By Thai Phi Le
In December 2010, then–Mayor–Elect Vincent C. Gray nominated Irvin B. Nathan to serve as attorney general of the District of Columbia. Nathan began serving as interim attorney general in January 2011 and he was officially confirmed by the Council of the District of Columbia the following May.
Nathan calls the job the “toughest” he has ever had. Those words carry a lot of weight from a man whose legal career includes working in both the Carter and Clinton administrations, trying high–profile politicians on behalf of the U.S. House of Representatives, and serving more than 30 years in private practice with Arnold & Porter LLP.
Two years into his attorney general stint, Nathan sat down with Washington Lawyer to discuss his career, the challenges and rewards of serving as the District’s top attorney, and the initiatives he hopes to implement in 2013.
Tell me about yourself and your upbringing?
I grew up in Baltimore. I went to a public high school, which also happens to be the high school [Baltimore City College] of a few other members of Mayor Gray’s cabinet, including Steve Baron, head of the D.C. Department of Mental Health. My folks were civil servants. My dad worked for the city of Baltimore as a procurement officer. My mom worked for a state social service agency.
After high school, I went to Johns Hopkins University in Baltimore. I lived at home for financial reasons. I was the editor–in–chief of the college newspaper. I had done journalism in high school and then worked at The Baltimore Sun as a sports reporter during the summers. In addition to working on the college newspaper, I was a play–by–play sportscaster both for football and, more importantly for Hopkins, lacrosse. I also had a sports talk show at Hopkins.
One of my classmates at Hopkins was a fellow named Michael Bloomberg. At a recent reunion, one of our classmates said, and I share the sentiment, “I had a great college career, but my one regret is not being nicer to Michael Bloomberg at the time.”
Why did you choose law over journalism?
I loved journalism. I seriously gave thought to that, but to be candid, when I worked at The Baltimore Sun, I saw the life that sports reporters led. It was limited economically, socially, and in other ways. I thought that the law would provide more opportunities, particularly in terms of doing public service. It was a good choice for me.
What were some of the experiences and who were the people who helped shape your career?
After Hopkins, I went to Columbia Law School and participated on the Law Review there, and also in the trial moot court competition.
After law school, I clerked for Judge Simon Sobeloff of the U.S. Court of Appeals for the Fourth Circuit who has been a great influence on my career. He had an extremely interesting public career. He was the city solicitor in Baltimore, which is sort of the equivalent of the D.C. attorney general. He served as chief judge of the Maryland Court of Appeals. He was solicitor general of the United States during the Brown v. Board of Education era. Then he was chief judge of the Fourth Circuit.
As it happens, my fellow law clerk [Judson Miner] became corporation counsel in Chicago under Mayor Harold Washington. Judge Sobeloff was a great influence in teaching us to do both public service as well as have a private practice; the judge also founded a law firm that still exists in Baltimore to this day.
What brought you to Washington, D.C.?
After the clerkship, I came to Washington and went to work at Arnold & Porter, where I had great experiences. I liked the people and the work there. The focus there was on commitment to excellence, which I have tried to carry throughout the rest of my career. I was elected partner and was involved in a large number of litigations, primarily civil defense work, but also some criminal work.
When did you begin your work in government service?
In the Carter administration, I applied for a position at the U.S. Department of Justice (DOJ) and was lucky enough to get to work with Ben Civiletti and Phil Heymann. Heymann was head of the Criminal Division, and Civiletti, at the time, served as deputy attorney general. (He later became U.S. attorney general.) I had some excellent experiences there, including supervising the Abscam prosecutions, which were undercover operations that related to Congress. We indicted and convicted a sitting senator, six congressmen, and several local public officials. I got my first sense of combating public corruption in that era.
Altogether, I was with Arnold & Porter for more than 30 years. When I came back from Carter’s DOJ, I was doing a lot of white–collar criminal defense work. I headed up Arnold & Porter’s department in that area for a number of years, and for a couple of years I also spearheaded the firm’s pro bono efforts.
