The BLT: The Blog of Legal Times

Evidence Raises New Questions in Chandra Levy Case

Updated at 4:39 p.m.

Federal prosecutors are again under fire for their handling of evidence in a high-profile case, with defense lawyers saying they never received critical evidence about a prosecution witness in the Chandra Levy murder case.

After months of sealed proceedings, District of Columbia Superior Court Judge Gerald Fisher today revealed the subject of recent post-conviction hearings for the first time in open court: the existence of information about a prosecution witness' history of cooperating with law enforcement. The information was not disclosed to defense lawyers before trial.

Lawyers for Ingmar Guandique, the man convicted of killing Levy, a former congressional intern, have said the new information is proof Guandique's conviction was "predicated on a lie." The attorneys spent much of today's hearing pushing for disclosure of more evidence about the witness, Armando Morales, particularly the extent of his previous attempts to serve as a government informant.

Senators Question IRS Over Targeting Conservative Groups

"Unacceptable." "Intolerable." "Almost unbelievable."

Both Democrat and Republican members of the U.S. Senate Finance Committee in a hearing today piled on the Internal Revenue Service for subjecting conservative groups seeking tax-exempt status to heightened scrutiny.

But some committee members also suggested that the root of the problem lies in the wording of a 54-year old Treasury Department regulation that allows ostensibly charitable groups to engage in political activity while keeping their donors anonymous.

"This is a clarion call to Congress," said Senator John Cornyn (R-Tex.). “We’ve asked the IRS to do much more than its core function….It’s not surprising all these problems have arisen.”

Daily D.C. Lateral Roundup

Wiley Rein has expanded its environment and safety practice in Washington with the addition of partner Steven Richardson.

Before joining Wiley Rein, Richardson was a partner at Van Ness Feldman. His practice focuses on regulation, public policy and litigation in matters related to water, wetlands, hydroelectric, energy and environmental law.

From 1993 to 2000, Richardson also served as an advisor to U.S. Department of the Interior Secretary Bruce Babbitt.

Sullivan & Worcester has added a lateral partner to its environment, energy and natural resources practice.

Elias Hinckley, previously a partner and clean energy practice chair at Kilpatrick Townsend & Stockton, focuses his energy practice on tax, specifically policy and financing. Hinckley brings experience in a number of energy sectors, including wind, geothermal, hydroelectric and coal, among others.

Conservative Group Sues IRS Over Tax-Exempt Status

The emerging controversy over how the Internal Revenue Service applied greater scrutiny to conservative groups is headed to federal court in Washington.

A Texas-based conservative group called True the Vote, Inc. filed suit Tuesday against the IRS in U.S. District Court for the District of Columbia. The complaint for declaratory action against the agency echoes revelations last week that the IRS used political criteria to target conservative groups for extra scrutiny on applications from tax-exempt organizations.

True the Vote says the IRS targeted its application—which has been pending for three years—because of the its political affiliation with Tea Party organizations. The group wants a judge to declare the IRS policy of targeting groups unconstitutional and enjoin the agency from the behavior in the future.

D.C. Circuit: Bin Laden Death Images Can Remain Secret

Updated 1:30 p.m.

More than 50 images of Osama bin Laden taken after his death in Pakistan in 2011 can remain secret, exempt from public disclosure under public records laws, a federal appeals court in Washington said today.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said 52 post-mortem images were properly classified as Top Secret. The panel upheld a trial judge's ruling that blocked the release of images. The appellate court ruling is here.

The U.S. Justice Department argued in the trial and appellate courts that the disclosure of graphic images of bin Laden—including a gunshot wound to his head—could expose the United States to retaliation. The plaintiff, Judicial Watch, rejected the notion that less gruesome images—for instance, bin Laden's burial at sea—would incite violence.

"As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al Qaeda could cause exceptionally grave harm," the D.C. Circuit panel said in its per curiam decision.

The Morning Wrap

Updated 11:33 a.m.

BP Charges Tossed: Washington white collar defense attorney Reid Weingarten calls it a huge victory: U.S. District Judge Kurt Engelhardt has thrown out the key obstruction of Congress charge against a former BP executive, The Associated Press reports.

