John Cruden Interview 5

181
Oral History of John C. Cruden, Esq.
This interview was conducted on behalf of the Oral History Project of The
Historical Society District of Columbia Circuit. The interviewer is Tracy H. Scarrow, and the
interviewee is John C. Cruden. The interview took place on November 14, 2022, on Zoom. This
is the fifth interview.
MS. SCARROW: John, last time we met we were in the midst of your Assistant AG position
and sort of working our way through that. So, we’ll jump back in. One of
the questions that I had was as the head of the Environment and Natural
Resources Division at DOJ, what percentage of the time were you
spending litigating versus actually managing and supervising the other
attorneys?
MR. CRUDEN: My life as Assistant Attorney General was in two fairly distinct parts, each
amounting to about half of my time. First, supervising all ten sections,
with over 600 people; reviewing and approving every significant
complaint that was being filed; approving and signing all important
settlements; and approving all key appellate briefs. In addition, I served as
Co-Chair of the President’s Task Force on Illegal Wildlife Trafficking and
being a part of the White House Task Forces on Environmental Justice and
Artic issues added additional time. Second, I was deeply involved in
litigation matters, personally leading several litigation teams, including the
defense of the Clean Power Plan, as well as personally negotiating DOJ’s
two largest enforcement cases: BP and Deepwater Horizon, and VW and
Dieselgate.
MS. SCARROW: You had a history at the Department of Justice. Do you think that helped
you in your position as Assistant Attorney General?182
MR. CRUDEN: Significantly. It was extremely important that I had been in the Division
before. Most importantly, I knew and valued all of the extraordinary men
and women in the Division. I had hired many of them, supervised them,
and knew them personally. To create my front office, I drew from the
ranks of career people rather than political appointees and then worked
hard to strengthen the morale of the Division.
Second, I had been Acting Assistant Attorney General during the
first year of the Obama administration, so when I returned to the federal
government, I already knew most of the senior officials of the agencies,
already knew the leadership of DOJ, and knew the priorities of the
President. It also helped that the prior three years I had been leading a
well-regarded non-government organization, the Environmental Law
Institute, which kept me abreast of the major legal issues.
MS. SCARROW: Could you tell me a little bit about the role that DOJ plays in the context of
being part of a political wing of the administration? How is enforcement
affected by that?
MR. CRUDEN: The Environment and Natural Resources Division is one of the premier
litigating divisions of the Department of Justice, like the Criminal, Civil,
Antitrust, Tax, and National Security Divisions. As a presidentially
appointed, Senate confirmed leader, I was part of the administration. I met
weekly with the Attorney General, often consulted with White House
Counsel and his staff, and worked with the leaders of the agencies that we
supported to assist them in their priorities. However, in enforcement, we183
never had any political direction or interference with any of our actions,
and I made each and every enforcement decision for ENRD based on the
recommendations of our attorneys and the applicable law. Politics, for me,
played no role in any of my decisions. And I am confident we irritated
members of both political parties with equal vigor.
MS. SCARROW: So, it sounds like at least for your division you didn’t feel political
pressure to handle cases in a particular way?
MR. CRUDEN: Clearly on the enforcement side I did not ever feel any pressure. I’ve often
been asked in the context of Deepwater Horizon and Volkswagen, the two
largest federal cases of their type in the history of the Department of
Justice, what role did the White House play in the settlement negotiations.
Absolutely none. I led the negotiations, and when we reached a final
agreement, I sought and received the Attorney General’s approval.
MS. SCARROW: In the media you hear a lot about how the Department of Justice has
become much more of a political entity. Do you think that’s accurate or
has that evolved over time?
MR. CRUDEN: My personal knowledge ended with the Obama administration, although I
did serve on the transition team for the Biden administration. Based on
news accounts, it does appear that during the Trump administration DOJ
became more politicized and did not adequately support the career force.