Then I went back to DOJ during the early part of the Clinton administration, working again with Heymann, who by then was the deputy attorney general. In that capacity, I dealt with many policy questions, predominantly in the criminal law area involving the FBI, Drug Enforcement Administration, Federal Bureau of Prisons, and other agencies.
Later, I returned to Arnold & Porter, until I got a phone call asking if I wanted to be considered for the job of general counsel for the House of Representatives. I interviewed for that position. I was very impressed by Nancy Pelosi, who was Speaker of the House at that time and who shares my Baltimore roots. I was very honored to be selected by her for that position.
One of the highlights of that job was a lawsuit that the House brought against the George W. Bush administration, former White House counsel Harriet Miers, and then-White House chief of staff [Josh Bolten] for refusing to comply with subpoenas from the House. They claimed the House didn’t have the power to subpoena them. We got a favorable decision from Judge [John] Bates of the U.S. District Court for the District of Columbia, who noted that we had done a very good job. [Nathan pointed to the autographed front page of the decision that is framed on his office wall.] As a very judicious person, Judge Bates said both sides did a good job in that case.
How did you move from House general counsel to D.C. attorney general?
After the Republicans took over the House, it didn’t seem to be a good fit for me. I announced my resignation, and out of the blue, I received a call from Mayor–Elect Gray asking me if I would be interested in interviewing for the D.C. attorney general position. We talked about it, he offered me the job, and I have been very honored to serve in this position for the past two years.
You’ve gone back and forth between the private sector and public service. Why is it important to work in the government?
I think it’s a great honor and opportunity to work in the public sector and to serve the citizens of the community that I’ve lived in for almost 40 years. The importance of public service was instilled in me by Judge Sobeloff.
Also, I grew up in the 1950s and early ’60s, and one lesson I took away from the Kennedy administration was a commitment and a responsibility to do public good. I’ve been very fortunate to have these opportunities, and I have tried to make the most of them.
You have said that being attorney general of the District of Columbia is the toughest job you’ve ever had. Why?
It’s definitely true. I’ve had a number of tough jobs, but this one is particularly difficult. It’s also particularly rewarding. It’s difficult because of the size and breadth of the responsibilities of the office. We have more than 700 employees in this office, including 350 lawyers.
We represent the District in all of the litigation that is brought against the city. We bring affirmative litigation on behalf of the city. We deal with criminal matters in the context of all juvenile prosecutions as well as some important adult misdemeanor matters. We work on behalf of abused and neglected children. We have to deal with employee issues, government–wide, for the city. We handle commercial matters such as bond issues, real estate transactions, and a host of other matters. People don’t recognize how broad–ranging the responsibilities are in the Office of the Attorney General (OAG). That’s what makes it difficult.
What are some of the challenges OAG faces?
It’s difficult to prioritize matters and to stay on top of all the cases that are filed against us and the matters that are of importance to the administration—to the mayor, to the agency heads, and to the D.C. Council.
There are also other responsibilities: To propose or comment on legislation, to deal with the Council, to deal with the press and public reaction to matters, to explain what you’re doing to keep citizens apprised.
On the other hand, I really want to emphasize that I’m extremely fortunate to have terrific lawyers working at this office. We have a great cadre of deputies: Our Chief Deputy Attorney General Eugene A. Adams; my Senior Counsel to the Attorney General Ariel B. Levinson–Waldman, a former WilmerHale LLP lawyer whom I brought with me from the House, who is doing a fantastic job; and 10 deputy division heads.
Even more important is the devotion of the line attorneys. The District is very fortunate to have extremely talented, extremely hardworking, dedicated, conscientious lawyers who are serving in this office. Most of them I inherited; I can’t take any credit for bringing them in. I’m hoping I can take some credit for retaining them and for keeping the morale up under very difficult circumstances where they work for less pay than they can get in the private sector and with limited resources. It’s a remarkable group of lawyers, and we’ve had over the past two years a number of significant successes of which I’m very proud.
