Department of Justice

Eric Holder

Now that Eric Holder has announced his departure as attorney general, talk has turned to who his successor will be — and should be. Early buzz has centered around Solicitor General Donald Verrilli, but there are other compelling candidates as well, including lots of legal luminaries that Above the Law readers will recognize.

Who will be our nation’s next AG? And who should be the next AG? Let’s discuss….

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President Obama formally announced the resignation of U.S. Attorney General Eric Holder this week. Filling the position ordinarily poses a political challenge, but installing Holder’s successor will be particularly rancorous. And we have Eric Holder himself to thank for that.

With Congressional midterm elections weeks away, confirmation hearings for a new AG any time soon seemed unlikely at first. However, Senator Patrick Leahy (D – VT), the chair of the Senate Judiciary Committee, announced that he intends to urge the confirmation process onward. “Definitely, we should have confirmation hearings as quickly as possible in the Senate,” Leahy told MSNBC’s Andrea Mitchell. Changes to Senate rules allow debate to end over executive and judicial branch nominees (except for nominees for Supreme Court vacancies) with a simple majority vote, rather than a supermajority of 60 votes. At least until the January 2015 session, when the Senate can revisit the rule change, Senators cannot filibuster the vote on Eric Holder’s potential successor. No matter what shifts occur after the upcoming elections, Republicans hold only 45 seats in the Senate until January 2015. So, Democrats acting quickly hold an advantage. However, Democratic senators facing dicey election contests may not be enthusiastic about their party’s push for hearings before the election.

The AG confirmation process opens a new battlefield in the war between supporters of President Obama and his critics. The battle to confirm Eric Holder’s successor promises to be messy. Senate Republicans will treat the process as a referendum on everything President Obama has done — possibly everything his critics suspect he might want to do. Washington politics makes this sort of fight possible. The timing of Holder’s resignation, a few weeks ahead of Congressional midterm elections, makes this plausible. But Eric Holder himself made this battle necessary.

So, how did Holder generate so much bad blood?

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* A list of lawyers who followed their passions. Let’s be honest: I just like that Lat’s in the same listicle as Jerry Springer. [One 400]

* Another report on the Brian Leiter kerfuffle (by Professor Jonathan Adler). [The Volokh Conspiracy / Washington Post]

* Postal carrier hoarded 40,000 pieces of mail. Newman! [The Smoking Gun]

* Another court allows service via Facebook. [Peter S. Vogel]

* Eric Holder is resigning. Time for the speculation that he must have done something awful to begin! [New York Observer]

* D.C. lawyer Ronald Goldfarb reviews John W. Dean’s new book (affiliate link) about the Nixon tapes. [Washington Independent Review of Books]

NPR has a breaking scoop. Sources report that Attorney General Eric Holder will announce his resignation today.

Holder is one of the longest-serving members of Obama’s cabinet. People have called him the most “racially divisive” AG in history. In related news, he’s also African-American, a fact that has really seemed to piss some people off.

It’s been a few weeks without a manufactured “scandal” landing on his desk, so maybe now is a good time to go back to private practice and make millions of dollars?

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Barry Bonds was convicted of obstruction of justice for giving non-responsive answers to questions in a grand jury. As Judge Fletcher told the government in the oral argument in the 9th Circuit en banc challenge to his conviction, “I find your reading of the [obstruction of justice] statute absolutely alarming.” And for good reason — Judge Fletcher thinks that the government’s interpretation of obstruction of justice would mean that most civil lawyers are felons.

There are a lot of ways to violate federal laws that are related to obstruction of justice. You can lie to a federal agent who is coming to your house to interview you and violate 18 U.S.C. § 1001. You can commit perjury under 18 U.S.C. § 1621. And there are a host of other false statement statutes specific to other regulatory schemes (like false statements in connection with a tax filing, or a health care request for payment, etc.).

All of those laws, though, require that the person who is being prosecuted make a false statement.

Obstruction of justice is different. Instead of having concrete elements like “making a false statement”, obstruction of justice criminalizes willfully “obstruct[ing], imped[ing], or interfer[ing] with” whatever is being allegedly obstructed.

Here, Barry Bonds didn’t make a false statement. Instead, he gave an answer that was non-responsive. The government’s theory was that Barry Bonds didn’t give a responsive answer to a question in order to throw the government off (because, apparently, having the temerity to force an AUSA to listen to questions in a grand jury and ask a follow-up question is the kind of thing that ought to brand you a felon).

And that was “obstructing” the federal law enforcement apparatus.

There are a lot of things wrong with this prosecution. The one I want to focus on is the lengths the federal government will go to in order to protect AUSAs from having to do the same basic work that the rest of the legal community does routinely.

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There’s a new sheriff in town, and it’s corporate America.

Companies face pressure to make sure their market competitors aren’t getting a jump on them. And, in an effort to do that, some large companies have noticed that if they can get the United States Department of Justice to help, they have a big advantage.

