FROM SAIGON TO SANTA CLARA
It’s unlikely that in the more-than-century-long history of the Santa Clara University School of Law another graduate has followed a path quite like the one Cruden took to the Mission campus. In early 1970, Cruden, a West Point graduate, arrived in Vietnam. He would have extensive exposure to combat, first as a senior advisor to a Ranger unit and later with the Special Forces. For his valor, Cruden was awarded a Bronze Star and the Vietnamese Cross of Gallantry with Silver Star. But the infantry was not his calling. At West Point he was inspired by Pete Dawkins, a Rhodes Scholar and Heisman Trophy winner, who taught courses in national security and social science. Cruden set course to become a lawyer. He learned the LSAT was to be offered in the spring of 1971, in Saigon. Cruden recalls checking his gun at the door and being handed a pencil. When he and the other would-be lawyers finished, a helicopter was waiting to take the soldiers back to their units.
By the time his LSAT results arrived, only the law schools at Santa Clara and Georgetown were still accepting applications. Cruden applied and was accepted to both schools. Santa Clara accepted him first, aware he was in Vietnam. Based on recommendations from military legal staff in Saigon, as well as the reputation of the law school’s clinic program, Cruden chose Santa Clara.
He moved to Santa Clara to enroll. “I’ve always been grateful of it, because they were taking a risk,” Cruden said, still sounding a bit surprised the law school was so accommodating of his unusual circumstances. “My applications were handwritten. It wasn’t extremely sophisticated,” he told Washington Lawyer a few years ago.
At Santa Clara, he said, “I had a bevy of really good professors.” He names law school dean George Alexander (“a great constitutional scholar”), Jerry Kasner, and Kenneth Manaster—who arrived in 1972 and established himself as one of the leading environmental lawyers in California. One scholar he sees any time he is in California or his former mentor is in the capital: Fr. Paul Goda, “someone I deeply admire.” He also counts as a friend former DOJ colleague and former EPA deputy general counsel Tseming Yang.
With the benefit of hindsight, it’s apparent just how much the Jesuit social justice tradition influenced Cruden’s path to public service. “They gave you a sense of the higher calling of the legal profession. They instilled in us responsibility to the disadvantaged and the poor, to do more for others than our daily practice, and to make sure that the rule of law was advanced in every aspect of our professional life. Law school made me really proud of the profession and gave me a heightened sense of responsibility to public and private service,” he said.
Cruden made the most of the opportunities earned and offered at Santa Clara. He was on the Law Review. He participated in a special program with the Public Defender Clinic in Stanford Law School, where his supervising attorney was Rose Bird, who later became the chief justice of the California Supreme Court and a family friend. During his third year, he clerked for California Supreme Court Justice Stanley Mosk. Over this entire period, because Cruden’s leave from the Army was unpaid, he and his wife, who was herself busy attending graduate school at San Jose State University and later teaching at De Anza College, managed a large apartment complex in exchange for free rent.
Even though Cruden was granted leave to attend law school, during summer breaks he reverted to active military duty. He commuted daily to Fort Ord on Monterey Bay and served in the military legal group. After graduation, Cruden served as a career Army lawyer in the United States and abroad. He was a criminal prosecutor in Germany and civil trial lawyer at the Pentagon. He taught administrative and civil law at the Army Judge Advocate General’s School in Charlottesville, Virginia. During a one-year posting to the Department of Justice, the first military lawyer assigned as a special counsel to the assistant attorney general of the Civil Division, Cruden met and briefed President Reagan on drug testing protocols.
By 1988, Cruden was the Army’s chief legislative counsel. The job involved extensive interaction with Congress and was an immersion in Capitol Hill politics; that would prove valuable in the second act of Cruden’s government career. The job also made him part of an unusual and dangerous legal drama. Cruden’s office learned that a U.S. Special Forces major had information that could help bring to justice the ringleader of the Salvadoran army unit responsible for the murder of six Jesuit priests and two women at the University of Central America in San Salvador in November 1989. Cruden traveled to El Salvador to represent the major in a grand jury investigation. Because of risk to the informant, a U.S. Special Forces team met Cruden and the major at the airport to escort them to the U.S. ambassador’s residence, where the grand jury convened.
This was to be Cruden’s last job as a military lawyer. Cruden had handled some environmental cases as an Army lawyer. He had also lectured on environmental law and authored part of a casebook on the topic. In 1991, senior officials at the Department of Justice, connections Cruden made during his posting to the department during the Reagan administration, “made [him] an offer he could not refuse.” He was offered the job of Chief of the Environmental Enforcement Section in the Environment and Natural Resources Division, charged with leading the largest litigation section at the Department of Justice, with 250 people and 150 lawyers.