Tell me about some of OAG’s success stories.
By far, the most rewarding are the two–and–a–half dismissals of consent decree cases. We have in the District longstanding consent decrees, in which basic government functions are under the supervision of the courts, most of them in the federal court, one in the Superior Court of the District of Columbia. We’ve secured settlements and dismissals of two of the most significant of those. The Dixon case involved mental health patients at St. Elizabeths Hospital and was brought over 35 years ago, and the District has been operating under a consent decree and judicial supervision for most of that time. Last year Judge Thomas Hogan of the U.S. District Court for the District of Columbia described as “historic” the completion and dismissal of the case.
U.S. District Court Judge Paul Friedman had the Petties case for over 17 years. This is a case involving special needs children and issues dealing with payment of vendors to the city for services to them and the transportation of these children to schools outside the District. That case was dismissed [in December 2012] on the motion of our office, based on the hard work of the agencies involved. The main credit goes to the mayor, to the city administrator, to the Office of the State Superintendent of Education, and to the other agencies that worked hard to meet the criteria of exiting from these consent decrees. But our office has helped engineer it—we have worked as lawyers in connection with it and encouraged these agencies at the direction of the mayor to do this.
We’ve had those two successes. We also were dismissed last year from the Blackman portion of the consolidated Blackman–Jones case dealing with special needs students. We’re hoping to use that experience to deal with other consent decree cases that we have to help get the District out of [those decrees]. Operating under a consent decree is very expensive. There are a lot of payments required beyond providing the services. The District has to pay special court masters plaintiffs’ lawyers and reimburse other expenses that are incurred beyond the services that we’re providing to the class members.
Why is it important to get the District out from under those consent decrees?
It’s a question of home rule and autonomy: The District, which is growing very rapidly and providing services to all its citizens, needs to be out from under judicial decrees, proving it can perform services on its own. I think we’re making great progress. Those are some of the most significant victories we’ve had.
What other consent decrees would you like to deal with?
The remaining consent decree cases relate to providing services to the disabled, providing services in the child welfare area, providing medical examinations for children under Medicaid, and in the juvenile justice area. The agencies involved are working very hard to comply with the exit criteria set up for those consent decrees. As soon as we think that they have met those criteria and that we have sustainable programs there, we’ll be moving those courts to dismiss the consent decrees in those cases as well.
What were some of your initial priorities as you assumed the role of attorney general?
We have set a tone in this office from early on of insisting on ethical behavior from District employees regardless of their station. As you know, we brought the case against a sitting Councilmember, Harry Thomas Jr. It was the first time the D.C. government has done that. We found that Mr. Thomas had basically misappropriated about $400,000 that was earmarked for children’s baseball programs in the District and took it for his own personal gain. We laid out all of that in a civil complaint because we don’t have criminal jurisdiction in such a matter, which is a shame. We should have it, but we don’t.
We brought the facts to light. We brought suit. We got a consent judgment. We got some of the money back. We have an agreement that he is to pay the rest, and we referred it to the U.S. attorney who prosecuted the case and secured a guilty plea. Mr. Thomas then stepped down from the D.C. Council and went to prison. We brought the same kind of case against Advisory Neighborhood Commission member [William C. Shelton]who had also taken money that didn’t belong to him.
We focused on ethics early on. We drafted an ethics pledge that the mayor has required all city employees, including cabinet officers, to sign. We’ve revised the city government ethics manual, making it understandable, and disseminated it. We provided training to all city employees in ethical behavior. We drafted and testified in favor of legislation that led to the creation of the Board of Ethics and Government Accountability. That is now headed by a predecessor of mine, [former D.C. Bar president] Bob Spagnoletti, who is doing a great job in that capacity. One of the stalwarts in our office who specialized in ethics is now the executive director of that board.
