Jason Dunn Reflects on Legacy as U.S. Attorney

Prosecutions continued through a term disrupted by a pandemic and court closures

A man in a white button up and black tie in front of a big window with two American flags on either side of him
Jason Dunn officially ended his term as U.S. attorney for the District of Colorado yesterday. During his tenure, Dunn took on prosecutions for drug and gang activity in Colorado and pandemic-related cutbacks within the office. / LAW WEEK FILE

Jason Dunn ended his term as U.S. attorney for the district of Colorado Sunday. He was appointed in 2018 and before that was a shareholder at Brownstein Hyatt Farber Schreck. Dunn spoke with Law Week on Feb. 18 about his legacy at the office, his thoughts on the prosecution of rioters who participated in the Jan. 6 U.S. Capitol insurrection and his suggestions for how police and prosecutors can do their jobs better.

This conversation has been edited for length, clarity and style.

LAW WEEK: What stands out for you as the defining feature of your legacy as U.S. attorney?

DUNN: I think the most important thing is that we were able to continue to do our work despite unprecedented times for this office. 

When I came in in late October 2018, I was there for about two months and then we had the longest government shutdown in history. I had half my office furloughed, not knowing if they were going to ever get paid or work, and then the other half the office — the criminal folks who had to be in the office because they were essential employees — they didn’t know if they were going to get paid for working. It was a very difficult situation to manage from a morale and logistics standpoint. 

Then we got through that, and we had a period of sort of normalcy through the rest of 2019. Then the pandemic hit, and we went from being able to have long-range planning about how we target certain kinds of crimes and civil cases to just how do we manage the pandemic in the office? How do we take a prosecution office and move it remotely? 

We had to deal with issues about grand juries and statutes of limitations and speedy trial issues and keeping people safe. Then we had to develop procedures from when we were going to come back. Just as soon as we started implementing those procedures and started getting a few people back in the office, all the COVID-19 numbers started to spike again in the fall and we shut everything back down again. So, it was really an unprecedented time. 

But through it all, we continued to do, I think, great work. The people continued to be extremely dedicated. People found ways to achieve the mission. So I’m most proud of that. 

LAW WEEK: Looking back on your service, what would you say you have taken away as the priorities that, going forward, need to be in place for improving, changing, or reforming the criminal justice system?

DUNN: I think the social justice protests of last summer certainly caused us all to pause and think about our role in the system. As prosecutors, we have a very defined role. Congress enacts laws, and it’s our job to enforce those. There is certainly always prosecutorial discretion in how we choose to prosecute cases, but we often think about whether we are doing the right thing and whether we are achieving justice. We’re not just zealous advocates for the government, though we work very hard and I think represent the government strongly. We have a broader mission to think about justice and what’s right for people.

I think one of the important things to remember is that, typically at the federal level, the drug cases or the gun cases are not small cases. Most of our cases are very large scale. When we arrest somebody and charge them at the federal level, it’s usually a matter of having pounds of drugs or hundreds of pounds of drugs. I think in those situations, anybody would say that person deserves to have the book thrown at them. They’re distributing drugs. They’re transporting drugs across the country. They’re bringing drugs up from Mexico — methamphetamine, fentanyl, heroin, cocaine. These are serious criminals and so our penalties, and the way we treat those cases, are likewise serious.

LAW WEEK: The Department of Justice plays an important role in helping local law enforcement agencies comply with federal law and make sure they have adequate resources. Should there be changes in the way the Department of Justice helps police departments and sheriffs and local district attorneys better take into account the social impacts and consequences of criminal justice?

DUNN: I think they are making changes. One of the things that came out after the summer was that the department changed the requirements for local law enforcement agencies to get grant money from DOJ. We actually deferred to the state attorney general’s office to put specifics around it through its POST certification program — its police officer standards and training board. But DOJ said, basically, there has to be some requirement. You have to ban chokeholds, you have to have bias training, and you have to have other certain procedures that show that you’re dealing with implicit bias, discrimination practices and those kinds of things in policing in order to get DOJ grant money. I think the department, in the wake of this summer’s protests, certainly took some steps to try and address some of the disparities among police agencies and how they practice and how some of those practices might disproportionately affect certain minority communities.

