About this article:

B. Todd Jones was the U.S. Attorney from Minnesota from 1998 to 2001 and is now a partner with Robins, Kaplan, Miller & Ciresi. Tom Heffelfinger is the current U.S. Attorney, serving since 2001. This is the second round for Heffelfinger who was also the U.S. Attorney from 1991 to 1993.

Prevention Instead of Prosecution

Todd Jones & Tom Heffelfinger

JONES: All right Tom, we're on the record.  One of the first things that I think is intriguing about this opportunity to talk to you both in the sense that I preceded you and you are the current U.S. Attorney, but there's also a lot of other connections between us, and the first thing I'd like to talk about is your perspective on how the job of U.S. Attorney changed from your first tenure in the early ’90s when you had the opportunity to bring me on as an assistant and you were the U.S. Attorney and then coming back as the U.S. Attorney seven, eight years later.  How's the job changed?

HEFFELFINGER: First of all, I feel very uncomfortable talking to an assistant U.S. Attorney. "Laughs."

JONES: You were an assistant U.S. Attorney too, now.

HEFFELFINGER: Actually, I had a really unique scenario, as did you.  I think the job of U.S. Attorney between when I first started in '91, then I hired you in '91 or '92, then you took over and handled the end of the ’90s.  And then I, after the election, when I was applying for this job in early 2001, everything seemed to be a consistent sort of job; the priorities were consistent, the man power was fairly consistent.  What really changed the job was the impact of 9/11 on the Department of Justice.  The administration's turning to the Department of Justice and the FBI but including U.S. Attorneys to come up with a security plan for the United States immediately after 9/11, to sort of summarize how those changed - we've always had a big piece of law enforcement coordination.  And you did that.  I did it my first go round, and it was always “how can we get cops to work together on drug prosecutions or white-collar or violent crime?”  But all of a sudden we went into coordinating not just the law enforcement response, but prevention.  And so for the first time you see U.S. Attorneys out selling on a prevention model that goes far beyond traditional prosecution.  A good example is just yesterday.  I had a meeting with the Metropolitan Airports Commission about how we could tighten security. This is a wholly different role than U.S. Attorneys play now, as compared to at least when I had the job in the early ’90s.  Another thing that is different is that because of the dominant role the DOJ has played in the post-9/11 security, the public sees us differently and sees us more.  There is a huge part of not just my job, but U.S. Attorneys nationally now, is an outreach to the public - to educate the public about what we are doing in the war on terror, to calm fears that may still exist that existed big time in 2001, 2002. So a lot of, I would almost call it a political type job with a small "p," not partisan in any nature, but the kind of public outreach that was much different from the more law enforcement focus that we had in the early ’90s.

JONES: It's interesting to hear you say that because as you were talking about being proactive in the preventative side of the job, I recalled - you're right, in terms of the priorities and prosecution, whether it's narcotics trafficking, whether it's white-collar crime, or here in Minnesota whether it was issues arising out of Indian country - I saw consistencies from an assistant and a U.S. Attorney.  But it's interesting to hear you talk about the U.S. Attorney's office being used more in a proactive, preventative kind of way post-9/11 for national security, domestic security, terrorism type issues, and thinking about what was happening at the end of the second Clinton administration where the AG Ms. Reno's push was to be proactive with things like the weed and seed and the traditional criminal stuff.  Which was a transformation I saw in the U.S. Attorney community at the time.  Not everybody was comfortable with going to community meetings and talking about prevention and being proactive and getting out of a reactive mode.  It's interesting to hear you talk about how that role is something in the national security front that happened domestically post-9/11.

HEFFELFINGER: I think both the first Bush administration, Reagan administration and Clinton, there was a, I agree, an increasing push as I saw it towards taking the lessons of the courtroom, the lessons of the street - turning them into proactive, preventative programs like weed and seed.  What makes terrorism so different is that our goal here is not to prosecute.  The idea is that if we're prosecuting, we've already lost.  The theory here is to get out and work on prevention to avoid ever having a law enforcement response.  It's interesting.  We have in this office two people: an assistant U.S. Attorney and an intelligence research specialist who devote a hundred percent of their time to terrorism, and are fully engaged, they're working overtime.  And yet, the number of prosecutions they generate is modest, very very modest.  Most of the time goes into prevention so that we never have to prosecute.  That's the biggest change that I've seen.  That plus the visibility the U.S. Attorneys' offices because both the president and the attorney general put us out front - Ashcroft and the president - as spokespersons for the administration on these policy issues. 

