Bill Mercer (gov)

Outgoing Montana U.S. Attorney Bill Mercer says his time in public service has led him to one conclusion — never again, The Great Falls Tribune reported yesterday. He told the newspaper, “After 21 years of public service, it’s safe to say I won’t be in public service again, but that’s about as much as I want to say about it for now.”

Mercer told The Tribune he’s proud of improvements he made in communication and cooperation between government on the federal and local levels. However, he credited then-Attorney General John Ashcroft with initiating the push. He also cited progress in Indian Country crime issues as a success of his tenure.

As for his successor, Mike Cotter, who was sworn in Dec. 30, Mercer told the newspaper that the incoming prosecutor’s focus likely will be on prescription drug abuse. “The thorniest problem of this decade for Montana is going to be prescription drug abuse,” Mercer said, adding, “It’s shocking the tremendous number of people reporting prescription drug overdose deaths.”

Cotter said his first week as the state’s top federal prosecutor has been a whirlwind of briefings and meetings, adding that the job has a “pretty steep learning curve,” The Independent Record of Helena, Mont., reports. He joked the learning curve is similar to “drinking water through a fire hose,” the newspaper reported.

Among the issues he cited as priorities are economic crimes, crime in Indian Country and crime against children, The Independent Record reported. Cotter said he will work on goals set forth by the Barack Obama administration in addition to continuing the efforts of Mercer, The Associated Press reports.

Michael W. Cotter (University of Notre Dame, Notre Dame Law School) is nominated to replace William W. Mercer as the U.S. Attorney for Montana.

His vitals:

• Born in Seattle in 1949.
• Has had a private practice for the majority of his career. From 1978 to 1983 in South Bend, Ind. From 2000 to 2007 in Great Falls, Mont. Since 2007 in Helena, Mont.
• Was a partner at Cotter & Cotter in Great Falls, Mont., from 1985 to 2000.
• Worked in the Law Offices of John C. Hoyt in Great Falls, Mont..  from 1984 to 1985 and 1977 to 1978 as an associate.
• Was a law clerk for Robert D. Lee and Barnes & Thornburg in South Bend, Ind.
• Worked as a bartender at Corby’s Irish Pub in South Bend, where scenes from the 1993 Notre Dame football movie “Rudy” were filmed.
• Earned a Masters of Business Administration from University of Utah.
• Was a 1st Lieutenant in the Army from 1972 to 1974, when he was honorably discharged.
• Has tried between 150 to 175 cases, 80 percent of which he was sole or chief counsel. Of those cases, 35 percent were jury trials and 65 percent were non-jury trials.

Click here for his full questionnaire.

UPDATE: On his Office of Government Ethics financial disclosure Cotter reports earning a salary of $70,170. On his Senate Judiciary financial disclosure he reports assets valued at $2,638,000 and liabilities of $493,000 for a net worth of $2,145,000.

More than eight months after President Barack Obama took office, one third of the country’s U.S. Attorney offices are still run by prosecutors appointed during the administration of Republican George W. Bush, according to a review of data by Main Justice.

At this point in October 2001 — after Bush succeeded Democrat Bill Clinton – less than 9 percent of the slots were occupied by Clinton holdovers.

The data from the Department of Justice and the U.S. Senate show that Obama is moving relatively slowly to replace Bush-era prosecutors.

Of the 93 U.S. Attorney posts nationwide, 23 are occupied by Senate-confirmed U.S. Attorneys appointed by Bush. Another eight U.S. Attorneys who were appointed during the Bush administration, but not confirmed by the Senate, are also serving. That makes a total of 31 Bush-era appointees who are still running the top federal prosecuting offices around the country.

(Click here to see our chart of the eight Clinton holdovers who were still serving in October 2001. Click here for our interactive chart tracking Obama’s progress in filling the 93 U.S. Attorney offices.)

The issue of Bush-holdovers has attracted notice because of the intense partisan battles over Justice Department personnel and actions that took place during the Bush administration. And some of the Bush-era U.S. Attorneys still serving today were at the center of those controversies.

