Failure to Appear
No candidates have declared for nextyear’s attorney general election, but there’s already a frontrunner. You can’t go within 50 yards of a law school without hearing his name. The rest of the legal community is lining up behind him. Even current Attorney General Irv Nathan has given his endorsement.
LL’s talking, of course, about “the lawyer’s lawyer.”
At a University of the District of Columbia panel last month meant to recruit candidates, the hypothetical “lawyer’s lawyer”—think Atticus Finch—was mentioned so many times as the best choice for D.C.’s first elected attorney general that LL lost count. The difficulty of establishing all the precedents for the office, navigating the relationship between working for the mayor and working for the people—absent any real candidates, only the lawyer’s lawyer is up to the task. That’s where we are now with this race: making up people to run for office.
But former AG Peter Nickles isn’t convinced about the redemptive power of the lawyer’s lawyer. “The folks who will run for the office are not going to be lawyer’s lawyers,” Nickles tells LL. “They’re going to be politician-lawyers.”
And Nickles knows from politician-lawyers. As ex-Mayor Adrian Fenty’s attorney general/body man, Nickles chose investigative targets that matched up conspicuously well with his patron’s political enemies. He tried to push Cora Masters Barry, the estranged wife of Marion Barry, out of her Congress Heights tennis center, and pursued then-D.C. Council Chairman Vince Gray over the height of a fence around his house during his campaign to unseat Fenty. Gray, of course, won anyway.
“Peter Nickles managed to irritate, frustrate, and generally piss off everyone in the District government and beyond,” says Shelley Broderick, the dean of UDC’s law school.
The potential for another Nickles was the bogeyman for D.C. residents who voted by a 75-25 margin in 2010 to amend the District’s charter to make the position elected. But after two years of scandals, shadow campaigns, and Sulaimon Brown, a political attorney general looks like the least of the city’s problems—and old enemies of the elected attorney general office are seizing the chance to hamstring the position. With the strength of the once-appetizing job in doubt, it’s no wonder that no flesh-and-blood candidates have appeared.
People who always opposed an elected attorney general are enjoying the moment. The Washington Post editorial board, which remains constitutionally incapable of disagreeing with Nickles, declared in April that the District’s “chickens have come home to roost.” At a D.C. Council hearing last week, would-be mayor Jack Evans asked if he could just postpone the attorney general election for a while. (Because the election was ordered by an amendment to the charter, he can’t.)
First up for antagonists of the elected attorney general: hobbling the office before it’s filled. This would be an impressive feat, given that the District’s attorney general doesn’t have that much power to begin with. U.S. Attorney Ron Machen will still be in charge of most criminal prosecutions in the District, including headline-grabbing public corruption takedowns. That leaves the attorney general pursuing drunk drivers and not much else.
That’s probably for the best, because the attorney general also has comically limited subpoena powers. Since the passage of a 2010 bill reducing the agency’s ability to file subpoenas—another hangover from the days of feuding between Nickles and the D.C. Council—the attorney general’s office has only filed a handful of criminal subpoenas. Under the new rules, the attorney general can’t subpoena people who are already under indictment or when the alleged crime occurred more than three business days before the subpoenas are issued. Forget the lawyer’s lawyer—the attorney general needs to be a Minority Report-style precog.
But things could get even less attractive for lawyers eyeing the top spot. Gray and Nathan, with the support of District heavies like Nickles and former Mayor Anthony Williams, are pushing a bill that would move lawyers working for individual District agencies outside of the attorney general’s office. Their thinking is that an elected attorney general would also be a wannabe mayor, looking to undercut his “boss” at every opportunity.
Nickles describes the field of potential attorney general candidates as “terrifying,” but wouldn’t tell LL more. Whoever it is Nickles is afraid of, here’s his nightmare scenario: Imagine if ex-D.C. Public Schools Chancellor Michelle Rhee had needed to ask for legal advice from a DCPS attorney worked for an elected attorney general who disagreed politically with Fenty, instead of Nickles. The DCPS counsel, looking to curry favor with the attorney general, could have just refused to help Rhee with her agenda, Nickles claims. (Your feelings on how nightmarish that is may vary depending on what you thought of Rhee’s work, of course.)
If the legislation passes, the attorney general’s staff would shrink—Broderick estimates it would drop from around 300 to 100. The elected attorney general’s job description would be reduced to prosecuting quality-of-life crimes and defending the District in lawsuits. But without control over agency lawyers, the attorney general wouldn’t know about potential grounds for lawsuits until they’re already filed, according to Walter Smith, the executive director of policy nonprofit DC Appleseed.
Smith, who worked in the Office of Corporation Counsel—the forerunner to the attorney general’s office—in the late 1990s, when agency attorneys still answered to department heads, says taking lawyers from the attorney general will mean a return to the bad old days. “To change all of that would be to dismantle improvements that took sort of 15 years to put in place,” Smith says.
LL has to ask: Is this what residents approved by a margin of 60,000 votes in 2010? Even if voters weren’t considering who the Department of Employment Services’ general counsel’s boss would be when they cast ballots, it’s hard to believe that they expected half of the job to disappear. Smith jests that the charter amendment to change the attorney general position lacked one disclosure: “If you vote for this, we’re going to significantly downgrade the office."
Expect to start seeing names by November, when candidates can pick up their petitions for the Democratic primary. Whoever gets the job, though, will be stepping into a position whose power is slipping away. UDC’s Broderick, who has been privately encouraging attorneys to run, puts a cheerful spin on it: “It would be a wonderful, wonderful set of challenges.”
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Photo by Darrow Montgomery