JONES: You know, you talk about the resources and how they're being dedicated.  One of the things that was a point of frustration with me, and I don't know whether it continues, was benchmarking success.  The usual way of doing it - "OK, let's rack up... How many prosecutions did we do? How many cases did we try? How many convictions did we get? OK, we're a successful office."  If you're in the mode, whether it's prevention on the national security front or whether it's prevention in the more traditional, criminal, you know, "let's diminish violent crime" - you're kind of undercutting the traditional benchmarks of success when outsiders come and measure how your office is doing.  Anything changed with respect to that in terms of people recognizing success doesn't always equate with numbers of prosecutions.

HEFFELFINGER: I think in the traditional criminal areas - guns, drugs, white collar crime, financial collection, civil recoveries, affirmative civil enforcement - the financial and case management benchmarking is still as much true today as it was.  But, it's in the new area of terrorism it became very, very clear that we couldn't benchmark success on prosecutions; matter of fact, we didn't want to.  And it's still rather nebulous how one measures success.  It's a little bit like corporate compliance, which you know in the white collar arena - how do you measure whether your compliance program is successful if you never get indicted? 

JONES: You never get indicted because it's too successful. "Laughs."

HEFFELFINGER: Or, if you're operating an ethical business, it's a little bit like this: How do you measure success if you don't have terrorist attacks?  To some degree that is the measure of success - by tightening up the country, by doing all the things we've done, and heading off the recurrence of 9/11.  That has been successful.  Yet, at the same time we all know that the events of 9/11 weren't intended to be the only act they were going to come after us on.  So, we assume there'll be another one, but the benchmarking doesn't apply in the new top priority of the Department of  Justice, and it is unclear what that measure of success would be other than the avoidance of another attack. 

JONES: Now, I know that as an outsider with an interest in what's happening in budget, I understand, at the same time, there's been more demands, less resources.  Now you and I both know, since you were U.S. Attorney the first time, we're in a new courthouse, a new office space.  There are more AUSA's here, and the office has grown.  Do you think that sufficient resources are being dedicated given the job that you have to do now?

HEFFELFINGER: There's a myth that the government has unlimited resources; we hear that all the time during trials from defense lawyers.  The reality, as you know, is that's never been true and it's not true now.  We've received, since 9/11, three additional lawyer positions: one for a terrorism coordinator, one for a white-collar prosecutor, and one for a drug prosecutor.  The terrorism coordinator - every U.S. Attorney got at least one throughout the nation.  We got the white-collar and the drug prosecutors because of our performance.  What has happened in the last four years is that all the priorities that we had before - drugs, guns, violent crime, white-collar crime - are still priorities.  We just added another one, and we are now being asked to do a new top priority together with all the other priorities with what basically amounts to the same resources.  Because of the confluence of the cost of the war, the cost of homeland security the Department of Justice since 9/11 - other than the FBI - all the departments of the Department of Justice have either been flat-budgeted or actually slightly reduced, that includes the U.S. Attorneys.  So, in essence, we're being asked to do more with some degree less than we had four years ago.  We're able to do it, frankly, I think this true nationally - I know it's true in Minnesota - because of good people.  People who are incredibly motivated - the assistants, the support staff.  But, these are tight times financially. 

JONES: Yeah, any public service job is one where people are dedicated to it for reasons other than financial compensation.  Let me ask you - it's a nice segway here - tough decisions.  As I was walking over here, I was thinking about toughest decisions.  There was one common theme cause I don't want to call out any particular case, but for me one of the toughest decisions I had to make may surprise outsiders and that's a decision not to take a case, particularly when an agency - whether it be the FBI or the Department of Ag, or some other agency that's invested substantial resources in terms of agent hours or whatever - and for very good reasons you decide that you're not going to do something with it.  And I can recall a couple of occasions where that was really the toughest decision where people outside never saw.  I know a lot happens on your watch here, in a lot of different areas.  Is that a fair question to ask you - toughest decisions you've had to make this second time around?

