Minnesota Lawyer Blog

We just passed the one-year anniversary of the day (April 5, 2007) when three top deputies and one administrator at the office of then-U.S. Attorney Rachel Paulose stepped down from their leadership posts in protest of her management style. It's an interesting milestone to reach as we await the results of a preliminary investigation by the legislative auditor into what's going on at the Minnesota Attorney General's Office, where similar issues regarding management style have been raised.

Of course, that's not what the auditor is looking into. His investigation is limited to determining whether there is any basis to allegations that AG Lori Swanson committed any ethical or legal lapses in how she has run the office. The narrow focus was designed to show respect for the wide discretion public officials -- particularly elected ones -- are afforded in managing their own offices.

Because the standard for ethical and legal violations is fairly high, it is not an unlikely result that the auditor will find that none exist. If that happens, it would be taken by some as a "clean bill of health" for the AG's Office, even though the underlying management-related concerns would continue to fester. That is unfortunate.

If I had my druthers, there would be a managerial boot camp or some sort of roving advisor who could counsel people such as Swanson or Paulose who, depite their intelligence and work ethic, run into difficulties managing a major public office. It's easy when you're locked into a combative management situation to lose sight of the forest for the trees. An outside perspective would be very helpful.

My alma mater, Boston College Law School, scored U.S. Attorney General Michael Mukasey to be its commencement speaker this year -- an announcement the dean proudly made last January. But, now some members of the school's faculty have sent Mukasey a letter disinviting him, Legal Blog Watch reports.

Well, technically the letter asks the AG to reconsider his decision to accept the dean's invitation. In breaking ranks with the school's administration, the faculty explains to Mukasey:

We realize that you face complex professional difficulties in your position as
Attorney General. We are very concerned, however, that your role in the current
controversy regarding the legality of waterboarding has made you a symbol of
Administration policies that conflict with basic principles of international and
domestic law, the ideals of Boston College Law School, and the Jesuit principles
that underlie Boston College’s educational mission.

No news yet whether Mukasey has RSVP'd to the disinvitation.

The Legal Blog Watch posting was made by Massachusetts attorney/ writer Bob Ambrogi, a former work colleague and fellow BCLS alum. He notes at the end of the post, "If there is a letter for alumni along the lines of that signed by the faculty, add my name."

An interesting side note: Ambrogi relates that posters on the BC law student's blog (eagleionline) discovered that, after Mukasey's selection as commencement speaker kicked up controversy, BC's marketing department altered the online version of the press release announcing it. The original version of the release had referred to the AG as a "role model," but that term was deleted in a later posted version. After the deletion was exposed, the administration added the word "role model" back in. Apparently the law students have posted all three versions of the press release on their blog. You've gotta' love the Internet.

The Associated Press is reporting that First Assistant U.S. Attorney Frank Magill has been chosen to serve as interim U.S. attorney for Minnesota. Rachel Paulose announced her resignation from from the U.S. attorney's post last November to take a job with main Justice in Washington, D.C.

Magill strikes me as particularly good choice. He is experienced, respected and somehow managed to stay above the fray during all the upheaval in the office.

The Star Tribune yesterday published a highly favorable analysis of the productivity of the Minnesota U.S. Attorney’s Office under Rachel Paulose.

According to the Strib, the office prosecuted a record 668 defendants in fiscal 2007, which ended in September. The productivity gains came despite the resignations of four top managers, a drop in the number of prosecutors in the office and fewer case referrals from the FBI, the Strib says.

The Strib reports dramatic increases in the number of defendants prosecuted for drugs, Civil Rights violations and immigration-law violations. At the same time, the number of white-collar prosecutions remained in line with the office’s statistical average.

The favorable performance was achieved despite a yearlong hiring freeze that left the office down five full-time prosecutors, according to Jeffrey Paulsen, chief of the criminal division.

For the full Strib article, see “Under Paulose, office posted record cases.”

While I am not completely comfortable with the hang-the-mutineers-from-the-yardarm approach of the Wall Street Journal’s recent editorial, I don't think that Rachel Paulose’s decision to leave the Minnesota U.S. Attorney’s Office should end the inquiry into what happened there.

In a highly public uprising last April, three of Paulose’s then-deputies and an administrator stepped down from their leadership roles. (All four opted to stay in that office rather than leave, creating a management situation for Paulose that was awkward to say the least.) The move – which came at the height of the furor over the national U.S. Attorneys scandal – appears to have been calculated to dislodge Paulose from her post. Predictably, the self-demotions led to a firestorm of round-the-clock negative media coverage focused on Paulose. However, Paulose was left standing after media attempts to tie her actions into the national scandal failed.