Mad Judge: U.S. District Judge Richard Kopf wrote on his blog that he is "seriously contemplating" whether to drop a number of criminal immigration cases because of sequestration cuts, The Omaha World-Herald reports. "If a banana republic is what members of Congress want," Kopf writes on herculesandtheumpire.com, "I may help them get it." The post is here.

Holder's Future: The Christian Science Monitor ponders whether President Barack Obama will fire Attorney General Eric Holder Jr., before deciding he won't and giving three reasons why not.

Scalia Fumes Over Name of Telecom Trade Group

Add "orphan acronyms" to the list of Supreme Court Justice Antonin Scalia's pet peeves. Those are acronyms that used to stand for something -- like BP, formerly known as British Petroleum, or KFC, once Kentucky Fried Chicken -- but now stand without explanation as official names.

The acronym Scalia went after in a footnote on Monday was CTIA - The Wireless Association. That is the official name of the trade group that once used the acronym to stand for Cellular Telecommunications Industry Association, then the Cellular Telecommunications & Internet Association. But in 2004, as explained on the association's blog in 2009, the group went with CTIA - The Wireless Association, which it said "better represents our diverse membership of service providers, manufacturers, wireless data and Internet companies, as well as other contributors to the wireless universe."

But Scalia would have none of that in his majority opinion in City of Arlington, Texas v. FCC. He mentioned the group as an early participant in the dispute before the court, then dropped this footnote:

In Leak Case, DOJ Considered Reporter 'Co-Conspirator'

Updated 7:34 p.m.

With the U.S. Department of Justice under fire for secretly obtaining Associated Press phone records, a newly unsealed court document in Washington revealed that federal prosecutors seized far more than phone records in one pending leak case.

The Justice Department's investigation into leaks about classified information about North Korea in 2009 also looked at a Fox News reporter's security badge access records at the State Department building and his personal emails, according to a search warrant affidavit.

An investigation into government adviser Stephen Jin-Woo Kim also targets the news reporter for a criminal statute related to “gathering, transmitting or losing defense information,” which is punishable by up to 10 years in prison. The Washington Post, which first reported on the affidavit that was unsealed in 2011, identified the reporter as James Rosen of Fox News.

Q&A: McKenna Long & Aldridge's Joanne Zimolzak

Joanne Zimolzak took over as the managing partner of McKenna Long & Aldridge's Washington office in November. She not only oversees about 114 attorneys (according to our most recent Legal Times 150 survey) but also serves as head of the firm's insurance practice.

Zimolzak, who joined McKenna in 1994, focuses her business litigation practice on representing multi-national insurance carriers. She also has experience on matters related to regulatory compliance, internal investigations and fraud reporting.

Legal Times sat down with Zimolzak in the firm's K Street N.W. office to discuss what's keeping McKenna attorneys busy these days, growth in northern Virginia and women and diversity in the legal industry.

Former U.S. Attorney To Face Ethics Review

The U.S. Department of Justice's legal ethics division will look at whether a former U.S. attorney violated department rules when he disclosed information to a news reporter, an inspector general report released Monday states.

Dennis Burke, who was the U.S. Attorney for the District of Arizona during the leak in June 2011, admitted to releasing a memorandum related to the Operation Fast and Furious gun-trafficking program to a Fox News producer, the inspector general report found.

At that time, the Fast and Furious program was the focus of oversight hearings on Capitol Hill and inspector general investigations, and led to intense criticism for the Obama administration and Burke’s office.

After Controversy, Ex-Congressman Registers to Lobby

Former Representative Ron Klein (D-Fla.) has registered with Congress as a federal lobbyist at Holland & Knight for the first time since he left congressional lobbying rolls in February 2012 amid controversy.

Klein, a Holland & Knight partner who maintains offices in Florida and in Washington, in January 2012 registered as a lobbyist for Spirit Airlines Inc. while he was a bundler for President Barack Obama's re-election campaign. Obama had pledged not to accept donations from federally registered lobbyists.

Following news reports about Klein's registration, Holland & Knight filed paperwork with Congress saying he wasn't a lobbyist for the Florida-based airline. Klein helped raise between $200,000 and $500,000 for Obama's re-election, the president's campaign website shows.

