The New York Law Journal by Mark Hamblett - December 2, 2008
Michael Garcia ended his three-plus years as the top federal prosecutor in Manhattan yesterday smiling over a couple of recent wins for the office. On Nov. 20, a Southern District jury found international arms trafficker Monzer al-Kassar, who was arrested in a sting, guilty of conspiring to sell weapons to Colombian terrorist organization. Four days later, a federal appeals court upheld the convictions of four men in the al-Qaida conspiracy that included the 1998 bombing of the U.S. embassies in Kenya and Tanzania - a case Mr. Garcia had worked on during his previous stint as a line prosecutor in the Southern District. "The embassy case and Kassar in the last weeks were really kind of a terrific way to go out," he said. "Kassar was an incredibly important case for a lot of reasons . . . he had been active for a long time. I had read somewhere as we were bringing that case . . . that the United States didn't do arms dealers cases. "Then to have Kassar played out where the public can see the proof, can see the tapes, can see all that evidence that came in and get guilty verdicts across the board by a jury in New York - what a great message." After some time off, Mr. Garcia will move to Kirkland & Ellis on Feb. 2, where he will be responsible for building up, and heading, the firm's white-collar practice.
Packing up his office yesterday, Mr. Garcia was set to have coffee with his staff and colleagues in the Southern District as he reflected on what it meant to be U.S. attorney during a time of turmoil both abroad and on Wall Street. The soon-to-be-private citizen said it has been interesting work presiding over an office that is expected to be a leader in securities and other white-collar fraud prosecutions at a time of Wall Street's historic collapse. "The challenge with the current Wall Street financial sector meltdown is in walking that line - of putting the resources in there and giving out a message that balances an enforcement message without being alarmist or suggesting that we are looking at this or that," he said. "I think it sends a very bad message to flag an investigation or say we are expecting indictments. "We shouldn't say these things," Mr. Garcia said. "On the other hand, I've seen members of the defense bar say 'Oh, the prosecutors are under incredible pressure and they are going to bring charges - there may not be any crimes but someone has to pay.' That just doesn't happen." Mr. Garcia recently added three more prosecutors to his Securities and Commodities Fraud Unit, but he said finding resources always is a problem. "We have to be smart" in how resources are applied across the board, including an office probe of the credit default swap market in conjunction with the New York Attorney General's Office and cooperation with local prosecutors on the epidemic of mortgage fraud. Mr. Garcia had 203 assistant U.S. attorneys when he first took office in 2005. That number has since increased to 217.
The Spitzer Case
Mr. Garcia made a point of targeting public corruption as U.S. attorney and his office has brought a number of prosecutions. But the case that garnered the most attention was the probe of financial transactions that implicated then-Governor Eliot Spitzer in a high-price prostitution scandal. While his office successfully brought charges against members of the escort service, Mr. Garcia was under a microscope as he made the decision not to indict Mr. Spitzer for violating the Mann Act, a decision he said was made in conformity with U.S. Department of Justice and Southern District guidelines on prostitution investigations.
Mr. Garcia said he never felt pressure from Washington to make the call one way or the other on Mr. Spitzer, a high-profile Democrat who was forced from office by the scandal. "That was my decision," he said. "Public corruption cases are very sensitive, the timing is sensitive and perception is very important." Not that Mr. Garcia did not have conflicts with his superiors in the Justice Department. "I don't know of any U.S. attorney who hasn't knocked heads with main Justice," he said. "But there is a history of autonomy here and I've never felt they interfered with me on any call." Beginning this morning, Mr. Garcia's shoes will be filled by his deputy, Lev Dassin, and then, most likely in January, by a new appointee who sill serve at the behest of the Obama administration. Mr. Garcia took office in September 2005 and one of the challenges he faced in managing the Southern District was the exit of too many senior prosecutors. "Two things came together that were difficult. One, we were going through a tough budget cycle and, two, we had a very hot private sector market that was heavily recruiting our [assistant U.S. attorneys]," he said. "We have ground to make up in terms of losing a senior crew of prosecutors that have moved on to other opportunities." Historically, there is plenty of turnover in the Southern District, usually between 20 and 30 prosecutors a year head for the private sector or other government jobs. Mr. Garcia said the turnover has been at the higher end of that range during his tenure and even though some progress has been made, his successor will need to fill slots where more experience is required, because the staff "is sort of bottom heavy right now."
Mr. Garcia came back to lead the Southern District after heading the Department of Homeland Security's U.S. Immigration and Customs Enforcement or ICE. He said his time at ICE helped shape his management style in Manhattan. Former U.S. Attorney James B. Comey "told me that the danger in this office is it's small enough so you think you can micromanage cases but it's too big to actually do it," he said. "So micromanaging is just not feasible." Mr. Garcia said that when he was a line assistant, he loved "barging into the U.S. attorney's office" to run a problem by the boss, but he found that, once he had the top job, he was better suited to delegate those discussions to top prosecutors, including Mr. Dassin and Mr. Garcia's former deputy Cathy Seibel, now a federal judge. That system helped line prosecutors "make faster and more well-informed decisions," he said. "That, I think, has been more my style," he said. "But then again, this office has changed so much." Mr. Garcia had some controversy to deal with upon taking office, including the collapse of the case against 13 defendants in the KPMG tax shelter fraud case after Southern District Judge Lewis Kaplan ruled that prosecutors had pressured KPMG to withhold or suspend attorney's fees it normally paid for partners and employees. Mr. Garcia could not discuss the case yesterday because four remaining defendants are now on trial.
Indict bin Laden?
Mr. Garcia's time in the Southern District also included convictions in the Iraq oil-for-food scandal and a stepped up effort on immigration fraud, particularly against attorneys and immigration officials. Both the Kassar and embassy cases were high profile, but Mr. Garcia said what impressed him the most about his tenure is the work that his prosecutors and other law enforcement agencies perform behind the scenes tracking down leads on potential threats - "things that don't result in indictments." "Law enforcement here and the line people in all agencies have done a tremendous job standing guard," he said. The embassy bombing case resonates for Mr. Garcia for a number of reasons. He recalled traveling to Kenya and Tanzania to interview victims of the bombings, and he noted that the case is still far from over. One defendant who remains under indictment is being held at Guantánamo and two others are challenging orders of extradition from Great Britain. Mr. Garcia said he believes that the debate over how the United States should try enemy combatants has been marred by "grandstanding" and "labels," with one side saying civilian courts are incapable of handling classified material and others arguing civilian courts are the only way to ensure the rights of the accused.
Mr. Garcia said he does not favor a newly-created system of civilian courts to handle cases involving classified information because he is concerned the new courts would create a number of unforeseen problems. "The pendulum had swung very much against Article III courts in criminal prosecutions (of terror cases) and, unfortunately public statements were made to the effect that they can't handle them," he said. "Look, there are issues and challenges in Article III courts and, one of the things that has become very clear over time is that there are issues and challenges with the procedures at military tribunals." "Where I see this right now is that the pendulum coming back to some sort of middle ground, where you consider the options thoughtfully," he said. "All of this is hindsight, because people are looking at Gitmo in 2008 going into 2009, not from the perspective of 2001. I don't see this is a blame game. The question is, what's the best way forward?" "Sometimes people ask me 'Would you still try Osama bin Laden in the Southern District?'" he said. "And I say, I still have an outstanding indictment against bin Laden. If he was caught in a country that would extradite him here for a criminal case, then off we'd go."