By Jake Rossen
By Jesse Marx
By Michelle LeBow
By Alleen Brown
By Maggie LaMaack
By CP Staff
By Jesse Marx
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.)
For Lillehaug there was the job of U.S. attorney, which wasn't quite as secure--it generally changes with each administration--but had potential of its own. Federal prosecutors have seen their powers expand dramatically as Congress created ever new crimes and stiffer penalties, especially in politically expedient areas like guns and drugs. In Minnesota, the U.S. attorney presides over a staff of 40-plus lawyers (up from just a dozen in the 1970s), in an office whose total budget is $5 million and which charges an average of 500 new cases a year.
The first year of Lillehaug's term passed with relatively little fanfare. He continued prosecutions begun by his predecessor, and occasionally invited the media in for press conferences. Back at the office, he threw himself into the new assignment--learning new areas of the law, digesting reams of federal statutes, becoming a manager. Though criminal cases make up about three-quarters of the office's work, not having a background in that area wasn't a problem, he claims: "There are 30 really good prosecutors in this office, and from a subject-matter standpoint, criminal law is in many ways less complex than civil litigation. I had to get up to speed pretty quickly, and I think I did. But I did not get much sleep in those first few months."
Nor did he get a lot of pats on the back. A half-dozen or so veteran lawyers left the office during his first few months in office--a fact Lillehaug attributes to generous federal incentive packages and personal reasons, but which others pin on his management style. Though none of those who left will comment on the record, several have complained that the new boss swept in with talk of how things needed changing, and right away; some senior staffers were demoted, others had their jobs reshuffled. "From the outside," says criminal defense lawyer and former prosecutor Earl Gray, "all I can tell is that a lot of the personality has gone out of that office. You get a bunch of Harvard graduates who--I don't want to get into it too much, because I work with these people, and they're not all that way. But it's become more cold-blooded. They don't care about anything."
There are also complaints that Lillehaug's promise to "shatter the glass ceiling" for women and minorities turned out to be hollow; the only person willing to discuss that complaint publicly was paralegal Beth Kendrick, who filed a sex-discrimination grievance in 1994. Most of the relevant events had actually taken place before Lillehaug came on; so, Kendrick and her lawyer, Teresa Patton, say they were shocked by Lillehaug's response to what could have been a routine matter. "It was as if he was saying 'I'll be damned if there's a sex-discrimination complaint in my office,'" Kendrick says, and Patton calls it "the most bizarre experience I ever had with a case like this... We came to think of it as our encounters with the White Rabbit." Documents from the negotiations indicate that Lillehaug asked Kendrick not only to drop her complaint, but also to make an "affirmative statement" that no discrimination had ever occurred, and to promise not to talk to anyone about the issue "including representatives of the media." All he offered in return was to pay her attorney's fees.
Kendrick eventually withdrew her complaint--mostly, says Patton, because under federal employment law her boss would have had the right to reject any findings the EEO investigation came up with. When asked about the complaint, Lillehaug says, "I can't tell you how much I'd like to comment on that," but adds that he's prohibited from talking about personnel matters. He calls his record on hiring and promotion "stellar," noting that of 11 attorneys he's hired, "six have been women and four people of color," that he's promoted several women support staffers, and supported flexible work schedules. Later he refers questions to the Department of Justice, which confirms the numbers.
As it turned out, troubles inside the office would become the least of Lillehaug's worries. Sometime in 1994, he got notice from the FBI that they were following conversations between Qubilah Shabazz, daughter of the late Malcolm X, and a Twin Cities coin dealer named Michael Fitzpatrick. They'd known each other in high school in New York; after that, Shabazz had gone to study in Paris and Fitzpatrick had become an FBI informant, infiltrating radical Jewish groups and the Communist Workers Party. The federal Witness Protection Program had given him a new name, Michael Kevin Summers, which he used when it suited him; his résumé also included a drug habit, a bankruptcy, and agitating for violent action among Twin Cities anarchists.
Fitzpatrick/Summers and Shabazz hadn't seen each other since high school when they reconnected in 1994. Soon Shabazz told friends she was moving to Minneapolis to buy a house with Michael, who would be a new father to her son. The pair also talked about Shabazz's resentment of the Rev. Louis Farrakhan, who Shabazz believed had been involved in Malcolm X's assassination and, she worried, might want to knock off her mother. Fitzpatrick was taping the conversations for the FBI.
On January 12, 1995--the Thursday before the Martin Luther King holiday weekend--Lillehaug held a press conference. The United States was charging Shabazz with trying to hire Fitzpatrick to assassinate Farrakhan. "This is an extraordinary case," he told the reporters, "by virtue of its historical context and the identities of the defendant and alleged target. However, as we are intent that this case be tried fairly... we'll wait until trial to disclose the details of the alleged scheme, including the defendant's motive."
