The BLT: The Blog of Legal Times

Openness and the Obama Administration

Just days after President Barack Obama made initial moves to turn the ship of state around on the issue of government openness and freedom of information, a conference at American University Washington College of Law this Thursday will examine Obama's directives -- and what more is needed.

Obama's Jan. 21 memorandum on the Freedom of Information Act directed agencies to handle requests under the act with a clear presumption that the document should be released. A separate memorandum the same day promises recommendations for an "Open Government Directive" within 120 days on ways to improve openness throughout the federal government.

"It is time for an era of secrecy to give way to a new era of transparency," says Dan Metcalfe, formerly a top Department of Justice official on FOIA and information policy. Now an adjunct professor and director of the Collaboration on Government Secrecy based at AU, Metcalfe organized the free daylong event and recruited speakers from inside and outside of government. For more information, visit this site. (Disclosure: the author of this blog post is on the advisory board of the Collaboration on Government Secrecy.)

Morning Wrap

Will Rove Testify? In a late-breaking post last night, our David Ingram reports on the looming legal battle over whether Karl Rove will testify before the House Judiciary Committee, which subpoenaed him Monday. Rove's lawyer Robert Luskin, a Patton Boggs partner, says he'll "solicit the views" of the new White House counsel on whether Rove should testify, and if there's a difference of opinion, court action will follow. 

Gonzales Speaks: Former Attorney General Alberto Gonzales has been largely silent since leaving office in 2007, but he spoke out on NPR's Tell Me More program Monday. He acknowledged mistakes, but denied politicizing the department. The Swamp, the Chicago Tribune's D.C. blog, posted the transcript. (Hat tip to How Appealing.)

Cash Room: The Senate confirmed Timothy Geithner as Treasury secretary Monday, and almost immediately he was in the Cash Room at the Treasury Department being sworn in, with President Obama at his side. Geithner promised to make the department "a source of bold initiative."

Parents' Permission: You might have thought that the debate over whether public school students may be forced to recite the Pledge of Allegiance was resolved by the Supreme Court, oh, 65 years ago or so. But it's still occupying the attention of the U.S. Court of Appeals for the 11th Circuit. Yesterday, it declined to give en banc review to an earlier ruling that upheld a Florida law requiring students to produce a note from their parents if they want to remain silent during the pledge. 

The Ax: It's not quite the same scale as layoffs announced recently by companies ranging from Home Depot to Caterpillar. But Wilson Sonsini yesterday joined the list of law firms making significant cuts in staff, along with a freeze in associate salaries.

Scarpetta Scalded: If you're a Patricia Cornwell fan and don't want to upset yourself over breakfast, skip today's Style section of the Washington Post. There, reviewer Maureen Corrigan brutally takes a Stryker saw to Cornwell's latest book in the Kay Scarpetta series, titled Scarpetta. Corrigan is right about one thing when she writes, "Cornwell's fans won't give a hoot about what I (or any other reviewer) say."

Rove Subpoenaed to Testify About U.S. Attorneys

House Judiciary Committee Chairman John Conyers Jr. issued a subpoena Monday to former Bush administration adviser Karl Rove, renewing a balance-of-power battle about whether Congress can compel testimony from former White House officials.

The subpoena (pdf) orders Rove to appear for a deposition at 10 a.m. Feb. 2.

Conyers (D-Mich.) wants to ask Rove about the "politicization of the Department of Justice, including the U.S. attorney firings and the prosecution of former Alabama Governor Don Siegelman," according to Conyer's office.

"I have said many times that I will carry this investigation forward to its conclusion, whether in Congress or in court, and today's action is an important step along the way," Conyers said in a statement.

Rove did not comply with an earlier subpoena related to the U.S. attorney firings. Administration lawyers argued that requiring such testimony would be unprecedented.

The constitutional question has been the subject of closely watched litigation. U.S. District Judge John Bates ruled in July that then-White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers did not enjoy absolute immunity from congressional subpoenas.

Justice Department lawyers appealed that decision, and oral argument is expected before the U.S. Court of Appeals for the D.C. Circuit in April or May. Conyers' office suggests that the change in presidential administration may affect the case.

"Change has come to Washington, and I hope Karl Rove is ready for it," Conyers said in his statement. "After two years of stonewalling, it's time for him to talk."

Robert Luskin, a Patton Boggs partner who has represented Rove, could not be reached for comment.

UPDATE: A statement from Luskin: "Mr. Rove has consistently made clear that he has not and will not assert any personal privileges in order to avoid testifying before Chairman Conyers. Former President Bush recently reiterated his claim of executive privilege in this matter and has directed Mr. Rove not to appear.

"We will, of course, solicit the views of the new White House Counsel. If there is a difference of opinion, we assume that any such dispute will be resolved among the courts, the President, and the former President. Mr. Rove does not have and has not expressed a view on the merits of any claim of executive privilege; it is not his to assert."