There are, of course, exceptional circumstances that would justify a mutiny like the one staged by these deputies. So far, I have not seen anything like that on the public record – just allegations Paulose wasn’t a good manager. I think it is something that definitely needs to be explored now – particularly if, as Senators Norm Coleman and Amy Klobuchar recommend, U.S. Attorney General Michael Mukasey is to choose an internal candidate as Paulose’s successor. (At least one of those deputies has been named as a possible candidate in the local press.) As a corollary, such an inquiry should also consider how these each of these individuals acted after they stepped down and went back to nonmangement roles.

The other thing that concerns me deeply is that a person or persons in the office leaked highly sensitive personnel information over the Internet, including selected details of a retaliation and a discrimination complaint. This leaking was done in a manner to stoke the negative media coverage and to compromise Paulose’s ability to effectively carry out her job. The divulging of this personnel-related information was not only clearly in violation of Department of Justice policy, but also threatened the integrity of the investigative process for those complaints. I think people working in a public office have to follow the rules – if we learned anything from the Gonzales era it should be that.

I urge the new AG not to rush to pick an internal candidate as U.S. attorney without first sorting out his or her role in the recent events in the office. I think the vast majority of those in the office kept their heads down and went about their business despite the intrusive controversies. A few people in the office appear to have become disruptive forces who made it their business to stir those controversies up. If our new U.S. attorney is indeed to be drawn from the internal ranks, I, for one, would like to make sure that he or she is drawn from the former group.

If U.S. Attorney General Michael Mukasey heeds the advice of the Wall Street Journal, disgruntled staff members who lobbied for Rachel Paulose to depart from the Minnesota U.S. Attorney's Office may soon wish they hadn't.

In a weekend editorial entitled "Scandalette" (password required), the heavy-hitting business daily weighed in squarely behind Paulose, who recently announced that she would leave the state at the end of the year to take a policy job at main Justice in Washington, D.C.

The WSJ opinion piece characterized most of the criticism against Paulose as amounting to an accusation that she can be a difficult boss. "If that's a hanging offense, then most of Congress would be out of a job," the WSJ says.

The editorial also refers to Paulose as an "innocent bystander" drawn into a "Beltway bloodletting" by a Congress wanting to take public hostages, a media playing up the controversy and a career staff that "took the chance to trash a political appointee they don't like."

The WSJ goes on to give the following piece of advice to Mukasey: "As for replacing Ms. Paulose in Minnesota, the AG ought to send to that office someone who'll take no grief and clean out the whiners."

The news that Rachel Paulose would be leaving as U.S. attorney was hardly shocking. (See "Minnesota's embattled U.S. attorney steps down" in the Star Tribune.) And I am sure that there are many in the U.S. Attorney’s Office rejoicing. The gulf that had grown between our 34-year-old U.S. attorney and her staff was wide, and, in the end, proved insurmountable.

I believe that Paulose made the right choice in opting to end her often stormy tenure and accept a policy job in main Justice in Washington, D.C.

It has always been my belief that it was a management situation causing the disruptions at the office. Paulose has sterling academic credentials and a highly impressive resume for her age. But she had little real management experience.

Intent on impressing her bosses and no doubt deeply believing in her priorities, she plowed ahead and redirected the office without getting buy-in from the troops. She was also reportedly sometimes dictatorial in manner and abrasive toward subordinates. These are rookie mistakes frequently made by inexperienced managers. But when that manager is in charge of 100 talented individuals at the U.S. Attorney’s Office and operating in a fishbowl, there is little room for error.

While I am not adverse to occasionally giving an important role to a highly talented young person and giving them a chance to grow into it, such a person needs guidance and support. As far as I can tell, such support was completely lacking from the problem-riddled Department of Justice.

While I did not agree with all the actions taken by some in Paulose’s office (particularly those leaking information), I believe that their motivations arose out of the difficult employment situation they found themselves in rather than race or gender animus.

And I likewise don't believe the charge bandied around the Web that Paulose somehow has racist tendencies. As a woman from an immigrant family from India, she found that speculation particularly hurtful. I know that she is willing at the drop of a hat to give a long list of past accomplishments showing her interest and commitment to the Civil Rights area, including her recent work in human trafficking, which often involves woman from foreign cultures.

So what are we left to think of Paulose?

I had the pleasure of getting to spend some time speaking with and getting to know Paulose while I was covering the various management-related controversies in her office. The Paulose I got to know was neither the Wicked Witch of the West that some of her detractors made her out to be nor the “St. Rachel” of some conservative blogs (and for that matter, of Katherine Kerstin’s somewhat over-the-top salute in the Star Tribune last May, “The Real Rachel Paulose.”)

