The BLT: The Blog of Legal Times

Obama Taps 22 More Lawyers for White House Counsel's Office

President Barack Obama is quickly filling the ranks of the White House Counsel’s Office, today announcing the appointments of 22 new White House lawyers.

Daniel Meltzer will be principal deputy White House counsel to the president, and deputy assistant to the president. He is presently the Story Professor of Law at Harvard Law School. Before joining the Harvard Law faculty in 1982, Meltzer practiced for three years at Williams & Connolly, where Obama’s White House counsel, Gregory Craig, practiced.

Mary DeRosa was named deputy counsel to the president for national security affairs and legal adviser to the National Security Council. She was most recently chief counsel for national security to the Senate Judiciary Committee. DeRosa is a veteran of the Clinton Administration, having served on the National Security Council during the Clinton years as special assistant to the president and legal adviser and deputy legal adviser.

Neal Wolin will be deputy counsel to the president for economic policy and deputy assistant to the president. He was most recently the president and chief operating officer for property and casualty operations of Hartford Financial Services Group. Wolin served in several roles in the Clinton administration: He was general counsel of the Treasury Department, executive assistant to Clinton’s national security adviser, and deputy legal adviser of the National Security Council. Before entering the government, Wolin practiced at Wilmer, Cutler & Pickering, before the firm became Wilmer Cutler Pickering Hale and Dorr.

Norman Eisen, formerly a partner in Zuckerman Spaeder’s Washington office, was appointed special counsel to the president for ethics and government reform. Eisen was deputy general counsel to the transition, and an active volunteer for Obama’s campaign, serving on the national finance committee and as a member of an education policy group. Last March, he told Legal Times that he “deeply” believed in Obama’s mission, “particularly in the government reform aspect.” Eisen co-founded Citizens for Responsibility and Ethics in Washington.

Obama chose 14 associate counsel. They are after the jump.

Judiciary Committee Sends Holder's Nomination to the Senate

By David Ingram

The Senate Judiciary Committee voted overwhelmingly today in favor of Eric Holder Jr.'s nomination to be attorney general, sending his name to the full Senate for a confirmation vote as soon as Thursday.

The vote was 17-2. Six Republicans gave their support to Holder.

Chairman Patrick Leahy (D-Vt.) called the vote the beginning of a new era. "There are rights that need to be restored. There are abuses that need to be undone," he said

Holder's nomination has been among the most contentious picks of President Barack Obama because of his involvement in President Bill Clinton's 2001 pardon of fugitive commodities trader Marc Rich and other Clinton-era controversies. Republicans delayed the committee vote one week, saying they needed more time to examine the Covington & Burling partner's record and positions.

Specter, Holder's most vocal skeptic, all but assured confirmation Tuesday when he said he would vote for Holder.

"I believe that these hearings are enormously important in evaluating a nominee and in laying down certain markers," Specter said today. "I think it was important that Eric Holder was willing to admit publicly his mistake in the Marc Rich pardon."

In voting for Holder, other Republicans cited his experience in law enforcement, his positions on national security, and the need to give a president deference in Cabinet choices.

Sen. John Cornyn (R-Texas), who voted against Holder along with Sen. Tom Coburn (R-Okla.), cited Holder's role in the Rich pardon, among other concerns. "The doubt cast on his independence and judgment remains," Cornyn said.

The Judiciary Committee must now turn its attention to other nominees for top Justice Department positions, including deputy attorney general and solicitor general.

"We have to get the attorney general in place so that we can put the rest of his team in place," Leahy said.

Eight Former SGs Endorse Kagan

The eight most recent solicitors general -- including immediate predecessors Gregory Garre and Paul Clement -- have joined in a letter giving strong backing to Harvard Law School Dean Elena Kagan, President Obama's pick for the only position in government whose occupant is required by statute to be "learned in the law."

In the letter, sent to the Judiciary Committee today and obtained by Legal Times, the eight former SGs state, "We are confident that Dean Kagan will bring distinction to the office, continue its highest traditions and be a forceful advocate for the United States before the Supreme Court."

Highlighting Kagan's "breadth of experience and a history of great accomplishment in the law," the letter reviews her record as a Supreme Court law clerk, private practitioner, executive branch official and "legal scholar of the first rank." But most of all, they say, Kagan "has been regarded as one of the most successful law school deans in modern history."

Her tenure at Harvard, and its scholarly and administrative duties, "suggest that she will excel at the important job of melding the views of various agencies and departments into coherent positions that advance the best interests of the national government," according to the letter. "She will be a strong voice for the United States before the Supreme Court. Her brilliant intellect will be respected by the justices, and her directness, candor and frank analysis will make her an especially effective advocate."

