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Federal prosecutors in Alexandria didn’t know quite what to expect back in 2001 when President George W. Bush nominated Paul McNulty to be the new U.S. Attorney for the Eastern District of Virginia. Their new boss, a former aide to Attorney General Bill Barr and chief counsel on the House Judiciary Committee during impeachment proceedings against President Bill Clinton, clearly knew the right people in the new administration. But he didn’t seem to know that much about actually trying cases. At the time McNulty took over the demanding prosecutorial post, three days after the Sept. 11 attacks, he had never tried a case in his life. During the next four years, McNulty won over critics (inside the office and out) who doubted his ability to do the job. In that time he supervised some of the Justice Department’s highest-profile cases, led his office through a dramatic expansion and earned a reputation as a polished and professional prosecutor. He even took a turn as an appellate lawyer, arguing a case before the 4th U.S. Circuit Court of Appeals in October 2003. So it was no surprise last week when the White House tapped 47-year-old McNulty for the DOJ’s critical No. 2 slot. Even Senate Democrat Charles Schumer of New York, a frequent critic of the administration’s nominees, praised the selection, citing McNulty’s prosecutorial experience and temperament. Jamie Gorelick, a WilmerHale partner and a Democrat who served as deputy AG from 1994 to 1997, says that despite their political differences, she believes that McNulty is a good choice for the deputy post at the DOJ. “He has a rare combination of policy and political experience, and now he has had a significant tenure leading one of the most important U.S. Attorney’s offices,” says Gorelick, who represents Boeing Corp. in matters involving McNulty’s office. “In what I have seen of his stewardship of his office, he seems to address the work of the office seriously and professionally.” Within the Justice Department, the deputy attorney general, or DAG for short, is the person who manages the department’s day-to-day operations and represents it in dealings with the White House, Capitol Hill, and other government agencies. In addition, the DAG directly oversees the Criminal Division, the 94 U.S. Attorney’s offices, the Federal Bureau of Investigation, the Drug Enforcement Administration and the U.S. Marshals Service. It is a post that demands a blend of diplomacy, good judgment and decisiveness. The president’s selection of McNulty, on Oct. 21, came after the unexpected withdrawal of Timothy Flanigan, who was nominated to be DAG in May 2004. Flanigan, a senior lawyer at Tyco International and a former deputy White House counsel, stepped aside last month amid concerns about his relationship with disgraced Republican lobbyist Jack Abramoff and over his role in drafting the government’s policy on the use of torture in interrogations of suspected terrorists. Flanigan was also faulted for not having any hands-on prosecution experience. McNulty also has his detractors. One of the most powerful is Sen. Hillary Rodham Clinton, D-N.Y., who opposed McNulty for U.S. Attorney in 2001, presumably because of his efforts to impeach her husband. Meanwhile, civil libertarians and criminal defense lawyers take issue with McNulty’s record on terrorism, saying that his office has brought exceedingly harsh charges against people who do not seem to pose serious threats. That criticism is likely to come up at his as-yet-unscheduled confirmation hearings. “For the most part the people I’ve seen prosecuted are not people I fear,” says Virginia defense lawyer John Zwerling. Another subject likely to be raised at McNulty’s confirmation hearings is his failure to bring criminal charges against civilians accused of abusing military prisoners. In June 2004 a contractor for the Central Intelligence Agency was charged in North Carolina with assaulting a detainee in Afghanistan. Then-Attorney General John Ashcroft chose McNulty’s office to investigate similar cases referred by the CIA and the Defense Department. To date, McNulty has not brought a single indictment. “There is a lot of work that he and his office should have been doing over the past 16 months,” says Christopher Anders, legislative counsel for the American Civil Liberties Union. “If they’ve been doing it, we sure haven’t seen results.” McNulty, who is known for being accessible to reporters and is usually good for a sound bite, has gone quiet since his nomination. He did not return calls seeking comment. NOT A HAIR OUT OF PLACE A Pittsburgh native, McNulty attended Grove City College, a small Christian college near his hometown, and Capital University School of Law in Columbus, Ohio. In 1983 he began his legal career — as a Democrat — working for the House ethics committee. After just a few years in Washington, McNulty switched political affiliations, and in 1987 he went to work for the Republican staff of the House Judiciary Subcommittee on Crime. Then, in 1990, McNulty joined the DOJ as deputy director of policy development. The next year, Attorney General Barr promoted McNulty to oversee policy and public affairs operations at Main Justice. Barr, who is now vice president and general counsel of Verizon Communications, likes to tell the story of how he first barged into McNulty’s office. “I had to do a TV appearance, and I couldn’t get an appointment with my regular barber,” Barr recalls. “So I began asking people, ‘Where’s that guy Paul who has such perfect hair all the time?’ The first words I ever said to him, man to man, were, ‘Who’s your barber?’” But it was more than McNulty’s clean coif that impressed Barr. “I saw right away that he had a very good way of working with people, a lot of common sense, good judgment, and that he was very articulate in meetings,” he says. The two lawyers became friends, and in 1992, after Clinton won the presidential election, both Barr and McNulty joined the now-defunct D.C. law firm Shaw, Pittman, Potts & Trowbridge. After just two years, McNulty was drawn back into public service. As chief counsel for the House Subcommittee on Crime, McNulty worked behind the scenes on the politically charged Whitewater and Waco investigations. During the impeachment proceedings he served as both chief counsel and director of communications for the House Judiciary Committee, frequently appearing on television talk shows. After the 2000 election, McNulty spearheaded the political transition at the Justice Department and helped shepherd Ashcroft through his confirmation battle in the Senate. He then served as principal deputy AG before being nominated for the U.S. Attorney post. Christopher Wray, former chief of the DOJ’s Criminal Division and a top aide to former Deputy AG Larry Thompson, says that McNulty’s breadth of experience at the Justice Department will enable him to make a smooth transition into his new job. “He has a great command of the issues and the inner workings of the department,” says Wray, who is now a partner at King & Spalding. “What he arguably didn’t have in 2001 is the same kind of feel for the way cases and investigations unfold and run into problems. He now has that extra level of comfort with the operational side of what the department does.” EXPANDING BASE When McNulty became the U.S. Attorney for the Eastern District of Virginia, he oversaw a staff of 93 lawyers and a budget of approximately $15 million. Today there are more than 120 full-time lawyers working in the Eastern District’s four offices, and the budget is $20 million. The number of federal prosecutions in the district has increased 30 percent during McNulty’s tenure, climbing from roughly 4,100 in 2000 to 5,300 in 2004, according to statistics compiled by the Transactional Records Access Clearinghouse, or TRAC, at Syracuse University. The areas that showed the largest increases were immigration and terrorism offenses. “The office is markedly different after 9/11 than it was before 9/11,” says Richard Cullen, a former U.S. Attorney in the district. “When I was there, when we talked about keeping people safe, we were talking about cleaning up neighborhoods in the inner city, not massive attacks that could kill thousands of people.” Located in the back yard of the Pentagon and CIA headquarters, the Eastern District of Virginia has always been a center for espionage cases and national-security-related matters, and after Sept. 11 it became the go-to forum for terrorism cases. It was the Eastern District that brought charges against “American Taliban” John Walker Lindh, al-Qaida conspirator Zacarias Moussaoui and 11 members of a supposed Virginia-based terrorist cell accused of using paintball games as a cover for military training. McNulty’s colleagues in the Eastern District say that he quickly dispelled concerns that his lack of direct law enforcement experience would be a handicap. “Despite the fact that he wasn’t a prosecutor, he has extremely strong grounding in what federal prosecutors do,” says Neil Hammerstrom, head of the office’s terrorism and national security section. “He has meaningful input into strategy and policy decisions.” But McNulty’s critics take issue with his hard-line approach to terrorism cases. “It seems like this office goes to ‘DefCon 1′ whenever a case can be framed in terrorism terms. There’s no sense of proportionality,” says Jonathan Turley, a George Washington University law professor who represents Ali Timimi, a Muslim scholar convicted of inciting followers to join the Taliban. After sentencing Timimi to life in prison, presiding Judge Leonie Brinkema of the U.S. District Court for the District of Virginia called the punishment draconian, but said she had no choice under congressionally-mandated sentencing requirements. Turley has appealed Timimi’s conviction. He says, “A prosecutor is supposed to seek justice and not simply convictions at any cost.” Morrison & Foerster partner James Brosnahan, who represents Lindh, cuts McNulty a bit more slack. He says that McNulty showed good judgment by dropping terrorism charges against Lindh when it became clear that there wasn’t enough supporting evidence. Lindh ultimately pleaded guilty to being a member of the Taliban army and accepted a 20-year sentence. “It was a high-pressure case for everybody, including him, but we always got along on a professional level,” Brosnahan says. “He’s a spirited prosecutor, a determined, relentless prosecutor. That’s his job.”

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