I found Paulose to be a highly driven and even at times charming individual who also is a fallible human being. She is definitely conservative, but not very political. (Ironically, had she cared more about politics, she might have been able to rally some political support when she needed it so badly.) She is a brilliant woman with encyclopedic knowledge. Most surprising of all was the fact that Paulose has a keen sense of humor – albeit a wryly dry one.

Unfortunately, most of Paulose’s subordinates apparently never got to see this side of her. Because of her poorly developed management skills, she came across as aloof, condescending and inflexible. She was apparently so busy being defensive after being thrown in at the deep end of the pool that she never let her personality shine through.

Sadly, I think Paulose was starting to improve in recent months. She was no longer micromanaging, but instead was spending a lot of time on the road on outreach projects and delegating the day-to-day operations to her experienced deputies. Had she adopted this approach from the beginning, we would likely not be at this point now.

Then Paulose made her final misstep -- issuing a public comment online about the internal dispute in her office. It is ironic that that was the nail in Paulose’s coffin. She was generally very shy about talking on the record about anything for public consumption, no doubt due in part to her inexperience dealing with the media. I suppose the battering she was taking in the media and on the Internet finally got the best of her. Understandable, but unfortunate.

It is my hope that Paulose will view this as a learning experience rather than accept some of the easy excuses some of her more vocal supporters have been offering her. She was only 32 when she was thrust into a management situation that most 50 year olds couldn’t handle. She was given little or no good support from an incredibly dysfunctional DOJ. She struggled mightily, but was unable to pull it off in the end. No shame in that.

In short, Paulose is a remarkable young woman with a lot to offer. While I think higher-ups in the Administration did her a disservice by moving her along too far, too fast, I am equally sure she has already begun contemplating how she can get the seasoning she needs to make sure she is properly prepared for her next great challenge – be that in public service or the private sector. In the near term, I am glad to hear the people of the United States will continue to benefit from her extensive talents as she moves on to a role that is, for the present, better suited for her.

In closing, I would like to point out that Paulose’s tenure in Minnesota has not been wasted. Despite the internal problems, the office did some great work in investigating and prosecuting child-porn and human trafficking cases. I would not have that forgotten due to the recent turbulence. Minnesotans can truly be grateful to Paulose and the entire staff of the U.S. Attorney’s Office for their Herculean efforts in those areas. It’s a legacy worth having.

As Minnesota Lawyer editor Mark Cohen mentioned on Friday, after months of keeping a relatively low profile, U.S. Attorney Rachel Paulose has stepped back into the spotlight. But after all is said and done, she might wish she hadn’t.

Local conservative blogger Scott Johnson wrote an essay for the National Review’s blog dismantled Johnson’s article in a lengthy essay that went online today. MNPublius maintained that it was a curious strategy for Paulose to counter charges of partisanship by giving an exclusive to a strongly conservative blogger. And Steve Sack’s Star Tribune cartoon Monday made no bones about the lingering talk that Paulose got and has kept her post thanks mostly to loyalty toward the Bush administration (click on cartoon 2 in the ST’s Sack gallery).

In trying to defend herself, Paulose seems to be only leaving herself open for more criticism, all but erasing memories of her positive accomplishments.

UPDATE: The news has just broken that Paulose has resigned her post as U.S. Attorney to go to work for new U.S. Attorney General Michael Mukasey.

Has the war on terror been replaced by the war on downloading? Yesterday the British record industry, along with Interpol and Dutch authorities, raided the owner of OiNK, a bit-torrent file-sharing site with almost 200,000 members, many in the United States.

The news led to rampant speculation about what, if anything, OiNK members have to fear in terms of litigation and/or prosecution for copyright infringement.

In the vast majority of cases, it looks like the answer is “not much.” The secondary target of the raid was uploaders who “leaked” new CDs prior to their release date, and users who paid OiNK via pledge for speedier downloading times.

Some copyright attorneys feel OiNK users who did either of those two things should definitely be nervous.

Others feel an investigation of American users is unlikely unless the U.S. Attorney’s office chooses to get involved, because British and Dutch authorities are unlikely to turn over OiNK’s server logs (which would contain user information) to a private American company such as the Record Industry Association of America. (The RIAA has instigated most of the legal action against American downloaders.)

One would think attorney general nominee Michael Mukasey would have more important things on his mind than grandstanding on behalf of the record industry. But yesterday’s raid will almost certainly have the effect of discouraging downloading – a clear victory for the industry.

