Are Jenny Durkan's party ties an ethics issue?Bruce Green in Seattle Times, June 15, 2009
by Mike Carter
In naming Jenny Durkan as his intended nominee for U.S. attorney in Western Washington, President Obama has chosen not only a top-flight lawyer, but a practiced political insider and Democratic operative.
And that can present some prickly ethical issues.
Consider Durkan's long, close personal relationship with Gov. Chris Gregoire, which helped secure Durkan as the intended nominee for the top political appointment in the state. Or the fact that she has represented the Democratic Party in court.
What happens if the feds have to investigate corruption in state government, or sue the state — and by extension its executive — over some policy or enforcement issue?
What happens if the Republicans claim voter fraud again, as they did in 2004. The Justice Department requires U.S. attorneys to remove themselves from any case where there is even the "appearance of a conflict of interest or loss of impartiality."
Nominees undergo an extensive vetting process that includes an FBI background check, investigations by the White House and Justice Department, and, eventually, confirmation by the Senate. Candidates fill out questionnaires that detail anything that might prevent them from doing the job.
Once confirmed, "You just have to rely on the integrity of the person in the office" and the process that put them there, said Mike McKay, a Seattle lawyer who was U.S. attorney from 1989 to 1993.
"You don't become a U.S. attorney without knowing a lot of people," McKay said.
In his case, he had served as vice chair of George H.W. Bush's Washington state campaigns. A stalwart Republican and close to then-Sen. Slade Gorton — who recommended him for the job — McKay also was close to late King County Prosecutor Norm Maleng, who had run for both governor and attorney general as a Republican.
Any of those connections could have led to a conflict of interest, he said. "It was something I thought about," he said.
Durkan long has been one of Gregoire's staunchest allies — friend, confidante, attorney and counselor. Durkan was consulted by Gregoire's campaign and represented the governor's interests during the failed GOP legal challenge to her razor-thin 2004 victory over Dino Rossi.
Durkan's practice has included white-collar criminal defense, and as a plaintiff's lawyer she also has represented Microsoft co-founder Paul Allen.
Awaiting confirmation by the Senate, she declined to be interviewed for this story, citing White House restrictions.
However, a White House official who spoke on condition of anonymity said Durkan's eligibility and qualifications for the post have been reviewed by administration and Justice Department officials after an exhaustive FBI investigation.
"There is no question that Jenny Durkan is qualified and up to the task of objectively investigating and prosecuting any case of public corruption," the official said. "These relationships, and others like them, are not uncommon, and there are well-recognized rules to deal with them. Jenny will abide by those rules."
Those rules probably would not preclude Durkan from overseeing an investigation into state government, said Monroe Freedman, a law professor at Hofstra University Law School in Hemstead, N.Y. Freedman is a renowned legal ethicist who has consulted and testified on the topic for the Justice Department. His 2004 text on the subject, "Understanding Lawyer's Ethics," is used by many law schools.
That could change if the investigation revealed that the governor or her office was involved, he said.
"The question is not whether a relationship might exist, but how close it is," Freedman said. "Is it an ordinary friendship, or one that is such as to cause reasonable people to question ... impartiality?"
The Justice Department requires a U.S. attorney to notify its Office of General Counsel when an office becomes "aware of an issue that could require a recusal in a criminal or civil matter or case as a result of a personal interest or professional relationship with parties involved in the matter."
The remedy could be something as simple as designating someone else in the office to make all decisions in the case. Sometimes, cases are farmed out to other offices or handled by the Department of Justice (DOJ) in Washington, D.C.
In extreme cases, an outside U.S. attorney — someone with no local connections — can be appointed. In the Northern District of Illinois, a career prosecutor from New York, Patrick Fitzgerald, was brought in to oversee corruption cases, including the investigation and prosecution of former Gov. Rod Blagojevich.
There are "layers and layers" of safeguards that would make it difficult for a U.S. attorney to undercut an investigation, said Bruce Green, director of the Louis Stein Center for Law and Ethics at Fordham University in Manhattan.
"There are a lot of people involved in corruption investigations. You have the FBI, assistant prosecutors, supervisors, and there is almost always oversight from DOJ," he said. "Nobody is going to go up against all of that without attracting attention to themselves."
McKay and Kate Pflaumer, who served as U.S. attorney for Western Washington during the Clinton administration, both say instances arose that required them to distance themselves from cases.
Pflaumer, who previously worked as a defense attorney, made sure others oversaw and made decisions in cases involving some defense attorneys with whom she'd worked. McKay said the Justice Department took over an investigation into a fraud case that involved a company owned by someone he'd served with on a board.
In the investigation into the 2001 slaying of Assistant U.S. Attorney Thomas Wales, the Justice Department appointed a special prosecutor over the objections of some in the U.S. Attorney's Office who wanted to keep the investigation in-house.
"They conflicted the entire office because of the perceived emotional conflict, I guess," Pflaumer said.
Neither McKay nor Pflaumer believes Durkan's relationship with Gregoire is cause for concern. McKay noted that Durkan has advocated for nonpartisan elections for sheriffs and prosecutors: "Partisan politics should play no role in law enforcement," she wrote in an Oct. 5, 2007, op-ed piece published in The Seattle Times.
Durkan's confirmation hearing hasn't been scheduled by the Senate, which is concentrating its efforts on Obama's nomination of U.S. appellate court Judge Sonia Sotomayor for the Supreme Court.
If there are questions about Durkan's relationship with Gregoire, Freedman and others say, the Senate is the place to ask them.
Contact: Mike Carter | 206-464-3706