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.

The real shocker, Daly says, came when Lillehaug chose to talk back to the judge. "I thought, he doesn't quite understand what his role is as a U.S. attorney, and what the role of a judge is. The role of a judge is to make sure that the Constitution is followed, especially the part that says that due process of law shall be given to all the people including the defendant. When a U.S. District Court judge observes that certain sound judgements aren't being made, particularly by an office so powerful as the prosecutor's, then not only is the judge entitled to say those things, he's duty-bound to do it. That's the reason why judges are appointed for life, so they can make independent observations. We want them to act as a check and a balance against the power of the government.

"So when I heard Mr. Lillehaug say what he said about Judge Kyle, I thought, this is another example of the U.S. attorney not using sound discretion. Just as I thought he was being indiscreet in bringing criminal charges against Dr. Najarian, just as I thought he and his office were being indiscreet in shaping their theory of their case. And it indicates to me he does not exercise sound prosecutorial discretion to achieve justice for we the people."

Lillehaug does have his defenders, whose case revolves around the argument that losing cases isn't necessarily a bad thing. It's easy, says lawyer Marshall Tanick, for a U.S. attorney to stick with "shooting fish in a barrel. Under Lillehaug's tutelage, for better or for worse, there's been less aversion to pursuing hard cases that may not yield as high a win/loss percentage. In a lot of ways, the easier decision would have been not to prosecute Najarian."

There's one point, however, on which Lillehaug's supporters and detractors tend to agree: Win or lose, he seems to be in the news a lot. It's a charge Lillehaug has faced for a long time; at one point last year, he even felt compelled to count up the number of press conferences he'd had. "It came out to about the same number as my predecessor, about 11 or 12 a year." (That predecessor would have been Tom Heffelfinger, who says he probably had the highest public profile of any U.S. attorney since Miles Lord.) "We're not in the business of publicity," Lillehaug insists, "although when we succeed, publicity may be helpful in deterring crime.... I think people are a lot more interested in the criminal justice system, and I think the phone's ringing more for that reason than it was 10 years ago. But I think I'm doing the exact same thing my predecessors did in, I hope, a thoughtful and dignified way."

His critics see it differently. The late Bill Kunstler told the New York Times that he didn't think Lillehaug would have gone ahead with the Shabazz case had he not seen "a great opportunity" for national media attention; for much of the spring of '95 Kunstler and Lillehaug sparred in court over which of them was doing more inappropriate talking to the media. Eventually U.S. District Judge James Rosenbaum--himself a former U.S. attorney--ordered them both to shut up. He'd be reading newspapers, watching TV, and listening to the radio, he said, and "I am confident I will hear a large number of self-effacing 'no comments.'"

Doug Kelley, a former assistant U.S. attorney who's now in private practice, says he sees in Lillehaug something he's plenty familiar with himself. The two were opposite numbers during the 1988 Senate campaign, when Lillehaug was coaching Skip Humphrey for debates and Kelley did the same for Durenberger. "I kind of admire him--his was a very aggressive, in-your-face style. And that's the background David brings to the job. You don't shed that at the door. It goes dormant for a while, but you see how people react, and you can see that it's the way a politician uses the media."

"Over the last 30 or 40 years, we've had a series of U.S. attorneys who were all fairly decent," says another lawyer, who's prominent in DFL politics. "And we've had two of them who have had politics on their mind as much as the office. One was Jerry Arnold [a Reagan appointee who served in the late 1980s]; he was entirely politically driven. Lillehaug, although his politics are quite different, is pretty much the same. He wants very much to run for office, and he tends to personalize and put himself out front when he thinks it's the appropriate thing to do. I think he considers this a stepping-stone for his political future. If he doesn't run for Congress, or senator, or governor, I'll be very, very surprised."

For prosecutors to be interested in further office, of course, is nothing unusual. Hennepin County Attorney Mike Freeman has sought the DFL gubernatorial nomination and is expected to do so again; Kelley has done the same on the Republican side. In New York, Rudolph Giuliani rode the name recognition from his stint as U.S. attorney into the mayor's office in 1993. Whether Lillehaug will similarly benefit from the P.T. Barnum principle--any publicity is good publicity--is another question. "It was kind of interesting to see him get spanked in the Najarian case," says the Urban Coalition's Mgeni, "because a lot of us were starting to wonder whether this was just a zeal he had for people of color. But it seems to be at least an equal-opportunity zeal--for headlines, or feathers in his cap, whatever. It's kind of sad, actually, because it's certainly not helped his prospects. He seems to go for the sensational, the far-out, and the stupid."

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