Former Star Tribune reporter Eric Black has a new post on his blog about U.S. Attorney Rachel Paulose just in time for U.S. Attorney General nominee Michael Mukasey’s confirmation hearing tomorrow. (See "Is Rachel Paulose in her final days?”) Black does not have much to add to his prior report that the Office of Special Counsel is investigating Paulose – other than an allegation that a second person may (or may not) have heard Paulose make the alleged racial remark (or at least something(s?) similar).

Now it’s pretty apparent that Paulose is not going to win any popularity contests in her office. Given the decision of three of her deputies and an administrator to resign their leadership posts last April (but to stay on staff), it’s not surprising that things there have been pretty choppy there from a managerial point of view -- particularly given the leadership vacuum currently atop the Department of Justice. However, something still strikes me as inherently unfair about the steady flow of leaked snippets from the internal investigation that keep being strategically calculated to be released at the moment they will do the maximum amount of damage. (The last one came a few weeks after Alberto Gonzales resigned.) And, of course, whoever is leaking that internal information is flouting with apparent impunity a DOJ policy designed to ensure the integrity of the process.

Whatever the result of the internal investigation is will be fair game for the media. But I am uneasy about one side using the Internet to make its case when the other cannot respond without violating DOJ policy. Maybe I am a bit old-fashioned in this age of new technology, but I like to see things fairer than that.

It was like the local U.S. Attorney's Office hit the daily double in Duluth today.

First, U.S. Attorney Rachel Paulose announced in a Duluth press conference that 29 people from the area have been indicted for cocaine trafficking. Twenty five of those people have already been apprehended. (The move demonstrates that drug traffickers can't evade prosecution by setting up shop in greater Minnesota, Paulose told reporters.)

Secondly, U.S. District Judge Richard H. Kyle, sitting in Duluth, sentenced a man to 30 years in prison -- the maximum sentence -- for producing some extremely graphic child pornography. (Click here for Strib article.) The local U.S. Attorney's Office has, of course, made child porn prosecutions a top priority.

Unfortunately, the U.S. Attorney's twin victories yesterday did not translate into any victories for the Minnesota Twins. Playing in Toronto, the tanking team dropped yet another one to the Blue Jays. Perhaps they should have played in Duluth ...

From the Associated Press:

U.S. Sen. Amy Klobuchar wants the Senate Judiciary Committee to ask more in-depth questions about why former U.S. Attorney for Minnesota Tom Heffelfinger may have been targeted for removal.

A story in today's Los Angeles Times says Heffelfinger was targeted because he worked to protect the voting rights of American Indians in Minnesota.

Klobuchar wrote a letter to Sen. Patrick Leahy, chairman of the Judiciary Committee, asking the panel to closely question former Bush Justice Department appointee Bradley Schlozman.

Schlozman is scheduled to testify before the committee next Tuesday. According to the L-A Times, Schlozman stopped Heffelfinger's investigation into concerns that American Indians living outside reservations could not use their tribal I-D cards to vote.

While the L.A. Times keeps spilling ink on former Minnesota U.S. Attorney Tom Heffelfinger, federal prosecutors in Wisconsin have had their hands full with Milwaukee Alderman Michael McGee.

According to a story in the Milwaukee Journal Sentinel, McGee and two other men were arrested this week on suspicion of plotting to kill a man whom they suspected of burglarizing a home, before deciding that he instead should be beaten.

In an unrelated twist, state and federal authorities had also been investigating McGee since May 2006 on suspicion of bribery, according to Steven M. Biskupic, U.S. Attorney for the Eastern District of Wisconsin.

So in addition to being charged by Milwaukee County prosecutors for solicitation to commit conspiracy and battery, he is also being charged in federal court with coercion and soliciting a bribe from businesses in his district in exchange for help on liquor licenses and other matters.

It's Monica Goodling day at the House Judiciary Committee, and so far the former Justice Department liaison to the White House has come out swinging, the Washington Post's Capitol Briefing blog reports.

"In her opening statement, Goodling attacked outgoing Deputy Attorney General Paul McNulty, accusing McNulty of not being 'fully candid' in his remarks to the Senate Judiciary Committee and then inappropriately blaming her for not fully briefing him," the blog says.

The blog also reports: "Goodling is proving to be a tough witness under early questioning, as she contends that she played no role in putting names on the firing list and placing more emphasis for that decision-making process on the shoulders of D. Kyle Sampson, the former [Attorney General Alberto] Gonzales chief of staff."

For more and for further updates from the blog, click here.