MS. SCARROW: Do you think that your Division had that same problem after you left or
was it a little more isolated, or insulated, than some other Divisions?184
MR. CRUDEN: I only have press accounts to answer your question, but the press accounts
clearly indicate that in some cases there was political pressure to take
particular action. Also, the Trump-appointed Assistant Attorney General
for the Environmental Division put out a series of memoranda that
appeared politically inspired and did not reflect the values of the Division
or the state of law. When the administration changed, all those memoranda
that he put out were quickly rescinded and the Biden administration
appointed Assistant Attorney General Todd Kim. Todd is an alum of the
Division with extensive environmental law experience. I know him well
and respect him greatly. However, I did tell Todd after he was confirmed
that given the tenure of his predecessor, he had mighty small shoes to fill.
MS. SCARROW: Did you have any contact with the person who followed you?
MR. CRUDEN: After the change to the Trump administration there was first an Acting
Assistant Attorney General, Jeff Wood, who I knew, and visited him and
his staff. Jeff had previously been on the staff of the new Attorney
General, Jeff Sessions. He occasionally asked for my advice, which I
provided, and thought he was a solid leader. That changed when the
confirmed Assistant Attorney General, Jeff Clark, arrived. I had no contact
with him.
MS. SCARROW: I read that you described your Assistant Attorney General position as
being the captain of a big aircraft carrier—you can move it, but it moves
slowly. I thought that was an excellent description. Can you talk a little bit
about that?185
MR. CRUDEN: The Assistant Attorney General is responsible for literally thousands of
cases that require action and decisions. Many involve new interpretations
of the law, gigantic costs, or administration priorities that demand
attention. All are time consuming. However, I also came in with priorities
of my own and actions I wanted to take to improve Division morale and,
for lack of a better description, bring back a bit of “swagger” in our
efforts, trumpeting our place as the largest environmental law firm in the
Nation. To meet those goals, I had to first make sure that all the cases
were being handled expeditiously and correctly and that our client agency
needs were being met. Doing so, then allowed me to slowly turn the
aircraft carrier, giving me the necessary time for other matters I believed
to be important.
MS. SCARROW: Could you talk a little bit about how the work—the substantive work of
the Division — changed over the years?
MR. CRUDEN: The Environment and Natural Resources Division had a different name
before 1990. It was the Lands Division, reflecting the history of the
Division. Over many decades the Division moved from a public land’s
emphasis, including a big eminent domain practice during World War II,
to focus on the new environmental laws of the 1970s and 80s, like the
National Environmental Policy, the Clean Water Act, the Clean Air Act,
and the Endangered Species Act. The resulting expansion of work
required the Division to respond and create the Environmental
Enforcement Section, the Environmental Defense Section, and the186
Environmental Crime Section. In 1990, the Attorney General renamed the
Lands Division to be the Environment and Natural Resources Division,
which better reflected what it was doing.
Other changes continued as the Environmental Defense Section
picked up responsibility for wetland enforcement, the Environmental
Crimes Section became responsible for illegal wildlife enforcement and
worker safety, and the Wildlife and Marine Resources Section took on
responsibility for animal cruelty matters. The General Litigation Section
was renamed the Natural Resource Section with responsibility for Native
American cases, takings, public land, as well as implementation of the
National Environmental Policy Act. Later congressional actions also
expanded the role of the Division. The Clean Air Act Amendments of
1990 were particularly significant. The Lacey Act changes to wildlife laws
were also important. Ultimately the Lautenberg Act also provided new
toxic substances laws to enforce. And there were growing areas of
practice in class action suits or for emerging chemicals, takings issues and
wildlife matters, all of which created more law and more responsibilities
for the Division. It’s actually one of the reasons the job was exhilarating,
why being Assistant Attorney General was so exciting—because it was
constantly changing. Environmental law, which I practiced most of my
life, is an extraordinary and always exciting combination of law, policy,
and economics rolled up together. Every day was new, and I looked
forward to coming to work every day.187
MS. SCARROW: What do you see as the future of the Division? What are the new areas
they are going into?
MR. CRUDEN: Well, I’m hoping that what the Division has done recently, with dual
concentration on climate change challenges and environmental justice
issues, will continue. In particular, greenhouse gas reduction must be one
of the paramount goals of our Nation. The fact that the Division is putting
a lot of weight and emphasis on that, reflects not only what the President
wants but also what the agencies are doing and what is vital for our future.
The challenges both domestically and internationally are real and difficult,
but we must meet the needs of future generations. In that regard, while at
DOJ I created a full day series of panel discussions called “the Future of
Environmental Law,” with participants by leading scholars in the Nation.