It didn't take that long. New York civil rights lawyer Bill Kunstler, along with local attorney Larry Leventhal and Chief Federal Public Defender Dan Scott, offered to represent Shabazz. Their investigations, and others, discovered what the feds had known all along: Not only was Fitzpatrick a semiprofessional informant, he also had a cocaine case pending and was flat broke before the FBI agreed to pay him $45,000 in the Shabazz case. What's more, transcripts of the conversations showed that while Shabazz liked the idea of seeing Farrakhan dead, she repeatedly pulled back from having Fitzpatrick kill him. And finally, the heart of the government's case--a statement Shabazz had signed when FBI agents invited themselves into her apartment--turned out to have been given under false pretenses, and at a time when Shabazz was so "shaken" the agents worried she was having a seizure.
The case went out with a whimper on May 1, the day Shabazz's trial was supposed to begin. Government lawyers, who had originally sought at least a plea bargain, were reduced to an agreement in which Shabazz promised to seek treatment and not get into trouble for two years. She also signed a statement saying her confession had not been coerced, which might have had some face-saving value for the feds--but she contradicted that claim immediately after leaving court.
"I think looking back on it a year later, the Shabazz case looks pretty good," Lillehaug says now, adding that he would not change anything--except that "I would have liked her to have called someone in another state." (Whether the initial contact was initiated by Shabazz or Fitzpatrick remains a matter of controversy; so do the FBI's investigative tactics, which Lillehaug declines to discuss.) "But that's one of the things about this job--you take what walks in the door. And I think we got to a place that was fair and just and I just hope she doesn't breach the terms of the agreement."
That, most other observers would say, is at best a nice job of spin control. "When you look at the [pretrial diversion] agreement, what's clear is that it probably never should have been brought," says Richard Oakes, a Hamline University law professor who was one of the commentators on the case for West Publishing. "Of course, the alleged victim [Farrakhan] was very high-profile. But the alleged victim was also saying, 'I'm not concerned.' And using that particular snitch was, I think, at the very least unwise."
Oakes and others note that the decision to build a case around Fitzpatrick was not Lillehaug's alone, and that in general the federal justice system has come to lean more and more heavily on unsavory informants. By the same token, it was Lillehaug who held the press conference, who got closely involved in the workings of the case, and who personally argued some motions. And, says Leventhal--who, like most other lawyers, is extremely cautious in criticizing Lillehaug--"one thing a prosecutor has to do is to give a knowledgeable and independent assessment of what the FBI and law enforcement are saying. I imagine that for someone who has not done a lot of work in criminal law, it takes a while to build the proper amount of skepticism."
Beyond Lillehaug's B.S.-detection capabilities, the main question raised by the Shabazz case was over its politics. When taking office, Lillehaug had talked about his passion for civil rights and equality in a justice system where "African Americans have suffered disproportionately." Commentator Ron Edwards says he became skeptical of that claim early, when the U.S. attorney's office brought a string of what he calls "Scottsboro-type cases," with large numbers of black defendants standing trial all at once. Urban Coalition head Yusef Mgeni had similar suspicions. "Bang, bang, bang right out of the block, everything on the docket seemed to pit one part of the African American community against the other. And they were always headline-grabbers." In addition to Shabazz, Mgeni and others cite these prosecutions:
§ Sharif Willis. After getting out of prison on a murder sentence, the Vice Lords leader worked to establish gangs as a political force under the banner United for Peace. His efforts got him on the front page of the Wall Street Journal; locally, they caught a lot of flack, especially from police. Willis often told people that he expected to be sent to prison again soon because of his high profile; in 1993, he was briefly jailed for a drug-related parole violation, but was let go when it turned out that a urine test might have been tampered with. In October 1994, he was arrested for pulling a gun on a gas station full of people in a dispute over gold-plated wheel spinners. Police testified that they'd also found 33 grams of crack in the car Willis and three other men had driven to the station.
The case was originally brought to Hennepin County District Court, where county attorney Mike Freeman asked for $1 million bail; eventually, Lillehaug assigned his highest-ranking lawyer to bring it in federal court, using one of Congress's recent enhancers for "armed career criminals." After a six-day trial, Willis was convicted and sentenced to 27 years in prison. Later, Lillehaug was quoted in the Christian Science Monitor as saying he was "absolutely baffled" that someone with a prior murder conviction had ever been "perceived by some as a legitimate community leader."
