Senate confirms Totten as US attorney for Western District of Michigan after delay

Melissa Nann Burke
The Detroit News

Washington — The U.S. Senate on Wednesday confirmed by voice vote the nomination of Mark Totten to be U.S. attorney for the Western District of Michigan. 

Totten of Kalamazoo was nominated by President Joe Biden in November, but his confirmation was delayed since February by U.S. Sen. Tom Cotton, R-Arkansas. 

Mark Totten

Cotton had said he was blocking all Department of Justice nominees because he's not had a sufficient response from the department to his questions about why it's not paying the legal bills of four U.S. marshals in Portland who were sued by protesters over their actions during public demonstrations in 2020.

Cotton has argued the marshals deserve better and the Department of Justice should either agree to represent them in the lawsuits they face or provide a "fact-based" answer about why they won't.

More:Arkansas GOP Sen. Cotton holds up Michigan U.S. attorney nominee Totten, others

Cotton said on the Senate floor Wednesday that he would remove his objections to the nominees, even though the DOJ still hasn't provided "definitive" answers and has now informed the marshals that they're under investigation related to the events in Portland.

Cotton said he and GOP colleagues on the Senate Judiciary Committee have written to the DOJ about its probe and are "committed" to conducting an oversight investigation into the matter next Congress, if one doesn't take place before then. 

"My message to the Department of Justice today is this: You will be held accountable for your actions against these law enforcement officers if they are inappropriate or even unlawful," Cotton said. "And if not this year, it'll happen next year."

"Now, that I'm confident that the department or receive the oversight that it deserves in this matter, I will no longer object to these nominees," Cotton added.

An op-ed written by Sen. Tom Cotton, R-Ark., caused a revolt among New York Times journalists.

The Senate then proceeded to hold a voice vote on Totten and several other nominees en bloc. Cotton had also held up nominees from Ohio, Minnesota, Nevada, Georgia and Illinois.

U.S. attorney and marshal nominations are not political positions and are typically confirmed by unanimous consent in the Senate.

The Judiciary Committee had advanced the nomination of Totten to the full Senate in January.

Totten has served as Gov. Gretchen Whitmer's chief legal counsel since 2019 and was the 2014 Democratic nominee for attorney general in Michigan, losing to Republican Bill Schuette by 8 percentage points. 

Whitmer on Wednesday applauded Totten's confirmation, noting he's "been on my team since day one."

“As a former prosecutor, I cannot imagine a more qualified leader to serve as U.S. Attorney for the Western District of Michigan — the place that Mark calls home," Whitmer said in a statement. "He is a passionate public servant who will do a phenomenal job as a U.S. attorney."

In his role on Whitmer's executive team, Totten managed litigation as in-house counsel and provided legal advice to the governor on all executive actions including executive orders, budget matters, emergency management and the state's pandemic response. 

Totten was a professor at Michigan State University's College of Law for 10 years where his research centered on the role of public enforcement in consumer financial protection.

While a professor, he worked pro bono as a special assistant U.S. attorney in the Western District of Michigan from 2011-13.

In that role, he handled appellate criminal matters and arguing several cases before the U.S. Court of Appeals for the Sixth Circuit involving predatory lending, child exploitation, domestic violence, homicide, drug crimes and gun crimes, according to a questionnaire he submitted to the Judiciary Committee. 

In 2016-17, Totten was part of volunteer team under the Genesee County prosecutor investigating the Flint water crisis and reviewing potential legal strategies in an effort separate from the investigation undertaken by the Michigan Attorney General's Office, according to his questionnaire. The Genesee County prosecutor ultimately decided not to bring charges.

Totten was elected as a trustee to the Kalamazoo Public Schools Board of Education, serving from 2011–14.

Earlier in his career, he spent a year in the civil appellate division at the U.S. Department of Justice in Washington before going to clerk for Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit.

Totten's political resume includes serving as an adviser to Whitmer's 2018 campaign and working pro bono as state counsel for Hillary Clinton's 2016 presidential campaign, helping to manage the statewide voter protection program for the general election. He took on a similar role as Kalamazoo County counsel for former President Barack Obama's 2008 campaign. 

Totten holds three degrees from Yale University including a doctorate, law degree and a master's degree in religion from Yale Divinity School.

mburke@detroitnews.com