The U.S. Attorney's Office announced at a press conference today that 25 people arrested over the weekend have been charged in federal court for crimes related to the operation of a major prostitution ring in the Twin Cities.

The charges include conspiracy, transporting a person to engage in prostitution and enticement of another to travel in interstate commerce to engage in prostitution.

The Hennepin County Bar Association’s annual meeting next Thursday promises to be a memorable one. The keynote speaker will be none other than former U.S. Attorney Tom Heffelfinger, who has lately been the reluctant subject of media inquiries about the wave of U.S. Attorney departures during the past two years.

In his address, “The Independence of U.S. Attorneys,” Heffelfinger -- who served as U.S. attorney under both George W. Bush and his father, George H.W. Bush -- will discuss a variety of timely issues, including:

-- the appointment process of U.S. Attorneys;

-- the relationship between U.S. Attorneys and the Justice Department, the White House and other branches of government; and

-- the manner in which U.S. Attorneys exercise their prosecutorial discretion.

“I hope to allow plenty of time for questions,” Heffelfinger said. “That could be the most interesting part of the event.”

Now that's an understatement in light of the recent revelation that Heffelfinger -- who has a sterling reputation in the legal community -- may have been on the list of U.S. Attorneys slated for firing when he left his post to go into private practice last year. Heffelfinger has insisted over and over again that his decision to leave was completely voluntary and not a product of pressure from above.

I, for one, believe him -- although I think the fact that his name appears to have been on the list demonstrates how completely ridiculous and arbitrary the list was. (My own pet theory is that the list with Heffelfinger's name on it was, in fact, not the firings list, but Karl Rove's personal errand list. I think the list was instructing an aide to return a Tommy Hilfiger shirt that someone had given Rove for Christmas and everything else was just a big misunderstanding. ...)

An update on the U.S. attorney's story. In an article now posted on the Star Tribune's website, "Klobuchar asks for Heffelfinger explanation,"U.S. Attorney Tom Heffelfinger said again that he had no idea when he resigned that he had been targeted for dismissal.

"As late as early fall of '05, I had a private meeting with the attorney general related to Native American issues, and [Kyle] Sampson [who compiled the firings list] was present at that meeting," he told the Strib. "Had they had concerns about my performance, [U.S. Attorney General Alberto Gonzales] had the opportunity to raise them and didn't. So I could reasonably conclude that he didn't have a problem with my performance."

Update: Sen. Norm Coleman has joined Sen. Amy Klobuchar and a growing number of other senators in asking for Gonzales' resignation. Hmmm. Wonder if Gonzales has any kids approaching college age ...

As one of the comments points out in another post, a lengthy story on the U.S. attorney controversy dated yesterday out of McClatchy's Washington Bureau contained the following paragraph near the end:

"A U.S. attorney in Minnesota, who disagreed with the Justice Department on a case involving voting rolls, was asked to resign early last year. "

Former U.S. Attorney Thomas Heffelfinger has repeatedly said that he was not asked to resign. So far, there doesn't appear to be anything in the local papers about this, which is a bit perplexing if that paragraph is correct and new info has been found. We will see what develops.

Update: 11:16 A.M. --

The McClatchy paragraph was apparently in error. The story on the website now reads: "A U.S. attorney in Missouri, who disagreed with the Justice Department on a case involving voting rolls, was asked to resign early last year."

Now that is what I call a big oops.

Today's Star Tribune features an article discussing statements made by U.S. Attorney General Alberto Gonzales to Rep. Keith Ellison, D. Minn., yesterday during a House Judiciary Committee hearing. According to Gonzales, the Department of Justice is working with Minnesota U.S. Attorney Rachel Paulose to improve her performance and that if improvement isn't seen, the Department would consider replacing her.

Apparently, this was the first time Gonzales or anyone in his office has said anything publicly about developments in the Minnesota U.S. Attorney's office.

Without making any comment as to Paulose's job performance, isn't it obvious that the Department of Justice should replace a U.S. Attorney whose performance isn't adequate? Is this really news?

The Justice Department will not try to prevent Congress from granting immunity to a former department official to testify about the firing of eight federal prosecutors, the Pioneer Press reports on its website.

In a letter to House Judiciary Committee Chairman John Conyers, D-Mich., officials from two Justice Department offices investigating whether the department played politics when hiring prosecutors said they would prefer not to see the department's former White House liaison, Monica Goodling, given immunity.

"However, we understand the committee's interest in obtaining Ms. Goodling's testimony," the letter said. "Therefore after balancing the significant public interest against the impact of the committee's actions on our ongoing investigation, we will not raise an objection or seek a deferral."

For more, click here.