By Steven M. Edwards, with Elizabeth Slater
Loretta E. Lynch was the 83rd Attorney General of the United States, serving from 2015 to 2017. She now has returned to New York, where she is a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, focusing on white collar work, internal investigations, board advising, and pro bono matters.
Prior to becoming Attorney General, she was a long-time member of the Federal Bar Council and served as a trustee, secretary, and a member of several committees.
Attorney General Lynch also received the Federal Bar Council’s Emory Buckner Award for outstanding public service in 2012 and gave a speech that left many in the audience in tears.
We sat down with her recently and asked about her experiences as Attorney General.
What Was President Obama Really Like?
One question we could not resist was the obvious one: What was President Obama really like? Attorney General Lynch said that President Obama was one of the best bosses she ever had. He trusted her to do her job and expected her to keep him informed of issues. He was very much as people saw him. He was warm and had a good sense of humor, “really personable.” He was also a quiet person and very thoughtful: “I liked that he was very thoughtful, because it meant that when he sat with you on an issue he had thought about it. He was always the smartest guy in the room, but he never made you feel like it. He would guide the discussion, and when he spoke he would pull in everyone’s contributions. As he was, he was one of the kindest people you could ever meet.”
Attorney General Lynch noted that President Obama did not have many cabinet meetings, but they were always very productive. President Obama said to every cabinet member, “When I ask you how you’re doing, don’t tell me the successes – I know about those – I want you to tell me what keeps you up at night, what worries you about your department or agency, and then we’ll work on those issues.” He could be tough, but never in a way that called anyone out or embarrassed them. If he was disappointed in an answer, he would be quiet. He wanted a full debate and substantive comments, and he wanted people to be prepared. People were always prepared because no one wanted to disappoint President Obama.
Attorney General Lynch also spent a lot of time with Vice President Biden. The Attorney General’s father, who was a Baptist minister and a civil rights leader, came up from North Carolina to Washington for her confirmation hearing. (I always tell people, if you want to understand Loretta Lynch, remember that she is a preacher’s daughter.)
Attorney General Lynch arranged for her father to go to the White House and meet President Obama and Vice President Biden. This author was supposed to meet “the Rev” on the second day (everyone called Attorney General Lynch’s father “the Rev”), and when he showed up late he apologized, explaining that he had gotten into a conversation with Vice President Biden and could not get him to stop talking. Attorney General Lynch explained that her father had known Vice President Biden for some time because each time she was nominated for U.S. Attorney in the Eastern District of New York (she served from 1999-2001 and again from 2010-2015), he would meet with Vice President Biden’s staff, as well as with Senator Orrin Hatch’s staff. To this day, Attorney General Lynch’s father views Vice President Biden and Senator Hatch as his “buddies.”
Is Washington Getting Worse?
Picking up on the reference to Senator Hatch, who was a very conservative Republican chair of the Senate Judiciary Committee, we asked whether it is true that Washington has become a less friendly place in recent years.
Attorney General Lynch gave a nuanced answer. Echoing President Truman’s comment that if you want a friend in Washington, get a dog, Attorney General Lynch stated, “If you come to Washington to be in the political world, you’re not there to make friends, you’re there to get things done. There is definitely camaraderie, and there are people I met that I think the world of, but you’re so busy and so focused, you just don’t have time to have the kind of conversations that lead to friendships.” She added that because senators and members of the House of Representatives do not live in Washington anymore, their families do not know each other and they do not have the connection they once had outside of the office.
Nevertheless, Attorney General Lynch observed that when she was dealing with people who had been in Congress a long time, she was able to develop good relationships with them. Lindsey Graham (“I don’t know what’s happened to him”) and John McCain were two senators at the staff level and political level who were always very cordial, and she never had a problem working with them. John Cornyn was that way as well. “These were people who were more senior and were able to put politics aside.”
The Attorney General noted that Senators Cornyn and Klobuchar often worked on human trafficking issues, and that she had a lot of conversations with them about public-private partnerships, working on support for the victims. “It was a perfectly fine working relationship.” But on partisan issues, such as immigration, Attorney General Lynch indicated that it was difficult to make progress. The Senate was intense, and the House was at another level, perhaps because members of the House have to run every two years. By the end of the Obama administration, there was a “wall of resistance” that made it difficult to get anything done. In Attorney General Lynch’s view, to ignore a viable Supreme Court nominee who has been sent to the Senate for approval “is a level of obstruction that we have not seen with any president other than Obama.”