Lawyer to D.C. Circuit: This Case is 'Bizarre'

Appellate judges hear a range of cases, of course, and circumstances vary widely. Edward Sussman summed up his case today like this: the facts he was about to describe are “about as bizarre as anyone could imagine.”

Sure enough, there was some snickering from the crowd and the occasional smile on the bench during argument in the U.S. Court of Appeals for the D.C. Circuit. Sussman, a D.C. solo practitioner, was representing a man named Antoine Blalock, a music performer who was convicted last year in U.S. District Court for the District of Columbia for possession of a firearm by a convicted felon.

Here's where things get bizarre. Blalock drove to the Seventh District Police Station on Alabama Avenue S.E. in May 2007. He pulled a handgun from the trunk and started firing, shooting in the air outside the station. Five shots. He shouted, according to court records, “The police should leave us alone and let us sell our weed!”

Blalock complied with demands to drop his gun—and he did not stop there. He dropped his pants, standing naked before officers wrapped him up in a towel. Police seized 23 bags of marijuana. Blalock told police he wanted to “throw weed” and shoot the gun to get recognition from a record label. Sussman called the fact pattern "bizarre" at least three times.

In Fundraising Letter, Streisand Backs Holder Confirmation

Attorney General nominee Eric Holder Jr. has enjoyed support during his confirmation process from civil rights organizations, law enforcement, and even prominent Republican lawyers.

Add one more name to the list: singer and actress Barbra Streisand.

Streisand, an active and proud liberal, lent her name to an e-mail sent today to supporters of People for the American Way. In the e-mail, she praises Holder’s experience as a judge, prosecutor, and deputy attorney general, and she criticizes Senate Republicans for throwing obstacles in Holder’s path.

“I am fearful that this Republican opposition is really about pushing back on the Obama administration and testing the waters for future judicial confirmation fights,” the e-mail reads. “This is typical Washington partisan politics at a time when our nation needs to join together to solve the crises confronting America. Disturbingly, a good man is caught in the middle of these partisan tactics, someone who will be an excellent Attorney General for all Americans.”

The Senate Judiciary Committee is scheduled to vote on Holder’s nomination Wednesday.

Marge Tabankin, director of The Streisand Foundation, tells Legal Times that Holder and Streisand first met in the late 1990s when Holder was the No. 2 official at the Justice Department. Holder was in California on business, and a mutual friend arranged a dinner for people interested in meeting Holder.

“While they’re not close friends or anything, she was very impressed, thought he was really smart, and was really excited when he was nominated for attorney general,” Tabankin says.

Commission Sends Obama Three Names for D.C. Court Vacancy

The Judicial Nomination Commission has sent President Barack Obama the names of three candidates to fill a vacancy at the D.C. Superior Court created when Judge Linda Turner retired on Dec. 5.

The commission selected the three candidates from a list of 26 applicants that included magistrate judges, assistant U.S. attorneys, and private practitioners.

The candidates are Superior Court Magistrate Judge Marisa Demeo; Elizabeth Gere, partner at Troutman Sanders; and Florence Pan, an assistant U.S. attorney in D.C. Obama will have 60 days to select a nominee to send to the Senate for confirmation.

Demeo has served in the Superior Court's Criminal Division since 2007 and has presided over 75 bench trials involving criminal traffic charges and other minor misdemeanor charges. Demeo is also a former assistant U.S. attorney in D.C.

Gere focuses her practice on civil litigation and is an adjunct law professor at the Georgetown University Law Center. Before moving into the private sector, Gere served as an assistant U.S. attorney in D.C. and for the Southern District of Ohio.

Since 2007, Pan has served as deputy chief of the Appellate Division in the U.S. Attorney’s Office. Before joining the federal prosecutor’s office in 1999, Pan was a senior adviser to the undersecretary for domestic finance at the Treasury Department.

Kumbaya Day at the Supreme Court

Maybe it was something in the water, or perhaps the justices are feeling happy about their long winter recess that began after their session today. (They won't return to the bench until Feb. 23.) Whatever the cause, the Supreme Court was in a rare mood of unanimity, handing down five signed opinions today without a single dissent -- a rare alignment for this or any Supreme Court. 

Chief Justice John Roberts Jr.'s goal of greater unanimity has proven elusive since he took office in 2005, but this term -- so far at least -- seems to have brought the Court closer to that goal. The last eight decisions of the Court have been without dissents. Ten of the 15 signed opinions issued so far this term have been unanimous. Four have been split 5-4 decisions, and one came out 6-3.

It's still early in the term, and as University of Cambridge Court-watcher David Garrow observed today, the rulings without dissents are easier to issue early in the term. But still, Garrow says, "Monday's set of rulings send a striking message of judicial consensus while belying any presumption of ideological division or conflict." Another rare happenstance today: three of the decisions were authored by a single justice, namely David Souter who, deservedly or not, has a reputation as a slow writer. More on today's rulings later at legaltimes.com.