The proceedings of that extraordinary event were published in the
Environmental Law Reporter. 18 In addition, during and after my tenure at
the Department of Justice, I gave a series of law school lectures, in which I
described the future of environmental law. My thesis was that the future
would be more bottom up than top down, meaning that citizens would
play a much bigger role in demanding the need for environmental law and
enforcement in particular areas. Those lectures included the first David
18 The Future of Natural Resources Law, 47 ENVTL. L. R EP . NEWS & ANALYSIS 10197 (2017).188
Sive Memorial Lecture on Environmental Law at Columbia Law School, 19
the Fedder Lecture at the University of Maryland School of Law, 20 the
annual lecture on law and public service at the University of Indiana Law
School, 21 the annual Judge Frank M. Coffin Lecture on Law and Public
Service at the University of Maine Law School, 22 and the 12th annual
Gilbert and Sarah Kerlin Lecture on Environmental Law at the Elisabeth
Haub School of Law at Pace University. 23
MS. SCARROW: In addition to the substantive work, there is also obviously a personal side
to what you bring to the position. Can you talk about some of the
initiatives that you brought?
MR. CRUDEN: I’m very proud of the fact that during my tenure the Environment and
Natural Resources Division was repeatedly recognized by the nonpartisan
Partnership for Public Services as either the best, or one of the top best,
places to work in the federal government. Every member of the Division
thought we deserved that designation. We knew how hard the Division
19 The lecture was held on October 22, 2015, and was called “The Arc of Environmental Law
and the U.S. Department of Justice.”
20 The lecture was held on October 16, 2018, and the topic was “Environmental Enforcement in
the Modern Era.”
21 The lecture was held on September 19, 2019, and the topic was “Environmental Law in
Transition – Moving Towards a New Paradigm.”
22 The lecture was held on November 1, 2018, and the topic was “A Historical Perspective on
Environmental Law and Implications for Today. Cc C”
23 The lecture was held on October 27, 2011, and was called “Making the Polluter Pay:
Environmental Enforcement in the Modern Era.”189
worked. Our success in court also increased morale. Some of our other
morale-building initiatives included having “working retreats” at the DOI
Fish and Wildlife Center in Shepherdstown, West Virginia. Sam Hirsch,
my superb Deputy, also led a task force looking for ways that we could be
even better, and at the same time fulfill our mission at the highest level.
We promoted morale-building social activities, gave spot awards,
celebrated birthdays, and new births, and made sure we were looking at
individual needs. One aside – to serve alcohol at a DOJ activity required
permission from the Assistant Attorney General for Administration. He
told me once that the Environment Division led the Department in the
most requests for that permission.
MS. SCARROW: And I understand that you personally swore in all of the new attorneys?
MR. CRUDEN: Yes. Before I returned to DOJ, new lawyers were just in-processed by
human resource personnel and then immediately reported to their assigned
Section. I wanted every new lawyer to understand the significance of
representing the United States, the structure of the Division, and our
extensive hierarchy of support and dedication to excellence and integrity.
And so, during my tenure, every new lawyer came to me on his or
her first day and attended the weekly meeting of the leadership of the
Division. At that meeting I personally swore in that person using the
traditional oath of office and then introduced the new person to the
leadership of the Division. And then we challenged them. Challenged
them to do justice, act with integrity, promote values, take care of their190
staff, and seek advice whenever needed. We assigned mentors and then
escorted them to their new offices (and usually full inboxes).
MS. SCARROW: Can you tell me about your National Parks photo project?
MR. CRUDEN: When I returned to the Department of Justice after being President of the
Environmental Law Institute, I looked around our main conference room
and saw it was full of pictures of past Assistant Attorneys General or past
Attorneys General. I wanted the art in our major conference room to
reflect the values of the Division and not just pictures of bygone people. I
then established a contest in which members of the Division could submit
a photograph of a national park. We received an amazing number of truly
awe-inspiring photos of scenes in national parks across the United States.