Take, for example, this new blog about black market cigarettes. I heard a radio interview with the guy who writes it — Richard Marianos. He seems very passionate about the problems of black market cigarettes being trafficked on Interstate 95. His blog argues that I-95 is the new tobacco road.

(The old tobacco road, apparently, was Interstate 40 in North Carolina, which didn’t traffic in tobacco but, rather, collegiate sports, but, still, it’s a catchy name for a blog. Both tobacco roads seem to be separate from David Lee Roth’s understanding of the term.)

Marianos explained on the radio that black market cigarettes are a huge problem.

Often, he says, folks who traffic in cigarettes aren’t treated as seriously by judges as people who traffic, say, heroin, even though, when you think about it, they’re both drugs. (Though, of course, at the same time, an outhouse and the Louvre are both buildings, so I’m not sure how far that kind of reasoning goes.) Marianos is outraged that some cigarette traffickers only get probation.

He strongly suggested that black market cigarette sales are being used to fund terrorists.

Normally, when I hear the word “terrorist” I stop thinking and just hope the government throws money at combating whatever is being talked about. So, at first, I though black market cigarettes might be a very serious problem that the government needed to fund a response to.

Until I realized that a Marianos’s blog is another example of a disturbing development that I’ve been seeing in criminal intellectual property cases lately….

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* In light of today’s vote on Scottish independence, here’s an article on the opportunities for the legal industry if Scotland breaks free. [Business For Scotland]

* What are the biggest pet peeves of corporate counsel. Surprise, surprise, billing “surprises” makes the list. [ALM]

* Attorney General Holder is offering bigger payouts to Wall Street whistleblowers. Start saving your emails now you low-level finance folks! [Legal Times]

* Later today, Baker Hostetler’s John Moscow will try to convince Judge Griesa that he shouldn’t be disqualified for breaching the confidentiality of a prior client. [Law Blog / Wall Street Journal]

* As if Bingham didn’t have enough trouble, Akin Gump swept in and poached a gaggle of lawyers in Europe (as some previously predicted). [Law360]

* Skadden is really good at inversions. Elie would like to thank them for their work undermining American society. [The Am Law Daily]

* Yale Law is teaching students basic financial literacy. While some are hailing this program, my question is: how are kids getting to 20-something without learning this stuff already? [Yale Daily News]

When it comes to the debate over the wisdom of going to law school, I fall somewhere in between. I’m not as optimistic as Jordan Weissmann of Slate, but I’m not as pessimistic as Elie Mystal and Joe Patrice, two of my colleagues here at Above the Law.

Back in June, when I reviewed employment data for the law school class of 2013, I sounded some cautiously optimistic notes. I wondered whether a stable job market and shrinking law school classes could produce better employment outcomes for many law grads.

Could the jobs picture be even brighter than “stable”? Check out what looks like a big expansion of the U.S. Department of Justice’s prestigious Attorney General’s Honors Program, along with other opportunities to work as a lawyer for the federal government….

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The white-collar bar is a varied and wonderful thing.

On one hand, there are the large-firm players — the FCPA mongers and the folks doing criminal antitrust work who fly all over the globe representing clients in lucrative conference room litigation that will rarely see a courtroom.

These cases are well-funded. Even if the client has a higher chance of French kissing the Chief Justice during the State of the Union address than of being indicted, as long as he’s indemnified by a large company, many firms will do everything they possibly can to be completely and fully ready for an indictment that will never come. I haven’t yet heard of a mock jury for a client in an investigation that isn’t going to be indicted, but I think that’s only because no one has thought it up yet. (And, to my friends currently representing such indemnified clients, you’re very welcome for the suggestion.)

For these folks, attorney-client privilege exists and is relatively easy to preserve. It’s good to be pre-indictment and it’s good to be indemnified.

But, for the rest of the folks accused of white-collar crimes, our Department of Justice is only too happy to make folks choose between a preserved attorney-client privilege and the Sixth Amendment.

How?

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Philip Seymour Hoffman

* From Big Government to Biglaw: Our congratulations go out to Benjamin Horwich, most recently of the Office of the Solicitor General at the U.S. Department of Justice, as he joins Munger Tolles & Olson as counsel. Nice work. [Munger Tolles & Olson]

* The number of law school applicants took a nose dive for the fourth year in a row, this time by 8 percent, summarily crushing the hopes and dreams of law deans praying for a change of their otherwise most dismal fortunes. [National Law Journal]

* Considering the latest slump in applicants, whether a law school evaluates your average LSAT score or highest LSAT score matters little. Admissions officers will jump for joy that you have a pulse. [Law Admissions Lowdown / U.S. News]

* “You don’t have to convict on every count to have a win.” Azamat Tazhayakov, friend of accused Boston Marathon bomber Dzhokhar Tsarnaev, was convicted of obstruction and conspiracy to obstruct justice. [Bloomberg]

* Per documents filed by a lawyer appointed to represent Philip Seymour Hoffman’s children, the actor didn’t set aside money for them because he didn’t want them to become “trust fund kids.” [New York Post]

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