§ The Shotgun Crips. Just a few weeks before the gas station incident, Lillehaug held a press conference announcing the indictment of 11 people for allegedly conspiring across state lines to assassinate local Vice Lords leaders. Here, too, federal prosecutors used some of the weapons recently handed them by Congress; and again, Lillehaug said his office was at the forefront of "ending the cycle of violence in Minneapolis."
Conspiracy-to-murder charges had rarely, if ever, been brought in Minnesota, and lawyers who worked the case say the U.S. attorney's office played as hard as it could despite the fact that no one was killed. "With the feds, you get the same sentence for a conspiracy or an attempted offense as you do for the completed offense," says Demetrius Clemons, who represented one of the defendants. "And they never even made any [plea-bargain] offers. Two of those guys got life-plus. And these were people with no priors."
§ Alisa Clemons. An MPD sergeant who had gotten into police work after watching a cop beat up her brother, Clemons was among the targets of racist hate letters that circulated in the department in 1992. An internal investigation fingered her as the author of the letters, and last year Lillehaug's office brought the case to a federal grand jury. There was never an indictment--a telling fact, says Damon Schramm, who represented Clemons. "Among criminal defense lawyers, it's commonly said that a prosecutor who can get an indictment from a grand jury can get a ham sandwich," Schramm notes, because grand juries only hear the government's case. "But on this one, I was struck by the lack of thoroughness in the investigation. When I finally met with the [assistant] U.S. attorney, I had quite a bit of exculpatory information that they did not seem to be aware of." Despite the lack of an indictment, the MPD fired Clemons, then eight months pregnant, last August. An arbitration hearing on her case is scheduled for next week; she is also preparing to file a civil suit.
Lillehaug defends his record on each of the cases, bristling at the suggestion that his office has singled out black defendants: "It is not a priority of this office to prosecute anyone on the basis of race." For that matter, even his harshest critics lay much of the blame for disparate treatment at the door of the federal justice system as a whole. What Lillehaug hasn't done, they say, is to live up to his pledge to "[understand] crime in its fullest context"; a lot of people took that to mean that he would buck the tide on things like the war on drugs. But, says Gray, it didn't turn out that way. "It's so ironic--here's this great liberal Democrat, and yet everyone they bring in front of a judge over there is a crack case, a black crack case. And they take great delight in mounting the time for black defendants."
(A footnote here: In 1994, the U.S. Sentencing Guidelines Commission recommended equalizing penalties for crack and powder cocaine offenses. But, barely days before those guidelines would have gone into effect, Congress passed legislation maintaining the current standard by which freebasers get up to 100 times stiffer penalties than those who put the product up their nose. Not long after that law passed, Gray made a motion for an "equalized" sentence in a crack case in federal court; Lillehaug's lawyer successfully argued against it.)
Crack laws--which "you probably could write eight or 10 articles about"--aside, Lillehaug says his office emphasizes "all the important narcotics," including substances favored by white users: A few months after taking office, he brought charges against an alleged crystal-meth ring based in the rural Minnesota hamlet of Cosmos. That kind of large-scale conspiracy case is what he's directed his lawyers and investigatory agencies to pursue, he says; he's also put a priority on offenses involving both guns and narcotics (which, of course, most do). Local prosecutors and public defenders say that compared to U.S. attorneys in other states, Lillehaug has left most run-of-the-mill crime to the state courts; he's also not gone after a lot of homicide cases, a significant point because of his opinions on the death penalty. In the one federal murder case so far that could have led to an execution, Lillehaug apparently recommended that the Department of Justice not seek it.
Lillehaug has emphasized a few other areas with potential political ramifications. Crimes on reservations are one; in one of his most high-profile moves so far he indicted state Sen. Harold Skip Finn, a Leech Lake tribal member, and several officials of the White Earth Band, in separate cases involving financial and electoral fraud. Leech Lake lobbyist Larry Kitto says the indictments flagrantly disregard tribal sovereignty, and likens Lillehaug to George Custer; dissidents on both reservations, by contrast, laud the prosecutions as something they've long asked for. Finn's trial began Monday.
The other field Lillehaug, like some of his predecessors, has emphasized is white-collar crime, particularly health care fraud, environmental crimes, and investment scams. One of the office's most successful recent cases was the prosecution of Gary Lefkowitz, a California-based real estate magnate who built a high-flying lifestyle on a pyramid scheme involving tax credits for low-income apartment construction. He was convicted on 47 fraud-related counts last July and sentenced to 24 years in prison, a sentence that may constitute one of the heaviest ever handed out in such a case.
ut not all of Lillehaug's white-collar prosecutions went that well. In August 1994, his and the state Attorney General's office jointly announced what was hailed as one of the largest health care fraud cases in the country: Illinois-based Caremark Inc. and California-based Genentech were charged with conspiring to pay off an Edina doctor so he would prescribe human growth hormone to short children. Caremark pleaded guilty in June 1995 and agreed to pay $161 million in fines and penalties. But the doctor, and five officials for the two companies, chose to go to court--where, after listening to the prosecution's case for almost two months, Judge David Doty ruled that it wasn't worth even sending most of the case to the jury.
