Attorney General Eric Holder Jr. hasn’t formally announced whether he wants to remain at the helm of the U.S. Justice Department, but there’s already change under way in the top ranks below him — and talk around Washington has some division leaders mulling their next moves.
Christopher Schroeder, who ran the department’s Office of Legal Policy, the section that supervises the vetting of judicial nominees, is returning to Duke Law School. Holder’s chief of staff, Gary Grindler, who served as acting deputy attorney general in 2010 after David Ogden returned to Wilmer Cutler Pickering Hale and Dorr, announced his departure last week.
In the two spots just below the attorney general, change isn’t immediately expected, in part because Holder hasn’t given any clear sign that he wants out. James Cole, the deputy attorney general, is likely to remain on board as long as Holder is running the department, several lawyers in Washington who are close to DOJ said. The nomination of Tony West for associate attorney general — the department’s third-in-command — is pending in the Senate.
Some of the key division slots at DOJ, however, could see new faces in the coming months as President Obama launches his second term. Arnold & Porter partner William Baer’s nomination to lead the Antitrust Division is pending in the Senate Judiciary Committee, and there’s talk among lawyers in Washington that Lanny Breuer of the Criminal Division and Ignacia Moreno, who leads the environment and natural resources team, are considering leaving the department. (A spokesman for Moreno said she is not talking about her tenure.)
In a recent interview, Breuer, who has served the longest stint as the head of the Criminal Division in 50 years, didn’t show any eagerness to call it quits now. “It’s the greatest job I’ve ever had. I said it was my dream job, and it’s been my dream job,” said Breuer, a former Covington & Burling white-collar defense partner. “I’ll keep doing it for a little while.”
Turnover between presidential administrations isn’t uncommon. Ronald Weich, who left DOJ as the head of the Office of Legislative Affairs in June to take over as dean at the University of Baltimore School of Law, called it “the natural cycle of things.” Weich said he was ready to leave. “It was really time to move into something different,” he said.
Judith Appelbaum, who was a deputy assistant attorney general in Weich’s office, is serving as the acting assistant attorney general. Obama has not announced a nomination for the post.
‘UPS AND DOWNS’
Holder, a Covington partner before he was named attorney general, said in remarks at the University of Baltimore School of Law in November that while he was contemplating his next steps, he knows that he does not want to stick around for Obama’s entire second term. Holder said he will ask himself questions that include: “Do I think that there are things that I still want to do? Do I have gas left in the tank?” He said “it’s been an interesting and tough four years.”
Holder, asked about his legacy, spotlighted the work of the Civil Rights Division, led by assistant attorney general Thomas Perez. The attorney general also described the “ups and downs” of his service as attorney general, calling the confirmation process tough. “It was in some ways maybe a harbinger of things to come,” Holder said.
On Capitol Hill, there’s no sure bet on any DOJ nominee getting an easy pass. Republicans have raised concerns about Baer, but the substance of the discontent hasn’t been publicly aired. (The Senate Judiciary Committee voted, 12-5, to send Baer’s nomination to the floor.)
Senator Chuck Grassley (R-Iowa), the ranking committee Republican, said on November 27 that West’s nomination for associate attorney general could be stalled amid a dispute over access to DOJ documents concerning the department’s interaction with St. Paul, Minn.
DOJ abandoned two False Claims Act cases against the city in exchange for it dropping a case in the U.S. Supreme Court. A DOJ spokeswoman said in September that the deal was “consistent with the department’s practice in reaching global settlements.”
Stuart Delery took over the Civil Division when Holder named West the acting third-in-charge of the department in February. A former Wilmer partner, Delery had been serving, since summer 2010, as senior counselor to Holder with a focus on civil and appellate matters. Obama has not said whether Delery would get the nomination for assistant attorney general for the Civil Division.
If Breuer were to walk away soon, he would leave at a high point for the Criminal Division, marked by the BP PLC case — the record-setting $4 billion penalty announced in November — and the recent publication of a highly anticipated memo concerning the scope of anti-foreign bribery enforcement under the Foreign Corrupt Practices Act.
Lawyers in Washington who are now speculating about Breuer’s replacement said that Paul Fishman, the U.S. attorney in New Jersey, and Jenny Durkan, U.S. attorney for the Western District of Washington, could be contenders. (Representatives for Fishman and Durkan declined to comment on the speculation.)
Over at the Office of Legal Policy, Elana Tyrangiel, a top attorney in the section, has taken over leadership in place of Schroeder.
SEEKING MORE PUSH FOR NOMINEES
“The Senate has become a very challenging environment in which to get anything done,” said Schroeder, whose nomination was pending for nearly a year. “That’s had an effect on the confirmation process, which has become increasingly the object of wholesale resistance to the president’s nominees.” Schroeder said he had conversations with White House staff, before he left the department, about making judicial nominations more of a “visible issue” during Obama’s second term. The DOJ legal policy office, he said, is “well situated to be a partner in that.”
Former associate attorney general Thomas Perrelli, who recently returned to Jenner & Block, said he anticipates DOJ departures as Obama’s first term comes to a close. In the ranks of assistant attorneys general, Perrelli said, Holder oversaw a “remarkably stable” group of lawyers. “If you’ve been there three years, it’s hard not to stay four,” said Perrelli, who heads his firm’s government controversies and public policy litigation practice. “It’s been a long-tenured group.”
Mike Scarcella can be contacted at firstname.lastname@example.org.