How we make the call
Truth Squad assigns five ratings to the political statements we review, in descending levels of accuracy:
|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.