When Lanny Breuer was a baby prosecutor at 1 Hogan Place, the side entrance to the Manhattan criminal courthouse, which was renamed in honor of the “legendary” New York Count District Attorney, Frank Hogan, no one could have suspected that he would one day end up in Washington, D.C. as the Assistant Attorneys General of the United States of America, in charge of the criminal division.

It’s a big job.  It’s a powerful job.  Lanny made good.

He started working for Bob Morgenthau in 1985, a few years after I started working against Bob Morgenthau.  It was the year that Bernie Goetz shot some black kids on a subway train. Lanny had nothing to do with that, as far as I can remember. 

Between gigs putting people behind bars, Lanny became a partner at Covington & Burling doing (ta da) white collar criminal defense.  His wiki page explains:

Breuer was best known for his work representing the subjects of Congressional investigations. He represented the University of California in an investigation of Los Alamos National Laboratory, Moody’s Investor Service in the wake of Enron’s collapse, and Halliburton/KBR in a hearing conducted by the House Committee on Oversight and Government Reform.

Breuer made headlines when a friend from the White House, Sandy Berger, asked for representation after an investigation disclosed Berger’s theft of classified documents from the National Archives.

These are guys just like the ones he fought to put in jail as a New York ADA.  Except they’re wealthy and powerful, and don’t smell bad because they’ve spent the night in the holding cell.  And the President Obama plucked Lanny from his leather office chair to head up the DOJ criminal division, because the president wanted change.  And Lanny talks about change.

As I and others have detailed elsewhere, the Justice Department has taken a series of far-reaching steps in the past two years to ensure that all federal prosecutors consistently meet their disclosure obligations.   These measures – such as providing guidance to federal prosecutors on gathering and reviewing discoverable information and making timely disclosure to defendants, or instituting a requirement that all federal prosecutors take annual discovery training – are important steps forward.   And I think it’s fair to say that, as a Department, we are in a better place today than we were two-and-a-half years ago.   And I suspect that is true for many DA’s offices across the country as well. 

Justice used to unethical back when those other guys ran the show, but not now with Lanny’s hands on the wheel.  So why isn’t everybody applauding?

Certain defense lawyers nevertheless continue to want to try and turn honest mistakes into instances of misconduct.   This kind of gamesmanship is unfortunate.   The steps we have taken go further than what the Supreme Court requires.  And they go well beyond what any prior Administration has done.   That’s a fact.   Do we need to remain vigilant?   Absolutely.   At the same time, together, we cannot – and I know we will not – shy away from taking hard cases, or otherwise shrink from our obligation to investigate and prosecute criminal activity without fear or favor, because of the possibility that an opportunistic defense lawyer will try and make hay out of an honest mistake.

It’s those nasty, opportunistic defense lawyers, trying to make hay out of the honest mistakes of prosecutors.  It’s not misconduct.  They would never engage in misconduct (unlike the AUSAs working for the last administration, who were evil and unethical scum with a leader like Lanny at the helm). 

But to characterize “certain ‘opportunistic’ lawyers” who challenge prosecutorial misconduct as “gamesmanship” Lanny?  Bob Morgenthau would never use such harsh language.  He might say it was an “honest mistake,” but never gamesmanship.  He would know that defense lawyers can’t assume away error as accidental, and that the failure to abide constitutional rights isn’t the sort of thing defense lawyers can or should ignore.

Didn’t you learn anything from your days at 1 Hogan Place?  Didn’t you learn anything sitting in your leather chair at Covington & Burling?  It’s our duty to “make hay” out of prosecutorial “mistakes,” and “certain defense lawyers” won’t shirk from our obligations either. 

That’s a fact.