Klein told NBC News in February 2012 that his registration for Spirit was a colleague's "clerical error." In the interview then, Klein said: "I'm not a lobbyist."

This Week in The National Law Journal

Holder Takes Fire: Attorney General Eric Holder Jr., had been mostly out of the spotlight since President Barack Obama's re-election. Todd Ruger takes a look at how that all changed last week as the Justice Department came under fire for secretly obtaining phone records from the Associated Press.

Law for Laymen: Karen Sloan reports on the growing number of law schools offering master's degrees. While the movement is in its early stages, it could represent a promising counterpoint to waning interest in the traditional three-year J.D. degree.

Judgments Pile Up: A review of records in Washington federal court since 2008 show the Iranian government owes nearly $18 billion in judgments for supporting terrorist activity. But Zoe Tillman reports Iran has yet to pay a dime, and victims' lawyers are expressing frustration at their lack of options.

Federal Judiciary Seeks Funding: Federal courts officials have appealed to Congress for emergency funding, saying the judiciary lacks the budget flexibility to absorb the large mandatory spending cuts that have forced furloughs in the nation's federal public defender and court offices. Todd Ruger has the story.

The Morning Wrap

IRS: Receiving little direction, the Internal Revenue Service's Cincinnati outpost faced difficulties handling groups seeking tax exemptions, The New York Times reports. "The IRS is pretty dysfunctional to begin with, and this case brought all those dysfunctions to their worst," said Paul Streckfus, a former IRS employee who runs a newsletter devoted to tax-exempt organizations.

Obama Plans: President Barack Obama on Thursday will discuss how he plans to bring the drone program and the Guantanamo Bay, Cuba, military prison in line with the legal framework he said he would follow after taking office, The Washington Post reports.

Roberts Trip: U.S. Supreme Court Chief Justice John Roberts Jr. was in Jamestown, N.Y., on Friday for the 10th anniversary of a center dedicated to the late Justice Robert Jackson, The Associated Press reports. Jackson's grandchildren gave Roberts a life-size bronze bust of Jackson. "It will occupy a place of great prominence at the court," Roberts said, "just as his portrait does."

Lawyers Saddle Up for Bike to Work Day

Cyclists fill Freedom Plaza in downtown Washington.

More than 14,000 bicyclists—including a few lawyers—saddled up for Washington's annual bike to work day.

The event is meant to encourage cyclists of all skill levels to commute by bike and raise awareness about biking. There are more than 70 pit stops, scattered across D.C., Maryland and Virginia, for the riders.

T. Scott Thompson, a communications partner at Davis Wright Tremaine, has been commuting to work via bicycle from Arlington, Va. for the past 12 years. Thompson, who was a competitive cyclist in college, said a couple of co-workers spurred him to start commuting by bike in 2001. After about a month, he was hooked.

Mali Hires Davidoff Hutcher Lobbyists

As Mali fights to keep its northern territory and legendary city of Timbuktu out of rebels' hands, the West African nation has hired Davidoff Hutcher & Citron to lobby for it in Washington.

The firm is planning to meet with members of Congress and their aides, as well as senior Obama administration officials, to further Mali's "economic and defense interests," according to foreign lobbying registration paperwork filed this week with the U.S. Justice Department. Davidoff associate Russ Klenet,  as well as government relations professional Stephen Slade, director Jonathan McCollum and analyst Scott Klenet, are handling the account.

Russ Klenet said Mali has a "tremendous desire" to reach out to U.S. officials as the country moves toward a stable democracy. Next week, the Davidoff lobbyists will assist Younoussi Touré, speaker of Mali's parliament, with meetings in Washington, he said.

Labor Secretary Nomination Moves to Full Senate

Assistant Attorney General Tom Perez's bid to be the next Labor secretary might have passed the first hurdle in the Senate, but Republicans are still strongly opposed to the nomination.

The U.S. Senate Committee on Health, Education, Labor and Pensions voted Thursday to move Perez's nomination to the full Senate for consideration. The committee vote was delayed twice by Republicans, who said they wanted more information about Perez. Critics have hinted at the possibility of using a filibuster to block a confirmation vote before the full Senate.

