AG Election: candidates could be a challenge
December 2, 2010 | by Katie Manning
Photo by Katie ManningAlthough the next election cycle is miles away, the current – appointed – D.C. attorney general Peter Nickles responded with a decisive “no” when asked if he would consider running for attorney general in 2014. Nickles is not alone at this early stage. So far, the prospect of becoming D.C.’s first elected-attorney general enticed only one potential contender: At-Large Council member David Catania.
Catania said, “I would definitely consider it.”
Ward 2 Council member Jack Evans preemptively took himself out of mix. He said, “I have absolutely zero interest. I can give you a Shermanesque statement that if drafted I would not serve, so there. Zero. None.” American Civil War General William Tecumseh Sherman, the author of the "Sherman Pledge," would have been proud of Evans' decisiveness.
Evans said he is against the elected-attorney general charter amendment, which would allow D.C. voters to choose the attorney general who will take office in 2014. The referendum passed last November and is now en-route to Congress. If the referendum sails through Congress, as expected, Mayor-elect Vincent Gray will be the last to appoint an attorney general.
The referendum spells out that the elected-attorney general is “responsible for upholding the public interest.” Other changes include setting a minimum standard of requirements for the office, salary control and granting the public the ability to elect someone else if the attorney general fails to impress.
To run, a candidate must live in D.C. and be in good standing with the District of Columbia Bar for at least five years before becoming the attorney general. Candidates must be “actively engaged” in the D.C. legal world working as a lawyer, judge, or law professor.
Finding viable candidates for 2014 could be an uphill battle. Evans said, “I don’t see any of the top lawyers in the city running for this. Politics is a tough business these days and most people don’t want to put themselves into this crazy world in which we operate.”
Mark Plotkin, a political analyst for WTOP and a keen advocate for D.C. statehood, said he’s optimistic about the 2014 prospects. “There are so many lawyers, who made a lot of money, who could devote their lives to public service.”
Nickles disagreed. He said, “You are not generally going to get strong lawyers. You’re going to get strong politicians.”
While Plotkin said he hadn’t heard any names floating around, his top choices for the District’s 2014 attorney general were former President Bill Clinton, Evans, and Clinton’s lawyer during the Lewinsky scandal Robert Bennett.
But Plotkin’s favorites aren’t likely contenders.
Clinton, a registered voter in New York, won’t have racked up the requisite five years in good standing with the D.C. Bar by 2014. Not only would he be ineligible, Clinton’s staff also said little more than “hold on” when asked if he would consider running.
Evans went as far as to say, “There is not a quality candidate that would run for this office.”
As for Bennett, he said he’s content having just rejoined his former law firm. He said, “I just could not accept that position.”
After being informed that he has four years to mull it over, Bennett paused briefly before saying, “I don’t know what I’ll be doing in 2014. I don’t know. I doubt it. I think I’ll still be practicing law with Hogan and Lovells.”
Since Catania said he expects to run, it’s unlikely that the seat will be empty.
Catania got the ball rolling on electing a district attorney over a decade ago, so it’s unsurprising that he is considering the AG position. He wanted the DA to have all the powers of the attorney general plus the ability to prosecute local felonies. The U.S. attorney’s office currently fills this role.
Currently, the D.C. attorney general is charged with all things law related in the District. The attorney general handles suits by and against the D.C. government, controls litigation and appeals. The 2014 attorney general will continue to, upon request, present his written opinions to the mayor and avoid practicing privately.
Upon learning that Catania is a probable candidate, Evans tweaked his previous statement. He said, “David is a qualified person, but David is a politician, so he runs for things.”
“David is very smart and he certainly will be very ambitious,” said Nickles. “Clearly, he’s up for the job. The question is A can he get elected and B because he’s a strong individual, he has clashed with a number of council members.”
Plotkin said he isn’t impressed by Catania’s record calling him “nothing more than a crass-publicity hound.”
Naming potential candidates might seem premature because the referendum still has to pass through Congress. But the referendum will likely come out unscathed and become official in March according to Brian Flowers, general counsel to the D.C. Council, and its original proponent, veteran At-Large Council member Phil Mendelson.
Catania and other D.C. government officials spent years asking Congress to amend the Home Rule Charter, which grants D.C. the ability to govern itself locally, to allow them to elect a DA ( an AG with ability to procecute).
Fed up with appealing to Congress, the D.C. Council put the elected-attorney general referendum to a public vote according to Flowers.
Voters supported the referendum with 76 percent approval overall and 67 percent approval in Ward 2.
Rita Sharon, a Ward 2 voter living in Georgetown, said she appreciates having input. She voted for the referendum because “there’s very little control over my one vote, but I have no control for what the appointer is going to do for an appointee,” she said.
