Now 'Back To Stability,' Mass. US Atty Office Set To Ramp Up
By Chris Villani
Law360 (November 15, 2024, 5:37 PM EST) -- The incoming Trump administration's pick for Massachusetts U.S. attorney has a chance to revive the productivity of an office known for bringing complex and often high-profile cases, veterans of the district say, but new leadership and priorities at the Justice Department leave looming uncertainties.
The Boston office has had a rocky road over the past several years, from a pandemic that stalled productivity and created a backlog of cases, to the resignation of President Joe Biden's first pick to be the state's top federal prosecutor amid multiple ethics inquiries, including related to her appearance at a political fundraiser.
With Trump's re-election, new leadership is on the way. Former Boston criminal chief and current Cooley LLP partner Zachary Hafer said that defense attorneys are expecting a busier office regardless of the pick.
"I think that there will be a real effort made for the office to get back to the productivity levels that it had leading up to COVID and to be among, along with [the Southern District of New York], one of the elite criminal offices in the country," Hafer said. "I think that will be the top priority for anybody who gets the job."
The number of indictments returned by the Boston office dropped by more than 50% in 2020 amid the COVID-19 slowdown and the numbers have not bounced back to pre-pandemic levels seen under Trump's first appointee, Andrew Lelling, or his predecessor, Carmen Ortiz.
Across the board, defense lawyers had high praise for the stewardship of acting U.S. Attorney Joshua Levy. The former Ropes & Gray LLP partner succeeded Rachael Rollins, who stepped down amid parallel probes by the Office of Special Counsel and the Office of the Inspector General that criticized her for an "egregious" abuse of power.
"It takes a lot longer to build something up than it does to knock it down, and the office got knocked down in a pretty spectacular way by the prior U.S. attorney," Hafer said. "Josh had to devote so much of his efforts to just restoring stability and pride, so I do think he was a victim of circumstance."
Nate Mendell, a partner at Morrison & Foerster LLP and former top deputy for the Boston office during the first Trump term, said Levy "brought the office back to stability after a seriously compromised couple of years."
"I think one of his priorities has been productivity and certainly that was one of our priorities," Mendell said. "The next U.S. attorney will want to increase productivity considerably and also reduce the time from case opening to case resolution."
Calling productivity a "complicated equation" for a federal prosecutor's office, Mendell said that the speed and efficiency of decision-making, the clarity of the office's goals and priorities, and
clear responsibility for decisions in each case all go into making an office function at a high level.
"What I have heard from my colleagues, and it's consistent with my experience anecdotally, is that the pace has dropped off," Mendell said. "Everybody would expect it to pick back up. Whether that's a return to quote-unquote normal, or something busier than that, we will have to see."
In addition to simply bringing more cases, attorneys expect that the priorities of the office will shift to align with Trump's vision for the U.S. Department of Justice, though most acknowledged that there is a great deal of uncertainty surrounding attorney general nominee Rep. Matt Gaetz, R-Fla.
Chris Nasson of K&L Gates LLP, a former federal prosecutor in New York, said that getting out from the pandemic logjam will likely play a bigger role in helping the office's productivity than the change in administration.
"So many in-court cases and confidential investigations were put on hold for about two years, and it takes time to ramp those back up and get those through the process so that new investigations can be developed and new cases can be brought," Nasson said. "U.S. attorneys' offices rarely become significantly more or less active simply because of an administration change, neither party wants to appear soft on crime. Instead, what we typically see is a change in investigative priorities."
Nasson said the Boston office, and all local U.S. attorney offices, will put more emphasis on immigration enforcement, along with guns, drugs and street crime.
"Although national crime statistics don't necessarily support it, Trump has argued that street crime is rampant," he said. "After talking, there is going to be political pressure to walk the walk."
B. Stephanie Siegmann of Hinckley Allen LLP, the Boston office's former national security unit chief, agreed that increased attention on immigration is almost assured under the new administration. She also said there is likely to be an intense focus on China, particularly in areas where there is concern that the Chinese might leap-frog U.S. technological advances, including in artificial intelligence.
Siegmann also noted that the Boston office has brought significant cases recently, even if they are a bit outside the norm for federal prosecutors. She cited the prosecution of a high-end brothel whose customers allegedly included public officials, corporate executives and individuals with security clearances.
"Cases like that take extensive resources, even though they are not a traditional white collar case, and cases like that are important," Seigmann said. "That's not typically a case that the U.S. attorney would bring."
Another area that could be in for a change under the new administration is securities enforcement, a longtime bread and butter for the Boston office due to a traditionally smooth relationship with its counterpart office at the U.S. Securities and Exchange Commission. Trump has signaled that he may want to put the brakes on some of the aggressive SEC enforcement and regulation of the past few years.
"The SEC is going to be kneecapped substantially," said former Boston federal prosecutor Eric Rosen. "A lot of securities fraud prosecutions will not be brought, including penny stock cases and other similar matters. I don't think that's going to be a priority as it is now, or was under Andy [Lelling], or even before then."
Rosen, now a partner at Dynamis LLP, cited the Gaetz nomination and Trump's campaign statements in suggesting that the new administration should be more "pro-crypto" than the current one.
Healthcare enforcement and investigations, long a sweet spot for the Boston office, should remain a focus, according to Foley Hoag LLP partner David Lazarus.
"I think everybody on both sides of the aisle seems to be supportive of those types of investigations and pursuing federal funds that have already gone out the door," the former assistant U.S. attorney said.
But, despite the speculation that the office will become more productive in the coming years, Lazarus said the allocation of investigative resources could have the opposite effect.
"Traditionally, with the change in administration, there is not a huge change at the U.S. attorneys' office level," he said. "But if agent staffing and agent assignments are changed, if they start moving agents around or assigning agents who were doing economic crime to border enforcement or immigration investigations, it makes it much more challenging for the U.S. attorney to make charging decisions."
"It could slow things down a bit," Lazarus added.
Mintz Levin Cohn Ferris Glovsky & Popeo PC partner Eoin Beirne predicted that the changes at the local level might not be as stark as some might think, pointing to the rank-and-file of the office, which will largely stay in place.
"There are lots of really smart, hard-working assistant U.S. attorneys and agents who will continue to do their jobs, investigating and prosecuting federal crimes," Beirne said. "There may be some changes around the margins, but the mission remains the same regardless of who is in office."
--Editing by Kelly Duncan.
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