U.S. Attorney nominee Andrew Luger faces ethical quandary on Minneapolis policing investigation

If Andrew Luger becomes Minnesota's next U.S. attorney, one of his first tasks will be to decide whether to recuse himself from the state's most high-profile federal investigation.

President Joe Biden's nominee for Minnesota's highest-ranking federal prosecutor, Luger is awaiting confirmation from the U.S. Senate to determine if he'll return to the job he held during the latter part of the Obama administration.

Since leaving in 2017, Luger has worked as a law partner for Jones Day. Until last month, Luger has played a leading role in Jones Day's work for the city of Minneapolis as it responds to the Justice Department's investigation into whether its police department has engaged in a "pattern and practice" of systemic illegal conduct.

That puts Luger in an ethical bind. If he steps aside, he'll be a bystander to a potentially historic case. If he doesn't, he will have to confront accusations that the outcome of the case will be tainted by what his critics say is a conflict of interest, because he's switched sides in the same probe.

"I am fearful — very fearful — that Andy Luger sitting in that position of U.S. Attorney is going to block that investigation, or denature that investigation such that it would be ineffective," activist Michelle Gross said in a press conference after Luger's nomination announcement last month.

The dilemma is just one of the challenges awaiting the New Jersey-born, Georgetown University-educated lawyer. As U.S. attorney, Luger would oversee 130 employees, including more than 65 prosecutors, and set the agenda for federal priorities across the state as its chief federal law enforcement official.

Luger is poised to step back into his former role as the community looks to the Justice Department to hold the Minneapolis police accountable in the aftermath of George Floyd's murder. In addition to the patterns and practice investigation, federal prosecutors have charged Derek Chauvin and the three other ex-officers in the Floyd case with civil rights violations. Minneapolis and St. Paul are experiencing a surge in gun violence that has put both cities on track for record homicides this year — a far cry from the historic-low violent crime rate in Minnesota during Luger's last term. And the cartel-linked meth and opioid trade has tightened its grip in the pandemic.

Luger would not comment for this story, including on whether he plans to be involved in the pattern and practice investigation, citing the delicacy of the nomination process. But his allies say Luger's history as a public servant and work in prestigious firms like Jones Day are part of what makes him the right candidate.

"We really need someone with the depth of experience and credibility that Andy carries with so many people in the community," said Steven Schleicher, a trial lawyer who worked in the U.S. Attorney's Office for 13 years, some under Luger, and was part of the special team that prosecuted Chauvin in the state's case. "In difficult times, that's when you want to draw from that experience."

Minneapolis' unofficial law firm

A seasoned prosecutor who worked at the U.S. Attorney's Office in New York City starting in the late '80s, Luger is known for his tenacity and blunt style, and his name carries clout in Twin Cities legal and political circles.

"He's a straight shooter," said Seamus Hughes, a counterterrorism expert who's worked with Luger. "You'll never not know his opinion."

In 2006, Luger ran a DFL-endorsed campaign for Hennepin County attorney but lost in an upset to Mike Freeman. He returned to public office eight years later, following his nomination for Minnesota's U.S. Attorney's Office by President Obama.

During that term, Luger oversaw complicated embezzlement prosecutions and other white-­collar criminal cases. He helped bring closure to the family of Jacob Wetterling 27 years after the slain boy's disappearance. When nine men attempted to leave the country and join ISIS, Luger's office prosecuted one of the largest terrorism cases in the nation's history.

Cutting a national figure as an ambitious prosecutor, he's made foes along the way, too. A group of state lawmakers and activists have publicly opposed Luger's return to the U.S. Attorney's Office, saying his record isn't progressive enough and that an anti-terror program he helped oversee subjected members of the Somali community to unjustified spying.

After the newly inaugurated President Donald Trump called for the resignations of U.S. attorneys across the nation, Luger joined Jones Day, specializing in white-collar defense.

Jones Day ranks among the highest-grossing and most sprawling law firms in the world. Its client list spans migrant families detained at the border to Trump and the Bin Laden family.

With Luger's help, Jones Day has since become the city of Minneapolis' unofficial law firm.

A potential 'unwaivable conflict'

In fall 2020, in the aftermath of Floyd's murder and the riots that followed, Luger "offered he and his firm's help," said Minneapolis City Attorney Jim Rowader in an e-mail (Rowader would not agree to an interview, and instead provided a statement).

At the time, the Justice Department's Washington office had not yet announced the pattern and practice investigation, and Luger's Trump-appointed successor, Erica MacDonald, still held Minnesota's U.S. attorney position.

Through a pro-bono agreement with Minneapolis facilitated by Luger, Jones Day took on a long list of matters related to the Justice Department investigation, including responding to subpoenas, negotiating a consent decree and "proactively brainstorm[ing] potential [police] reforms," according to contracts between Jones Day and Rowader.

Jones Day is also helping the city respond to a separate investigation into the Police Department by the state Department of Human Rights. The law firm is contracted to investigate citizen complaints of police misconduct filed with the city's Department of Civil Rights. And it's helping the city negotiate labor contracts with the Police Officers Federation of Minneapolis, according to city contracts.

"[Luger's] valuable assistance and leadership came at a crucial time in the City's emergence and healing from the trauma of George Floyd's murder and has been crucial in the ongoing success of the work being done by the City Attorney's Office," Rowader said.

Luger has not worked with the city since Biden's official nomination announcement in November, "and his services are missed," he added.

The conflict arises out of Luger's access to attorney-client privileged information about the city's legal position and strategy, said Ana Pottratz Acosta, who teaches ethics at Mitchell Hamline School of Law.

"In the course of representing somebody, you have candid conversations. ... You have access to documents that are not part of the public record," Acosta said. "If he actually worked on these matters, I believe it's an unwaivable conflict," meaning he'd be obligated to recuse himself, she said.

Luger's name appears on several contract documents, including one dated Oct. 19, 2021, which expands the agreement to include legal response to a police officer's disability claim. Luger had not yet been officially nominated at that time, but his name had emerged seven months earlier on a list of three finalists reported by several news organizations. The FBI was conducting a final background check on Luger when he signed this contract, a final step in the nomination process.

Acosta compared the dilemma to the one faced by former U.S. Attorney General Jeff Sessions. After revelations that Sessions had been in contact with the Russian ambassador, he recused himself from an investigation into charges that Russia meddled in the 2016 presidential election.

Unlike Sessions, Luger is not a subject of the investigation in question. But "he cannot work for the Department of Justice as a U.S. Attorney in Minnesota investigating a former client of his directly related to the matter he represented them in," Acosta said.

Even if Luger didn't gain privileged information, the perception of a conflict still poses a problem in light of the Department of Justice's ethics policy, Acosta said.

"The appearance of a potential conflict is sufficient to err on the side of recusing yourself," she said.