Seth Waxman is a partner at WilmerHale. He served as Solicitor General of the United States from 1997 to 2001.

No one who’s heard Michael Dreeben deliver an oral argument can fail to be impressed by his mastery of the art. There’s no hyperbole; no lurking ideology; and no discernable moment when he appears to be thinking, “That’s a question I never anticipated.”

No one who’s read the thousands of briefs Michael has edited or written can fail to be impressed by the persuasive power of his clear, assured prose.

Deputy Solicitor General Michael R. Dreeben argues in Montgomery v. Louisiana, October 13, 2015 (Art Lien)

And surely no one who’s worked with Michael over his 30 years in government can fail to be impressed by the sheer depth of his knowledge and his willingness to help. Michael Dreeben knows as much about federal criminal law and procedure as anyone alive. And his utility — and availability — to federal prosecutors across the country over the past decades have made him a unique resource.

On the occasion of his retirement from government service, I’ll highlight a more obscure but equally notable strength of Michael’s: the superb manner in which he managed the difficult process known as “confession of error.” Inscribed on the walls of the Department of Justice is this quotation from former Solicitor General Frederick William Lehman: “The United States wins its point whenever justice is done its citizens in the courts.” The principle is that even within a system of adversary justice the government, particularly in its prosecutorial role, should neither take nor obtain undue advantage of suspects or defendants. In practice, that means federal prosecutors exercise discretion about whom to prosecute, what tactics to use and what arguments to make in pursuing conviction and affirmance on appeal. But what happens in the rare case in which the United States wins on a ground the solicitor general concludes is wrong?

The established and correct practice is to advise the court that the United States will not defend the judgment and to seek appointment of an amicus curiae who will. Getting to that point involves a sensitive, sometimes difficult, process of consultation and balancing of interests. No prosecutor wants to see a conviction she obtained later overturned at the behest of her own department, and no judge appreciates hearing that the government has disavowed a position it previously advocated she take.

During my tenure in government, no one handled this process more deftly and wisely than Michael Dreeben. There was of course Dickerson v. United States, in which we told the Supreme Court that we would not defend a bank robbery conviction we had secured through the admission of a confession obtained in the absence of Miranda warnings. The court of appeals had affirmed the conviction on the strength of a provision of the 1968 crime control bill that purported to “overrule” Miranda. Our decision to advise the Supreme Court that we thought the statute was unconstitutional followed the most careful, extensive process of intragovernmental consultation imaginable. There was outcry from some quarters of Capitol Hill and even suggestions that I should be impeached — calls that ceased entirely when Chief Justice William Rehnquist issued a lopsided opinion striking down the law.

An almost equally memorable day in this regard (at least in my mind and, I’m sure, Michael’s) was March 3, 1998, when the Supreme Court heard argument in not one but two cases in which the United States declined to defend a position it had successfully argued in the courts of appeals. Michael was the deputy solicitor general on both, and he argued one of the cases himself. Both cases arose from the Supreme Court’s 1995 decision in Bailey v. United States, which held (reversing most courts of appeals) that a conviction for “use” of a firearm under 18 U.S.C. § 924(c) required “active employment” of the firearm, not just “proximity and accessibility.” In the wake of Bailey, many felons previously convicted under Section 924(c) moved to vacate their guilty pleas or jury verdicts.

The first case argued was Hohn v. United States. Following Bailey, the petitioner sought to vacate his conviction for “use” under 28 U.S.C. § 2255 because his jury had been instructed contrary to Bailey. The district court denied relief, and the court of appeals denied Hohn a certificate of appealability, which precluded appellate review. The issue before the Supreme Court was whether it possessed jurisdiction to review that denial. An earlier Supreme Court opinion had indicated that it did not, but when Hohn sought Supreme Court review, we advised the court that we agreed with the petitioner that the court indeed had jurisdiction. At oral argument several justices seemed discomfited by the United States’ position.

Then Michael got up to argue Bousley v. United States, another Section 924(c) case in which the defendant sought to overturn his pre-Bailey guilty plea. The district court had denied relief under Section 2255 and the court of appeals had affirmed. We told the Supreme Court that we could not defend the judgment because, in our view, Bousley should be entitled to relief if he could establish his actual innocence. Again, several justices seemed perplexed that the United States was taking a position that could implicate many guilty pleas. Justice Anthony Kennedy and the chief justice each expressed “surprise” that the United States would place at risk so many guilty pleas that were otherwise final. It was a challenging morning.

In the end we won both cases, with Kennedy writing for the majority in Hohn and the chief justice in Bousley. Thanks to Michael’s stewardship, both within the Department of Justice and before the court, “the United States w[on] its point [because] justice was done its citizens in the courts.”

Thank you, Michael, for what you have given to our country.

Posted in Featured, Tributes to retiring Deputy Solicitor General Michael Dreeben

Recommended Citation: Seth Waxman, In appreciation: Michael Dreeben, SCOTUSblog (Jul. 31, 2019, 3:09 PM), https://www.scotusblog.com/2019/07/in-appreciation-michael-dreeben/