Mixed signals complicate hunt for new U.S. attorney in Minnesota

U.S. Sens. Amy Klobuchar and Al Franken are interviewing candidates for a new U.S. attorney for Minnesota, but in the meantime the state's three Republican congressmen are urging the White House to appoint a Minneapolis attorney to the post.

The mixed signals are adding uncertainty to how long this key federal law enforcement job will stay open, as the new administration of President Donald Trump moves slowly in filling important federal government jobs.

U.S. Reps. Erik Paulsen, Tom Emmer and Jason Lewis have recommended Minneapolis attorney Kevin Magnuson, according to multiple sources who spoke on the condition of anonymity to discuss personnel matters. That recommendation came around the same time the senators began taking applications for the job, in late May and early June.

Andrew Luger resigned as U.S. attorney in March after the Trump administration asked Obama holdovers in those jobs to step down. That came on top of two vacancies on the federal bench and one for U.S. marshal in Minnesota. Traditionally, the president nominates candidates for these positions in consultation with home-state senators, but if they are not from the president's party, senior members of its congressional delegation and other party leaders usually have a hand in the process.

In a statement, Paulsen said he is still providing input. "Along with the rest of our state's delegation, we are giving our recommendations and making sure Minnesotans are served by a nominee who is best-equipped for the role," Paulsen said.

Klobuchar said Friday the White House signaled interest in her suggestions.

"We look forward to working with Sen. Klobuchar to agree upon a mutually satisfactory candidate for this important position," reads an e-mail from the White House counsel to her own counsel, she said.

Klobuchar and Franken previously lobbied the White House to reappoint Luger.

Magnuson declined to comment. He is the son of Senior U.S. District Judge Paul Magnuson, who was appointed by President Ronald Reagan in 1981. Kevin Magnuson practices at Kelley, Wolter & Scott P.A. in Minneapolis, and previously served the Republican-aligned Minnesota Jobs Coalition.

Magnuson has not been a prosecutor but does have experience litigating white-collar criminal defense. He helped a court-appointed receiver and trustee in the Tom Petters receivership and bankruptcy cases attempt to "claw back" funds tied to the massive business fraud.

In June, Trump announced two waves of nominations for 17 U.S. attorney posts, but none for a state with two Democratic senators. The president's nomination of Minnesota Supreme Court Justice David Stras for the Eighth Circuit Court of Appeals provides an early look at how Minnesota's federal vacancies could play out in the Senate, which often moves slowly.

Franken has recently been pressing to retain a U.S. Senate process known as the "blue slip," which allows senators to effectively block nominations. It's not yet clear how long Franken could hold up consideration of Stras' appointment; a spokesman said Franken is taking his time reviewing Stras' record "especially since he was not meaningfully consulted by the White House in advance of the nomination."

The senators have not yet indicated when they will make their own recommendation for U.S. attorney to the White House. They stopped taking applications on June 9.

Legal scholars say a prolonged standstill in filling judicial and federal law enforcement positions inhibits the administration from further implementing its priorities set forth for violent crime, immigration enforcement and drug prosecutions.

Mark Osler, a former federal prosecutor now at the University of St. Thomas, said he expects new U.S. attorneys under Trump to be more retributive, but said a "leadership void" could also be detrimental.

"U.S. attorneys traditionally lead the local and regional fight against big-picture challenges, and right now we have one of those in opioids," Osler said. "It is a bad time for a leadership vacuum."

While Luger's old desk sits empty, much of what he enacted remains in place. Acting U.S. Attorney Greg Brooker, who was Luger's top assistant prosecutor for three years, now leads weekly Friday roundtables to review new criminal indictments. He will tour the state this fall to meet with law enforcement, much the same way Luger did after he was sworn into office in 2014.

"We're not going to sit in our lawn chairs and wait for the next presidentially appointed U.S. attorney to come. We've got a job to do," Brooker said in an interview. "So major investigations, if they can come to a conclusion under me, they will be concluded under me."

Former U.S. Attorney Tom Heffelfinger said he doesn't expect to see a new U.S. attorney for Minnesota confirmed by the Senate until at least 2018 — and maybe later.

"I assume that as with a lot of things in this administration there isn't a lot of precedent," Heffelfinger said.

The last time a new administration called for sweeping resignations from holdover U.S. attorneys — under President Bill Clinton in 1993 — it was nearly a year until Minnesota got a new U.S. attorney.

Ted Sampsell-Jones, a Mitchell Hamline School of Law professor, said Brooker is widely respected inside the office and in the broader legal community.

Brooker's office plans to continue outreach initiatives, such as talking to faith leaders about safeguarding places of worship and coordinating an FBI-led use-of-force training for police in Rochester. The career prosecutor also inherited oversight of big federal cases like the probe into the 2016 death of Prince from a fentanyl overdose. He has vowed to not leave the next appointed U.S. attorney with a long list of unfinished business.

"It is important that federal law enforcement continues," Brooker said.

Staff writer Jennifer Brooks contributed to this story.

Stephen Montemayor • 612-673-1755

Twitter: @smontemayor