But the bad economy and law firm recession also may explain why so many U.S. Attorneys are lingering in office. Indeed, some are waiting until the last minute to exit.

This week, three Senate-confirmed Bush-era U.S. Attorneys – Gregory Brower in Nevada, Edward Kubo Jr. in Hawaii and Joe Stecher in Nebraska – left office as their Obama-appointed successors were sworn in. Stecher indicated in an interview with Main Justice he hadn’t lined up a new job yet.

Other of the Bush-era U.S. Attorneys who are still in office were among those accused of targeting Democrats for prosecution, or who were involved in the 2006 U.S. Attorney firings that led to congressional investigations, an appointment of a special prosecutor, and the resignation of Attorney General Alberto Gonzales. While U.S. Attorneys are political appointees, they are expected to carry out the law enforcement duties of their office without regard to partisan politics.

The uproar over the apparent politicization of the Justice Department helped energize Obama’s liberal base in the 2008 presidential election.

But as president, Obama has moved cautiously to replace U.S. Attorneys. While Bill Clinton asked for the resignation of all U.S. Attorneys after taking office in 1993 — a move that was criticized at the time as disruptive — the Obama White House has consulted closely with Republican senators. At times, the White House has delayed moving forward when GOP senators objected to an intended nominee. At the same time, some Democratic senators and House members have been slow in forwarding their recommendations for U.S. Attorneys to the White House, c0ntributing to delays, say people familiar with the process.

“The U.S. Attorney vetting and nomination process is continuing at a steady pace,” DOJ spokesperson Melissa Schwartz wrote in an e-mail to Main Justice.

Meanwhile, several prosecutors most closely identified with the Bush-era controversies remain in office. They include:

• Mary Beth Buchanan, Western Pennsylvania. Buchanan held multiple Bush Justice Department leadership positions in Washington, D.C., while simultaneously serving as the U.S. Attorney in Pittsburgh since 2001. She headed the Executive Office of United States Attorneys from 2004 to 2005, drawing her into the House Judiciary Committee investigation of the U.S. Attorney firings. A member of the conservative Federalist Society, she is overseeing a sensitive corruption investigation into a group of lobbyists who were close to Democratic Rep. John Murtha. Buchanan told local reporters last November she would not voluntarily step down, according to The Washington Post. In July, former Attorney General Richard Thornburgh asked Attorney General Eric Holder to discipline Buchanan for “vindictively” suggesting at a news conference that a high-profile Democratic defendant was guilty. Her office dismissed all charges against former Allegheny County medical examiner Cyril Wecht after a federal judge threw out evidence that was ruled improperly obtained. Wecht was indicted on fraud and theft charges in January 2006.

• Leura Canary, Middle District of Alabama. Canary, who has been U.S. Attorney since 2001, successfully prosecuted former Alabama Gov. Don Siegelman (D) on corruption charges, in a case that Democrats have alleged was political. Canary is married to GOP activist Bill Canary, who reportedly had close ties to Rove. Canary recused herself from the Siegelman case, which was prosecuted by Assistant U.S. Attorney Louis Franklin. But Siegelman and congressional Democrats have said evidence provided by a whistle-blower in the office shows that Canary stayed involved in the case after her recusal. A Montgomery criminal defense lawyer, Joe Van Heest, has been vetted to replace Canary. But his nomination has been held up by objections from Sen. Richard Shelby (R-Ala.), who supports a daughter of a political supporter and friend for the job.

• Bill Mercer, District of Montana Mercer, who has been U.S. Attorney since 2001, came under fire for simultaneously serving as Montana U.S. Attorney and as the Justice Department’s Principal Associate Deputy Attorney General and Associate Attorney General in Washington for almost two years. Emails obtained by congressional investigators showed he was involved in the internal Bush administration deliberations that led up to the 2006 U.S. Attorney firings. Obama last week nominated Helena lawyer Michael Cotter to replace Mercer.

Also, George E. B. Holding in North Carolina’s Eastern District remains in office while he oversees cases against two prominent Democrats, former presidential candidate John Edwards and former Gov. Mike Easley. The potential political repercussions of removing the Republican prosecutor from the Edwards and Easley probes has complicated moves to name a successor. Read our previous report on Holding here.

