The BLT: The Blog of Legal Times

AG Back on the Job

Less than 24 hours after he collapsed on stage while giving a speech, Attorney General Michael Mukasey is back to work. Justice Department spokeswoman Gina Talamona said in a statement that the attorney general left the hospital today at 12:15 and went directly to the department. He had lunch with his wife, sat through his daily national security and department briefings, and returned phone calls from well-wishers, including president-elect Barack Obama.

He also sent this note to Federalist Society members:

Dear Friends,

Well, as I was saying...

Let me please begin by underscoring what an honor it was to speak to you last night.  I am, as you might imagine, quite embarrassed to have collapsed last night.  I hope that embarrassment is not the product of undue human pride, or at least not principally so.  I am embarrassed in part because I fear I ruined your evening and caused you concern -  for that I am truly sorry.  Equally important, I hope the shortened conclusion of the speech did not detract from the message I hoped to convey: Specifically that the issues of law and policy relating to our continuing national security are real, and are worthy of the most careful thought and deliberation so as to keep the American people safe. The Federalist Society has spent the last 25-plus years promoting thoughtful and fair debate concerning the critical legal and public policy issues facing our nation.  It was an honor to address you last night, and I urge you to continue the fine efforts of the Federalist Society in the future.

Finally, I was truly humbled to hear all of the prayers and well wishes sent on my behalf from attendees at the dinner.  Thank you all.  I am, fortunately, well, and I too pray for all of our good health and for the future of the Nation we all love.

Very Truly Yours,

Michael Mukasey

Ankle Bracelet, Curfew, and Drug Tests for Price, Zaborsky

Arent Fox partner Joseph Price and his domestic partner Victor Zaborsky will wear ankle bracelets and must submit to weekly drug tests as part of their pre-trial release, a Superior Court judge ordered today.

Zaborsky and Price, accompanied by their lawyers, appeared in court this afternoon for arraignment on charges of obstructing the 2006 murder investigation of Robert Wone, who was killed in the Price home in Dupont Circle.

Price’s lawyer, Cozen O’Connor partner Bernard Grimm, and Zaborsky’s attorney, Thomas Connolly, a partner with Harris, Wiltshire & Grannis, entered not guilty pleas on behalf of their clients. The pre-trial release also includes curfew between 10 p.m. and 6 a.m. Zaborsky and Price, who live together in the 1600 block of 16th Street N.W., are allowed to leave the District.

Price is on administrative leave from Arent Fox, where he concentrates in intellectual property law, including trademark and copyright work. He has lived in the District for 10 years. Zaborsky and Price have two biological children with a lesbian couple.

Zaborsky was wearing a dark-colored suit when he appeared in front of Superior Court Judge Frederick Weisberg for arraignment. Zaborsky was expected to be released from the courthouse this afternoon. Price will be released from the District jail. Price and Zaborsky are forbidden to have any contact with Wone's widow, who was in court today.

Grimm and lawyer David Schertler of Schertler & Onorato, who represents a third man charged, said they would revisit the pre-trial release restrictions. Schertler, representing Dylan Ward, who was arrested in Florida last month, argued the restrictions are inappropriate.

“These men have known about this for two years,” Schertler said in court. “Nobody has attempted to flee. I don’t think the conditions of heightened-supervision are appropriate.” Ward is expected back in the District next week.

Magistrate Judge Diana Harris Epps on Thursday set $100,000 bail for Price, but Price—whom a government prosecutor has called a “man of means”—was apparently unable to raise the cash. Grimm was unable to find a bondsman licensed to write bonds in the District.

Neither Price nor Zaborsky will have to post any money for their release. Before leaving court, Zaborsky winked with his right eye toward a crew of friends who’d gathered in court for support.

What Do the Guantánamo Bay Cases Say About the Future of Civil Litigation?

Assistant U.S. Attorney General Gregory Katsas said Friday that the Supreme Court under Chief Justice John Roberts Jr. could be more welcoming to civil litigation than it has been recently. One leading indication of that, Katsas said, is the Court’s decision to allow habeas corpus petitions from foreign nationals captured abroad and held in Guantánamo Bay.

“I find it hard to believe that a court that would inflict that precedent on us could fairly be described as opposing civil litigation,” said Katsas, who oversees the Justice Department’s civil division. He also said that the habeas corpus cases have “tied this government and this war effectively up in knots.”

His comments came at the Federalist Society’s convention, during a panel called “Civil Litigation in the Roberts Court.” Panelists generally suggested that the Supreme Court under the late Chief Justice William Rehnquist sought to close off avenues of litigation but that it was too early to tell whether the Roberts Court would do the same.