The 12-10 vote yesterday was along party lines, with several Republicans noting their objections. Senator Lamar Alexander (R-Tenn.), the committee's ranking member, said he was troubled by a review of Perez's actions as chief of the Justice Department's Civil Rights Division since 2009. An recent DOJ inspector general's report found politics in the division was affecting the division from working efficiently.

D.C. Court: Judges Can Investigate Juror Racial Bias

Judges confronted with allegations of racial or ethnic bias among jurors are allowed to investigate the claims, the District of Columbia Court of Appeals ruled yesterday. The opinion created a new exception to case law historically barring judges from questioning jurors about their process.

Whether judges can probe racial or ethnic bias among jurors after a verdict is an issue that's divided federal courts, according to the opinion, which was written by Judge Anna Blackburne-Rigsby. The three-judge panel found a juror's allegation of racist statements made by another juror wasn't evidence of "extraneous influence" on a verdict – a standard for examining juror behavior – but was still serious enough to raise constitutional concerns.

"The insidiousness of racial or ethnic bias is therefore distinguishable from other forms of juror misconduct or incompetence," Blackburne-Rigsby wrote. "[W]e are unwilling to rigidly bind the discretion of trial judges to prevent further inquiry where it may be necessary to ensure that a defendant's constitutional rights to a fair and impartial trial and jury are not jeopardized by racial or ethnic bias."

The Morning Wrap

Immigration Reform: Prospects for passage of a major immigration bill have improved after a bipartisan group of lawmakers in the House of Representatives on Thursday declared they had reached a tentative deal, Reuters reports.

Smear Campaign?: Months after the FBI began probing allegations against Senator Robert Menendez (D-NJ), investigators are looking at whether someone set out to smear him, the Washington Post reports. Three Dominican women said in court documents in March that they had been paid to make up stories about Menendez paying them for sex.

Med-Mal Truce: In Georgia, physicians and plaintiffs’ lawyers have declared a narrow truce. The state has enacted the nation’s first “provider shield” statute, which aims to protect doctors from malpractice suits based on payment-policy standards established by the Affordable Care Act, Bloomberg Businessweek reports.

Unsealed Opinion Offers Few Clues on Mayoral Probe

Updated at 4:31 p.m.

The U.S. Court of Appeals for the D.C. Circuit today unsealed a ruling in a dispute that features a prominent Washington businessman who’s caught up in an investigation of corruption in the 2010 mayoral campaign.

Jeffrey Thompson, who has not been charged with a crime, is one of several individuals under scrutiny for possible campaign finance violations during Mayor Vincent Gray's 2010 mayoral run; Gray (D) has not been charged with a crime. Thompson is being investigated in connection with an unlawful $650,000 "shadow campaign" that supported Gray.

Thompson appealed a trial judge's order rejecting his challenge to the government's plan to review evidence seized last year from his home and office. The redacted opinion didn't offer new information about the case or the status of the grand jury investigation. But the decision did include a few hints as to Thompson's legal defense strategies, at least in the minds of the judges. (The opinion doesn’t mention Thompson by name, but he was identified as the subject of the proceedings in trial court documents.)

At D.C. Circuit, Contractor Case Merits Take Backseat

Lawyers for the Federal Election Commission and government contractors on Thursday argued in the U.S. Court of Appeals for the D.C. Circuit over a law that forbids the contract holders from making federal campaign donations. The merits of the case, however, took a backseat.

The panel—Senior Judge Douglas Ginsburg and judges Thomas Griffith and Karen Henderson—focused most of their time on the court's jurisdiction to even hear the dispute.

The judges questioned, for example, whether the full appeals court has exclusive original jurisdiction to hear a constitutional challenge to the Federal Election Campaign Act. The government contractors brought their case against the donations prohibition to the U.S. District Court for the District Columbia, where a trial judge upheld the ban in November. The contract holders appealed.

Prosecutor, Two Judges Recommended for Superior Court

A federal prosecutor, magistrate judge and administrative law judge are being considered by the White House for a vacancy on the District of Columbia Superior Court.