In New Mexico, Gregory J. Fouratt, who was named interim U.S. Attorney a year after the Bush DOJ fired U.S. Attorney David Iglesias, remains at the helm. Fouratt was not confirmed by the Senate, but he has been criticized for his handling of a pay-to-play political corruption probe of Gov. Bill Richardson (D).

In an August letter to defense attorneys announcing the government would not bring charges in the investigation, Fouratt wrote that “pressure from the governor’s office resulted in the corruption of the procurement process” and said that his letter “should not be interpreted as exoneration of any party’s conduct in that matter.”  Joseph diGenova, U.S. Attorney for the District of Columbia during the Reagan administration, told The Associated Press the letter was “stupid” and the New Mexico prosecutor “should be fired” for writing it.

In Alabama’s Northern District, U.S. Attorney Alice Martin stepped down in June after the second of two “courtesy calls” she said she received from officials at Justice Department headquarters in Washington informing her of the progress in nominating and confirming her successor, Joyce Vance. Martin’s critics have accused her of targeting Democrats during her almost eight year tenure  – an allegation she has denied.

Martin had moved Vance, a veteran prosecutor in the Birmingham office who colleagues said loved the court room, into a less high-profile job as chief of the district’s appellate section. Observers of the office have told us Martin’s move appeared intended to sideline Vance. Instead, it put Vance in regular contact with appellate judges, who later became influential voices of support when Vance was being vetted by the White House for the job.

Vance took over an interim U.S. Attorney on June 19 and was confirmed by the Senate on Aug. 7. Attorney General Eric Holder attended her swearing-in ceremony. Martin resigned without another job lined up and said she looked forward to spending time with her children.

In addition to Mercer in Montana, other Bush U.S. Attorneys could be out of their jobs soon. Obama has nominated Des Moines lawyer Nick Klinefeldt to succeed Matthew G. Whitaker in the Southern District of Iowa and Stephanie Rose to succeed Matt Dummermuth in the Northern District of Iowa.

Dummermuth took office in January 2007, at the age of 33, under a controversial provision of the Patriot Act — since rescinded — that effectively allowed the White House to install a U.S. Attorney without going through the Senate confirmation process. Bush sent Dummermuth’s formal nomination to the Senate in December 2007, but he didn’t answer questions to the satisfaction of Judiciary Committee Democrats and failed to win confirmation.

It appears likely that at least two Bush appointees will continue to serve in the Obama administration. Northern District of Illinois U.S. Attorney Patrick Fitzgerald — who is prosecuting former Illinois Gov. Rod Blagojevich (D) for corruption — is backed by Illinois Sen. Dick Durbin (D). In Louisiana, Democratic Sen. Mary Landrieu said she wants Jim Letten in the Eastern District to stay. Maryland U.S. Attorney Rod Rosenstein also has the support of Democrats in his state.

Here is a list of the Senate-confirmed Bush U.S. Attorneys who are still in office:

-Leura Canary (Middle District of Alabama)

-Joseph Russonello (Northern District of California)

-A. Brian Albritton (Middle District of Florida)

-Leonardo Rapados (Guam and Northern Mariana Islands)

-Thomas Moss (Idaho)

-Patrick Fitzgerald (Northern District of Illinois)

-Matthew G. Whitaker (Southern District of Iowa)

-Jim Letten (Eastern District of Louisiana)

-David Dugas (Middle District of Louisiana)

-Donald Washington (Western District of Louisiana)

-Rod Rosenstein (Maryland)

-Jim Greenlee (Northern District of Mississippi)

-Bill Mercer (Montana)

-George E.B. Holding (Eastern District of North Carolina)

-Anna Mills Wagoner (Middle District of North Carolina)

-Sheldon Sperling (Eastern District of Oklahoma)

-Mary Beth Buchanan (Western District of Pennsylvania)

-William Walters Wilkins III (South Carolina)

-James Dedrick (Eastern District of Tennessee)

-Edward Yarbrough (Middle District of Tennessee)

-James McDevitt (Eastern District of Washington)

