Flagrant foul for questioning Totten’s service as federal prosecutor

How we make the call

Truth Squad assigns five ratings to the political statements we review, in descending levels of accuracy:

No factual inaccuracies in the statement and no important information is missing
Mostly accurate
While the statement is largely accurate, it omits or exaggerates facts, or needs some clarification
Half accurate
Truths are interspersed with mistruths, or the speaker left out significant facts that render his/her remarks misleading in important respects
Mostly inaccurate
The major point or points made are untrue or misleading, even while some aspects of the claim may be accurate
The statement is false, or based on false underlying facts

Who:Michigan Advocacy Trust
What:“Lie,” 30-second video
The call:Flagrant Foul

You know the longstanding debate in country music about who is, and isn’t, a real outlaw? Well, the race for Michigan Attorney General Bill Schuette’s position has washed up on the shores of what, exactly, it means to be a federal prosecutor. An ad by the Michigan Advocacy Trust, a 527 political group that has spent more than $450,000 on political ads for Schuette, according to the Center for Public Integrity, takes aim at Democratic challenger Mark Totten and the experience he claims in his own commercials.

Statements under review:

“Listen to Mark Totten talk about his experience (Totten, in a clip from his own ad: ‘I’ve done it as a federal prosecutor.’) Um, no. Mark Totten was never a real prosecutor. He was a volunteer in the office. One day a week. Only on Fridays. For a little over a year. The fact is, he never tried a criminal case. Not one. Call Mark Totten. Ask him, if he can’t tell the truth about his experience, is there anything he won’t lie about?”

The ad has outraged Totten’s campaign, whose representatives have sent a demand letter to Michigan broadcasters, asking them to pull or decline to run it on their airwaves. The ad remains on the YouTube channel of the Michigan Advocacy Trust, which is represented by Lansing attorney and Republican insider Richard McLellan. (Full disclosure: McLellan is also a member of the Bridge Magazine board of advisors.)

“Mark Totten was never a real prosecutor.”

So, what is a real federal prosecutor?

Both sides agree on certain facts about Totten’s recent experience with the U.S. Attorney’s office in Grand Rapids, the most pertinent of which is that Totten’s work was unpaid.

Totten, a lawyer and full-time professor at Michigan State University’s College of Law, volunteered from September 2011 to February 2013 under then-U.S. Attorney Donald Davis in the western Michigan office in Grand Rapids. Davis said in a statement quoted in the campaign’s demand letter and later confirmed in an interview that Totten held the title of Special Assistant U.S. Attorney, “and as such was a federal prosecutor” during that term of service.

For good measure, Davis also provided a photograph of himself, administering the oath of office to Totten.

Totten said he joined the U.S. Attorney’s office as a volunteer out of a desire to provide public service. A colleague, also a law professor, had done a similar term in another federal district, and it seemed a logical opportunity.

Davis, who noted Totten’s role was a “pretty unusual situation,” said the Justice Department doesn’t generally allow volunteer lawyers, but makes an exception for law professors. Under the terms of his agreement, Totten was obliged to work on Fridays, but “like a lot of other attorneys, he put in a lot of extra time,” Davis said in an interview. In the letter to television stations, Totten’s attorney, Mark Brewer, included links to briefs of some cases argued by Totten on days other than Friday.

Meanwhile, Totten’s campaign included links to court rulings on four criminal appeals he worked on, all filed in the Sixth Circuit U.S. Court of Appeals involving crimes such as drug dealing, illegal firearms and child pornography, In all four cases, which presented legal questions involving search and seizure, the adequacy of Miranda warnings and other complicated corners of criminal law, Totten prevailed.

McLellan offered a written defense of the Michigan Advocacy Trust ad, covering dictionary definitions of the term “prosecutor” and “special prosecutor” and contending that because Totten was a volunteer, worked on appeals rather than directly trying cases, and never left full-time employment with MSU, he cannot call himself a federal prosecutor.

According to his website, Totten has other experience at the federal level; including work as an attorney on the Justice Department’s civil appellate staff after he graduated from law school. He also clerked for Judge Thomas Griffith in the U.S. Court of Appeals for the D.C. Circuit, before joining the MSU law faculty in 2008, where today he teaches criminal law and legal ethics.

“The fact is, he never tried a criminal case.”

True, if you're talking about the trial phase.

Totten’s campaign spokesman, John Keig, said that the candidate’s expertise has always been in appeals, adding that it is an important part of prosecution because cases are commonly appealed, and aren’t considered settled until those appeals are ruled upon.

The call:Flagrant Foul

When is a prosecutor not a prosecutor? That’s not exactly a question for the ages, and there may be many ways to answer it, but we’ll settle for the simplest one: Does the prosecutor’s boss call the party in question a prosecutor? In this case, Davis’ declaration is clear: Totten held the title of Special Assistant U.S. Attorney, he undertook the oath of office, “and as such was a federal prosecutor.”

Certainly, given his limited presence in the office, it’s fair to question whether Totten is overselling his experience as a prosecutor to voters. But that’s a different question from whether Totten lied about being a prosecutor. Here is the Totten video that this ad mocks. Totten’s campaign website more fully describes his legal experience. Regarding his service as a prosecutor, his site states: “As a former federal prosecutor I have a track record of keeping people safe, taking on criminals who harm our families.” Seeking to uphold or secure convictions in drug crimes, child exploitation and illegal firearms would seem to fit that definition.

To call Totten a liar – which the ad does, explicitly, both in its narration and in print – is directly contradicted by the person who ran the U.S. Attorney’s office in Grand Rapids. The ad flat-out states Totten willfully misrepresented his work with the U.S. Attorney’s Office. To judge from his website, he does not. Prosecutors, like all lawyers, do specialized work, and not all will lead a prosecutorial team at trial; some will work on appeals, work that is just as critical to keeping communities safe as the work done by prosecutors at the trial court level. That doesn’t make them any less worthy of the title.

