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Deputy Attorney General David Ogden's Address at the American Bar Association Section of Litigation 2009 Annual Conference John Minor Wisdom Public Service and Professionalism Awards Luncheon
Atlanta, Georgia ~ Friday, May 1, 2009

Remarks as prepared for delivery.

Good afternoon. I know many of you were expecting the Attorney General to be here today. He wanted to be here himself, but had a last-minute conflict that prevented him from doing so. I am happy to be here before you in his stead, on behalf of the Department of Justice that I have the honor to help him lead.

 First of all, I’d like to thank ABA Section of Litigation Chair Bob Rothman for that kind introduction. Special thanks also to Chair-Elect Lorna Schofield and Vice Chair Hilarie Bass as well as all the Section Annual Conference Co-Chairs. It is great to be back in my home Section of the ABA. One of the great satisfactions of my career was the two years I served in this Section’s leadership as the U.S. Government’s representative. The Section of Litigation serves a very important purpose, bringing the best traditions and insights of the nation’s litigators to the vital project of improving the administration of justice and access to justice. These are our shared duties and obligations as lawyers, and this Section reflects our mutual commitment to meet them. In that connection, I want to extend my congratulations and thanks to all of the awardees. You are all deserving of this great honor – your dedication to your communities and the equality of justice serves as an example for all of us to strive toward. 

Just under two months ago, I took the oath of office as Deputy Attorney General. 

It marked a return for me to the Department of Justice, where I worked closely with former Attorney General Janet Reno and then-Deputy Attorney General Eric Holder, who – as you know – has also made a return to the Department as its 82nd Attorney General. I served as Attorney General Reno’s Chief of Staff and Counselor, and then as Assistant Attorney General for the Civil Division, where I had the privilege of supervising civil litigation for the United States. These experiences gave me a valuable perspective on how the justice system looks from the government’s side of the fence, and coupled with my earlier and later service in the private bar, a valuable perspective on the Department itself and its role in the system of justice.

 The United States Justice Department is a “crown jewel” of the federal government – but not because of any laws or regulations, cases or controversies. Instead, the greatness of the Department is entirely a function of the quality, integrity and dedication of the people who carry out its vital mission.

 Americans from every walk of life and corner of our country look to the Justice Department as the standard bearer of equality, fairness and independence. From the beginning, it has been clear to the Attorney General and me that we must earn this trust anew—that we must rebuild the Department’s great traditions of non-partisanship, vigilance, and fealty to the law. Indeed, the urgency of that task came home to me full force during the transition period, when as head of the new Administration’s DOJ transition team, I confronted the challenges that beset the Department on several fronts, for example, the needs to rebuild the Civil Rights Division, to defend our national security consistently with the rule of law, and to find resources for the Department’s traditional roles, including federal law enforcement, while fully discharging the new demands after the attacks of September 11, 2001.

 I am the proud son of a career federal civil servant. My father served under eight administrations from Truman to Reagan, and he taught me this: You go into public service not to serve a political party, not even to serve a president, but to serve the public. This means being willing to take a personal risk to do what is right, and knowing to say “No” when “No” is the right answer.

 This creed defines our Attorney General as well, and the team of lawyers he has assembled. Under his leadership, we will recommit the Justice Department to the principles that all are equal under the law, all are protected by the law, and no one is above the law.

 These first few months in office have provided no shortage of opportunities to begin fulfilling this critical objective. In many cases, the Department has been called upon to make decisions where the right choice and the expedient choice have been at odds. Undoubtedly, the choices we face will only grow more difficult.

 In this administration, the commitment to do what is right, not what is politically expedient, starts with the President.

 And President Obama’s commitment to the integrity and professionalism of those in whom he places the public trust is evident in his decision to re-establish the ABA’s role in evaluating federal judicial appointees. Unfortunately, the previous administration suspended this longstanding practice. I am confident that your input will help the Obama Administration choose federal judges who share our goal of equal justice under law.

 But as we call for the highest allegiance to justice from our federal judges – and ask members of the bar to hold themselves to the highest standards of integrity – we must also demand the highest professional standards within the Department of Justice itself.

 To do so in more than words, but deeds, we must constantly review our methods and never hesitate to make changes when they are needed. Above all else, the Department must ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice.