We asked about the current administration, and Attorney General Lynch responded: “I think things have become more ossified, calcified, harsher.” She noted that during her first time as U.S. Attorney, Bill Clinton was president and the tone was “very negative” then. But now, “things have gotten worse and sadly whenever you involve the issue of race things often get worse. There’s nothing now about trying to deal with things in an institutional way. I think we’re still seeing a backlash to the Obama administration. They’re trying to overturn every Obama initiative. It seems like anything that was important to the last administration has to be wiped away.”
The Confirmation Process and Senator Sessions
We asked about the partisan nature of Attorney General Lynch’s confirmation process, which took a record 166 days. During that time, Attorney General Lynch met with as many senators as possible, including members of the Judiciary Committee, women senators, and people who would be responsible for making appropriations for the Justice Department. Initially the meetings were cordial, but the tone changed when President Obama issued his orders on immigration. Instead of talking about criminal justice reform, “we talked about all immigration all the time.” Most of the questions had nothing to do with the Department of Justice.
When she asked why she was being questioned about things over which she had no control, one Republican senator responded: “I’m just going by the script that the leader has given me.” Attorney General Lynch met with Senator McConnell during her confirmation process. She describes him as “gracious in the Southern way,” but she knew that a lot was going on behind the scenes. She heard that Senator McConnell told President Obama, “You’ll get the AG that you want, we’re just going to make you pay for it in other ways.”
One senator who gave Attorney General Lynch a particularly hard time during her confirmation hearings was Jeff Sessions from Alabama, so we asked about him. Attorney General Lynch explained: “We’re both former U.S. Attorneys so we have that in common. Behind closed doors, he’s a true Southerner, gracious, very warm, and stubborn because that’s how we Southerners are. He said ‘I won’t vote for you, but you’ll be confirmed.’”
Most of their conversations concerned the Justice Department and its relationship with Congress through oversight. He said U.S. Attorneys were going to come to her and they were going to want money so she would have to focus on the budget. She pushed back and said it concerned her when people in Congress use the budget to push a political agenda. They had a very candid discussion, and he gave her good, non-partisan advice.
When it came to Attorney General Lynch’s confirmation hearing, however, Senator Sessions focused on the immigration issue and moved to a hardline position. He asked her whether she was concerned that immigrants were taking jobs away from the black community. In retrospect, she is not surprised by the question because Stephen Miller was on Senator Sessions’ staff, but she had to hold her tongue because he was suggesting that the only jobs that concerned African Americans were jobs in the field. “The implication that illegal immigrants were taking jobs away from certain sectors of the community tells you where the speaker thinks those sectors should be working,” she said.
Every Attorney General leaves a letter to his or her successor, so Attorney General Lynch left a letter for Senator Sessions when he became Attorney General. She did not share the details of the letter with us except to say it was about the Justice Department. She did say that Attorney General Sessions called to thank her for the letter and indicated that he was especially thankful for the tone of the letter.
Hitting the Ground Running
The day Attorney General Lynch was sworn in, April 27, 2015, was the day of Freddie Gray’s funeral in Baltimore. The funeral led to a lot of unrest and violence broke out. The first thing Attorney General Lynch did was to talk with the governor of Maryland and the U.S. Marshal’s service about how to handle the matter. Then she met with President Obama and a congressional delegation at the White House and outlined a plan. The presidential mandate was to make it an interagency response. She had many conversations with representatives of the U.S. Department of Housing and Urban Development, the Department of Labor, and the Department of Education about how to address Baltimore’s problems.
One thing that she said she learned was that because there is a transportation grid that divides the poor sections of Baltimore from those that are better off, it is almost impossible to get from one section to the other using public transportation. This creates a ghetto with limited opportunities. The interagency solution addressed this issue.
