Back in private practice after six months as acting head of the Justice Department’s Civil Rights Division, Tom Wheeler is confident the DOJ’s leadership is committed to civil rights.
Wheeler, now a partner at Frost Brown Todd, was the acting head of the division from January until he stepped down last week. The move came amid what Wheeler conceded was a tumultuous period at the division after reversing Obama-era positions on LGBT discrimination, voting rights and police misconduct. Wheeler added some of the criticism of the DOJ under Attorney General Jeff Sessions is misguided, and praised the career attorneys still there.
“There’s a misconception that there’s not going to be continued enforcement in civil rights,” Wheeler said. “Priorities may shift, but there’s going to be a continued focus on enforcing civil rights within the division and within the department.”
Sessions has faced increasing criticism from progressive groups and civil rights organizations over his policies as attorney general, as well as from Trump himself. Wheeler declined to comment on the president’s tweets last week criticizing the attorney general, but said Sessions is “extraordinarily compassionate” and “cares deeply about the Justice Department and the rule of law.”
Asked whether the criticism has affected the career attorneys, Wheeler said they remain committed to their mission. Trump has also criticized career government employees in general over leaks to the media. Wheeler said to “wave aside everything you hear about leaks.”
“They’re professionals,” Wheeler said. “People at DOJ, like anybody else, have their own opinions about politics, about policy, but what they do that’s great is, they pull together and they implement what is being directed from the top.”
Wheeler joined the DOJ in January, after working under now-White House Counsel Don McGahn on Donald Trump’s presidential campaign. He worked as general counsel to now-Vice President Mike Pence when he was still the governor of Indiana.
Wheeler said he always intended to leave his acting role at the DOJ and return to private practice, where he focuses on helping universities and schools prevent bullying, teen suicide and drug abuse. His wife is a pediatrician in Indianapolis, so moving to D.C. was never an option, Wheeler said. He’s spent Mondays through Thursdays on the East Coast since January, and returned home to Indiana every weekend.
Wheeler focused on investigating and prosecuting hate crimes while at the department. He stressed he had “100 percent support” from Sessions to do so, pointing out that it was Sessions who pushed for further investigation into the recent murders of transgender people.
Wheeler’s work included supervising the hate crime prosecution of Adam Purinton, charged with shooting of two Indian men in Kansas City, Michael Kadar for allegedly making bomb threats to Jewish community centers, and Dylann Roof, convicted of killing nine black parishioners in a church in Charleston, South Carolina.
Wheeler never handled criminal cases prior to joining the DOJ, but he said it’s the kind of work that shows the agency’s independence from political leanings.
“There shouldn’t be politics in the criminal [work],” he said. “There’s bad people. I oversaw the death penalty phase for Dylann Roof. There’s not a lot of argument about that situation.”
Still, politics has appeared to play a role in many of the department’s actions since January. Wheeler left the DOJ the day after helping author a friend-of-the-court brief arguing civil rights laws don’t protect gay and lesbian employees from sexual orientation discrimination in the workplace. The position was at odds with other federal agency interpretations, including the Equal Employment Opportunity Commission. Wheeler declined to comment on the brief since the private civil suit is still pending in the Second Circuit.
Another controversy under Sessions is the department’s apparent change in position over officer-involved shootings and police behavior. Though some have questioned Sessions’ decision to review consent decrees with cities over police misconduct, Wheeler said that under his watch, the division was committed to the issue.
“We were pushing really hard on police misconduct because it makes every cop look bad,” Wheeler said.
Asked about skepticism that the new administration would file charges against bad-acting police, Wheeler said he turned to the career attorneys.
“It’s not an administration thing,” Wheeler said. “The exact same career people were looking at those cases in the prior administration. … The political people come and go. The career people stay and the key is their consistency. In terms of decisions like that—decisions to bring charges—they’re career prosecutors. That’s what they do for a living. So you rely on the career prosecutors.”
Wheeler added that “there is a real difficulty to bring charges in some of these police shooting cases,” because of the burden of proof required. He said that in federal criminal cases, the prosecutors must show that there was an intent on behalf of the officer to discriminate based on race or gender.
“When you’re talking about proving the intent of the person in an incident that happens in 10 seconds, it’s very difficult to do,” Wheeler said.
Wheeler said he was confident that he was leaving the division in good hands as he headed back to his old firm.
President Donald Trump’s official nominee for the position, Jones Day partner Eric Dreiband, still awaits a confirmation hearing and Senate vote. Wheeler said he only met Dreiband a few times and did not know him well, but that it was important for the division to have a Senate-confirmed leader.
Wheeler’s deputy, John Gore, is now in the acting position. Gore is also a former Jones Day partner and represented the University of North Carolina in litigation over the so-called “bathroom bill.”
“John is a committed individual. He works well with the [division] members, not only with the front office staff but the sections, so he’ll do fine over there.”
In an emailed statement last week, DOJ spokesman Devin O’Malley praised Wheeler.
“We are grateful for his service and dedication to protecting the civil and constitutional rights of all individuals,” O’Malley said.