Election 2017

What Jenny Durkan’s Time as U.S. Attorney Says About Her As a Candidate

She made some progressive reforms. But she also leaned on activists and declined to prosecute anyone involved in the WaMu collapse.

Appointed by President Obama to serve as U.S. Attorney for Western Washington from 2009 to 2014, Jenny Durkan touts her role in the DoJ investigation of Seattle police that led to Seattle’s current consent decree with the federal government. After the DoJ presented investigatory findings in 2011 showing patterns of brutality and potential racial bias in the behavior of Seattle police, the state ACLU gave Durkan “kudos” for “taking seriously the duty of police officers to protect public safety while respecting individual rights.”

The consent decree is not the only progressive talking point on Durkan’s resume from her time as a federal prosecutor.

“As an advocate for progressive change, I worked to improve sentencing laws so drug defendants could get treatment instead of prison,” wrote Durkan in September. “When that wasn’t successful, I joined with then-King County prosecutor Norm Maleng and others to create King County’s drug court and mental-health court to provide alternatives to incarceration. Later, after President Obama appointed me U.S. Attorney here in Seattle, I worked with Attorney General Eric Holder, Sally Yates, and other Department of Justice leaders to craft broad criminal-justice reform initiatives President Obama championed—reforming sentencing guidelines to eliminate unfair disparities, reducing unwarranted sentences, and avoiding draconian mandatory minimum sentences. I supported re-entry efforts and worked with the public defenders to establish here in Seattle one of the first federal drug courts in the country.”

This list of progressive criminal-justice reforms includes accomplishments genuinely worth bragging about. For instance, Durkan created a civil-rights unit in her office, and helped get drug court—a less-punitive program for low-level drug offenders—started in Seattle federal court.

But other aspects of Durkan’s tenure as Western Washington’s top federal lawyer are less flattering—and go generally unmentioned on the campaign trail. In one case, her office convinced a federal grand jury and Judge Richard Jones to imprison radical activists who were neither charged nor even accused of any crime other than remaining silent. After the collapse of Washington Mutual in the 2008 financial crisis—which a Senate investigation found, as paraphrased by the Associated Press, to be “threaded through with fraud”—Durkan’s office failed to prosecute a single banker. On her watch, feds raided medical-cannabis dispensaries, and she personally helped block efforts to legalize medical cannabis.

For certain segments of the left, this history continues to hit raw nerves—though how much effect it will have on Durkan’s electoral prospects remains to be seen.

Durkan’s showdown with Pacific Northwest activists began on May Day 2012, when masked members of a black bloc vandalized a federal courthouse, tagging spray paint and breaking windows. Destruction of federal government property in excess of $100 worth of damage is a felony punishable by up to a decade in prison and a quarter-million-dollar fine.

In their search for the vandals, federal agents raided the homes of known radical activists who were not even in Seattle on May Day. From the Los Angeles Times: “Early on the morning of July 25 [, 2012], residents of a neighborhood in northeast Portland, Ore., were awakened by the sound of a battering ram plowing through the front door of a small house. Inside, the sleepy young occupants stumbled out of bed as FBI agents rushed in with assault rifles … The FBI search warrant listed ‘anarchist’ and ‘anti-government’ literature and material among items to be seized.”

The DoJ and Durkan’s office went to a grand jury to indict the vandals, some of whom are still unidentified, and to compel the activists to tell the jury what they knew about the crime. When they refused to testify—some say to this day that they do not know who committed the vandalism—Durkan’s office convinced a federal judge to imprison the activists, some for up to five months, in an effort to force them to testify against their peers in the Pacific Northwest’s radical left. The grand jury resisters, as the group became known, were granted immunity from prosecution so that they could not invoke their right to silence, which derives from the Fifth Amendment’s protection against forced self-incrimination. Emily Langlie, spokesperson for the U.S. Attorney’s office in Western Washington, defended the DoJ’s actions at the time, saying, “It’s not punitive, it’s coercive,” according to the Los Angeles Times.

The resisters spent most of their time at the SeaTac Federal Detention Center in solitary confinement, which violates international norms of humane imprisonment and caught the ire of human rights advocates here. The Seattle Human Rights Commission condemned the solitary confinement of the grand jury resisters in a 2013 letter to Durkan and others which read in part: “There is simply no credible reason for their continued detention in solitary confinement … in an environment known to cause serious and lasting psychological harm.”

After their eventual release in 2013, two of the resisters told Brendan Kiley, then at The Stranger, that they’d been having panic attacks since getting out.

There are two points to note here. One is the ability of federal prosecutors, and the willingness of a federal judge, to incarcerate an innocent person in order to make them talk. The other is the end toward which Durkan’s office leveraged this stupendous authority: to retaliate against leftist vandals by targeting their friends.