Attorney General Lynch’s focus was to look for ways to de-escalate the situation. Almost immediately, she sent Vanita Gupta, the head of the Civil Rights Division, and Ron Davis, the head of Community Oriented Policing Services (“COPS”), to meet with local community groups. As a result of the violence, a police officer was hit by a brick and hospitalized. The Attorney General directed Gupta and Davis to go to the hospital and meet with the injured officer and make it clear that she was concerned about injuries to both sides. Attorney General Lynch said that the officer was surprised and talked about the difficulty of permitting people to express themselves while keeping people safe. Ultimately, there were no federal prosecutions in Baltimore, but there was a consent decree requiring the police to improve training, community relations, and de-escalation techniques.
The situation was different in Ferguson, Missouri, which Attorney General Lynch also had to deal with even though the Michael Brown shooting had occurred before her tenure. Attorney General Lynch described it as a “horrible shooting,” and people were upset because the local prosecutors decided not to bring charges. With characteristic understatement, she said, “I think the way in which they announced it was not helpful.”
Even though the Department of Justice concluded that they could not bring a viable criminal prosecution, its investigation enabled them to understand what led to this “tinder box” situation. The police officers were treating the African American community based on directions from city hall. There was a system of incredibly harsh fines and fees that the city of Ferguson imposed for minor offenses such as jaywalking, loitering, and not having one’s lawn cut, in an effort to raise money for the city. The fines were higher than most people could afford. The Justice Department tried to get the city to agree to provide better training for the police and modify its system for fees and fines. Ferguson’s main concern was the cost of things, and the Justice Department said it could revamp the system over time and the department would help with police reforms. After lengthy negotiations it became clear to Attorney General Lynch that Ferguson was stringing the Justice Department along, so she brought a lawsuit, which was resolved by a consent decree.
The Eric Garner case was another major case in which Attorney General Lynch was involved. She had worked on that case when she was U.S. Attorney in the Eastern District of New York. The Civil Rights Division at main Justice wanted to be involved, which created a tense, difficult working relationship. When she left to become Attorney General, Attorney General Lynch did not want to micromanage her old office from her new office, but she felt she had to do what she could to reach a just conclusion.
In her view, it was important to give the police officer involved every benefit of the doubt, because he was going to raise every possible defense at trial, but she also recognized that many people did not think the officer had acted properly. As Attorney General Lynch put it: “The issue is that someone died, and it is on national TV, and his family has to watch him die, and there’s also a police officer whose life has changed forever, and he has a family too. That’s why we had to get this right. We had a responsibility to both sides to call balls and strikes, to play this fair. We would do ourselves grave harm if we were seen to be picking sides.”
There were a number of leaks that delayed the investigation, and one of her regrets is that she was not able to reach a conclusion before her term ended. In June of last year, the U.S. Attorney in the Eastern District announced that the federal government would not bring charges.
Police-Community Relations
A major focus of Attorney General Lynch’s tenure was police-community relations. She tried to meet with the police and community groups everywhere she went and to serve as a “convening power.”
“Even if the Justice Department could not bring a case, we tried to bring people together,” she said. She added: “You can be the neutral voice in the room, you can have the hard conversation, talk about what it feels like to be afraid of someone in your community. You can talk to the police about what it feels like when you feel disrespected or are in danger. Those are things that are uniquely suited for the federal government to do. We can do it. We have done it. And that’s when you get people to talk about solutions.”
Attorney General Lynch noted: “When you look at these issues, you see police departments who have never been trained appropriately, the training materials are 20 to 30 years old and outdated, and it’s not working. Police officers want that training, but there isn’t the funding for it because the cities have cut back on their funding so much. So the COPS office in particular had set up a structure whereby they said to the police community, if you have a problem come to us before there’s a riot in your city, come to us, and let’s set up a program to work on these issues before there’s tension. That way you’ll at least have tools on hand, or a network of police chiefs who can advise you on what worked and what didn’t. We did a lot of this under the radar. We still had consent decrees, but they were always done towards how can we help, not just the city and community, but how can we help this become a better police department. What I always said is that if you have a system where you hold yourself accountable, in the way that you hold people in the street accountable, then you’ll never see me again.”
Mass Incarceration
Attorney General Lynch thinks that mass incarceration is a complicated issue. In her view, mass incarceration can be reduced if an effort is made to focus on the role that different people play in a crime. The goal should be to get the kingpin, as opposed to what Attorney General Lynch called the “mope.” “The mopes can be dealt with in a more nuanced way,” said Attorney General Lynch. She added, “Our judges support that.”
