By Henri E. Cauvin
Washington Post Staff Writer
Saturday, August 18, 2007
With his staff stretched thin by a wartime budget, the U.S. attorney for the District, Jeffrey A. Taylor, wants lawyers in private firms to provide free help to the nation's biggest and busiest federal prosecutor's office.
Nowhere else has a U.S. attorney's office sought such help, and Taylor's proposal, which has not been publicized, has prompted questions about conflicts of interest and other legal and ethical issues.
"This is the ultimate in contracting out," said David F. Garrison, a lawyer and a public administration expert at the Brookings Institution.
If the proposal is approved by the Justice Department and D.C. Court of Appeals, the outside lawyers would be appointed special assistant U.S. attorneys and serve six-month stints in D.C. Superior Court. They would handle a share of the several thousand misdemeanor cases that are filed each year: simple assaults, thefts and so on.
The Justice Department traditionally has allowed lawyers from other federal agencies to take temporary details as special assistant U.S. attorneys. Like many of his counterparts, the U.S. attorney in the District has made use of that help, with about a dozen such attorneys now handling misdemeanor cases in D.C. Superior Court. But Taylor wants to go further, allowing people drawing a paycheck outside government to perform what has long been viewed as a core government function.
The U.S. attorney in the District has a unique role, taking on prosecutions of local as well as federal crimes. Del. Eleanor Holmes Norton (D-D.C.) and other leaders have said the city would be better served by an elected prosecutor who would handle local cases, arguing that such a person would provide more direct accountability to D.C. residents. But they have been unable to sway Congress to act, and Taylor and his predecessors have said they are up to the challenge of handling local cases.
The U.S. attorney's office said Taylor, who took over as U.S. attorney last fall, would not comment publicly on his proposal while it is being reviewed.
New assistant U.S. attorneys often start out on the kinds of cases special assistants work on, prosecuting simple assault, drug possession, unlawful entry and other offenses, some of which can land a person in jail for up to a year. In the busy courtrooms, the new prosecutors learn to juggle the crushing volume of cases and the occasional trial.
The program would offer private lawyers that sort of formative training.
But some analysts -- and some of the region's local prosecutors -- questioned whether the criminal justice system is the place for such a public-private partnership.
"It's an indication of just how short-staffed the federal government is right now," said Paul C. Light, a professor of public service at New York University and an expert on federal bureaucracy. "We are not hiring many employees outside of the war on terrorism, which is leaving many agencies under-resourced for their mission."
The challenges are not unique to the U.S. attorney's office in the District or even to the Justice Department. But as a cog in the fights against crime and terror, the nation's federal prosecutors have faced mounting struggles.
As nondefense discretionary spending has stagnated, the budget for U.S. attorneys' offices has shrunk, falling almost 5 percent in real terms since 2003, according to Richard Kogan, a senior fellow at the Center on Budget and Policy Priorities.
Last summer, Reps. Henry A. Waxman (D-Calif.) and John Conyers Jr. (D-Mich.) criticized the Justice Department for understaffing many U.S. attorneys' offices, including the District's. At full strength, the office in Washington has 360 prosecutors; it now has about 320, officials said.
The local cases appeal to outside law firms. With courtroom experience harder and harder to come by, big law firms are increasingly looking to pro bono work as a way to train young attorneys, and the chance to do such work in a U.S. attorney's office would be unique.
"I think it's a great idea," said Eric H. Holder Jr., a Covington & Burling partner who was U.S. attorney in the District from 1993 to 1997 before being named deputy attorney general. For the U.S. attorney's office, the private lawyers program would provide much-needed help, Holder said, and for the firms, the program would offer not only trial experience but also a better understanding of the demands that prosecutors face.
"It's not the best situation for the U.S. attorney's office to be in," Holder said. "You always want your prosecutors to have ample resources." But the pro bono program is a creative, constructive way of coping, Holder said. "It's a challenge, clearly, for the U.S. attorney, but it's also an opportunity."
Roscoe C. Howard Jr., who was U.S. attorney from 2001 to 2004 and is now a partner at Troutman Sanders, said the benefits of such a program would probably outweigh the hassles and risks. But it's far from ideal, he said.
"To have the equivalent of temporary private contractors performing what I would consider a core government function, it doesn't give me a very warm and fuzzy feeling," Howard said. "It certainly wouldn't be my first choice."
The D.C. attorney general's office, which prosecutes some misdemeanors and most juvenile crimes, has long struggled with staffing shortages. This year, it had a couple of lawyers from WilmerHale working as special assistant attorney generals prosecuting juvenile crimes, and the office is planning to continue that partnership.
But some of the region's other prosecutors said they would be reluctant to follow suit in their jurisdictions.
"I wouldn't do it unless I absolutely had to get by," said Paul B. Ebert, the commonwealth's attorney in Prince William County for the past 40 years. "Prosecution has become pretty specialized. To be a good prosecutor, you have to have something more than a law degree."
Arlington Commonwealth's Attorney Richard E. Trodden said he was approached years ago about such an arrangement but rejected the idea. Even in misdemeanor cases, a defendant's liberty is at stake, Trodden said, and that demands people who are fully invested in their jobs.
"The concept of bringing in volunteers strikes at the notion of a professional prosecution force," Trodden said.