The final weeks on the job for Ben Mizer, who until last week headed the U.S. Justice Department’s civil division, were extremely busy.
In a phone interview with the Washington Blade during the final hours of his job Thursday, the gay assistant attorney general said his division continued to win important victories on behalf of the American public. Among the achievements in the past couple weeks: A resolution with Volkswagon in which the company agreed to pay a $2.8 billion criminal penalty for cheating on emissions tests and other big settlements in equities and credit fees cases.
“So I think that we were able to the very end to do the best we could to protect the American people, including from financial fraud,” Mizer said.
Mizer, 40, was one of the more than 300 openly LGBT appointees in the Obama administration. The strides President Obama as well as U.S. attorneys general Eric Holder and Loretta Lynch made for LGBT rights made that particularly important for him.
“Certainly as an openly gay man, I have been incredibly proud to be an appointee of this administration and to work for Attorney General Holder and Attorney General Lynch because they have done so much to protect LGBT individuals in so many ways,” Mizer said.
A native of New Philadelphia, Ohio, Mizer started his tenure in 2015 as Principal Deputy Assistant Attorney General of the Civil Division, the arm of the Justice Department that defends the federal government in court, which includes commercial issues such as fraud and debt collection. Prior to his tenure at the civil division, Mizer was counselor to former U.S. Attorney General Eric Holder and served in the Office of Legal Counsel. From 2008 to 2011, Mizer was Ohio solicitor general.
Among the cases in which Mizer represented the U.S. government was litigation defending the Obama administration’s position in favor of transgender rights. Mizer’s name can be found on briefs in defense of the Obama administration’s guidance barring discrimination against transgender students in schools, such as by denying them access to restrooms consistent with their gender identity, and the Department of Health & Human Services rule ensuring transgender people have access to health care, including gender reassignment surgery.
“Our job at the civil division is to defend administrative policies, to defend congressional statutes — whatever the statutes and policies might say as long as there are defenses to be made,” Mizer said. “And so, we discharge those obligations every day on behalf of Congress or on behalf of the president, or on behalf of executive agencies and I am sure that tradition will carry forward in the next administration.”
The civil rights division, not the civil division under Mizer, was responsible for U.S. Attorney General Loretta Lynch’s lawsuit against North Carolina over the anti-LGBT House Bill 2, a law that bars cities from enacting pro-LGBT non-discrimination ordinances and bars transgender people from using the restroom in schools and government buildings consistent with their gender identity.
Mizer said he “couldn’t speculate” about what would happen to transgender rights cases now that the Trump administration is running the Justice Department. Mizer also declined to comment on whether those cases had come up during conversations with the Trump transition team on the basis he couldn’t disclose information about any talks he had with them.
Prior to joining the civil division, Mizer recalled helping to advance LGBT rights after the U.S. Supreme Court ruled in 2013 against the Defense of Marriage Act, an anti-gay law that barred federal recognition of same-sex marriage, and former President Obama directed Holder to ensure married same-sex couples receive federal benefits to the furthest extent of the law.
“I was proud to play a role when I was in the Office of Legal Counsel in helping to administer and implement the Windsor decision so that the federal government nimbly and quickly was able to make the Supreme Court’s decision a reality by affording benefits across the board to gay and lesbian married couples,” Mizer said.
But Mizer was eager to promote achievements from the civil division in cases other than LGBT rights, identifying as among the “signature accomplishments” efforts to protect consumers from dietary supplements and billed to help people, but, in fact, had no impact or weren’t good for them. Among the targets of the enforcement actions were USPlabs LLC, which sold products under names such as Jack3d and OxyElite Pro.
“I have friends who take workout dietary supplements because they think it’s going to make their workouts better and help their physique, when, in fact, some of those dietary supplements are actually quite dangerous to your health, so I’m proud of the work the division has done to pursue those manufacturers both civilly and criminally,” Mizer said.
Mizer also touted the civil division’s work in protecting from fraud the elderly, whom he said are often the targets of companies seeking to make a buck at the expense of others.
“Elderly people receive a lot of notifications telling them to send in $50 and they’ll win a BMW, or they’ll win an amulet, or some other kind of prize,” Mizer said. “And those are…schemes that disarm vulnerable people of thousands of dollars a year. And so, I’m incredibly proud of the work that we’ve done to shut down those kinds of fraudulent operations.”
One outstanding issue for the U.S. Justice Department under the Obama administration for LGBT rights was declaring provisions under federal law such as Title VII of the Civil Rights Act of 1964 barring discrimination on the basis of sex also prohibit discrimination on the basis of sexual orientation.
In 2014, former U.S. Attorney General Eric Holder issued a memo declaring the Justice Department has determined the ban on sex discrimination under Title VII applies to transgender people, but the administration never said anything about whether the law makes illegal bias against gay, lesbian and bisexual people.
Mizer said he didn’t have any updates on the Justice Department’s interpretation of the law as the Obama administration came to a close.
“That’s not something I’m able to comment on other than to say your understanding of the department’s position as you described is correct, but I don’t have anything else to say about that right now,” Mizer said.
Pressed on what it would have taken for the Justice Department to articulate the view that anti-gay bias is prohibited under current law, Mizer said such an interpretation would have to come from the attorney general.
“I think all I can say is that, as you noted, Attorney General Holder in I believe it was 2014 announced that the department was changing its interpretation of Title VII as it applies to transgender individuals,” Mizer said. “If the department were to make change in its litigating position with respect to discrimination against gays and lesbians under Title VII, I believe that that is a determination that would also be made by the…attorney general, whoever that might be.”
What’s next for him? Mizer said he doesn’t have future career plans set and will take time off before making a decision.
“I leave tomorrow morning for Mexico and I’m going to take time off to relax and travel before I make any determinations about exactly what my next job will be,” Mizer said.
D’Arcy Kemnitz, executive director of the LGBT Bar Association, said Mizer’s tenure as an openly gay person running the Justice Department’s civil division was significant.
“Every time an openly LGBT individual is elevated to a position of power within an administration, we see growth in our movement,” Kemnitz said. “Allowing an openly gay man to head the civil division of the DOJ indicates a trust and an acceptance of our larger community that is necessary in the fight for equality.”