-Sharon Potter (Northern District of West Virginia)

-Kelly Rankin (Wyoming)

And here is a list of non-Senate confirmed attorneys appointed during the Bush administration who are still in office:

-Thomas F. Kirwin (Northern District of Florida)

-Matt Dummermuth (Northern District of Iowa)

-Paula Silsby (Maine)

-Rosa Emilia Rodriguez-Valez (Puerto Rico)

-Charles T. Miller (Southern District of West Virginia)

-A. Courtney Cox (Southern District of Illinois)

-James Zerhusen (Eastern District of Kentucky)

-Gregory Fouratt (New Mexico)

Mary Jacoby contributed to this report. 

President Obama nominated U.S. Attorneys for Missouri, Montana and Iowa today.

They are:

Richard Callahan (Gov)

-Richard G. Callahan (Eastern District of Missouri): The Cole County, Mo., Circuit Court judge would replace Michael Reap, who has been acting U.S. Attorney since Catherine Hanaway resigned in April to join former Attorney General John Ashcroft’s law firm.

-Michael W. Cotter (Montana): The Helena, Mont. lawyer would succeed controversial Bush holdover Bill Mercer, who has been U.S. Attorney since 2001. Mercer was criticized for being the Justice Department’s Principal Associate Deputy Attorney General and Associate Attorney General in Washington, D.C., for almost two years, while simultaneously serving as Montana U.S. Attorney. He has also come under fire for his role in the politicized firings of U.S. Attorneys in 2006.

Nick Klinefeldt (Ahlers & Cooney)

-Nick Klinefeldt (Southern District of Iowa): The Des Moines, Iowa lawyer would replace Matthew G. Whitaker, who has served as U.S. Attorney since 2004. We reported earlier this month that the lawyer has been able to rise above the past of his father, Michael Arthur Klinefeldt, who is serving a 10-year sentence on a methamphetamine conviction.

Stephanie Rose

-Stephanie Rose (Northern District of Iowa): The Northern District of Iowa Assistant U.S. Attorney would succeed Matt Dummermuth, a Bush U.S. Attorney who never won Senate confirmation. Immigration lawyers and immigrant rights advocates have questioned Rose’s role in a controversial round-up of 300 undocumented immigrants working at a meat packing plant in Postville, Iowa last year. Sen. Tom Harkin (D-Iowa) said in May that Rose didn’t take part in the decision to prosecute the immigrant workers.

Read more about the nominees here.

Obama has now made a total of 27 U.S. Attorney nominations. The full Senate has considered 11 of those nominees and they were all confirmed by unanimous consent.

Or was the Justice Department just trying to avoid making bad law by agreeing to move a pornography case out of socially conservative Montana to more urbane New Jersey? That’s the subject of this Politico story.

The rundown, from Josh Gerstein:

The Justice Department issued a press release Friday evening announcing that Barry Goldman, 58, of Jersey City was indicted by a New Jersey federal grand jury for shipping what prosecutors said were obscene DVDs to Virginia and Montana. Goldman allegedly operated a web-based business called the “Torture Portal.”

The press release didn’t mention that Goldman was indicted by a federal grand jury in Montana last August for some of the same shipments, which he unwittingly made to the FBI. Nor was it mentioned that Justice Department prosecutors challenged a federal judge’s ruling transferring the case to New Jersey—before abruptly dropping the fight in May and agreeing to the transfer.

Click here for a copy of the original indictment.

Obscenity cases are politically sensitive for the Obama Justice Department, Gerstein notes. Republicans jumped on Deputy Attorney General David Ogden during his confirmation hearing for having represented  Playboy and other purveyors of sexually explicit material as a private lawyer.

And there are other political factors to consider. The U.S. Attorney who brought the original case, William Mercer, had close ties to the Bush administration and, for a time, pulled double duty as Montana’s top prosecutor and acting associate attorney general. He withdrew his nomination for the department’s No. 3 position in June 2007, amid the political uproar over the U.S. attorney firings.