Carter Phillips, managing partner of the D.C. office of Sidley Austin and a veteran Supreme Court litigator, said the Court might be more inclined to hear cases involving business litigation because Roberts had experience in that area as a lawyer. He said there remains uncertainty related to punitive damages and pre-emption.

“There are certainly ideological cross-currents,” Phillips said. “I wish I could say it’s all good news for the business community.”

Lawyer: Zaborsky Not Cooperating

Bernard Grimm, the lawyer for Joseph Price——the Arent Fox lawyer charged with obstruction of justice——told Magistrate Judge Diana Epps yesterday that the government has claimed that Price's partner, Victor Zaborsky, was cooperating with investigators.

The issue came up during lengthy discussion at the bench where the prosecutor, defense lawyer, and judge debated money bonds and whether Price was a flight risk. Those in attendance were not allowed to hear the discussion.

On Friday, Superior Court officials released a transcript of the conference. Download the Price hearing transcript here.

In arguing for his client's release, Grimm offered: "The case occurred two years ago. He hasn't been charged. He hasn't left the jurisdiction. He's worked at Arent Fox for ten years. He's been in this jurisdiction for thirteen years. He has a partner. That partner is in the courtroom. The third co-conspirator. The government said he might be cooperating. I spoke to his lawyer during the break. He's not cooperating."

Government: Arent Fox Partner Planned to Leave Town

As Legal Times reported yesterday, Arent Fox partner Joseph Price made his first appearance in D.C. Superior Court Thursday after being indicted on one count of obstruction of justice involving the murder of lawyer Robert Wone.

Much of yesterday's arraignment occurred at the bench of Magistrate Judge Diana Epps who turned on the courtroom's husher so that the audience, including Price supporters, Wone family members, and the media could not hear the discussion.

Superior Court officials have now released a transcript of what was said. According to the transcript, some of the bench discussion involved the government's claims that Price and his partner, Victor Zaborsky, had planned to move to Florida. Prosecutor Glenn Kirschner told Epps that Price sold the Dupont Circle home where Wone was murdered and that Zaborsky had obtained a Florida drivers license.

The discussion also involved the government's request that Price's bail be set at $100,000. Epps said she would "have no problem setting even a higher bail", but says that money bonds are not available in the District. "Who's going to take the money, Epps says. "We don't do bail." Kirschner tells the judge that while there may be no bail bondsmen in the District, court rules to allow for money "to actually be provided to the court."  Grimm notes that "it can be done, but it hasn't been done in about eight years." Epps then says she wants to make a phone call.

More to come.

Arent Fox Partner Wants Pretrial Release Without Money Strings

And the arraignment watch for Arent Fox Partner Joseph Price continues. Price is scheduled to appear today at 2:30 p.m. before Superior Court Judge Frederick Weisberg, the judge who will preside over the case. Hearings scheduled for 10 a.m. and 1 p.m. were postponed.

Price, charged with obstructing the 2006 murder investigation of Robert Wone, first appeared Thursday afternoon before Magistrate Judge Diana Harris Epps. A government prosecutor asked for a $100,000 bond.

But the justification was not announced in open court. Epps met at the bench with assistant U.S. attorney Glenn Kirschner and Price's lawyer, Bernard Grimm, a Cozen O'Connor partner. Price did not say a word at the hearing.

Judges in the District rarely grant bail bonds, and Grimm was unable to find a bondsman in the District, Maryland, and Virginia who is licensed to write bonds in the District. The setting of a bond, Grimm said, was tantamount to pre-trial detention.

Grimm will argue today that Price should be released on his own recognizance based on his ties to the community and his longtime employment at Arent Fox, where Price is an intellectual property specialist in the litigation department.

Price, who appeared in court briefly around 1:15 p.m. today, was wearing an orange jail jumpsuit -- a different look than the dark suit he was sporting Thursday in court. He was smiling in court. The throng of supporters that gathered in court Thursday was noticeably thinner today. Wone's relatives are also back in court today.

Price's domestic partner, Victor Zaborsky, is also in custody and expected to be arraigned this afternoon. A third person, Dylan Ward, was arrested in Florida and expected in the District next week.

Mukasey to be Fine, Then Panel Gets Back to Debating Life Terms on Supreme Court

Though this morning’s Federalist Society panel opened on a somber note, the discussion on the topic at hand quickly got heated.

Federalist Society president Eugene Meyer greeted the crowd with a few words about Attorney General Michael Mukasey, who collapsed last night while giving a speech to the conservative legal affairs group.

“He had a good night in the hospital, and he is expected to be released today,” Meyer says. Meyer’s announcement was met with brief applause.