The District of Columbia Judicial Nomination Commission, a local body that vets applicants for vacancies on the city's local courts, announced late yesterday it had recommended Assistant U.S. Attorney Ann Marie Carroll, Superior Court Magistrate Judge William Nooter and Administrative Law Judge Steven Wellner to take Superior Court Judge A. Franklin Burgess Jr.'s seat. Burgess is retiring in August and seeking senior status.

President Barack Obama will have 60 days to select a nominee. He can choose from the latest group of recommended lawyers, or any lawyer already sent up by the commission for consideration to fill other pending vacancies.

Senate Judiciary Approves Sri Srinivasan for D.C. Circuit

Updated 3:51 p.m.

The Senate Judiciary Committee gave unanimous approval to Sri Srinivasan to serve on the U.S. Court of Appeals for the D.C. Circuit, clearing the way for him to be the first new judge on the panel since 2006.

Srinivasan’s nomination now heads to the Senate for a full vote. Srinivasan, if he’s confirmed, would fill one of four vacancies on the D.C. Circuit. Despite the 18-0 vote of the committee, Republicans have signaled they’re not interested in adding any more judges to the appeals court.

Senator Chuck Grassley (R-Iowa) introduced legislation in April that would eliminate three spots on the D.C. Circuit. Other Republicans, including Senator Mike Lee (R-Utah), have signed onto the legislation. The D.C. Circuit would lose three judge positions under the plan.

Cool Music Soothes Supreme Court

If there is any tension among Supreme Court justices as they tackle the tough pending cases of their current term, it was nowhere to be seen Wednesday afternoon at the court's spring musicale.

As they have off and on since 1988, justices took time off for an afternoon to bask in top-notch musical performances by internationally known artists in the court's East Conference Room. Usually, the talent is drawn from the classical and operatic world. But the justices have also heard memorable jazz and cabaret-style performances by the likes of Bobby Short and Marian McPartland.

Wednesday's performance may have topped them all, with renowned cabaret and concert singer Barbara Cook making an appearance, backed up by famed jazz sidemen including guitarist John Pizzarelli. Pizzarelli's wife Jessica Molaskey was the warm-up singer before Cook performed. In introducing the ensemble, Justice Ruth Bader Ginsburg called Pizzarelli "incomparably cool." Ginsburg, perhaps the court's greatest music fan ever, has presided over the musicales since 2002, taking over from Sandra Day O'Connor who had picked up after the departure of the tradition's founder, Justice Harry Blackmun.

The Morning Wrap

Hearing: Attorney General Eric Holder testified on Capitol Hill Wednesday, and Congress had its choice of scandal to choose from. Our own Todd Ruger reports on the four-hour hearing.

Resignation: The acting commissioner of the IRS resigned Wednesday amid the investigation into whether employees unfairly targeted conservative groups. The Washington Post reports.

Twister: A tornado struck parts of north Texas Wednesday, resulting in multiple deaths. The Dallas Morning News reports.

Benghazi: The White House released emails Wednesdays related to the administration's reaction to the attack in Benghazi that killed four Americans. Reuters reports that the administration hopes to resolve the controversy. 

D.C. Superior Court Nominees Testify in the Senate

Two lawyers who spent most of their careers on opposite sides of a courtroom testified today before a U.S. Senate committee in the hopes of serving together on the District of Columbia Superior Court bench.

Washington solo practitioner Michael O'Keefe, whose practice is mostly in criminal defense and family law, and Robert Okun, chief of the special proceedings division at the U.S. attorney's office in D.C., were nominated by the White House in March. At today's hearing, they pitched their extensive history practicing in Superior Court and experience working with a variety of litigants, including those without a lawyer.

Neither nominee faced criticism. Sen. Mark Begich (D-Alaska), who chairs the subcommittee overseeing District of Columbia affairs, said they were "well-qualified" to serve. The nominees did face questions from Sen. Rand Paul (R-Ky.), the subcommittee's ranking member, about their views on the city's gun laws, which have been the subject of legal challenges; both said they would abide by rulings from the U.S. Supreme Court and District of Columbia Court of Appeals.