HEFFELFINGER: The toughest decision I had to make I'm right in the middle of, and I'll be, as a result, somewhat circumspect.  Here we are the first couple of days of June, and we're a little over two months past the Red Lake School shooting.  That has proved to be a series of very difficult decisions and continues to be a series of difficult decisions and many of which are not made.  The reason it has been so difficult, both for me personally and for this office, is because we are so closely involved with the people of Red Lake on a variety of fronts.  We're doing some incredibly positive things up there and have been for years.  Many of the people up there are close, personal friends.  Some of the victims up there were very well known to people in this office, and the impact of the decisions we are making in the aftermath of that shooting has a huge impact on that community.  I can say without a doubt that that has proven to be the most difficult situation I've faced since becoming U.S. Attorney.

JONES: And I can relate to that, both in experiences as an assistant and as a U.S. Attorney with the special relationship that this office has historically had with Red Lake in particular being the kind of jurisdiction it is.  The U.S. Attorney's office is the prosecuting entity for certain crimes that come out of Red Lake, and I know that that's been more than just prosecution for this office.  There's a lot of personal relationships between people in this office, people up on Red Lake, and it's a close-knit community with families.

HEFFELFINGER: Well, we've done two things in the last three years that have been very focused on trying to reduce crime up there, and we've been very successful.  One is to take Project Safe Neighborhoods which is a gun program not unlike the one you started here in the Twin Cities, and we've transplanted it into the three reservation areas in northern Minnesota and have had great success in reducing gun violence and drug dealing on not only Red Lake, but White Earth and Leech Lake. And that was really positive to see violence being reduced, and then immediately thereafter, the school shooting.  The second piece is a family advocacy center that we've established together with Red Lake and the non-Indian communities around Red Lake to deal with family violence.  To have that initiative moving forward literally at the same moment that this tragedy of the school shooting hits, has been incredibly bittersweet.  It has made the difficulty of the school shooting more poignant.

JONES: What about bright moments?  This is a tough job.  We both know it's a tough job; it's an exciting job in part, because we were talking about before we started talking on tape here because it's temporary. I mean, you've lived it.  You had that gap in between here where you didn't get a full four year shot the first time you had it, and you get the benefit of coming back and doing it again.  But, for most folks, they don't get that kind of opportunity and it's a one-shot deal, and as it result it's kind of like every day is special.  So, other than the fact that you have this responsibility and you get another run around the block on the ride here - anything jump out at you as highlights of your second tenure?

HEFFELFINGER: Yeah, the first highlight is just getting a chance to do it again; it is the world's best job.  There's no doubt about it, it is just a great job.  There isn't a day here that I don't pinch myself and say how lucky I am to get to do it twice.  The second bright spot is sort of a recurring thing.  This office historically, when you were here and when I have been here, had really attracted people that care, they want to serve.  They want to serve the public, and there's an incredibly high level of motivation and high level of skill.  The opportunity to get to work with the men and women who make a career out of being assistant U.S. Attorneys and support staff is a joy because the impossible is very possible when you surround yourself with highly motivated people.  The third thing is more of a personal highpoint, and it goes back to the advocacy center that I mentioned for northern Minnesota.  We took an idea, a problem, which was a high incidence of child abuse, domestic violence, sexual assault on Red Lake, and realized we needed to do things fundamentally differently if we were going to change that dynamic.  A couple of assistants in this office, Eric McDonald and Chris Wilton, came up with an idea.  We threw the idea at Red Lake, they embraced it, took it to the non-Indian hospital in Bemidji, they embraced it.  Then in a year and a half we took an idea from the brainstorming phase to the opening of a center which will provide the first of its kind of partnership between Indians and non-Indians to address the three different crimes that make up family violence.  That has the potential, and it will be a reality, of breaking a generational cycle of violence and actually reducing family violence in northwest Minnesota.  For me that is extraordinarily personal because the thing that I have found most exciting about this job is not putting people in prison.  The most exciting things are making things better, and to build something like that advocacy center is truly rewarding.  That's a real highpoint for me, and we just announced it a few days ago. 

JONES: Good.  I see that our mandated "no more than fifteen minutes" again Rebecca for your benefit.  I'm sure Tom and I could.... and we'll talk about the real good stuff after we turn the tape recorder off. I guess we're finished. I'll send you the tape. Enjoy.    

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