District’s Current and Former AGs Weigh the ‘Good and Bad’ of Limited Home Rule
May 02, 2023
D.C. Attorney General Brian Schwalb (at podium) with (left to right) panel moderator Tom Sherwood, Judge Inez Smith Reid, Frederick D. Cooke Jr., Judge John Ferren, Robert Spagnoletti, and Karl Racine.
Six current and former District of Columbia attorneys general and corporation counsel came together for a lively conversation about home rule at the Judicial & Bar Conference on April 28. Moderated by longtime D.C. political reporter Tom Sherwood, the panelists discussed “the good, the bad, and the funny” of serving as chief legal officer of the District government.
The position of D.C. attorney general has evolved over the years. In 1824 the City Council first established the position of “city attorney” through a resolution. That title was changed to corporation counsel in 1902 and then attorney general in 2004, both appointed positions. In 2015 Karl Racine became D.C.’s first elected attorney general.
In introducing the panel, current Attorney General Brian Schwalb said he felt like the college basketball coach who replaced the greats: John Wooden at UCLA, Dean Smith at UNC, and Mike Krzyzewski at Duke. “It’s an extraordinary honor to follow Karl Racine in this role,” said Schwalb, who took office earlier this year.
During his term, Schwalb said he will be “focusing on public safety and uplifting our young people; narrowing the gaps of equity that we have in our city; standing up for democratic values, including statehood and home rule; and building on the institutional excellence of the office.”
The D.C. Office of the Attorney General (OAG) is responsible for representing the city and its agencies in all legal matters, including contracts and litigation. But while OAG handles misdemeanor and juvenile criminal prosecutions, the U.S. Attorney’s Office for the District of Columbia has jurisdiction over adult criminal proceedings, which has led to friction in the past and remains one of the problematic limits of home rule.
In the mid-1980s, then-U.S. attorney Joseph diGenova “believed the government of the District of Columbia was an ongoing criminal enterprise,” recalled Frederick D. Cooke Jr., who served as the District’s corporation counsel from 1987 to 1990.
“DiGenova spent a lot of time trying to lock the government up, which struck me as odd because I didn't know how he was going to get cuffs on the government,” Cooke said. “We had a bit of an uneven relationship.”
DiGenova led investigations into the administration of Mayor Marion Barry, resulting in the convictions of 12 city officials, including two of Barry’s deputies. The FBI padlocked the corporation counsel’s file cabinets at one point, marking a low for the city at a time when the Reagan administration was hostile to D.C. home rule.
Interestingly, Cooke was responsible for the 1987 arrest of Phil Mendelson by the Metropolitan Police Department for protesting plans to develop a public park. Mendelson, now D.C. Council chair, allegedly had chained himself to a tree. He was not convicted.
In the late 1990s, the corporation counsel’s office compared poorly to the U.S. Attorney’s Office in everything from space to staff resources. It was a difficult time because the city had lost control of several city agencies, recalled D.C. Court of Appeals Senior Judge John M. Ferren, who served as corporation counsel from 1997 to 1999.
“We were housed in what is now the Historic Courthouse, but it was then a dump. The U.S. Attorney’s Office [was] getting a lot more money for attorneys and their staff. We had no money for training. We were down 31 positions. So, we were really just an inferior institution compared to them,” Ferren said.
“I do remember one time asking Mayor Barry to come with me over to the section at the then- non-historic courthouse. And we were walking around and [we] went up to the drinking fountain to get a drink and I heard from the other end of the hall, ‘Don't drink that water!’”
The old courthouse was vacated in 1999 for renovations and reopened in 2009 as a state-of-the art building and the new home of the Court of Appeals.
Relations between federal and city law enforcement authorities have improved dramatically over the years, noted D.C. Bar CEO Robert J. Spagnoletti, who served as attorney general from 2003 to 2006. “We actually worked out a very effective partnership,” said Spagnoletti, who was involved in the renaming of the Office of Corporation Counsel to OAG.
During his tenure, Spagnoletti pursued pay parity for OAG attorneys. “There's a provision in the D.C. Code that requires the salaries of D.C. government lawyers to be comparable to the federal government attorneys. I used my tenure there to get them closer to federal government employees’ salaries,” Spagnoletti said.
OAG has also come far from its early beginnings. Former D.C. Court of Appeals Judge Inez Smith Reid, who was corporation counsel from 1983 to 1986, remembered the days at the office before computers. “I spent a lot of my time advocating not only for computers, but also for increased staff back then,” Reid said. “We were woefully thin with a heavy load. We not only had the home rule issues, we [also] had a plethora of issues — environment, compliance, homelessness. It was not easy.”
Even though it was President Richard Nixon, a Republican, who signed the Home Rule Act in 1973, today it’s Republicans in Congress who pose obstacles to the District’s fight for statehood.
“It is ultimately a political decision,” former U.S. Representative Tom Davis said at a breakout session at the conference. “The right and wrong of it is, you’ve got people paying federal taxes in this capital of the free world that get no representation in Congress. And that's a hard thing to defend with a straight face,” said Davis, a Virginia Republican who has been a supporter of home rule.
Reaching full home rule with self-governing control over D.C.’s court system will require some hard decisions about funding and a grant of legislative authority by the U.S. Congress. It may even take full statehood before that can be achieved, the panelists said.
“Standing up for our autonomy actually requires us to take bold steps — bold steps that will cost us and be difficult for us to transition. But I think now is the time to press the case,” said Racine, now in private practice at Hogan Lovells LLP. “We always have to keep the focus on what the vision is.”