The main signers of the letter are former Clinton acting solicitor general Walter Dellinger, and George W. Bush solicitor general Theodore Olson -- highlighting the broad spectrum of views represented. In addition to Garre and Clement, Charles Fried, Kenneth Starr, Drew Days III and Seth Waxman also signed on.

Dellinger, now chair of the appellate practrice at O'Melveny & Myers, was asked this morning whether the joint letter was aimed at blunting concern about Kagan's lack of appellate experience. Dellinger said no, indicating that it was motivated instead by the "considerable enthusiasm" shared by the former SGs as well as other current and former lawyers in the office about Kagan's nomination. "It took less than two hours to gather all the former SGs for the letter, and they were spread over three continents."

No date has been announced for Kagan's confirmation hearing, but it is expected to take place in mid-February. Longtime career deputy Edwin Kneedler is acting solicitor general in the meantime.

Bilski Heads to the Supreme Court

The long-anticipated petition appealing the landmark Bilski decision of the U.S. Court of Appeals for the Federal Circuit is being filed at the Supreme Court today, setting the stage for a showdown over whether so-called "business methods" -- processes and procedures, not widgets -- are patentable.   

"This is the fundamental question of patent law," says J. Michael Jakes, partner at Finnegan, Henderson, Farabow, Garrett & Dunner, who is taking the case to the high court. "It doesn't just affect business methods, but software and the biotech industry as well."

In last October's Bilski decision, an en banc majority of the federal circuit ruled that a process for anticipating and hedging risk in commodities markets did not deserve a patent, because it was not tied to a machine, and did result in a physical transformation. The ruling sent shock waves through the patent law world, with critics saying the decision would slow innovation in the areas of information technology and financial services, where patents are sought -- and had been granted -- for new processes that are less tangible than a physical invention.

But as we reported here when the decision was issued, some analysts said the decision brought the federal circuit more in line with current Supreme Court sentiment against broad interpretation of patent law.  So, will the Supreme Court accept and grant the petition filed today, or let the federal circuit ruling stand?

Morning Wrap

Holder's Big Day: The confirmation vote on Attorney General-designate Eric Holder Jr. is set for today, and his chances improved yesterday with an endorsement by Sen. Arlen Specter (R-Pa.) Check back here for coverage through the day.

Dancing With Ms. Ledbetter: Congress gave final approval Tuesday to the Lilly Ledbetter bill, named for the Alabama tire worker who lost a Supreme Court decision in 2007 on her pay discrimination claim against Goodyear. The bill, which relaxes the statute of limitations for filing such claims, will likely be the first major piece of legislation signed by President Obama. The New York Times story notes that Obama danced with Ledbetter at one of last week's inaugural balls. 

Pfizer's advisers: There's no doubt pharmaceutical giant Pfizer Inc. will cut staff when and if it merges with Wyeth, but what about Wyeth's 300 in-house lawyers, and its passel of outside firms? Sibling publication The Legal Intelligencer takes a look at that question in this story via law.com.

Associate's Dream: Lindsay Harrison, a fifth-year associate at Jenner & Block, made her first appellate argument last week -- at the Supreme Court. In an online interview at the Above the Law blog, Harrison says she was calm and making jokes until the justices took the bench. "That moment is terrifying." She argued pro bono for an immigrant from Cameroon fighting deportation in the case Nken v. Filip (which likely will be renamed Nken v. Holder before too long.)

Cruz Control: If things had gone differently in last November's presidential election, R. Ted Cruz would have been on the short list for attorney general or even the Supreme Court. The former Rehnquist clerk and Texas solicitor general, currently appellate partner at Morgan, Lewis & Bockius, is a rising star. Now, our sibling publication Texas Lawyer is reporting  that Cruz has taken the first steps toward running for Texas AG in 2010. At age 38, Cruz could dive into Texas politics and still end up on a short list for a federal post in a future Republican Administration.

Columbia Law Professor Moving to White House Counsel's Office

Names continue to trickle out of lawyers who will work in the White House Counsel’s Office.

The latest is Columbia Law School Professor Trevor Morrison, who will be an associate counsel to President Barack Obama. He’s set to return to Washington after serving in the Justice Department’s Office of Legal Counsel in 2000-01. He also worked as an associate at what was then Wilmer, Cutler & Pickering.

“Professor Morrison’s powerful intellect and deep reservoirs of judgment will help guide the new administration,” said David Schizer, dean of Columbia Law School, in a news release. A White House spokeswoman declined to comment, saying no appointment had been announced.