 The recent trial of former Senator Ted Stevens required such assessment and the Attorney General made one. After conducting a thorough review, it became clear the Department had made mistakes in the discovery process that required immediate action. And so in the interest of justice, the Attorney General made the hard decision to withdraw the case.

 But this decision was only a first step. To ensure that the Department holds itself to the highest standards during discovery -- as in every stage of litigation -- in our criminal cases, and also in our civil litigation, we have taken both short-term and long-term action. We have already begun providing supplemental training to federal prosecutors throughout the Department to ensure that they understand their discovery obligations and know that they are expected to take those obligations seriously. We have created a working group of senior prosecutors and Department officials to continue reviewing discovery practices and report back to me with recommended improvements. And we have created a parallel working group under the direction of Associate Attorney General Tom Perrelli to look at our civil discovery practices and capabilities. Both working groups will report back to me with recommendations relating to training, protocols and best practices, resources, and other relevant considerations.

 These steps will make clear to all who prosecute cases on behalf of the United States government that our goal is not to keep count of convictions, but rather to be accountable for justice. They will make clear to our litigators in civil matters that our goal is to fulfill our responsibility as lawyers for the people of the United States and officers of the court. There is no question in my mind that the career lawyers in the Department want to fulfill those duties and in the overwhelming majority of cases, they do so. We are determined to provide the wherewithal and set the tone to raise the bar still higher.

 Enforcing the rule of law without regard to politics also requires a Department of Justice that expects its attorneys to enforce and defend the law without regard to their personal political views.

 As Deputy General Counsel at the Department of Defense in the mid-1990s, I was a client of the Civil Division. When I got to the Justice Department, I worked with the Civil Division for four years and directed it for two more. And I can honestly say I never knew the political views or party affiliation of its most senior career lawyers – whether they were Democrats or Republicans, liberals or conservatives. They were professionals, and Department of Justice officials, and whether they were defending statutes passed by Republican-dominated Congresses or the actions of a Democratic President and his administration, enforcing civil fraud, consumer statutes, or our Nation's immigration laws, they did their job. Political views were simply a foreign topic.

 The rules demanding non-partisan enforcement of the law apply of course to those who manage the Department. To be sure, there is an important role for policy choices. But our obligation is to enforce and uphold the law – the Constitution, federal statutes, international treaties, and agency regulations – even when doing so may make us unpopular, and even when doing so may be contrary to our own policy preferences.

 Those kinds of issues present themselves literally every day. The obligation to respond without regard to personal views is, in a real sense, not hugely different from any lawyer's duty to represent his client's interests without regard to personal views. Here, of course, the client is the United States – and so its interests are defined by the law itself. So by upholding the rule of law we safeguard our client’s most fundamental interest.

 In representing our client, the United States, the Department’s charge is quite sweeping: We must fight crime, protect civil rights, protect the public fisc, protect the environment, protect competitive markets, and, above all, protect the national security for all Americans. To do all that has been entrusted to us, it is critical that the Department be both highly effective and highly efficient. We must effectively focus our resources where they are most needed; eliminate redundancies where they exist; be thorough, but not wasteful; and, at all times, make the best use of our most precious resource: our exceptionally capable career professionals. And we must do all of this, always, in a manner consistent with the Constitution, federal laws, ethical requirements, and with due respect for the key roles of Congress and the courts.

 Let me be clear: We believe that effectiveness and the rule of law are entirely compatible and, together, constitute the one mission of the Department, namely, to get it done right.

To get it done right. This mission is as challenging as it is vital. There have been difficult choices to make; there will be many more ahead.

But the choice between effectiveness and the rule of law – in any context, but most especially in national security – is a false choice. We cannot be effective, if we do not act within the bounds of the law. When we protect the American people in a manner consistent with our Constitution, our laws, and our treaty obligations, we are more powerful, more credible, and more able. And, in the course of protecting the security of our nation, we also honor and protect who we are as a nation.

 So let me leave you with words that have often greeted me -- the phrase printed on the wall in the alcove outside the Attorney General's office: ” That is the Department of Justice I know and most admire, the Department that is truly a core bulwark of our freedom and our democracy.

 Attorney General Holder and I are determined that that will be the Department of Justice we lead.

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