Remarks as prepared for delivery.
Thank you, Chief Judge Smith. Greetings to the distinguished judges and court personnel, United States Attorney’s Office employees, family and friends of the Eastern District of Virginia’s new U.S. Attorney.
It is a great privilege to join so many distinguished guests to celebrate Zach Terwilliger, and to honor the Office of the United States Attorney and the judicial system in which it serves.
After the Constitution was ratified in 1789, one of the first Congressional actions was to adopt the Judiciary Act, establishing federal district courts and United States Attorneys, including one for what was then the District of Virginia.
When President George Washington selected the first United States Attorneys, he sent each one a handwritten letter. Some of the recipients had applied for the job, but to others, the appointment came as a surprise, and as a burden that was not always welcome.
It was a part-time job. There were no Assistant U.S. Attorneys or support staff. And it did not pay very well.
So, Washington appealed to the patriotism of his inaugural class of U.S. Attorneys. He wrote: “The high importance of the Judicial System in our national Government, made it an indispensable duty to select … characters to fill the … offices … [who] would discharge their respective trusts with honor to themselves and advantage to their Country.”
Virginia lawyer John Marshall, the future Chief Justice of the United States, was a recipient of that letter.
The internet web site for the Eastern District of Virginia proudly states, and I quote, “John Marshall … was appointed by President Washington to serve as the first United States Attorney for the District of Virginia.”
Virginia’s claim to Chief Justice Marshall as the first U.S. Attorney is quite a distinction. But it is not entirely accurate. Now, it is literally true that John Marshall was appointed U.S. Attorney by President Washington. But he never actually served as U.S. Attorney.
In fact, Marshall responded to the President with a letter of his own. Marshall wrote, “[T]hank you … very sincerely for the honor … [but] I beg leave to declare that … with real regret[,] I decline ….”
Washington replied with yet another letter. He wrote, “As some other person must be appointed to fill the Office of Attorney for the district of Virginia, it is proper your Commission should be returned to me.” He wanted the document back!
Perhaps that explains why, when the case of Marbury versus Madison came along in 1803, Chief Justice Marshall focused so intently on the importance of the signed commission.
Zachary Terwilliger did not share John Marshall’s reluctance to serve as U.S. Attorney. On the contrary, Zach was so eager that he did not even wait for a Presidential nomination, let alone a senate confirmation or a signed commission. Fortunately, it is well-established that the Attorney General, as a principal officer, possesses the authority to appoint federal prosecutors.
But the decision to select Zach was not made lightly, by either Attorney General Jeff Sessions or President Donald Trump. It was made with the support of two distinguished Senators, Tim Kaine and Mark Warner, and with the gratitude of many members of the bench and bar.
And it was well deserved.
I was fortunate to work closely with Zach for more than a year. He helped me through my confirmation process. At the end of my Senate confirmation hearing, Zach told me that I probably would not need to return to Capitol Hill anytime soon. He said that the Deputy Attorney General rarely testifies before the Congress. That was the only bad advice he gave me.
Zach went on to serve as my Chief of Staff. That is one of the most challenging jobs in the Department of Justice. It requires legal skills. It requires political skills. It requires organizational skills. It requires tact. It requires endurance. And Zach performed it with distinction.
I want to offer three points of advice for success as United States Attorney, principles that Zachary Terwilliger exemplifies.
Point one: Know what you stand for.
A few months ago, on Law Day, President Trump explained that “we govern ourselves in accordance with the rule of law rather than according to the whims of an elite few or the dictates of collective will. Through law, we have ensured liberty. We should not … take that success for granted.”
Consistent with the President’s words, we do not take success for granted. We know that the rule of law depends on the character and conduct of the people who enforce the law.
I encourage you to pay attention to the final clause of the oath that Zach swears today. It includes a promise to “well and faithfully discharge the duties of the office.”
Not every government job carries the same duties. In order to fulfill your oath, you must understand the unique responsibilities of your office. You need to know what you stand for.
In a 1940 speech, Attorney General Robert Jackson spoke eloquently about what prosecutors stand for. He said that “the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches [the] task with humility.”
Another Attorney General, Edward Levi, once observed that “it is by watching [law enforcement] that many of our citizens learn what kind of country this is…. People must believe, if not in the wisdom of a particular law, at least in the fairness and honesty of the enforcement process… Nothing can more weaken the quality of life … than … failure to make clear by words and deeds that our law is not an instrument of partisan purpose.”
More recently, Judge Richard Posner described our job this way: “The Department of Justice wields enormous power over people’s lives, much of it beyond judicial or political review. With power comes responsibility, moral if not legal, for its prudent and restrained exercise; and responsibility implies knowledge, experience and sound judgment, not just good faith.”
Zach understands that good faith is necessary to do the job well, but it is not sufficient. Wisdom and experience are required, and Zach brings those attributes to the task.
Point two: Maintain a sense of perspective.
I was a young prosecutor in the Department of Justice when Zach’s father, George Terwilliger, served as Deputy Attorney General, and Zach was a young boy running down the Main Justice hallways. Bill Barr was the Attorney General. There were many other superb officials in Main Justice, and in the 93 U.S. Attorney’s Offices, including Jeff Sessions in Southern Alabama.
Each of those great leaders faced unique challenges. You never know what crises may hit on your watch, but you can be sure that things will not always go as planned. Always keep in mind that we are just temporary stewards of these jobs.
The adjective “executive” in the Executive Branch refers to the obligation to get things done. You are required to make controversial decisions, often in exigent circumstances and with imperfect information. Then everybody else gets unlimited time to reflect on how they might have done things differently. If you worry too much about the criticism, you will never get anything done.
So after you identify priority goals, make sure you stay focused on achieving the priority goals. There is a sign in our office that reads, “Don’t tell me what I want to hear, just tell me what I need to know.” Zach always respected the importance of avoiding distractions and remaining focused on the things that really matter. As we say at Main Justice, keep moving forward.
Point three: Earn the love and support of family and friends.
There are times when these jobs require you to miss important events in the lives of your loved ones, both large and small. Zach worked many nights and weekends, but he never lost track of what he was missing. He always spoke about his family and tried to make up for lost time.
Zach, you learned those priorities from your parents, and you and Anne will pass them on to Charlotte and George. You had a life before this job. You will have a life after this job. Stay close to the people you want as part of that life.
Let me conclude with one final thought. Robert Jackson ended his 1940 speech to U.S. Attorneys with these words: “A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches [the] task with humility.”
If you follow that advice, you will remain faithful to our mission.
Zach, for the past two years I have observed your sense of fair play, your kindness, your commitment to the truth and the rule of law, and your humility.
John Marshall declined to take up George Washington’s charge to serve as U.S. Attorney. Thank you for proudly accepting the commission. You will serve with honor to yourself and advantage to your country.
It is an honor to work with you in the pursuit of justice.
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Author: November 9, 2018