In a brief telephone interview with Legal Times, Morrison said he would not have a formal portfolio but that he expects to spend part of his time on national security matters. He said he has been working on the Obama transition and will start Monday.

Obama tapped Williams & Connolly partner Gregory Craig to be White House counsel in November. Cassandra Butts, who had been general counsel to the transition, was named deputy White House counsel in December.

According to his Web site, Morrison teaches and writes about constitutional law and federal courts. “His recent writing has focused in particular on executive branch legal interpretation, as well as habeas corpus and executive detention.”

In a Columbia Law Review article in November 2007, Morrison examined the effects of a suspension of habeas corpus, and whether such a suspension affects the ultimate lawfulness of a detention. Concluding that a detention could still be unlawful, he wrote, “The Constitution can and does apply in times of strife as well as peace, when the courts are open and when they are not.”

Morrison joined Columbia Law School in July 2008, according to the school. He is taking a one-year public service leave.

Specter Says He Will Vote for Holder

By David Ingram

Sen. Arlen Specter (R-Pa.) today pledged to support Attorney General nominee Eric Holder Jr., saying that the Covington & Burling partner’s record and broad support within the law enforcement community alleviated his concerns about Holder’s independence. The ranking Republican on the Senate Judiciary Committee also said he was satisfied that Holder would tread carefully in deciding whether to prosecute Bush administration officials involved in the use of harsh interrogation techniques on suspected al-Qaida members.

Specter's endorsement means Holder now has the support of his most vocal critic throughout the confirmation process. "I think that Mr. Holder is entitled to the benefit of the doubt, in the context of the excellent record that he has and those recommendations weighed against the issues that were of concern to me," Specter said.

Last week, the committee’s Republicans invoked their right to delay Holder’s nomination by a week, saying they needed more time to investigate his record. The committee is scheduled to vote on Holder's nomination Wednesday, and a vote by the full Senate could come by the end of the week.

During Holder's Jan. 15 confirmation hearings, he said he believed waterboarding amounted to torture, raising concerns among Republicans that he would seek to prosecute Bush administration officials who were involved in a CIA interrogation program that sanctioned the tactic and others. The Justice Department's Office of Legal Counsel vouched for the legality of the programs in classified legal opinions, which have since been revoked.

Last Thursday, Holder met with Specter briefly in the senator’s office, and later in his Capitol hideaway. Specter said he and Holder discussed the interrogation issue and the possibility of prosecutions related to the CIA program.

“I got a satisfactory answer. The gist of it is that if you have an authoritative legal opinion, that that is a defense in terms of mens rea or in terms of intent. That's a very broad generalization, and I don't think you can go any further than that until you examine the specific facts of the case and then the conduct is determinative," Specter said.

He went on, "You may have an opinion which allows an interrogator to go so far and perhaps the conduct vastly exceeds that, so that it wouldn't be reasonable to think that was comprehended within the opinion. But I think you had a Department of Justice memorandum in 2002 which was in effect for a time and then later repudiated, so that it's really going to be fact-specific."

In a statement, Senate Judiciary Committee Chairman Patrick Leahy said he was pleased Specter had resolved his concerns.

“Tomorrow the Committee will move forward to report this historic nomination to the Senate, and I hope the Senate will debate and vote on Mr. Holder’s nomination without further delay," Leahy said.

Howrey Partner to Head Axinn, Veltrop's Washington Office

Washington antitrust partner John Briggs, 65, has spent his entire law career at Howrey, which he joined as an associate in 1973. But starting Monday, he will be the new managing partner of Axinn, Veltrop & Harkrider’s three-lawyer D.C. office.

“The process of building something to me is just irresistible,” says Briggs, who was recruited by Axinn, Veltrop to help grow their Washington presence.   

Briggs spent more than 20 of his 35 years with Howrey in management roles. He led the firm’s antitrust practice until 2005, and his firm bio still lists him as managing partner of strategy and planning.  Like Howrey, Axinn, Veltrop also focuses exclusively on litigation, antitrust, and intellectual property work, but there’s no disputing that the two firms differ in other ways. Howrey has more than 600 lawyers spread across ten U.S. offices and seven overseas offices. Axinn, Veltrop, by comparison, has fewer than 60 lawyers firmwide, and has just three offices in D.C., New York, and Hartford, Conn.   

But Briggs says there’s opportunity for smaller firms in tough economic times. “As is always the case in these downturns, there’s an awful lot of excellent legal talent that is available,” he says. “The large firms have a lot of very good lawyers they just can’t keep busy. They may have lawyers that are insecure.” Briggs did not supply a specific headcount goal, but says he hopes Axinn, Veltrop will outgrow its current D.C. offices on 1330 Connecticut Ave. N.W. by the end of 2010.   