LAW WEEK: Recently, we’ve had the attack on the U.S. Capitol, and your office has announced charges in several cases involving Colorado defendants. How long might a sprawling investigation like this take? 

DUNN: Well, if you’re talking about individual cases, those will play out in a matter of months. Some of the charges are more minor. They are misdemeanors. Some of them are more serious — assaulting federal police officers, disrupting Congress. Those kinds of things might take longer to play out because those are felony charges. But in terms of the overall investigation, I think it’s going to take some time. It’s hard to put a number on it, but I think it could easily go another six to 12 months. 

The investigation over what happened in the Capitol is really unprecedented in American history. The Department of Justice and the U.S. attorney’s office in Washington, D.C., are dealing with hundreds of thousands of pieces of evidence. Most of those are social media photos and videos, and they are going through those painstakingly frame by frame and asking for the public’s help to identify people. Luckily, the people who went in there felt it necessary and important to document their crimes. That has helped out quite a bit because that was all over social media and the media, as you know. 

The way we help right now is that, if they identify somebody who is in Colorado, then our FBI field office here in Denver will work with my office to make the arrest, to then coordinate for my lawyers to do the initial appearances, potentially any detention hearings or initial proceedings, and then ultimately the case is prosecuted out of the Washington, D.C., U.S. attorney’s office.

LAW WEEK: There have been calls for prosecutors and law enforcement to deemphasize the prosecution of low-level drug crimes — possession [and] minor levels of use. Here in Colorado, marijuana has been decriminalized, but not at the federal level. Do you think that, on balance, it would make sense to follow that recommendation to deemphasize, or in the case of marijuana, decriminalize personal use of the substance? 

DUNN: My personal view is that I think we’re moving in a bad direction on marijuana. One of the things that has been very concerning to me is the use of high-concentrate marijuana products. I think something like 20-30% of the marijuana products that are sold in Colorado are actually concentrates. Marijuana, a decade or two decades ago, had a concentration level in maybe the teens. It’s now at the 90-95% level for concentrates like Shatter and some of these other products. I don’t think that’s what people intended when we when we legalized it here in Colorado. 

If we’re going to think about marijuana as a recreational drug, then I think we need to realize that it can also be a very serious narcotic as well. We need to think about how it impacts youth who are using it. I’m very concerned about the impacts. I’ve seen studies out of emergency rooms in Colorado where the percentage of people who are showing up in emergency rooms having crisis psychotic episodes, the rate of marijuana use in those is extremely high. I know there’s legislation now being considered by the state legislature to limit THC levels. I think that’s a good idea. 

LAW WEEK: There had been concern during the Trump administration that the Department of Justice lost some of its political independence. Do you agree that’s a concern?

DUNN: I don’t think it has lost its independence. The Department of Justice has been and will continue to be an organization that is focused on enforcing the law and seeking justice and doing what is right. One of the things that was surprising to me when I came in is that the U.S. attorney’s offices really do operate largely autonomously from the Department of Justice. We get some overarching direction from the department about how to approach certain things or whether to emphasize national security cases or gun violence and those kinds of things. We decide how we’re going to prosecute cases. We decide what types of crimes we’re going to emphasize in our in our district. 

There’s always a political element to this. There is political leadership at the top of the department, and the U.S. attorneys are political appointees [who] often share the same philosophy as the administration and the leadership of the department. I think it ebbs and flows with that. 

I think the people in the Department of Justice, the vast majority of them, are people who are apolitical, who work hard to enforce the rule of law, who are trying to do what’s right, and who are trying to just serve the mission of the department.

LAW WEEK: There is some speculation that you might run for attorney general of Colorado next year. Will you, and if not, what’s next for Jason Dunn?

DUNN: I don’t have any plans to do that right now. I’m returning to private practice. I’m focused on that. That’s what I’m excited about doing right now.

— Hank Lacey

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