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Wednesday, January 04, 2006

Go Ask Alice

There's article up at the New York Observer that provides some interesting context for the prominent drama that is playing out within the Justice Department right now. It covers the changes that are happening in the US Attorney's Office in the Southern District of New York, which happens to have been home to both James Comey and Patrick Fitzgerald:
Because of the complex, highly technical work involved, white-collar prosecutors are considered exceptions to the conventional wisdom that prosecutors don'’t make good defense lawyers.

But that doesn'’t mean it'’s always easy. There's a law-and-order mentality that's hard to shake. Prosecutors are often idealistic, coursing with the belief that they are incorruptible, that their loyalty is to the truth, to seeing justice served. They can often be righteous: Because they pick their cases instead of their cases picking them, they believe through and through that they are right. They see the defense bar -- —where loyalty to the client is paramount -- —as relativistic to the point of unprincipled. It can make the transition rocky.

“You've got to wait a little time for the "badgectomy"’ to heal,"” joked Steven Peikin, who left his post as co-chief of the unit in 2004 to join Sullivan & Cromwell'’s criminal-defense and investigations group. He just made partner.

When James Comey took office as the U.S. Attorney for the Southern District of New York in 2002, he described an earlier transition, from Assistant U.S. Attorney to corporate defense lawyer, as a "“major adjustment."

"You go from being paid to do the right thing every day, from having the freedom never to make an argument you don'’t believe in, to being a defense attorney, where you are duty-bound to make the best argument you can," he told the New York Law Journal. "“I have a tremendous respect for people who do defense work, and it's not lying, but in a private moment, sometimes, you say, 'Geez, this is a bunch of baloney.'"

Mr. Peikin argued that it's easier to make the transition to defense work in the white-collar arena. "I'm not representing any terrorists, I can tell you that,"” he said. "“It'’s seldom black-and-white; there are often degrees or shades of gray."”

Prosecutors at the U.S. Attorney'’s office have different versions of the adage about selling out to a fancy law firm, but one version has it that they start looking around when they have a second child, or when their first hits school age. Prosecutors fresh off a clerkship can make about $50,000 a year, but most come in with more experience and earn starting salaries between $60,000 and $80,000. The U.S. Attorney tops out at about $140,000.

Meanwhile, the Assistant U.S. Attorneys jumping ship this fall are landing on some pretty swank dinghies. At the top-tier firms where they'’re headed, they'’ll expect to make between $700,000 and a million in the first year, experts said.
Patrick Fitzgerald is making that $140,000 a year. He doesn't get paid extra for handling the Plame investigating. One shudders to think of the financial lures from the private sector he turns down in order to do so.

When Comey took the job of number two at the Justice Department, he no doubt thought he was opting for a life where he would have a great deal of discretion in choosing to pursue cases he felt passionately about, and was willing to make the financial sacrifice on behalf of himself and his family to do so. That most certainly did not happen as part of the Bush Junta and it is to his credit that he stuck around and fought them as agressively as he did.

The case of Alice Fisher and her oversight of the Criminal Division is troublesome not so much because she will spike the Abramoff deal, although she shouldn't be anywhere near it. It is problematic because Abramoff potentially leads to so many other targets, and as head of the Criminal Division Fisher will have a great deal of discretion about who they decide to purse. Do they chase Tom DeLay, K Street and the elaborate GOP money laundering scheme, or do they go after Harry Reid for taking $5,000 in money with no obvious quid-pro-quo ties from Abramoff's victims, the Indian tribes?

THAT'S the problem.

PS I'll be on Majority Report today at 4:51 PT/7:51 ET with Janeane Garafalo and Sam Seder.