Race is also an issue that deserves focus. When the penalties for crack, as opposed to powdered cocaine, were increased, there was a disparate impact on people of color. “There were collateral consequences that were outsized compared to the intent,” said Attorney General Lynch. The Sentencing Guidelines were supposed to eliminate racial disparities, but they had the effect of increasing racial disparities because most crack users were black and the penalties for crack were very harsh. The Sentencing Guidelines are now advisory, but racial disparities have crept back into sentencings again.
“In evaluating the criminal justice system, people need to think about what they are trying to achieve, the harm they are trying to prevent, and what they are trying to protect. A lot depends on what society values, and this changes over time. There have been times when people thought that more conduct should be criminalized, like evasion of child support, while other people think we have criminalized too much. Some people think we do not federalize white collar crime enough, relative to the way we federalize other crimes, other people think we federalize white collar crimes too much.
“At bottom it depends on what do we need to protect people from? And what is the best way to do that and how do we keep people safe? Just locking people up doesn’t make things safer or reduce crime. Crime prevention efforts make a community safe. By investing in the community and then providing law enforcement services on top of that, we will reach a better result. We look at the end point but not at the beginning point and it’s all interrelated. The way we decide housing policy, that leads to how schools are still segregated in this country, and that leads to how jobs are unavailable for some. We don’t talk about that.”
There are no easy solutions, in Attorney General Lynch’s view, and “sometimes progress is followed by backlash, so we can only move forward in small steps.” Attorney General Lynch believes it is important to have candid conversations at the outset. “The impact on the community is something that needs to be considered at the beginning of a case. When you look at someone who is in their twenties and you’re sentencing them to a life in prison, you need to think about what you’re doing. Sometimes a white kid will be punished differently from a black kid, and we need to talk about that and whether it makes sense. “
At the end of the day, according to Attorney General Lynch, the burdens and the benefits of the criminal justice system need to be shared equally. In her view, “law enforcement protects us and looks out for us, but if one part of the community gets the burden of that and another part gets the benefit, it is not going to work. The burdens and benefits need to be shared equally. This is a difficult conversation to have.”
The Death Penalty
We asked Attorney General Lynch whether she believes in the death penalty, and she answered as follows: “I benefitted from being in office with people who viewed the death penalty as something to be used very judiciously and only as a last resort. I was fortunate enough to work for Janet Reno who said she was personally opposed to it, but she would enforce it as Attorney General. I think that my view on it has been that for whatever reason we have not abolished it in our society. Will we? I truly don’t know. From a law enforcement perspective, you have to look at it like if you do certain things, you have to be held accountable. What the death penalty says is that there are certain things that you can do that are so heinous and so beyond the pale that you’ve forfeited the right to live among us. Can we make that judgment as human beings? I really don’t know. I’m not sure it’s worth it for us to do that. We have to decide whether we’re okay with this. As we apply this system, are we okay with the fact that we might not be right all the time? Is it enough to say the federal system is different, it’s better, there are fewer people on death row, and they are all clearly guilty? Does that save the federal system? I don’t know.”
Notwithstanding her doubts about the death penalty, Attorney General Lynch approved it in the Dylann Roof case. Her view was that what he had done fit with the structure of the death penalty. Many of the victims’ families did not want the federal government to seek the death penalty, and she respected that personally. People in law enforcement were split on the issue. It was the view of some that the state was going to convict him, so what did it matter since he would be in jail for life. Attorney General Lynch told us, “You can’t absolve yourself of your responsibility by saying that someone else is going to carry out theirs. If we’re going to have a death penalty, ultimately it falls on the AG to decide whether it’s going to be sought or not. When I looked at the case, I thought that this was a case for which this penalty was appropriate.”
The Clinton Emails
We could not let Attorney General Lynch get away without talking about the Hillary Clinton emails. There is much confusion over whether she recused herself in the case, and if so, why she did that. Attorney General Lynch confirmed that she did not recuse herself. In fact, she made the ultimate decision that the Justice Department would not bring a prosecution against Hillary Clinton and other people who were under review. She “took the recommendation” of the FBI on the facts because they had the expertise on the facts. They had the forensic experts and had examined the servers.