“I was ecstatic,” he said. “I loved the jobs I had in the military, but this was a chance to put together something I personally was extremely interested in, and it was a growing area of the law.” He accepted the job and served in the role for four years.
He would indeed be joining a growing area of the law. When Cruden attended the Santa Clara School of Law, no courses were offered in environmental law. Many of America’s landmark environmental laws—the National Environmental Policy Act (1969), Clean Air Act (1970), Clean Water Act (1972), Endangered Species Act (1973), co-authored by former Santa Clara University lecturer and longtime California Congressman Pete McCloskey Jr., and the Safe Drinking Water Act (1974)—had just taken effect or were being written during Cruden’s three years at Santa Clara. Cruden’s eventual rise to lead ENRD mirrors the rise of environmental law as a mature area of specialization of the law. Today, courses on environmental law are offered at dozens of law schools nationwide. Cruden’s generation of lawyers deserves much of the credit for gifting environmental law to the world.
CAPTAIN OF AN AIRCRAFT CARRIER
In our conversation at his office, Cruden described the two tracks of work undertaken by his division: Attorneys follow the evidence and bring cases under America’s bedrock environmental statutes such as the Clean Air Act and Clean Water Act, or they defend client federal agencies against lawsuits. It’s a heavy caseload. In his final end-of-year letter to ENRD staff, Cruden said his team had successfully litigated nearly 800 cases and handled nearly 5,400 cases, matters, and appeals in 2016.
I asked Cruden if he was concerned about the direction the division may go under his successor, and with a fossil fuel friendly, antiregulation administration about to take office. Cruden stressed the momentum of the daily churn at ENRD. “We get sued every day; every single day we’re getting sued. We also bring our own actions almost every day.”
“It’s not like you sit in this chair and go, ‘Well, I have 450 lawyers, they have nothing to do, and I’m going to give them stuff to do.’ It’s not that way; it’s just the opposite. They’re already working endless hours. They already have a huge docket of cases. Half of what we do is people suing us, which you can’t control. It’s not like I would come in here and say, ‘Stop doing Clean Water Act enforcement, and I only want you to do something on public lands.’ These are cases that are going to happen and that you have to work; you have almost no choice.”
He went on, “Now I can move some. I can say, ‘All right, I want to stress environmental justice. I want to stress wildlife enforcement. I want to integrate the principle in enforcement that we’re going to take the profit out of polluting activity.’ What I can’t do is say, ‘Let’s stop doing a thousand cases and just go in another direction.’ I can’t do it—and nor could any of my predecessors. Remember, I served as a career person under Republican administrations as well as Democratic administrations. You can move a bit, but it’s not what people think. People think it’s going to be a wholesale change; it doesn’t work that way.
“I get asked countless times, ‘So a new administration comes in, are they going to change all their litigating positions?’ I say, ‘It doesn’t work that way; it just doesn’t.’ What we said about the law during the George W. Bush administration, we say the same thing about the law during [the Obama] administration, because if we don’t then somebody is going to file a brief and say, ‘Which time were you lying? Were you lying the first time you filed the brief or the second time you filed the brief?’ Our opponents know all this. All of our briefs are public. So if we in fact say different things about the law, the courts will be irate.”
So how would change come about? Look to the agencies with policy responsibilities that write regulations, said Cruden. “We are defending their policies, which come through guidance documents, or regulations, or the president through executive orders. Some of that you can change, and if you do change, assuming that the new process is in accordance with the law, we would defend that.
“And if you do change your position,” Cruden continued, “you’re going to litigate it and sometimes lose—because if you change your position, you actually have to have a reason, a thoughtful process by which you go through that’s guided by the Administrative Procedure Act. You have to have a defensible reason why you changed your mind. It doesn’t happen that all of a sudden a new attorney general comes in and says, ‘Change your positions on all the laws. I don’t like what you did.’ What really happens is that federal agencies, going through a process, review what they’ve done and see what they’ve agreed with and what they don’t. Then that causes us not to change our position on the law, but to defend another policy.
“I describe my job sometimes like I’m the captain of some big aircraft carrier,” he said. “You can move it, but it moves slowly.”
RUNNING THROUGH THE TAPE
It is fitting that 2016 likely will serve as the capstone to John Cruden’s career as a government attorney and public servant. In a year-end staff memo, Cruden highlighted three “extraordinary events” that marked 2016: the settlement with BP for the Deepwater Horizon oil spill disaster; prosecuting Volkswagen for cheating vehicle emissions tests and deceiving customers; and defending President Obama’s Clean Power Plan, regulations intended to reduce carbon emissions from coal-fired power plants. In February 2016, the U.S. Supreme Court voted to issue a stay preventing the Environmental Protection Agency from implementing the plan. Justice Antonin Scalia’s vote in support of the stay was the last he cast before his death.