As for Howrey, Briggs says the firm is doing well, given the difficult economy. He says the firm was “slightly above budget” in 2008, and predicts Howrey will “do okay” in 2009. But like other big firms in this financial climate, Briggs says Howrey is struggling with clients who can’t pay their bill as rapidly. He stresses, though, that Howrey is “not in laying-off mode.” (Howrey let go ten associates in December, citing performance reasons.)   

Briggs says he “enjoyed enormously” his time at Howrey. Robert Ruyak, Howrey’s managing partner, says he thinks the move will be “a nice second career” for Briggs, adding that Briggs “had done probably what he could at our firm, and he’s a very young guy still at heart.”

Appeals Court Revives Dispute About Businessman's $7 million

Where in the world is William Scott and does he know there’s a warrant for his arrest on money laundering charges?

The questions are tied to an opinion today in which the U.S. Court of Appeals for the D.C. Circuit sided against the government in seizing nearly $7 million from Scott, who prosecutors allege is unlawfully remaining abroad to avoid prosecution in the United States for his role in running an offshore Internet gambling operation.

A three-judge appellate panel ruled today there’s still a factual dispute about whether the fugitive disentitlement statute applies to Scott. Scott voluntarily left the United States in 1992—six years before a criminal complaint was filed against him. Fugitive disentitlement laws allow the government in civil cases to seize money from a person who is accused of evading prosecution in criminal court.

Judge Thomas Griffith wrote the 19-page opinion with Senior Judges Harry Edwards and Stephen Williams. The judges have pushed the case back to U.S. District Court for the District of Columbia for further proceedings.

Prosecutors contend Scott pumped unlawfully-obtained funds through American banks into an account at the Royal Bank of Scotland under the name Soulbury Limited. Justice lawyers filed court papers in D.C. federal court in 2003 to forfeit nearly $7 million from Soulbury. A warrant to seize the money was executed at Harris Bank International, in New York. An indictment against Scott alleging money laundering was unsealed in 2006.

In 2007, U.S. District Judge Royce Lamberth agreed with Justice lawyers when he determined Soulbury would be free to assert a claim to the funds if Scott surrendered. Court records indicate he may have taken up residence in Antigua. Justice lawyer A.J. de Kluiver of the Asset Forfeiture and Money Laundering Section argued in a brief: “Had the real claimant, Scott, come forward from the shadows, he could have rightfully filed a claim in the civil forfeiture proceedings.”

Justice Department lawyers, the appeals court ruled, have failed to prove Scott had notice of the warrant for his arrest. And there remains a factual dispute about Scott’s intent to avoid criminal prosecution considering he left the country voluntarily. The judges said Scott's "renunciation of his U.S. citizenship is insufficient without some evidence that he took this action to avoid extradition."

McDermott, Will & Emery lawyers represented Soulbury in district court. Soulbury's appellate lawyers—Juan Chardiet and Daniel Press of Chung & Press, in McLean—argue Scott doesn’t want to return to the U.S. regardless of pending charges. Chardiet and Press were not immediately available for comment. “Put in very plain terms, the government grabbed these funds without a legal basis and then availed itself of the stay granted by this court to shield itself from the obvious shortcomings of the complaint,” Chardiet wrote in an appellate brief.

Three Superior Court Judges Up for Reappointment

Three D.C. Superior Court judges are up for reappointment as associate judges this year, and the D.C. Commission on Judicial Disabilities and Tenure has already started their evaluations.

If the commission finds them to be “well qualified,” Judge Judith Bartnoff, Judge Zoe Bush, and Judge Rhonda Reid-Winston will have their terms extended by 15 years. If the commission finds a judge to be “qualified,” President Barack Obama may, but is not required to, submit their nomination to the Senate for confirmation.

An "unqualified” determination means the judge is ineligible for reappointment. Public comments are due by March 31.

All three judges were appointed to the bench in 1994 by President Bill Clinton. Bartnoff, a former partner at Patton Boggs, currently presides over the Domestic Violence Unit. She has served in the Civil, Criminal and Family Divisions of the Court. Bush has served in the Criminal, Civil, and Domestic Violence Divisions of the Court as well as in the Family Court.

She is Co-chair of the Training Committee of the Family Court, is a member of its Implementation Committee and Panels Oversight Committee and is a past member of the Family Rules Advisory Committee.

Winston, a former public defender in Washington, has served in every division of the court. Currently, Winston hears cases in the Probate Division.