The problem occurred when FBI Director James Comey decided to announce the results of the investigation on the facts and the legal consequences at the same time. The original idea was that the FBI would present the results of the factual investigation to the Justice Department, the Justice Department would make a decision, and then Attorney General Lynch, Deputy Attorney General Sally Yates, and Comey would announce the results together. Comey decided to jump the gun, however, and made his own announcement even though a final decision had not been made.
In Attorney General Lynch’s view: “Had we all been able to talk about it together, we would have had a better product, something that really explained the legal basis behind our conclusions.” She added: “When the AUSAs gave their presentation, I remember Sally turned to me and said ‘this is almost a different case than the one Jim described in his press conference.’ We would have been more expansive in explaining why we were not bringing charges.”
In addition to failing to provide an adequate explanation of the decision not to bring charges, Comey broke the cardinal rule against criticizing the target under circumstances in which the target would not be able to prove her innocence in court, according to Attorney General Lynch. He then compounded that by sending a letter to Congress in October about reopening the investigation when it was discovered that there were emails between Hillary Clinton and her aide, Huma Abedin, on Abedin’s husband’s computer.
According to Attorney General Lynch, she asked Comey not to send the letter and suggested that they examine the computer first, but he sent the letter anyway. When she met with him afterwards, Attorney General Lynch said, “What happened? Why would you do something so incendiary when you knew I didn’t want you to do it?” Comey essentially said that he was worried there was going to be a leak from a dissatisfied faction of agents and that it was going to come out in a really damaging way. Attorney General Lynch responded by saying, “Look I get that, but this isn’t the way to deal with leaks.” Attorney General Lynch believes that Comey’s actions generally could be explained by a concern that there were many people in the FBI rank and file who did not like Hillary Clinton: “I think Jim felt he had to be critical of her in a way that was public so that his rank and file didn’t think that he was capitulating to her impending administration.” Comey was in a unique position because his term would have extended into a Hillary Clinton administration if she had been elected, and Attorney General Lynch thinks that Comey wanted to reassure his people that he was independent.
Attorney General Lynch observed: “The problem in my view is that Jim decided he needed to deal with this all by himself instead of coming to us to decide to work together. We would’ve sat down with him and worked through all these issues as well.” On how she feels about it now, she says, “A lot of people say he’s attacked you, why don’t you go on TV and call him out, not be as nuanced. My view is that I’ve known him for a long time, and he was part of my management team, and it is my view that if you’re on my team, you don’t go under the bus.”
Why Did You Let Bill Clinton on Your Plane?
On June 27, 2016, Attorney General Lynch met with former President Clinton on her plane, which was sitting on the tarmac at the Phoenix airport. Comey has claimed that this meeting led him to make his announcement regarding the conclusion of the investigation on July 6, 2016, although he had drafted his statement three weeks before. A number of people criticized Attorney General Lynch for meeting with President Clinton, and the Justice Department’s Office of Inspector General investigated the matter.
As Attorney General Lynch describes it, they had landed at the airport and her staff got off first, and then her detail followed. As they were walking to the door, the head of her detail said, “President Clinton wants to say hi to you.” She did not know President Clinton was going to be at the airport, but it is her practice to be polite if someone wants to say hello (she is a preacher’s daughter).
President Clinton materialized at the door about two seconds later and talked to a number of people on the plane, including her security detail, the flight attendants, and her husband, Steve Hargrove. He then sat down and talked to the Attorney General about a variety of subjects, including his grandchildren, his golf game, and Janet Reno, who was in poor health at that point. Attorney General Lynch tried to terminate the discussion several times (which is hard to do with Bill Clinton), and finally said, “Thank you, we gotta go now.” She is adamant that they did not talk about the Hilary Clinton email investigation, and none of the many witnesses to the encounter have suggested otherwise. Contrary to what some have suggested, she was not close to the Clintons and had only met them briefly before.
She later joked that she wished Eric Holder had told her where the lock is on the plane door.
Editor’s note: The December/January/February 2020 issue of this publication featured the final article written for us by Steve Edwards (in this case, with the assistance of Elizabeth Slater). The first portion of that article, titled “Catching Up With… Loretta E. Lynch,” is republished here. We will republish the balance of this fascinating and informative article in our next issue.