Flagrant foul.

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Wed, 10/29/2014 - 9:50am
I expected nothing less from Schuette and his backers....
Wed, 10/29/2014 - 10:06am
When I get an extreme ad with "liar", destruction of a building, weird excerpts -- it's desperation, and flags someone I must vote for - Kerwin, Schuette, Totten. Republican 527 groups are the Michigan Republicans worst enemies. People aren't that stupid.
Wed, 10/29/2014 - 10:52am
I find it strangely coincidental that Mr. Totten has volunteered to work in an office, rather than be hired, and now is using that volunteer work as the sole legitimate qualification for the office he seeks.
Wed, 10/29/2014 - 9:51pm
This comment that his "sole legitimate qualification" is volunteer work is both false and silly. Another pathetic criticism.
Wed, 10/29/2014 - 11:17am
It's easy to believe that an Attorney General who panders to the ultra Republican right for his own poilitical gain and wastes the taxpayers money prosecuting unwinnable cases would approve this add.
William Clark
Wed, 10/29/2014 - 12:13pm
Thanks for the chance to comment. Attorney General Bill Schuette is a glory-hound who does his best to undermine Michigan laws when their defense is "not on my agenda". He likes to declare that he "stands with the victims", but has created and continues to create victims, to victimize an entire class of patients and doctors who agree on the effectiveness of 'the drug' which is not a drug, but a medicinal herb, the most benign and versatile in history. I'm convinced that prohibition of marijuana is a premise built on a tissue of lies: Concern For Public Safety. Our new laws save hundreds of lives every year, on our highways alone. In November of 2011 a study at the University of Colorado found that, in the thirteen states that decriminalized marijuana between 1990 and 2009, traffic fatalities have dropped by nearly nine percent—now nearly ten percent in Michigan--while sales of beer went flat by five percent. No wonder Big Alcohol opposes it. Ambitious, unprincipled, profit-driven undertakers might be tempted too. Actually, most people--and particularly patients who medicate with marijuana--use it to replace prescription drugs or alcohol. I recently reviewed the Federal Census stats on yearly driving fatalities state by state, from 1990 to 2009. All states, 'legal' or not, have seen their death rates drop, but on average, those with medical laws posted declines 12% larger than the non-medical states. Public Safety Announcements and vehicles with airbags must have helped as well, consistently throughout the country, without affecting the disproportion between the 'legal states' and those 'not yet, in 2009'. In 2012 a study released by 4AutoinsuranceQuote cited statistics revealing that marijuana users are safer drivers than non-marijuana users, as "the only significant effect that marijuana has on operating on a motor vehicle is slower driving", which "is arguably a positive thing". Despite occasional accidents, eagerly reported by police-blotter ‘journalists’ as ‘marijuana-related’, a mix of substances was often involved. Alcohol, most likely, and/or prescription drugs, nicotine, caffeine, meth, cocaine, heroin, and a trace of the marijuana passed at a party last week. However, on the whole, as revealed in big-time, insurance-industry stats, within the broad swath of mature, experienced consumers, slower and more cautious driving shows up in significant numbers. Legalization should improve those numbers further. Marijuana has many benefits, most of which are under-reported or never mentioned in American newspapers. Research at the University of Saskatchewan indicates that, unlike alcohol, cocaine, heroin, or Nancy (“Just say, ‘No!’”) Reagan’s beloved nicotine, marijuana is a neuro-protectant which actually encourages brain-cell growth. Research in Spain (the Guzman study) and other countries has discovered that it has tumor-shrinking, anti-carcinogenic properties. These were confirmed by the 30-year Tashkin population study at UCLA. Drugs are man-made, cooked up in labs, for the sake of patents and the profits gained by them. Often useful, but typically burdened with cautionary notes and lists of side effects as long as one's arm. 'The works of Man are flawed.' Marijuana is a medicinal herb, the most benign and versatile in history. “Cannabis” in Latin, and “kaneh bosm” in the old Hebrew scrolls, quite literally the Biblical Tree of Life, used by early Christians to treat everything from skin diseases to deep pain and despair. The very name, “Christ” translates as “the anointed one”. Well then, anointed with what? It’s a fair question. And it wasn’t holy water, friends. Holy water came into wide use in the Middle Ages. In Biblical times it was used by a few tribes of Greek pagans. But Christ was neither Greek nor pagan. Medicinal oil, for the Prince of Peace. A formula from the Biblical era has been rediscovered. It specifies a strong dose of oil from kaneh bosom, ‘the fragrant cane’ of a dozen uses: ink, paper, rope, nutrition. . . . It was clothing on their backs and incense in their temples. And a ‘skinful’ of medicinal oil could certainly calm one’s nerves, imparting a sense of benevolence and connection with all living things. No wonder that the ‘anointed one’ could gain a spark, an insight, a sense of the divine, and the confidence to convey those feelings to friends and neighbors. I am appalled at the number of 'Christian' politicians, prosecutors, and police who pose on church steps or kneeling in prayer on their campaign trails, but cannot or will not face the scientific or the historical truths about cannabis, Medicinal Herb Number One, safe and effective for thousands of years, and celebrated by most of the world’s major religions.
L Townley
Wed, 10/29/2014 - 10:18pm
THE PERSON I WILL VOTE FOR; WHOEVER SAYS SOMETHING NICE ABOUT THEIR OPPONENT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Aint gonna happen is it?
Thu, 06/25/2015 - 10:03am
Hard to say a "seasoned prosecutor.” Flagrant Foul a strong call on this ad. The fact checker certainly started off opinion and worked hard to go from foul to flagrant