S&P Prosecutor’s Stalled Nomination Is Bump in Fast-Track CareerPhil Mattingly
The Justice Department suit against Standard & Poor’s has entered a phase where lawyers spend months arguing over procedure, and progress is slim. Tony West, who’s overseeing the case. knows the feeling: His nomination to become the agency’s No. 3 official has been blocked for half a year.
West has run financial-crime prosecutions, led efforts to crack down on health-care fraud and navigated legal thickets ranging from the rights of gay partners to Guantanamo detainees. He once defended the “American Taliban” and raised millions for President Barack Obama’s first presidential campaign.
Now, as his nomination to become associate attorney general is held up in the U.S. Senate in part over a lawmaker’s questions about his role atop the department’s civil division, West, 47, faces a hurdle in a career that has been on the fast track since he worked on election campaigns as a grade-schooler.
“People always said he’d be president one day -- and they didn’t mean of the student body,” said Jude Barry, who was a senior during West’s freshman year at Bellarmine College Preparatory high school in San Jose, California.
From judicial appointments and financial regulators to cabinet officials, Senate Democrats have struggled to overcome the scrutiny and holds that the chamber’s Republicans have placed on Obama’s nominees. West, first nominated to move to associate attorney general from the civil division in September 2012, hasn’t received a hearing.
Still, the “acting” tag on his title has done little to slow his efforts at the Justice Department, which include a role in the $5 billion civil claims against S&P, the New York-based unit of McGraw-Hill Cos. The department, in concert with state attorneys general from around the U.S., has alleged the company knowingly inflated credit ratings for profit and market share.
The company will “vigorously” defend itself against the Allegations, which don’t have “legal or factual merit,” Kenneth Vittor, McGraw-Hill’s chief counsel, said on a Feb. 12 conference call.
The investigation, being led by the division West used to lead and the U.S. attorney’s office in Los Angeles, is at a stage of procedural sparring. S&P is seeking to consolidate lawsuits from 16 states and the District of Columbia and transfer them to federal court as the Justice Department pushes to keep the cases under state jurisdiction.
The suit marks the latest high-level dispute in the career of the California native.
“In cases where the emotions run high, the pressures are enormous, the stakes are very serious, he remains unruffled and programmatic,” said James Brosnahan, a senior partner at Morrison & Foerster LLP in San Francisco who recruited West to the firm in 2001. “He’s not distracted by pressures from any source. He simply goes about his business to get the job done.”
West was picked by Obama to lead the department’s civil division in 2009 after serving as one of the top fundraisers and surrogates during the presidential campaign. He has modeled his role partly on another figure known for balancing the legal and political worlds: Robert F. Kennedy.
West began his tenure the same way Kennedy did when he arrived at the Justice Department in 1961, by traveling to U.S. attorneys’ offices around the country, establishing relationships with the prosecutors responsible for implementing the administration’s policies.
Like Kennedy, whose official portrait from his time as attorney general sits in West’s office, West has played in politics almost from the start. He worked on his first Democratic campaign in 1976, when he was still in grade school, canvassing for Jimmy Carter. He has worked on every presidential campaign since, except for 1996 when he was an assistant U.S. attorney and last year, because of his job in the Justice Department.
West declined to comment for this story.
He was the 1982 California high school champion for oratory, and departed for Harvard University the next year.
He became publisher of the Harvard Political Review, the politics and public policy magazine that counts former Vice President Al Gore and Washington Post columnist E.J. Dionne among its alumni.
He then went to work for former Massachusetts Governor Michael Dukakis’s presidential campaign in 1988, before heading back to California to attend Stanford Law School. While there he was elected president of the Stanford Law Review.
West also met the woman who would eventually become his wife, Maya Harris, an attorney who now serves as vice president of the Ford Foundation’s Democracy, Rights and Justice program. That established a family connection, which has come into play in the S&P suit: Kamala Harris, the California attorney general who is among the 16 state officials who have filed suit against the company, is now his sister-in-law.
“Can you imagine what Thanksgiving is like for that family?” Brosnahan said with a laugh. “It’s got to be extraordinary.”
West moved to Washington after Bill Clinton’s election as president, serving at the Justice Department before taking a job as a federal prosecutor in San Francisco. In five years as an assistant U.S. attorney, his workload crossed the spectrum, from child-trafficking cases to the emergence of high-technology crime.
In 1999, West left the federal government to join the California attorney general’s office as a senior adviser. It was from that post where he took his only two shots at political office for himself. He failed both times, first in seeking a seat on the San Jose city council and then, in 2000, in the state assembly.
After another year working for the state, West left for private practice, settling on Morrison & Foerster after a sustained recruiting pitch by Brosnahan, one of the top trial lawyers in the country.
