Some lawyers who have worked at the Justice Department for years say they are delaying certain cases in hopes that the Obama administration will give them more attention than they received from the Bush administration.
That is especially true in parts of the Civil Rights Division, where the Obama administration's priorities are expected to be very different from those of the current administration.
Civil rights prosecutors also say they are dusting off old investigations that have sat untouched for years. They hope new leaders will take interest in those old cases, which makes some companies that have long been under investigation nervous.
Timing Cases To Administration Changes
Justice Department veterans say there is a historical precedent for this shift. Anytime a new administration prepares to enter office with a new set of priorities, they say, prosecutors try to time their cases in order to bring them before political leaders who will be the most sympathetic.
For example, one of the busiest times in the history of the Civil Rights Division's employment section was the month before President George W. Bush was inaugurated. During the first 19 days of 2001, the employment section filed five cases. In comparison, the section filed a total of eight cases during all of 2000.
Richard Ugelow, who was deputy section chief in the employment section during the transition from President Clinton to President Bush, says "the thinking was that these cases were ready to be filed, and that the Bush administration would take a different view and not wish to file them."
Indeed, in the first two years of the Bush administration, the section filed only seven cases, so prosecutions dropped by more than half.
Now power is about to change hands again, and Ugelow says that if he were still at the Justice Department, "I would be waiting for January 20th of 2009." In other words, if he had a case that was ready to file, he says, "I'd put it in a drawer for the next month."
And that is exactly what lawyers are doing.
One lawyer who works in civil rights and spoke on condition of anonymity said, "At least a few investigations that I want to do, we are purposefully sitting on until January so we can ask the new front office if we can open them." The front office is the term for the political leadership that decides whether to bring charges in a case.
Reviving Neglected Cases
Civil rights prosecutors also say they are revisiting old investigations that the Bush administration was never interested in pursuing.
Attorney General Michael Mukasey talked about timing cases in a roundtable with reporters last week. He said, "I think cases ought to be decided and brought when they are ready to be decided and brought, regardless of whether a new administration is going to take office or not."
Tom DiBiagio, who was Baltimore's U.S. attorney during President Bush's first term, thinks this situation should not surprise anyone.
"If you're a prosecutor and for eight years your decision makers have been finding reasons not to bring cases, and you know that the Obama administration is coming in where what you do is now going to be a priority, it wouldn't make any sense to get your memos in now," DiBiagio says. "You would clearly wait."
Prosecutors spend months drawing up memos arguing why the Justice Department should prosecute a particular case. The prosecutors then send the memos to political leaders who decide whether to bring charges.
In this administration — especially in parts of the civil rights division — people complain that memos sit around for ages without a thumbs up or a thumbs down. One civil rights attorney even sent the boss a birthday card marking the one-year anniversary of inaction on a memo.
At the other end of each memo is someone under investigation, and defense lawyers say companies that have been under investigation for a long time are starting to get nervous.
The companies are asking questions like, "If I haven't heard from prosecutors since 2005, does that mean the case is dead?"
According to DiBiagio, those cases could soon find new life.
"If you are under investigation for one of the areas that have not been emphasized and now it's a new priority for the Obama administration, what could have been a civil resolution last year may go more criminal this time," he says. Or, "what may be a light fine criminally under the Bush administration may be a much heavier fine" under the new administration.
The reverse may also be true. People being investigated for crimes that were high priorities under President Bush could breathe a sigh of relief when the Obama administration takes over and turns its focus elsewhere.