Then it was business as usual.

The assembled panel was set to debate whether Supreme Court justices should have lifetime appointments.

And debate they did.

James Lindgren, a professor at Northwestern University School of Law, who co-authored “Term Limits for the Supreme Court: Life Tenure Reconsidered,” made a statistics-heavy argument that because justices are serving increasingly lengthy terms, non-renewable 18-year terms ought to be implemented. Under this proposal, every one-term president would get to appoint two justices, and every two-term president would get to appoint four. Lindgren contends this would help to avoid justices timing their retirements to affect the political balance of the court and older judges succumbing to mental decrepitude and the loss of physical stamina.

“Lindgren’s point is the kind of historical tone deafness that often comes up in these debates. He uses wooden data that are lacking in historical perspective,” responds Stephen Burbank, a professor at the University of Pennsylvania Law School. “The consequence of frequent appointments to the court is that it would quickly result in a crisis of legitimacy. The problem isn’t that the justices are serving too long; it’s that they’re not working very hard. They’re usually over in Europe lecturing. They’ve become poobahs.”

Burbank brought in his own data to refute Lindgren’s, which prompted moderator Judge J. Harvie Wilkinson III, of the U.S. Court of Appeals for the 4th Circuit, to interject that the debate was not going to devolve into a tit-for-tat over whose statisticians were better.

Joining Burbank’s position, that the status quo of lifetime appointments is working, was David Stras, a professor at the University of Minnesota School of Law. He argued that the “framers had a pretty good idea of what they were getting into.” He did propose making retirement more attractive so justices would more readily step down.

Lindgren’s argument for some kind of limitation on the tenure of justices found some qualified support from Charles Cooper, a name partner at D.C.’s Cooper & Kirk. Cooper says that lifetime appointments create “judicial tyrants” who should be able to be thrown out at the discretion of the people. Cooper didn’t quite support the notion of non-renewable 18-year terms, preferring a quasi-Jeffersonian proposal in which each justice would have to face an election of retention every five or six years.

“The people of this country understand the basic rule of law deep down in their gut,” Cooper says. “They should have the power to throw out tyrant judges.”

More Ex-Thelen Lawyers Land at Nixon Peabody

Eleven more Thelen lawyers have found a new home in time for the holidays.

Nixon Peabody has brought on a team of energy lawyers from the now-dissolved Thelen across its offices. The group focuses on energy project development and finance, and complex environmental litigation.

Three of the lawyers, partners Deborah DeMasi and Lee Goodwin, and counsel Kenneth Weiner, join Nixon Peabody’s Washington office. Six lawyers are in Nixon Peabody’s New York office, and two are in Silicon Valley.

Before Thelen’s dissolution, the firm had been engaged in merger talks with Nixon Peabody.

Mukasey Says He's Ready for Work Again

Attorney General Michael Mukasey plans to return to work this afternoon.

The Justice Department has released this note that it says Mukasey has sent to all department employees:

Dear Colleagues,

As you may have heard, I collapsed briefly last night at the conclusion of a speech. All tests at the hospital have come back with good results, and I feel fine. Accordingly, I plan to report to the Department this afternoon and to continue doing the work I swore to do last November and which it has been an honor to do with you ever since.

Thank you for your good wishes and your good work. It has been and remains an honor to serve with you.

DOJ: 'No Indication' Mukasey Suffered Stroke or Heart-Related Problem

A Department of Justice spokeswoman said this morning that Attorney General Michael Mukasey appears to have suffered a fainting spell at Thursday night’s Federalist Society dinner.

“All of the tests have been reassuring. There is no indication that he suffered a stroke or any heart-related incident,” said the spokeswoman, Gina Talamona, according to CNN.

Mukasey, 67, is expected to remain at George Washington University Hospital for further tests.

The former federal judge slumped at his podium while speaking at the dinner. Security guards eased him to the ground and provided first aid, Talamona said. A doctor who was on the scene also provided first aid.

Another Department of Justice spokesman, Peter Carr, released a statement earlier calling Mukasey “conscious, conversant, and alert." The statement continued, "His vital statistics are strong and he is in good spirits. He is receiving excellent care and appreciates all of the good wishes and prayers he has received.”

UPDATE: Authority was never transferred to the deputy attorney general, Talamona said.

More of her comments, according to a Justice transcript: "He works long days, he is very active, it was a late-night speech under hot lights. So all indications are at this point it was basically a fainting spell. They are doing another round of routine tests this morning. He certainly wants to leave and get back to the office as soon as possible. In fact, he is more than ready."

UPDATE II: Here is the video. Viewer discretion advised.