We had another very nice victory last year when Congress passed an amendment to the Hatch Act to treat the District not like a federal agency, but more like other states and localities. It allows civil servants in appropriate cases to run in partisan elections. It enhances the democracy of the District. It makes more people available to run. That’s a very important thing, and we worked hard to get that legislative change.
We also worked on campaign finance reform legislation at the direction of the mayor. It didn’t get through the Council last year, but we are certainly going to keep pursuing it in the current legislative session.
Are you referring to Initiative 70?
No, that’s different from Initiative 70. Initiative 70 was generated by citizens in the District. It focused only on eliminating corporate contributions for local elections. It did not qualify for the ballot.
Our legislation is far broader than Initiative 70. Our legislation deals with that same problem of using corporate forms to evade contribution limits, but we take a different approach. We also deal with a lot of other problems, with pay to play, with bundling, with lobbyists getting untoward access or the appearance of that, and with money orders and other related things.
We had a comprehensive proposal that the mayor submitted [to the D.C. Council] and was considered by Councilmember [Muriel] Bowser’s Committee on Government Operations. It was a controversial time, and the Council said it would take up the measure this year.
You mentioned the Harry Thomas case. With extensive media coverage of the alleged scandals involving D.C. Councilmembers, do you feel greater pressure
to try those cases?
When I arrived at OAG, there was a desultory investigation of Harry Thomas that had preceded me, but that focused on the question of whether or not he had a license to solicit charitable contributions. We pursued the investigation vigorously and discovered the much more serious financial improprieties and public corruption matters.
To answer your question, we’re partly responsible for generating that [media] interest. I don’t feel any pressure. We’re here to do the right thing. We have an independence that the D.C. Council has given to the attorney general. Legislation passed in 2010 states that the attorney general could not be fired, except for cause, and is to be independent.
Of course, there’s going to be an independently elected attorney general starting in January 2015. I would say that the mayor has been very supportive of all of our efforts, but in particular in the ethical area—in having this pledge, having the Board of Ethics and Government Accountability set up, having campaign finance reform, and doing it because it’s the right thing to do and not because anyone is pressuring us in any way.
What do you think will change when the attorney general’s post becomes an elected office?
There may be some tension between the elected mayor and the elected attorney general. I think that OAG has to continue to represent the city in litigation as best it can. As I said, there are great lawyers here, and I’m sure they’ll do very well in that regard.
I think the attorney general has to give legal advice and make legal determinations on the merits for all to follow. But currently, the general counsels for the agencies report to the attorney general. These agencies are responsive to the mayor, and the mayor has accountability to the citizens to carry out those responsibilities. If the attorney general has other political ambitions—he or she may want to become mayor one day—then it could be unfortunate if, through the supervision of the counsels for the agencies, the attorney general interferes with the functioning of the agencies and the responsiveness and goals of the mayor.
One of the changes that I think should happen is that general counsels for the agencies will need to report to the heads of those agencies, who, in turn, report to the mayor. So the mayor would have full control, which he has now because he appoints the attorney general. That is a good working relationship. I think that’s one of the changes that have to be made.
Second, OAG includes a division that handles the work of a social service agency, the Child Support Services Division, which deals with pursuing noncustodial parents to provide financial assistance to custodial parents. That has worked well, but it is a social service program, and the mayor is responsible for that. I believe that that should be within an agency that reports to the mayor. Those are some of the changes I think would be necessary.
With reports of judicial tension between the OAG and U.S. District Court Judge Royce Lamberth, how does that affect the way you approach cases?
Let me make clear that we have excellent relations with both the federal and local bench. We deal with four courts: the Federal District Court in D.C., Circuit Court of Appeals in D.C., Superior Court, and D.C. Court of Appeals. I have met with judges of all of those courts. I believe we have excellent relations with all of them. I repeatedly get comments from the judges about the high quality of work and the high standards of the work of our lawyers.
