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Three weeks ago, Sahan Journal began receiving tips about who might be the next U.S. attorney in Minnesota. This is a powerful post: The U.S. attorney prosecutes criminal cases brought by the federal government and represents the United States in civil cases.
Parts of the selection process were public. Everyone knew the names of the seven-person committee, led by Ramsey County Attorney John Choi, who met to create a shortlist of finalists for the job. And we all knew that Senators Tina Smith and Amy Klobuchar would review those candidates and pass the recommended names to President Joe Biden, who would then announce a pick and send it to the U.S. Senate for approval.*
But the names that came out of that selection process were supposed to remain shrouded in secrecy.
It was difficult—but not impossible—for Sahan Journal to learn the identities of the three finalists. Through our reporting, we ultimately confirmed the names with enough confidence to publish them in a series of stories earlier this month. (The Minnesota Reformer broke one of those names, and the Star Tribune later confirmed all three, as well.)
Those candidates—all of whom remain under consideration (as far as we know)—represent three experienced federal prosecutors: former U.S. Attorney Andy Luger; Surya Saxena, the senior associate general counsel at UnitedHealthcare in Minnetonka; and Lola Velazquez-Aguilu, the lead counsel for a product line at Medtronic. Saxena and Velazquez-Aguilu have both served as assistant U.S. attorneys.
However publishing one of those names—Andy Luger—raised concerns among members of the Black, Somali, and Muslim communities. During his first term as U.S. attorney (2014–2017), Luger oversaw the prosecution of nine young East African men for attempting to join the terror group ISIS. Luger also helped create a controversial anti-extremism outreach program.
Pushback from the Black, Somali, and Muslim communites inspired a group of almost two dozen state legislators—including many members of color—to sign a letter calling for Smith and Klobuchar to spike Luger’s candidacy. Meanwhile, the editorial board at the Star Tribune published a piece defending Luger’s performance, touting his abilities, and decrying the way the names have gone public.
The debate has been lively; under the rules of the closed-door, secretive process, this debate also wasn’t supposed to happen.
Senator Omar Fateh (DFL-Minneapolis) collected signatures from other legislators for a letter to Smith and Klobuchar, expressing reservations about Luger’s candidacy. He has also raised concerns that the selection steps are not transparent.
The speed—and silence—of the process may have led voters to assume a decision has already been made, when that is not the case.
“Folks should have some idea,” Omar said to Sahan Journal. “We shouldn’t have to find out through a news outlet.”
Representative Esther Agbaje (DFL-Minneapolis) also signed on to the letter. She said that she trusts Klobuchar and Smith have a deliberate approach to deciding who should get the job.
“Now that there are comments and questions in the public sphere, I hope that that also is a part of their consideration,” Agbaje said to Sahan Journal.
She added that she’s curious why the selection process has historically been conducted confidentially.
So why is the process a secret? What goes on behind those closed doors? And why not open the process in the future?
Looking for answers and explanations, we contacted John Choi, who declined to comment.
A two-time former U.S. attorney explains the process
Luckily, we reached former U.S. Attorney Thomas Heffelfinger. He’s served in this role twice under Presidents George H.W. Bush (1991-1993) and George W. Bush (2001-2006). He’s also chaired the selection committees for U.S. attorney and other judicial positions.
Heffelfinger makes a case for keeping the process confidential, while providing historical context and some insight into how a U.S. attorney gets selected.
The committee Heffelfinger chaired included about 12 members. He said a committee might evaluate roughly 100 applications. Heffelfinger said that list may be narrowed down to, say, 25 applicants, which are then divided up among committee members.
As part of due diligence, committee participants contact community members that may know the applicant, check references reported in the application, and read news stories and other published documents about the person they’re evaluating. The committee then reconvenes to discuss what they’ve found and compile a list of people to interview.
Confidentiality in selecting finalists doesn’t necessarily have much to do with keeping politics out of the process. “The idea is actually confidentiality for the applicants,” Heffelfinger said. “It has nothing to do with the senator or president that’s making the appointment.”