A team of people chose the top ten and then we had them enlarged. We
then had our own wine and cheese art celebration and the individuals who
took the pictures stood by their work, explained the setting, and described
how they came to take the photo. Then we took that information and
printed it out and put it near the pictures. Everybody liked the fact that we
were now in a conference room that was surrounded by pictures of
beautiful scenes in the National Parks of the United States. My hope was
that this art inspired everyone to give their best every day to protect and
maintain our pristine environmental resources.
MS. SCARROW: And I understand that as part of your general outreach for the Division you
also created middle school essay contests for local schools and held
alumni events on the anniversary of the Division. Things to get the191
Division out in the community and to keep those who had been involved
back in touch with the agency. Could you talk about those?
MR. CRUDEN: I was fortunate because I had been the President of the District of
Columbia Bar and knew key people in the D.C. government. At holiday
time, I reached out to a D.C. Council member and the D.C. Attorney
General’s office and asked if they would join with me in a celebration for
students writing about why law was important to them — all elementary
school children. A team of people evaluated the essays. The winners of the
contest received a tour of the Department of Justice with their families and
friends and then each were called up to the stage of the historic Great Hall
to receive a new backpack and the best wishes of the Department of
Justice and the D.C. Government. Each came across the stage, were
recognized, and had their picture taken. It was quite a joyous event,
supported by many volunteers from the Division.
At the same time, many of the Division’s lawyers were involved in
teaching at Anacostia High School. They did an environmental class for
high school students. I also taught one of the classes there, helping me
satisfy my commitment to do outreach to the community and provide an
example to others. Again, it was really helpful that I had been the D.C. Bar
President because it allowed me to reach out and partner with D.C.
government officials. We could not have done this work without the
District’s educational professionals who knew where to go, knew how to192
advertise, and knew how to get the teachers to support the themed writing
program. They were instrumental to the success of the program.
MS. SCARROW: I understand you also held an alumni event on the anniversary of the
Division?
MR. CRUDEN: Yes. For the anniversary of the Division, we invited all former Assistant
Attorneys General and all alumni to a celebration. We filled the Great Hall
— each of the Section Chiefs explained how their sections were organized
and what they were doing. Alumni enjoyed hearing an update of what had
happened since they left. We gave two awards to alumni who had been
true leaders in the world of environmental law. Carol Dinkins, who had
been the Assistant Attorney General during the Reagan administration but
went on later to become the first female Deputy Attorney General. And
then Richard Lazarus, who had, after he left the Division, became a very
highly regarded professor at Georgetown and then ultimately at Harvard
Law School where he had argued a number of cases before the Supreme
Court. It was a wonderful celebration of a continuing legacy of
professionalism and dedication to our common values.
MS. SCARROW: I understand also, that in an effort to help shape and strengthen the
institution, you invited Justice Kagan to come and speak?
MR. CRUDEN: Yes. We started a speaker series, inviting people of all political views.
One of them was Justice Kagan. We knew her, of course, because she had
been Solicitor General, and one of the very first cases that she argued was
one of our cases. We all loved it because she stood confidently in the full193
Great Hall and simply asked, “what kind of questions do you have for
me?” There were plenty of questions for her. She was erudite and
humorous, bright, and thoughtful, and, without question, she charmed and
impressed the audience. But again, she was a returning alumnus, and it
was absolutely clear that we were fond of her in her role as Solicitor
General and proud of her on the Supreme Court.
MS. SCARROW: I understand there’s a story about Janet Reno’s portrait? Can you talk
about that?
MR. CRUDEN: Funny Story – Janet Reno, of course, was the Attorney General during the
Clinton administration, and one of my favorite leaders. She had been the
State Attorney in Miami and had a lot of interest in environmental matters.
She often told me that everyone needs a special place in their mind for
peaceful moments, and hers was Everglades National Park. At her
suggestion, we did a nation-wide initiative to improve water quality of
major rivers. She took a personal interest in the Division, and I met with
her numerous times.
During my first tenure as the Acting Attorney General, I was able
to pick a portrait of a former Attorney General to have in our conference
room. Not surprisingly, I asked for the portrait of Janet Reno. Now, since
that was a Republican administration, there wasn’t a big demand for a
Democratic Attorney General’s portrait, so I didn’t really have any rivals
for her picture. The picture stayed in our conference room throughout the
Bush administration. When the administration changed under President194
Clinton, Eric Holder came in as Attorney General and he had been Reno’s
deputy during the Clinton administration. One morning, shortly after
Holder was confirmed, I came into the office only to find someone taking
down the Janet Reno portrait. “What are you doing with my picture?” I
asked. They said the Attorney General wants it. Later I told Eric Holder
“You stole my picture of Janet Reno” but he put it in his conference room
— such is the power of an Attorney General.