Obviously, every once in a while you run into a problem. Judge Lamberth—with whom I have very nice personal relations; he’s a very good person and he’s a very well–respected jurist—had problems on a couple of cases and criticized our lawyers. In one of those cases, I did not think that criticism was justified, and we filed a motion for reconsideration. Judge Lamberth responded and he denied our motion, but he made it clear that he understood that our lawyers are generally doing a good job. That case has yet to be decided on appeal. We’ll raise this issue on appeal, but that’s really an aberration.
I think that our lawyers have great respect for the judges in the four courts that we deal with regularly and are very responsive and respectful. Overall, I think it’s reciprocated, and I think the judges appreciate that.
What are your initiatives for 2013?
Strengthening our office has got to be a priority for 2013. Obviously, we have to work on a transition to an independently elected attorney general, and that’s going to require some changes. I have made some recommendations to the mayor; he has approved them. In short order, the mayor will be proposing some changes that would take effect in 2014 or January of 2015 to alter the office when we have a divided executive. We’ll have an elected attorney general and an elected mayor. The attorney general obviously will not work for the mayor. They’ll have to work well together. I hope that’s what happens. That’s a priority—to deal with that transition and any changes that need to be made legislatively or administratively.
In addition, I think OAG needs to be strengthened by restoring and enhancing the subpoena power of the office. For reasons that are of historical note, the D.C. Council very much diminished OAG’s subpoena power in 2009–10. In my view, an office like ours, with many civil and criminal responsibilities, needs to have a compulsory process to require people to testify or produce documents so that when we go to court, we know all of the facts to protect the District’s interests. Our office should have the same type of subpoena authority as state attorneys general offices around the country so that we can more effectively protect the District. This proposal would move us toward that needed parity.
There are very severe limitations on our subpoena power, and we did propose a bill to expand our powers. It didn’t advance in the Judiciary Committee. I’m hoping that this year it will pass.
What type of work are you doing with the private bar?
I think that we’ve been very fortunate practicing here in the District where the private bar is very extensive and has great traditions of doing pro bono service. Given the tremendous volume of matters that we have in our office, we have had to reach out to the private bar to help us out. They have been very responsive. It’s a very good benefit for the District and for private lawyers. We need help in a variety of our cases and [the private bar has] obligations to not only do public service, but also to train their young lawyers. There are a lot of cases and a lot go to trial. It’s a very good opportunity to get training for young lawyers.
A number of firms have donated time and effort to us, and some have sent young lawyers here for a period of three to six months. Others have sent people to work on specific cases. They have done a great job for us. We want to expand that program in the years to come.
A couple years back, when the economic recession hit and [firms] hired too many associates and had to find places for them, they sent them here while paying their salaries. We worked with them. The economy is improving—and we’re very pleased that it is—but we need some additional help in that regard from the firms. In the next year, we will reach out to firms to provide assistance, which is mutually beneficial.
How else are you involving the local legal community?
We also work very well with the local law schools. We have extensive internship and externship programs, allowing students to gain good experience, to see very talented lawyers do their jobs, and to assist us. Then we have a program called the [Charles F. C.] Ruff Fellows. They’re named for Chuck Ruff, who was a former corporation counsel and personal friend and mentor of mine. I worked closely with him at the Department of Justice. [Ruff served as D.C. Bar president from 1989-90.]
In that program, young law school graduates who haven’t yet found employment work here fulltime, and their salaries, which are in the nature of public interest salaries, not the full amount that we pay regular lawyers, are subsidized by the law schools. The law schools provide some of the funds. We provide some of the funds. We did this last year. We had about a dozen young lawyers from Georgetown University Law Center, The George Washington University Law School, and the University of the District of Columbia David A. Clarke School of Law. Those people have done a bang–up job. Several of them are now going to be hired fulltime.
This year, we’re working with the same law schools and maybe some additional ones. We think we’re going to have more than 20 Ruff Fellows working for us this year. We have again some applications that are just fantastic. We are looking forward to working with those folks this year.
Reach D.C. Bar staff writer Thai Phi Le at firstname.lastname@example.org.