Many of the lawyers under consideration for U.S. attorney hold weighty jobs for corporations or clients. “I’ve had frequent times when applicants have either called me or during their interviews asked that it not be publicized,” Heffelfinger said. “In all cases that was because the individual did not want to jeopardize their current employment status.”
That said, applicants themselves can share that information with employers or clients, if they would like to, he added. “It’s exciting and it’s an honor to be considered. I’ve had many people who have told their partners or told their bosses.”
We contacted Smith and Klobuchar to find out what the process is like and why it’s kept private.
A spokesperson for Smith told Sahan Journal that like many other states, Minnesota’s senators have traditionally convened a selection committee to recommend nominees.
“The Committee solicited and reviewed applications for the two positions, conducted interviews, and ultimately submitted to the Senators a short list of recommended candidates for each position,” the spokesperson said.
Now that the names of the candidates have become public, their decision will surely draw more scrutiny. The spokesperson did not comment about how public debate may affect the decision—or whether it’s a good idea in the first place.
Heffelfinger: ‘The job of the U.S. attorney changed’
Heffelfinger has been on both sides of the selection process. And his experiences with the office have shaped the way he thinks about the evolution of the U.S. attorney job—and the job of selecting the next one.
When Heffelfinger applied to become a U.S. attorney under Senator David Durenberger in the 1990s, the process looked a bit different. Instead of appointing a committee, Durenberger, his chief of staff, and a couple of other people from his office conducted the interviews.
Former Congressman Jim Ramstad evaluated Heffelfinger the same way the second time he became U.S. attorney in 2001.
The evaluation process was similar both times, with two names making it to a second round of scrutiny.
“Two of us ended up going to Washington where we were vetted by the senior leadership in the Department of Justice and by the Office of White House Counsel,” Heffelfinger recalled. “It’s a multi-phase vetting process. Was then and it still is.”
Heffelfinger was fully vetted just before 9/11. Feeling the sense of urgency during that tense time, the Senate confirmed Heffelfinger immediately.
The Global War on Terror shaped his experiences in office. “The job of the U.S. attorney changed,” Heffelfinger said. “The U.S. attorney was sort of the senior homeland security official.” At the time, the Department of Homeland Security didn’t even exist yet.
Since 9/11, Heffelfinger said the U.S. attorney has been the lead public official dealing with issues of terrorism—both foreign and domestic. As a result, he added that U.S. attorneys across the country get more publicity now than they used to.
That’s also because U.S. attorneys recently have been working cases of public interest—including deliberating on civil rights charges involving policing.
“I did a lot of high visibility cases when I was U.S. attorney,” Heffelfinger said, “but none as visible as the one that Andy Luger did a few years ago involving a police shooting. None like the one that is currently pending in that office involving the four officers and George Floyd.”
‘We’re just hoping that our voices are heard’
If the job has become more high profile, why not open the selection to add more accountability to the states and communities that appointees will serve?
What would happen if a selection committee were to invite members of the public into interviews with applicants? Heffelfinger said the public may share interview questions ahead of time with certain favored applicants, making the interview process less fair.
Instead, community members can express their concerns directly to Klobuchar or Smith. “It is common,” Heffelfinger said. “Any person can write Senator Klobuchar or call her office and express their opinion about anybody they believe might be applying.”
The catch here, of course, is that while political insiders may hear about lawyers pursuing the job, the public typically has no idea who’s applying.
Until a U.S. attorney is selected for Minnesota, Omar said he knows several local community leaders who are personally writing letters similar to the one he organized.
“We’re just hoping that our voices are heard at this point,” Omar said. “We’ve just got to focus on how we can get either one of the other two finalists selected or to restart the process, if needed.”
How those letters will determine the selection for the next U.S. attorney, the public can only guess. Sahan Journal emailed representatives of Smith and Klobuchar to ask when Minnesota can expect to know the name they will send to President Biden.
At press time, that date has not been disclosed.
*Correction: This story has been corrected to note Senators Tina Smith and Amy Klobuchar will pass along a list of names recommended by the selection committee to President Joe Biden for consideration.