Just a few months into his stay at the firm, West was called into Brosnahan’s office and asked to join the defense team for John Walker Lindh, the so-called “American Taliban” captured in Afghanistan in 2001.
For someone craving elected office, the offer was potentially devastating. West said yes.
“It was a gutsy decision, one that most people assumed was the death knell to his political career,” said Barry, the former schoolmate who is now a political consultant for Catapult Strategies in California. “Everyone thought it was nuts.”
While West hasn’t re-entered the political arena since the case, he was an early supporter of Obama after meeting the then-Senate candidate at the 2004 Democratic National Convention. He flew to Springfield, Illinois, on the frigid February morning in 2007 when Obama announced his candidacy for president and eventually became co-chairman of Obama’s California finance team.
“Something like this is the unique convergence of the right person and the right time,” West, who like Obama is black, said in a March 2008 interview with the San Francisco Chronicle. “A lot of it is about Obama, a lot of it is about the moment, and a lot of it is about who came before him.”
He helped Obama raise more than $75 million in California during the 2008 campaign and served on the candidate’s national steering committee.
Days after Obama was sworn in, West was nominated to take over the Justice Department’s civil division.
Senator Jim Inhofe, in floor remarks before the Senate voted on the confirmation in April 2009, said the defense of Lindh disqualified the nominee.
“Lindh is a traitor and terrorist, but after a plea deal that Mr. West helped obtain, he is only serving 20 years in prison,” the Oklahoma Republican said.
Inhofe’s opposition didn’t derail West’s nomination, and he was confirmed 82-4.
West’s nomination to take the permanent No. 3 job at the department has been stalled by Senator Charles Grassley over an unrelated issue: concerns that West’s division played a role in a “quid pro quo” with the city of St. Paul, Minnesota.
Republican lawmakers are probing an agreement made by Justice Department officials with the city, under which the federal government declined to join two whistle-blower lawsuits against St. Paul, and the city, in turn, dropped a Supreme Court appeal that risked harming lending-discrimination cases.
Justice Department officials said the role of senior officials in the deal was deemed appropriate by ethics officials and that it isn’t rare for the department to decide not to join a whistle-blower suit.
Grassley, the top Republican on the Senate Judiciary Committee, said West was involved in the arrangement in his capacity as head of the civil division, whose lawyers choose whether to join whistle-blower suits through the False Claims Act. Grassley has threatened to hold West’s nomination until his requests for documents and briefings are met.
Grassley’s spokeswoman, Beth Levine, said the Iowa senator still has questions about West’s involvement in the St. Paul deal. The Justice Department’s efforts were led by Assistant Attorney General Tom Perez, now Obama’s nominee for Labor secretary. Until questions about the involvement of both Perez and West are answered, Grassley “has problems giving any of them a promotion,” Levine said.
West’s time in charge of the department’s largest litigating division has brought him to the center of some of the most complex legal issues.
The unit has handled petitions from detainees at Guantanamo Bay and the government’s position on the rights of gay partners since Obama decided that his administration wouldn’t defend the constitutionality of the Defense of Marriage Act, a 1996 law that’s now before the Supreme Court.
Robert Raben, a lobbyist and former assistant attorney general, said West is willing “to really get into the trenches on the hard stuff.” That includes the things that don’t receive headlines, Raben said, such as tribal land issues or the availability of lawyers for the poor.
“To some people it’s eye glazing, but it’s the nuts and bolts of the administration of justice,” said Raben, who now runs the Raben Group, a government affairs firm.
For now, West’s focus is on the S&P lawsuit.
Settlement discussions between the lawyers overseen by West and the company’s legal team broke down over the dollar size of the resolution and the request that the company admit guilt, according to two people familiar with the matter. There has been little movement toward any resolution, said the people, who requested anonymity to discuss an active case.
The suit against S&P came as the department continues to receive criticism from lawmakers for what they say has been a timid legal response to the financial crisis.
As that criticism has increased, two people familiar with West’s role said he and his top aides have moved to exert more influence inside the Financial Fraud Enforcement Task Force, the group of federal and state prosecutors and regulators in charge of bringing cases for mortgage and securities fraud. West is the vice chairman of the task force’s steering committee.
There is no shortage of speculation about West’s future. Political office in California, from local to statewide, is mentioned as a possibility by his home-state consultants. Raben says he’s on a path to be deputy attorney general or maybe even the top law enforcement official in the land one day.
For his part, West still walks or jogs to work each day from his apartment a few blocks from the Robert F. Kennedy Department of Justice Building. He spends most weekends in New York City, where his wife is based.
His portfolio has also continued to grow -- something that has drawn positive reviews from those who regularly work with the department.
“Sometimes at DOJ you feel like you’re talking to a wall mural -- they say ‘thank you’ and move on -- but you get more from him,” Raben said. “With him, people are heard, and it feels collaborative.”