Then there’s Brent Ward, who heads the department’s Obscenity Prosecution Task Force, which Attorney General Alberto Gonzales created in 2005. Ward’s complaints about alleged resistance to bringing obscenity cases reportedly played a role in the firings of at least two of the U.S. Attorneys. Ward had been handling the case with Billings-based Assistant U.S. Attorney Marcia Hurd until it jumped districts.

So, why did the DOJ relent?

In a May 22 filing, prosecutors wrote, “The government has re-examined its charging decision. After further internal deliberation and consultation, the government has now determined that initiation of this particular prosecution in the district of receipt, although legally appropriate, is not consistent with an internal Department of Justice policy.”

The policy in question advises against bringing a postal obscenity case in the district where an undercover agent had the materials sent, as in this case. In other words, no forum shopping.

There were other theories on the department’s about face.

“I think it has a lot to do with the change in administration,” former federal prosecutor Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School, told Politico. “It makes you wonder how far they were pushing the envelope before…..These cases are fraught with problems and are not a high priority.”

Goldman’s public defender, David Merchant, disagreed.

“It has nothing to do with this administration,” Merchant said. “Nobody can figure out why they took their ball and went home, except for the idea that they were going to make bad law” if they lost the appeal.

He added, “I’m actually surprised to hear they re-indicted the case. In New Jersey, everybody’s going to shrug their shoulders and say, ‘Who cares?’”

Sen. Max Baucus carries the Montana flag in the Inaugural Parade in Washington D.C., as newly sworn in President Barack Obama and Michelle Obama look on. (senate.gov)

Still ensconced in the U.S. Attorney job in Montana is one of the most controversial of the “loyal Bushies,” Bill Mercer. For a time in the Bush administration, Mercer wore two hats: as U.S. Attorney and Acting Associate Attorney General in Washington, where he was involved in carrying out the politicized firings of U.S. Attorneys in 2006.  Mercer is one of those Bush holdovers whose continued presence grates on the Left.

But the Obama administration is apparently moving cautiously to select his replacement, reports the Missoulian newspaper.

Back in February, Sen. Max Baucus (D-Mont.) sent President Obama a list of three candidates for U.S. Attorney.  The names of the three candidates were not released due to “privacy concerns,” but we determined that two of the candidates were Mike Wheat and Mike Cotter.  Wheat is an attorney with Cok, Wheat & Kinzler in Bozeman, Mont. He previously served in the state Senate, and lost a campaign for state attorney general.  Cotter, on the other hand, is a self-employed Helena, Mont. civil attorney.

Mike Wheat

Now, more than four months later, the Missoulian says there have been no new developments.

U.S. Attorney’s Office of Montana spokeswoman Jessica T. Fehr told the paper’s Tristan Scott that “We have heard absolutely nothing” and that “We probably will know when it’s announced publicly.”

Even Kalispell attorney Dana Christensen, the man who vetted the applicants for U.S. Attorney claims to be out of the loop:

“I vetted six applicants back in December and January,” Christensen said. “I was receiving intermittent information for a while, but I haven’t heard anything for a couple of months. I’ve sort of been at a loss as far as what the status is. All I’ve heard is rumor.”

One of the six candidates to be interviewed was Baucus’ state director and senior counsel Melodee Hanes.  But Baucus’ office confirmed in March that Hanes did not make it onto the list submitted to the President.  Another one of the six was 20 year Montana State Senator and Missoula County attorney Fred Van Valkenburg, but he says that it’s unlikely he’s one of the three finalists:

“I think that there were three people interviewed in January by senators Baucus and Tester; I was not included in those interviews, and I have not been kept in the inside loop,” Van Valkenburg said.

If having a nice website counts for anything, Wheat is a shoe-in for the job.

Leura Canary of Alabama (gov)

In March, the Washington Post reported that several highly political Bush-appointed U.S. Attorneys were seeking to stay in their posts, prompting fears on the Left that President Obama would leave a cadre of conservative prosecutors in place across the country. There’s been chatter that some prosecutors are trying to exploit the U.S. Attorneys firing scandal by arguing that if they were replaced now, the Obama administration would be politicizing the Justice Department in the same manner as the Bush White House did.

