The Trials of David Lillehaug

In the wake of Najarian and Shabazz, the U.S. attorney and former DFL prodigy finds his once-bright political future in question.

There was a time when David Lillehaug was riding high. From star high-school debater in Sioux Falls and honors graduate of Harvard Law School, he'd made it to partner at a big-shot Minneapolis law firm; in between he'd been a close adviser to politicians by the names of Mondale, Humphrey, and Wellstone. And in 1993, when Lillehaug was not yet 40, a new president nominated him U.S. attorney for the district of Minnesota. The state's senior senator, David Durenberger, was a little miffed because he hadn't been consulted. But, Lillehaug said, "I look forward to meeting with Senator Durenberger to tell him that as far as I'm concerned, justice has no political party."

A little more than two years later, Lillehaug was reeling from the sort of blow that can end public careers. A jury had acquitted University of Minnesota surgeon John Najarian on each of 15 federal criminal counts; now the judge was expostulating, from the bench, about how even bringing the case to his court went "beyond the bounds of common sense." It was the kind of time when a lot of people find it advisable to shut up and hide out for a while.

Lillehaug said he'd do it again. "Against anyone, anytime, anywhere." And: "It was tough enough to oppose the famous doctor in the white coat. We just did not think the judge in the black robe would be a problem." Lawyers around town sucked in their breath at the near-sacrilege. Lillehaug's face was all over TV. And the buzz was building: Who the hell was this guy? And what, if anything, was his gamble?

Lillehaug is usually referred to as having a "boyish" face, a description that doesn't really hit the mark; what it is is smooth, wrinkleless, an odd contrast to the head of prematurely gray hair. The only time creases appear, right in the middle of his forehead, is when Lillehaug goes on the defensive; he'll rock in his chair then, put his hands together, and peer at his interlocutor. His office is vast, and surrounded with glass overlooking a substantial section of downtown Minneapolis; at one end are several desks and a duck print, at the other a long conference table with a small flag holder bearing the American, Minnesotan, and Norwegian colors.

Lillehaug--he pronounces it meticulously, Lillehaa-ug--grew up in Sioux Falls, S.D., the son of a music teacher at Augustana College. His parents were registered Republicans until the mid-1960s, but the Vietnam War made them switch. Their son went to Gene McCarthy rallies with his high-school friends. He also got into extemporaneous speaking, where he made the national finals. "He was superb," says his debate partner Charles Nauen, who now practices law in Minneapolis. "He was and is very organized, very creative, and very skilled as an advocate--be it for a position or a client or a cause."

Lillehaug got his B.A. at Augustana and his J.D. from Harvard. He clerked for two years in U.S. District Judge Harry MacLaughlin's office before moving to Washington to work for a big law firm and volunteer for Walter Mondale's presidential campaign (which was forming "practically the minute Jimmy Carter lost" in 1980). By the fall of '83 he was on staff full time, assigned to travel with Mondale. As the campaign headed into the home stretch, Lillehaug was among a small group of advisers who prepped the candidate for debates. The first Mondale/Reagan debate--when Reagan essentially came off as a doddering incompetent--may have been the only time when a second term for the president seemed in doubt.

Mondale lost every state but Minnesota, and Lillehaug, recently married to Winifred Smith, moved to Minneapolis to join the firm of Leonard, Street and Deinard. He specialized in construction law, which he claims to have found "intellectually and analytically challenging"; he also did probate and employment cases, and pro-bono work on the side. He was a good Democrat, working for every legislative and City Council candidate in his south Minneapolis neighborhood and doing some more debate training for statewide candidates. In 1990, he supported a fellow lawyer, Tom Berg, for U.S. Senate, then offered his support to Paul Wellstone as soon as the party endorsed him.

"He got me emotional," says Lillehaug. "There were aspects of his message that I was very much attracted to--the political-reform element, the whole anti-Washington thing. It was almost prescient." He ended up playing a big role in what those in the biz call "message development," writing speeches, helping plan advertising, and coaching. Aides remember him as someone who'd tone Wellstone down, teaching him to sit still, look senatorial, and stick with the program.

The reward arrived in 1993, when Clinton took the White House and Democratic lawyers--within reach of federal judgeships for the first time in almost a decade and a half--were practically crawling over each other. Lillehaug was considered to have an inside track, since the senator from the president's party generally selects nominees. Members of Wellstone's candidate-review committee were sworn to secrecy, but some of them have suggested that Lillehaug's judicial experience didn't quite measure up; they also took a dim view of an op-ed piece he'd written a year earlier, advising the state that "any complete anti-crime package [should] include a carefully drafted and carefully applied death penalty statute." In the end, Wellstone nominated Hennepin County District Court Judges Michael Davis and Pam Alexander. (Alexander withdrew her nomination more than a year later when it had become clear that the White House would not confirm her--due, at least in part, to a groundbreaking decision in which she'd denounced the disparity between sentences for crack and powder cocaine.)

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