MS. SCARROW: I understand as part of your responsibilities as AAG you flew out to an
aircraft carrier and then a destroyer.
MR. CRUDEN: Yes. While we were litigating on behalf of the Navy, I was invited to go to
San Diego and then fly in a small plane that landed on an aircraft carrier in
the ocean, an extraordinary moment. I spent time with the Admiral in
charge of the fleet, watched multiple landings including some on
instruments only, and then flew by helicopter to a destroyer to monitor
what they were doing to avoid contact with marine mammals, including
dolphins. I was impressed by their professionalism, and excited with the
opportunity to fly on and off an aircraft carrier at sea.
MS. SCARROW: So specific cases aside, we were talking a lot about the overall atmosphere
of the office. Are there any particular takeaways or important things that
stick with you from your tenure as the Assistant Attorney General?
MR. CRUDEN: I believe that leadership, morale building, and good management are really
important in any endeavor, but it was particularly true in that position.
Since I essentially grew up in the military, where leadership and195
management are taught, there are profound principles worth emulating in
non-military places. One of my mentors, Colin Powell, had thirteen
management principles that he talked about. His first one is no matter how
bad it seems, it’ll look better in the morning. His words always lifted me
up on challenging days. Again, I was absolutely blessed by really
excellent leaders in the ten sections that I supervised, but also the Deputy
AAGS, both political and career people who cared deeply, were wonderful
managers and superb leaders. People who could get things done, maintain
high morale even when people were working really hard and sacrificing a
lot, and still promote ethics and integrity in all matters. Looking back, I
realize how important leadership and good management is for success.
MS. SCARROW: My final question about your tenure as Assistant Attorney General is
about your effort at scholarship and transparency. Did you write anything,
give speeches, or otherwise interact with the public? Did you give press
briefings or speak with reporters?
MR CRUDEN: I believed it was my responsibility to inform the public about what we
were doing. The DOJ Press office assigned me my own press person,
Wyn Hornbuckle, who arranged meetings with reporters, drafted press
releases, attended Division meetings, and traveled with me. Wyn was a
tremendous partner, and we were energetic in getting the word out about
what we were doing, and fortunately we had such groundbreaking cases as
BP and VW to announce, which brought worldwide attention to the
actions of the Division. For every major case we issued a press release,196
often including input from the local U.S. Attorney or the General Counsel
of the agency involved in the litigation. We also often had reporter calls
where we discussed what we were doing or the importance of a particular
case. I also traveled to places like California, Puerto Rico, Washington,
and Texas, to announce significant cases, always doing that with the local
U.S. Attorney to give them the deserved credit for the case.
I also gave a number of speeches during my tenure, often to the
American Bar Association, American Law Institute, Environmental Law
Institute, various state Bars, and various state organizations. 24 In my role
as Chair of the Presidents’ Task Force on Illegal Wildlife Trafficking, I
spoke on behalf of the administration at worldwide conferences in
Botswana and Hanoi, 25 and to the International Union for Conservation of
Nature. 26 Those speeches remain on the DOJ web site.
My congressional testimony on the state of the Division is
available, as is my prior testimony on issues such as worker safety, federal
consent decrees, and the Supreme Court’s Clean Water Act decisions.
Finally, I worked with others to publish law review articles on our
work. We published articles in the Harvard Law Review, Michigan Law
24 https://www.justice.gov/opa/speech/assistant-attorney-general-john-c-cruden-deliverskeynote-address-american-bar
25 https://www.justice.gov/usdoj-media/enrd/media/804816/dl?inline
26 https://www.justice.gov/archives/opa/speech/assistant-attorney-general-john-c-crudendelivers-remarks-combating-wildlife-trafficking197
Review, and Virginia Law Review on the most important cases, and in
other law publications on broader issues like the United Nations priorities
and the needs of Native Americans.