Bush Holdover Mary Beth Buchanan of Pennsylvania

This argument, of course, is ludicrous: U.S. Attorneys are political appointees who serve at the pleasure of the president. It’s true that these powerful law enforcement officials are supposed to administer justice without regard to partisan politics – an issue that was at heart of the U.S. Attorneys firing uproar as it became clear that prosecutors such as David Iglesias in New Mexico were being ousted for refusing to pursue cases against Democrats.

But U.S. Attorney jobs are plum political posts. When the White House changes party control, the victor gets to put his own people into these jobs. End of discussion.

Montana's Bill Mercer (gov)

So, what’s the state of play on U.S. Attorneys now that the Obama administration has passed the 100-day mark? To answer that, we tried to assemble some hard numbers. To wit: How many Clinton-appointed U.S. Attorneys were still on the job at the end of April 2001? And how many Bush-appointed U.S. Attorneys are still in place now?

The answer: Around 53 Bush-appointees are still coming to work at the 93 U.S. Attorney offices around the country, by our count. But at this point eight years ago, only 32 Clinton-appointed prosecutors were still on the job, the DOJ says. That’s a difference of 21.

The above tally on Bush-appointed U.S. Attorneys is our own, and it differs somewhat from the numbers reported on the Department of Justice’s Web site.  The DOJ puts asterisks next to “presidentially appointed” U.S. Attorneys. What the DOJ really appears to mean is “Senate confirmed” U.S. Attorneys. Unlike the DOJ list, we’ve included in our tally some prosecutors who were appointed during the Bush administration but never confirmed by the Senate, amid turbulence over the politicization of the Bush DOJ. Prosecutors in that category include Jeffrey A. Taylor in the District of Columbia, who withdrew his nomination under opposition from Democrat Eleanor Holmes Norton, DC’s non-voting delegate to the House. But Taylor has remained on the job under a U.S. District Court appointment.

We’ve also made some judgment calls, based on whether the appointees were clearly political or were simply career prosecutors filling vacancies. For example, we’re not counting Jane Duke in the Eastern District of Arkansas as a Bush holdover; she was the first deputy in the office and promoted in 2007 after interim U.S. Attorney Tim Griffin left in the wake of the U.S. Attorney firing controversy. Griffin, a former aide to Karl Rove, had been installed after the White House fired U.S. Attorney Bud Cummins. We also excluded U.S. Attorney Erik Peterson in Wisconsin from the tally of Bush holdovers, because he’s announced his resignation effective in June.

Given the law firm recession, there’s a plausible explanation for the Bush appointees to be sticking around. Some of them are probably having a hard time finding new jobs. And its normal to have holdovers in place as a new administration gears up; The Bush administration put out a news release in March 2001 saying it hoped to have Clinton-era U.S. Attorneys transitioned out by June 2001. When President Clinton took office for his first term in 1993, he demanded that all George H.W. Bush U.S. Attorneys hand in their resignations. But blanket resignations don’t appear to be the norm. For a complete list of U.S. Attorney vacancies and potential nominations, click here to view our interactive chart.

Nonetheless, some of the Bush-era U.S. Attorneys who haven’t resigned yet are among the most controversial politically. They include Mary Beth Buchanan in the Western District of Pennsylvania, Matt Dummermuth in the Northern District of Iowa, Leura Canary in the Middle District of Alabama, and Bill Mercer in Montana.

We asked the Obama administration to explain how it is going about the selection process for new U.S. Attorneys. Justice Department spokeswoman Tracy Schmaler issued this statement: 

“Over the past several months, the Department has been in close touch with U.S. Attorneys regarding the transition process. U.S. Attorneys have been informed that the administration intends to move forward on submitting new nominations in most districts, as is customary following a transition from one administration to another.

“We have not asked any U.S. Attorney to resign. Some U.S. Attorneys have left on their own accord and may continue to do that. Meanwhile, the Department has begun vetting some nominees, and in those particular districts, the U.S. Attorneys have been given ample notice that this process is underway.”

If readers have any insights or corrections to share, please email us at tips@mainjustice.com, and we’ll look into it.