The resignation of US Attorney Rachael Rollins amid two blistering watchdog reports has created an uncertain future at a pivotal time for the office, as the focus shifts to who will replace her as the top federal prosecutor in Massachusetts.
Rollins’s first assistant, Joshua S. Levy, 57, was automatically named acting US attorney upon her resignation on May 19, a position he may hold for the foreseeable future. Several legal experts predict choosing Rollins’s successor will be done cautiously, with the next nominee likely to face intense scrutiny in the Senate and possibly trigger another contentious, partisan battle.
“The position is now in the crosshairs of the political process in Washington and that suggests it will be a long time before there’s a formal nomination,” said Nathaniel Mendell, who served as acting US attorney for 10 months before Rollins was sworn in on Jan. 10, 2022.
Democratic political analyst Mary Anne Marsh predicted the administration won’t push any nominees “that are anything other than a slam dunk” and are “less likely to take risks with appointments until after the  election.”
Carl Tobias, a professor at the University of Richmond School of Law, said the administration will want to be more “cautious and careful and methodical.” But, he added, “I think the White House is going to want to fill that slot as soon as possible.”
He speculated that it will be easier to get the Senate to confirm a nominee this year than it will be next year, closer to the end of Biden’s term.
He added that the better the process is for selecting a nominee, “the better the chance that the person can withstand attacks and be confirmed.”
To date, President Biden has nominated 70 people for US attorney and 64 of them have been confirmed, according to Tobias. There are currently about two dozen US attorney vacancies around the country.
In January 2022, Rollins, formerly Suffolk district attorney, became the first Black woman to serve as US attorney for Massachusetts. She was nominated by President Biden in July 2021 and faced a heated battle in the Senate as critics of her progressive policies tried to block her confirmation and accused her of being soft on crime. She was narrowly confirmed, with all Republicans voting against her and Vice President Kamala Harris casting the tie-breaking vote.
In the days after Rollins’s resignation, the state’s Democratic Senators Elizabeth Warren and Ed Markey, who recommended Rollins for the post and lobbied aggressively for her, released a statement saying they look forward to working with the White House on any future selection and nomination process. However, they haven’t indicated how quickly they may put forth a replacement candidate.
The US Attorney’s office is reeling from reports by the Justice Department’s Inspector General’s office and the US Office of Special Counsel, which found Rollins violated the Hatch Act by engaging in partisan activities and broke the law by lying to federal investigators. Investigators found that she used her position to try to influence the election for her successor as Suffolk district attorney, lied to investigators by denying she leaked a DOJ memo to the media, solicited free Boston Celtics tickets, and attended a Democratic fund-raiser headlined by first lady Jill Biden.
“Rachael’s resignation, and the reasons for it, I think are an injury that the office will feel personally,” said Mendell, adding that it will need steady leadership to recover.
For now, Levy may hold the position for up to 210 days. If someone isn’t nominated by the president and confirmed by the Senate during that time, the attorney general may appoint someone — including Levy — to serve for another 120 days. At that point, if there’s still no nominee, the US District Court for Massachusetts may appoint an interim replacement to fill the post until there is a presidentially nominated and Senate-confirmed US attorney.
However cautious they may be in appointing a successor, the importance of having the role filled is evident. The US attorney oversees hundreds of criminal and civil cases each year, with more than 200 attorneys, paralegals, and staff in Boston, Springfield, and Worcester.
Around the same time Rollins submitted her resignation, Levy appeared at the federal courthouse in Worcester for a hearing in the high profile prosecution of Jack D. Teixeira, the Massachusetts Air National guardsman accused of leaking top-secret military information on the Internet.
In a statement Wednesday — marking his first comments since becoming acting US attorney — Levy said, “I am humbled and privileged to lead the incredibly talented and dedicated men and women of this office through this challenging period.”
He added, “Our commitment to the mission of the Department of Justice has never wavered. We are wholly focused on critical work we do every day for the people of the District of Massachusetts.”
Levy, a former federal prosecutor, was one of a handful of finalists for the US attorney’s post when Warren and Markey recommended Rollins for nomination. At the time, he was a partner at the global law firm Ropes & Gray, then left his lucrative job in January 2022 to serve as Rollins’s first assistant.
Levy has several decades of experience. From 1997 to 2004, he was a federal prosecutor in Boston, where he prosecuted a wide range of white-collar crimes, including health care fraud, securities and investor fraud, terrorism financing, and environmental crimes. He spent the next 17 years at Ropes & Gray, focusing on white collar defense and civil litigation, primarily in the pharmaceutical and medical device areas.
“I think he is thoughtful and an exceptional lawyer,” Mendell said. “He’s experienced as a litigator but also in managing people and an office.”
Even though Levy has been serving as Rollins’s top deputy for 17 months, he’ll undergo orientation by the Justice Department as an acting US attorney, according to attorney Michael Loucks, who served as interim US attorney for Massachusetts for about 210 days more than a decade ago.
Loucks said the training “will emphasize that he should make decisions and treat the job as if he has the position full time, and not to act as if he is merely holding the seat for a replacement.”
He added, “The training stresses the need to make the decisions as you think they should be made given the facts involved and the recommendation from the staff, not as you think your successor might make them, whomever that might be.”
Rollins was among a number of finalists for the US attorney’s job two years ago. A bipartisan advisory committee created by Warren and Markey vetted applicants and provided the senators with a list of finalists, which also included two women who currently work in the US attorney’s office: Jennifer Serafyn, chief of the civil rights unit in Boston, and Deepika Bains Shukla, who heads the US Attorney’s office in Springfield. Both women declined to comment Thursday on whether they remain interested in the job or have been contacted about it recently, according to a spokeswoman for the US Attorney’s office.
Serafyn has handled civil cases involving civil rights violations and won cases brought against restaurants that failed to provide adequate safeguards under the federal Americans with Disabilities Act. She also won a settlement from the City of Somerville on behalf of a firefighter who was not rehired at the required level after he returned from nearly a decade of overseas Marine deployments.
Shukla has handled several major criminal cases in Western Massachusetts, including that of Gregg Bigda, a Springfield police detective who was acquitted in 2021 of assaulting a Latino teenager while he was in custody and other charges. She also prosecuted Christopher Roeder, an ex-Hadley police officer who was found guilty of using excessive force in 2017.
Ultimately, Warren and Markey recommended Rollins.
Nancy Gertner, a former federal judge who chaired the committee, declined to comment Friday on whether the committee will likely be reconvened to search for a replacement for Rollins, or whether prior finalists may be nominated.