Unlike the DA amendment, neither Congress nor the Senate actually has to do anything for the elected-attorney general referendum to become official.
Flowers said Congress has 30 days after the D.C. Board of Elections and Ethics (DCBOEE) sends the legislation to the Hill this week. The referendum gets trashed if both Houses submit an act of disapproval and President Barack Obama signs off. This has happened only three times in the 37 years of home rule.
Mendelson said, “I’d be shocked if they were to rise up in both Houses and pass a resolution to disapprove.”
Another way to strike it down is for Congress to tack it as a rider to a piece of unpopular federal legislation. It’s possible but highly improbable according to Flowers.
The new Republican majority in Congress doesn’t have Flowers worried even though D.C. is effectively a one-party, Democratic city. “We still would have heard something that there was some opposition” to the referendum if Congress planned to stop it, he said.
Assuming that the amendment takes effect, educating voters could be a major undertaking. When asked what role the attorney general has, Sharon said, “Obviously he is a lawyer, but I don’t know exactly.”
The power of the AGl won’t change much according to Mendelson. He chairs the Public Safety and Judiciary Committee, which oversees the attorney general. That won’t change, Mendelson said. “The fact that it’s elected is irrelevant in terms of oversight.”
But Nickles said to expect a “huge change” in the oversight of lawyers working on various committees for the city. He said, “Basically, the lawyers of the city are going to be beholden and reporting to the elected-attorney general not to the mayor or the council.”
Catania said there will also be new budgetary oversight over the AG. How the AG spends “scarce dollars” will face a “rigorous review,” said Catania.
The elected-attorney general’s spending and staff won’t balloon in 2014 according to Catania. “We already have a fully functioning attorney general’s office with all of the staff necessary to run the office,” he said.
Catania acknowledged the attorney general could dip into the budget after coming into office. “What might happen is that the attorney general might make the case to the council that additional resources might be needed for this purpose.”
Nickles said that a budgetary increase is almost a given. “The elected-attorney general will have more political power, and I think council and the mayor, in order to reach compromises, they will have to provide him or her with a greater budget.”
Catania added that elections will give an “opportunity for people to come forward, to seek the office, to explain how they would use limited prosecutorial resources to advance the interests of the city.”
Catania said this should oblige the attorney general to be loyal to the public because each election cycle, candidates will debate what the priorities of office should be. Whoever wins should be held accountable.
Having the attorney general’s agenda differ from the mayor and the council will stir up trouble according to Nickles. He said, “Inevitably there will be a clash.”
But according to Mendelson, an independent-attorney general will be an improvement. Electing the attorney general will make the office “more focused on the public interest rather than being the mayor’s attorney.”
With that goal in mind, council members took a figurative-red pen to revise the existing statue. The statue now states that the attorney general advocates for the public interest, rather than being the mayor’s right-hand man.
The referendum aims to decentralize power in the D.C. government by creating another elected office according to Mendelson. “We have too much power invested in our mayor,” he said.
As attorney general, Nickles was a powerful and visible aide for Mayor Adrian Fenty. Some accused Nickles of not serving as the peoples’ lawyer. Last summer, Gray called for Nickles to resign. Gray accused Nickles of, among other things, “politicizing the attorney general’s office” and aiding Fenty in a contract with one of his fraternity brothers.
Plotkin said, “Peter Nickles defended Adrian Fenty rather than defending the public.”
But the referendum was not created to counter Nickles’ actions.
Mendelson initially introduced the legislation before Nickles’ questionable behavior. “The performance of Peter Nickles certainly helped the passage of the bill, but that wasn’t the genesis,” said Mendelson.
Evans said, “I recognize how we got to where we are. A lot of my colleagues were angry with Peter Nickles and wanted to get rid of him, but you don’t create that through this elected office idea.”
Going forward, Catania said an elected-attorney general is a “good intermediary step,” considering the turning of the tides during the midterm elections. He said, “With the Republicans now in charge of the House, it is not going to be an opportune time for us to be advancing the expansion of home rule.”
An elected-attorney general could be a stepping-stone according to Catania. If elections go smoothly and the office is run well, he said, “It might be an inspiration for Congress to give us the authority to prosecute our local-major misdemeanors and felonies, which every other state in the country has the power to do.”
It looks to be only a matter of time before the ink dries on the elected-attorney general charter amendment. Even Evans said he thinks it will pass through Congress. Whether his concern that the “tough business” of politics will repel high-quality lawyers is warranted, won’t become clear for another four years. In the meantime, Plotkin seemed thrilled that D.C. will be joining the 43 states with popularly elected attorneys general. He said, “This is an indication of a step toward statehood.”