Doty's decision under what's known as Rule 29 acquitted the five company officials; he also removed 12 counts against the doctor, leaving the jury to consider 19. The defense called no witnesses and presented no evidence, and the doctor was acquitted on all but two counts. (His conviction has since been overturned because of juror misconduct.)
What's remarkable about the Caremark case is not just the prosecution's spectacular failure in court--while it's common for a judge to throw out a count or two, complete evisceration of the government's case is very rare--but how eerily it presaged the action, six months later, in another federal court room. This time the judge's name was Richard Kyle, and the doctor's was John Najarian; again, the defense asked for a Rule 29 decision after the government presented a case it had taken three years and $400,000 to assemble. With the cameras waiting outside, Kyle dismissed the heart of the prosecution, six counts of conspiracy to commit fraud in the University of Minnesota's program to manufacture the transplant drug ALG. He said the government had not proven Najarian was even responsible for the program.
The defense went on to make its case in a few hours, calling only three witnesses (Najarian, his wife, and their accountant); then the jury came back with a not-guilty verdict on all 15 remaining counts. After it was read, Kyle told the courtroom that he had some additional comments. "I have some questions as to why we were here at all, quite frankly," he said as the government lawyers cringed. "Not because there weren't things that were wrong with the [ALG] program, but it was a program that was looked at by the FDA for 15 or 20 years with what I guess I could describe as benign neglect. It went on. I think everyone knew what was going on. I think it was run out of the University of Minnesota, and I think the University of Minnesota knew what was going on and certainly was the beneficiary of the financial success of that program.
"Converting all of this... to a criminal proceeding of the magnitude that we saw here, it seems to me, has gone beyond the bounds of common sense. We had a program here in Minnesota, which for all of its problems and shortcomings was a good program, literally saved thousands of lives. [And the indictment] was added on to with charges of tax fraud, mail fraud, embezzlement and stealing. I think in football you kind of call the penalty for piling on."
There are a lot of people who quarrel with Kyle's comments--especially the implication that Najarian's being a good guy should have had any bearing on how he was treated in the justice system. Lillehaug won't talk specifically about the judge's comments anymore, but he says "when you charge anyone who's got power, wealth, influence, or all three, there will be people whose noses are bent out of shape. We can't let calculations like that enter into our prosecution decisions."
Kyle's opinions aside, however, many of the people who followed the Najarian case charged Lillehaug with serious bad judgment. True, the prosecution had begun laying its case back in 1992, and Najarian's lawyers say they expected an indictment as early as 1993. But the charges didn't take final shape until a year and a half after Lillehaug took office, and it was their nature and number that rankled Kyle and most other observers.
One commonly heard theory among lawyers familiar with the case is that the government had allowed the university to push it toward an aggressive prosecution of Najarian, hoping the buck would stop there (a claim university general counsel Mark Rotenberg denies as "ridiculous"). Another, voiced most publicly by Hamline law professor Joe Daly, was that Lillehaug and his colleagues goofed badly in their construction of the case. By using words like "callous disregard of patients," he says, they suggested that "Dr. Najarian is an evil man. And there's not a humane person in Minnesota who was going to believe that. He may have done things that were poor administrative leadership, made mistakes. But in my mind and my students', and I think the jury's mind, none of those things were deserving of a prosecutor coming after him for criminal offenses. They were the kinds of things that, if it had been you and me, we would have been hauled into the tax office and slapped and scared and our checkbooks gone over, and we would have been assessed a serious interest penalty and told not to do it again."
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."
"I'm not going to do any Monday-morning quarterbacking," says Heffelfinger, who's also a player in Republican politics. "You've got to give the guy credit for a lot of the tough cases he's taken on... One of the unwritten rules of the job, the standard by which you're judged, is 'Don't embarrass Washington.' Beyond that, the U.S. attorney is afforded a significant amount of discretion as to style. His style has been to be very visible, and that's part of the job to some degree. But there's a very fine line where that visibility can also turn around and bite you in the behind."
"Being a prosecutor is not a popularity contest," Lillehaug says when asked whether he still thinks he'll run for office. "You get a number of scars through the process." He pauses, and his face loses its controlled half-smile. But only for a moment. "I don't know what the future will hold." A few years back, in one of the newspaper profiles, he'd quoted Walter Mondale as saying that politics is "very much like pouring concrete. You can stir it and stir it for a while. But pretty soon it becomes harder to stir and then it's set."