For now, Brendan Johnson is leading a double life. The Vermillion native and 1998 University of South Dakota graduate has been nominated by President Barack Obama to be South Dakota's next U.S. attorney. At the same time, he remains working for his Sioux Falls firm."As a nominee, I have traveled around the state meeting with different constituency groups and learning about the state," he said. "At the same time, I continue managing my private practice." It can be confusing at times. Johnson admitted he drew a blank when he received a call from "Dave." After several attempts to determine the caller, he finally realized it was Chief Justice David Gilbertson. It's all part of the whirlwind for the 34-year-old Johnson, who spoke Thursday for Constitution Day at the USD School of Law. At the outset, he emphasized he was not speaking on behalf of the U.S. Department of Justice (DOJ) or his law firm. Johnson is waiting to learn whether he becomes one of the nation's 93 U.S. attorneys. Right now, his nomination is in the Senate Judiciary Committee."There is no timeline yet to get out of committee and onto the Senate floor," he said. Former U.S. Attorney Marty Jackley, now the new South Dakota Attorney General, did an excellent job in his federal role, Johnson said.Now, Johnson is looking to take over the reins as U.S. attorney. The process has begun. The congressional leaders for the president's political party make recommendations to the president, but he is not bound by those recommendations. Johnson said his father, U.S. Sen. Tim Johnson (D-S.D.), made it clear that he would not pull any strings to get his son through the process.And quite the vetting process it has been. The DOJ interviewed the younger Johnson in Washington. Eight lawyers, mostly DOJ career lawyers, conducted the interview. In Johnson's case, one attorney asked 80 percent of the questions. "Generally, they interview one U.S. attorney candidate after another," Johnson said. "You sit at a table, and they quickly pose questions, including hypotheticals." After winning DOJ passage, Johnson began the FBI vetting process with a 60-page form. "They want to know everything about you. For my nomination, they interviewed 65 people," he said. "They want to know about every job you have held since age 18." That included Johnson's work with a grounds crew at a northern Virginia golf course. The FBI also checked on his jobs during law school.Johnson offers one piece of advice for those interviewed: Don't try to be funny or cute with the FBI. "Humor falls flat, and they don't appreciate sarcasm," he said.The FBI also visited the Johnson family at their home. The Johnsons have two biological children and two adopted Ethiopian children, who are 12 and 10. The children were in awe of the visitors, Johnson said. "The 10-year-old said, 'The police were here today to ask about you, Daddy,'" he said. Johnson reassured his children that nothing was wrong, and it was all part of the process. The president reviewed the DOJ interviews and FBI background checks, then nominated Johnson. As a nominee, Johnson met U.S. Attorney General Eric Holder. "(Holder) is the guy you would love to have as a neighbor, the guy you would love to have as your law professor," Johnson said. "The attorney general could not be more gracious. He was interested in South Dakota. He was part of the Department of Justice when Janet Reno was attorney general (in the Clinton Administration). He talked about initiatives for Indian Country.""In my opinion, the Department of Justice is making Indian Country a priority," Johnson added, later noting he is meeting with Holder today (Friday) in Minneapolis. At the close of the 30-minute meeting, Holder asked Johnson to write him a memo on what they could do in the future in the U.S. attorney general's office. The Senate Judiciary Committee is now working with Johnson's nomination, looking at his number of civil and criminal cases. They also look at his work in state and federal courts. The Judiciary Committee consults with the nominee's home state senators, who return blue slips if they give their approval. Johnson jokingly said he hopes to get a blue slip from his father. If passed by the Judiciary Committee, Johnson's nomination goes to the Senate floor. If confirmed, Johnson will undertake a variety of cases as U.S. attorney. He outlined areas — such as bank robberies — where state and federal attorneys could work together. "They discuss what penalties are most appropriate," he said. "You have the federal mandatory minimums for sentencing for cases that are very troubling." As the U.S. attorney for South Dakota, Johnson would work extensively with crimes in Indian Country. The jurisdiction depends on the race of the defendant, the race of the victim and the nature of the crime.As nominee, Johnson has spent time visiting with court personnel and law enforcement around the state. He noted an enjoyable visit with Sisseton-Wahpeton tribal judge B.J. Jones. "We have some incredible legal minds on the reservations of South Dakota," Johnson said. However, Indian Country faces a number of obstacles, he added."There are unique challenges when you look at the jails on the reservations," he said. "It wouldn't go over in Clay County. It wouldn't go over in Minnehaha County. But it's a lack of resources. … They are looking for additional funds for facilities that are more appropriate." Johnson also pointed to issues facing American Indian juvenile offenders."A lot of juveniles who get into trouble at one time were victimized themselves," he said. "We need more dollars for alcohol and drug rehabilitation and sex-victim treatment." The training of tribal police at the state law enforcement center in Pierre has reduced stress on tribal resources while bringing together tribal and other officers, Johnson said. "In a small state, you need cooperation of the law enforcement branches," he said. During the question-and-answer session, USD law student Lonnie Wright told of his work with the federal public defender's office in Rapid City. Wright, a Rosebud Sioux, serves on the executive board of the Native American Law Students Association and as a national board member. During his work in Rapid City, Wright noted what he saw as a disparity in sentencing for Indian defendants. He also saw a general lack of knowledge about Indian culture among U.S. attorneys and federal judges."We have to help bridge the cultural gap," Wright said. The U.S. attorney's offices need more American Indian attorneys who can educate other attorneys about cultural differences, Johnson said. Many good, qualified Indian lawyers need encouragement to seek positions in U.S. attorney offices, he said. South Dakota can be a national leader in that area with its large American Indian population and the large emphasis on Indian cases for the U.S. attorney in South Dakota, Johnson said. The U.S. attorney should be a tribal liaison, Johnson said, calling for a "conversation of equals" to address current issues. "There needs to be a dialogue and a great deal of respect. And it needs to start at the top," he said.
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