Except “retaliate” may be the wrong word. To journalist Will Potter, author of Green Is the New Red: An Insider’s Account of a Social Movement Under Siege, the May Day vandalism appears to have been more of an excuse than a reason for raiding and imprisoning activists. “It’s a fishing expedition targeting those who identify as anarchists or associate with anarchists,” wrote Potter in 2012. “Grand juries have historically been used against radical social movements as a tool to intimidate and to gather information. When activists enter a grand jury proceeding, they check their rights at the door. They are asked about what they believe, what their friends believe, who they associate with, what kinds of activism they support. If they choose to assert their First Amendment and Fifth Amendment rights by refusing to speak about their political beliefs and political associations, they can be imprisoned.”

Jenn Kaplan served as attorney to one of the resisters, Katherine “KteeO” Olejnik. Kaplan calls the treatment of her client “very cruel.” “My client suffered immensely during her incarceration,” she says. “They knew that she did not know who was responsible for the damage, and continued to press her and pursue contempt and incarceration, even though it was very clear she was not a witness to any crime.”

We made several requests to the Durkan campaign for an interview about this and the other cases discussed in this story. Her campaign responded with links to complimentary stories about her times as a federal prosecutor, as well as a statement Durkan made at a recent mayoral debate: “What we saw in the May Day riots was that a person smashed the courthouse doors and threw in a lit flare while people were working there. It’s a federal crime and we investigated it … I would never would use the authority of our office to go after protesters.”

A spokesperson for the campaign asserted that Judge Richard Jones, not Durkan’s office, was responsible for jailing the resisters. That’s a semantic quibble: Durkan’s office asked Judge Jones to turn the screws, and he did. The feds, says Kaplan, “could have at any point during the five months my client was incarcerated decided that this was too high a human-rights price to pay for tangential information for their investigation.” But they didn’t.

In contrast to the pursuit of the people who vandalized a courthouse, Durkan’s office did not imprison any bank executives after the 2008 financial collapse. In fact, it never filed charges against anyone—even though Seattle was ground zero for one of the most spectacular bank failures in the country, that of Washington Mutual Bank.

Prosecutors in Durkan’s office said at the time that no crimes been committed. “Investigators have conducted an extensive investigation that included hundreds of interviews and the review of millions of documents relating to the operations, and the subsequent failure, of Washington Mutual Bank,” the Justice Department said in 2009. “Based upon its investigation, the Department of Justice has concluded that the evidence does not meet the exacting standards for criminal charges in connection with the bank’s failure.”

However, a year-and-a-half Senate investigation into WaMu came to a very different conclusion. The Senate panel uncovered a system in which bank executives lavishly rewarded employees for producing lots of mortgages—many of which could not be paid off by the people taking them out. U.S. Sen. Carl Levin (D-Mich.) called WaMu “one of the worst” regarding banks issuing subprime mortgages.

As commentaries from The Big Short to The Chickenshit Club have described in detail, Durkan’s office’s failure to prosecute was no aberration; other federal prosecutors were just as tame. She was part of a financial regulatory system that continues to function as designed (that is, ineffectually).

Durkan also took heat during her tenure at the U.S. Attorney’s office for going after medical cannabis in 2011 in what The Seattle Times called “the biggest raid on pot dispensaries since voters approved the state’s medical-marijuana law in 1998.” After the raid, Durkan opined that legitimate cannabis patients [as opposed to stoner-fakers] are “a pretty small population.” Also in 2011, Durkan co-authored a letter that convinced Washington Governor (and longtime Durkan patron) Christine Gregoire to veto a bill that would have legalized and regulated medical cannabis. The bill, the letter said, would “authorize conduct contrary to federal law, and thus would undermine the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances.” The letter warned that state employees who implemented the bill could be subject to criminal liability.

On the other hand, Durkan could have been much worse, says pot lawyer Jeffrey Steinborn. “Her office seemed to be reluctant to prosecute marijuana offenses,” he says. “She was certainly decent on the marijuana issue.”

So what can we learn from Jenny Durkan’s time as U.S. Attorney for Western Washington? First: Durkan is competent and dogged. The Seattle Times reports that the annual number of civil case filings nearly doubled during her tenure, and the quantity and variety of cases her office handled is impressive. Love her or hate her, you have to respect Durkan’s ability.

Second: Like the president who appointed her, Durkan has a very mixed record on civil and human rights. She has supported important reforms for criminalized poor people, such as drug court. But she’s also been an adversary of cannabis decriminalization, shown tame deference to the powerfully corrupt, and jailed dissidents. She is a creature of the system, and will maintain it.

“If [Durkan’s] not willing to disavow that very cruel campaign against my client that her office pursued,” says Kaplan, “that’s very telling to me about what she thinks of human rights.”

cjaywork@seattleweekly.com

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