s history.
“Maybe there was a little friction, but by and large the Clinton administration was tremendously helpful,” Perry says. “An election is an election. No one is going to hold a grudge.”
McNulty, who was also involved in the transition from President George H.W. Bush to Clinton, says it can be trying for an outgoing administration, particularly one that has drawn this much scrutiny, to pass the torch with a smile.
“It’s an odd feeling. You’re being asked questions about what was going on and how things were, and you can read the skepticism and criticism on their faces,” McNulty says. “It’s not malicious, but you can tell they have judgments.”