Eight months into his new administration, President Joe Biden has taken no public steps to fill any of the four U.S. attorney positions in Texas, but there is no shortage of lawyers who want those powerful jobs.
Multiple sources tell The Texas Lawbook that Democratic congressional leaders in Texas have submitted names they’d like to see considered for the top prosecutorial jobs. The lists are said to include high-profile trial lawyers and active prosecutors.
In the Northern District of Texas, the names include Winston & Strawn’s Tom Melsheimer, Gibson Dunn partner Andrew LeGrand and two current senior lawyers in the U.S. attorney’s office in Dallas.
In Houston, Ashlee McFarlane of Gerger Hennessy & McFarlane and Jennifer Lowery, acting U.S. attorney for the Southern District of Texas, are among the prominent candidates.
So far, Biden has submitted 16 nominations to the Senate to fill U.S. attorney positions in Indiana, Maryland, New York, Virginia, Washington state, West Virginia and the District of Columbia.
Most of those districts – Washington, D.C. being the exception – are relatively small and do not encompass the big cities where major federal prosecutions typically play out, such as New York City, Chicago, Los Angeles and San Francisco.
One former U.S. attorney in Texas said before Biden turns to filling the open positions in Texas, he is likely to deal with big-city jurisdictions in states with Democratic U.S. senators, since those nominations will face a smoother reception in the Senate.
“He’ll knock down the easy fruit first before taking on partisan fights with Republican senators,” the former prosecutor said.
Under longstanding Senate custom, the Senate Judiciary Committee, which considers presidential nominations both for U.S. attorneys and federal judges, affords great deference to the preferences of the senators from a nominee’s home state.
This rite of deference may be particularly strong in the case of Texas nominees, since both of the state’s Republican senators, Ted Cruz and John Cornyn, sit on the Judiciary Committee.
Legal sources with ties to both political parties said nominations for U.S. attorney spots in Texas could face stern opposition unless there is a compromise agreement reached in which the White House and the two senators each get something in the deal.
One former U.S. attorney in Texas said Cornyn, a former Texas Supreme Court justice, tends to focus more on a nominee’s qualifications and judicial philosophy, provided the nominee is politically moderate. Cruz, however, gives stronger consideration to a nominee’s ideology – “first and foremost, is this person a political conservative, period.”
Northern District of Texas
This nomination took on added urgency last week when Prerak Shah, the acting U.S. attorney, announced he is stepping down effective Oct. 1. No temporary replacement for the temporary chief prosecutor has been named by the U.S. Department of Justice.
Multiple lawyers, speaking on the condition that they not be identified, told The Lawbook that Rep. Eddie Bernice Johnson of Dallas, the dean of the Democratic congressional delegation in North Texas, has submitted at least three names as possible candidates for the politically-appointed position.
By nearly all accounts, Melsheimer, who is managing partner of Winston’s Dallas office and a former federal prosecutor, is considered the frontrunner being pushed by Democratic leaders. Over the past few years, Melsheimer has won several high-profile courtroom victories, including the 2019 acquittal of bariatric surgeon Nick Nicholson in the Forest Park Medical Center federal bribery and kickback scheme trial.
Gibson Dunn’s LeGrand, a graduate of the University of Oklahoma who clerked for U.S. District Judge Joe Fish, has been the lead trial lawyer in several False Claims Act cases. He was named by the National Black Lawyers Association as one of the top 40 African American lawyers under 40 in the U.S.
Two insiders at the U.S. Attorney’s office in the NDTX are viewed as possible choices.
Assistant U.S. Attorney P.J. Meitl is a nine-year veteran of the U.S. Justice Department who has prosecuted 150 violent white supremacists and handled 19 criminal jury trials, including the successful prosecution of the largest home healthcare fraud in U.S. history. Meitl also served as coordinator for the DOJ’s Project Safe Neighborhood for more than two years.
Assistant U.S. Attorney Errin Martin, a 14-year veteran of the Justice Department, is the current Northern District section chief over national security, cyber and money laundering. Martin was formerly an associate at Thompson & Knight, now Holland & Knight.
Another name mentioned in interviews with present and former federal prosecutors is Delonia Watson of Fort Worth, a former assistant U.S. attorney and former assistant Tarrant County district attorney. Watson, who holds a degree in chemical engineering from the Massachusetts Institute of Technology and a J.D. from Harvard Law School, is a past president of Black Women Lawyers of Tarrant County.
With so many talented lawyers in the mix in the Northern District, “it’s still a free-for-all,” said a legal source with direct knowledge of the selection process.
Southern District of Texas
Legal insiders say that McFarlane, a former federal prosecutor and two current members of the U.S. Attorney’s Office in Houston are the leading candidates for the top prosecutor’s position.
McFarlane has been a partner with prominent Houston trial attorney David Gerger for nearly four years, handling several high-profile white-collar criminal cases. For more than five years, McFarlane held two key positions at DOJ – head of the Healthcare Fraud Strike Task Force in the Southern District and assistant chief of the DOJ’s fraud division. For three years, she was an associate in the labor and employment litigation practice at Locke Lord.
Acting SDTX U.S. Attorney Lowery and Assistant U.S. Attorney Alamdar Hamdani, who handles national security and public corruption prosecutions, are also seen as leading candidates.
Lowery, a 1992 graduate of the South Texas College of Law, is a 21-year veteran of the Justice Department, where she has served as chief of the criminal division and first assistant U.S. Attorney in Houston before being named acting U.S. attorney in January. She also served as an assistant U.S. attorney in Beaumont, in the Eastern District of Texas, between 2000 and 2004.
Hamdani, a 1999 graduate of the University of Houston Law Center, has been a federal prosecutor for 13 years. He was deputy chief of the Counterterrorism Section of the DOJ for two years. He worked for four years as an associate at Winstead.
Lowery and Hamdani serve as adjunct professors at the University of Houston Law Center.
Western District of Texas
Congressional Democrats, according to multiple legal sources, have submitted four names to be the next U.S. Attorney for the Western District, which includes Austin and San Antonio, to the White House.
One is current U.S. Attorney Ashley Hoff, a career federal prosecutor who was appointed to the post by the judges of the Western District in January. Hoff started as a federal prosecutor in Houston in 2001. In December 2003, she was reassigned to the Western District in Austin, where she has served during the past 17 years.
Hoff is a 1994 graduate of Baylor University School of Law.
The other lawyers who have been mentioned for the Western District post, according to lawyers, are former El Paso District Attorney Jaime Esparza, Jackson Walker partner Erica Giese of San Antonio and Justin Nelson, the unsuccessful Democratic candidate who ran against Texas Attorney General Ken Paxton in 2018.
Eastern District of Texas
There are said to be two primary contenders:
One is Beaumont trial lawyer J. Thad Heartfield, a 1988 graduate of the University of Tulsa College of Law and son of U.S. Senior District Judge Thad Heartfield. The younger Heartfield has tried more than 80 cases to a verdict.
The other is acting U.S. Attorney Nick Ganjei, who became the first lawyer of color to hold the top prosecutor’s position in the Eastern District when DOJ put him in the slot in January. He joined the Justice Department in 2008.