UPDATE: You can find our story on today's rulings here.

After Obama's Orders, Guantanamo Lawyers Face a Tricky Decision

Last week President Barack Obama officially broke from the former Bush administration’s stance on the terrorism suspects at Guantanamo Bay, issuing executive orders to close the Gitmo detention camp within a year and mandating a fresh review of all detainee cases.

Now, whether the White House gets the time it wants to reassess its strategy could be up to the inmates’ lawyers, who will have to decide if giving the administration the leeway it wants is worth further delaying their clients’ already prolonged stays in captivity.

So far the Obama administration has asked for and been granted extra time in two habeas hearings at the U.S. District Court for the District of Columbia, delaying each by roughly two weeks. But it may not be able to count on its requests going over as smoothly in the future, say defense lawyers and judges.

“I don’t know how easy it’s going to be for the government to convince petitioners to give them extra time,” says Chief Judge Royce Lamberth, whose court is overseeing habeas cases for 210 of Guantanamo’s roughly 245 remaining detainees. “I think the petitioners are going to have to decide whether they want to give some breathing room to the administration or not. I’m predicting that some of them will and some of them won’t.”

Several defense lawyers for the detainees lauded the executive orders, saying they were long overdue. But they added that the decision of whether or not to pause their habeas proceedings could be difficult.

“I think it’s a case by case determination for each client,” says Brian Mendelsohn, a lawyer with Federal Defender Program in Atlanta who has one client at Guantanamo. “Cases where there are clients who have strong claims that they shouldn’t be there need to proceed immediately.”

Despite the urge to see their clients’ cases resolved before a judge, some defense lawyers say that they are at least willing to assume that then new administration isn’t simply trying to stall.

“Nobody believes that the Obama administration is seeking delay for the sake of delay,” says Darold Killmer, a founding partner with with Killmer, Lane & Newman in Denver, who is providing counsel to five detainees from Yemen. “I think there’s an understanding that these are fairly complicated issues.”

For some counsel, the wait may be worth it to simply get more information about their clients. Documents on the detainees are currently scattered throughout various government departments, and few if any of the inmates have a comprehensive case file. While the government has already filed its factual returns most of the habeas cases, defense lawyers tend to doubt that they are actually complete.

That could soon change. The executive order to close Gitmo requires the government's agencies to pool their documents on each detainee so that the Justice Department can better review the cases. Many defense lawyers will be clamoring for access to those refurbished files, says Pat Bronte one of the three partners working on Guantanamo litigation at Chicago’s Jenner & Block.

“It’s comforting to know that someone’s actually doing what they need to do to pull all the information together,” Bronte says. “We would hope to see certainly a significant portion of it.”

Womble Carlyle Adds Four in Washington

Like most laterals today, firm financials helped cement the landing point for a small group of patent professionals joining Womble Carlyle Sandridge & Rice's D.C. office.

The firm added three patent lawyers and one technical specialist to its Washington office in its life sciences patent practice. Christopher Jeffers, Lawrence Carroll, and Parithosh Tungaturthi all come from the Wilmington, Del.-based IP law boutique Connolly Bove Lodge & Hutz. Alireza Behrooz is an associate in Womble Carlyle's patent practice and will relocate from the firm's Atlanta office to its D.C. location. Jeffers and Carroll join the firm as counsel. Tungaturthi is not a lawyer and is joining as a technical specialist.

"We thought Womble Carlyle was really well-run," says Jeffers, whose work is focused on helping mid-sized pharmaceutical and bio-tech companies. "We looked at the financials, and in this climate, that’s extraordinarily important. We saw a lot of firms are contracting, and Womble Carlyle was talking about expansion - and that’s huge."

Connolly has become a breeding ground for Womble Carlyle lawyers in recent years. Jeffers says, over the last four years, “a vast majority” of Womble Carlyle's Wilmington office has been made up of former Connolly lawyers. According to Womble Carlyle's Web site, six of the 13 lawyers there have left Connolly for Womble Carlyle. Ex-Connolly lawyers are also sprinkled elsewhere throughout the firm, such as in Womble Carlyle's Tysons Corner, Va. office.

This Week In Legal Times

Inaugural Reflections: It's our inaugural keepsake edition, with photos and stories from the big day, including: How law firms, especially those with offices along Pennsylvania Avenue, marked the day; a close-up look at the event from our reporters on the scene; how legal organizations staged their own events around the inaugural; and an analyis of the inaugural oath flub heard 'round the world. 

Justice Department Notebook: The Justice Department has been a key focal point during the transition, and here we take a look at the latest news, including a report on Attorney General-nominee Eric Holder Jr.'s written responses to Judiciary Committee questions.

Jamming the Revolving Door: What will President Obama's new ethic rules mean for lobbyists joining the administration, and for administration officials who otherwise might have left for lobbying firms? Reporter Marisa McQuilken examines the new lobbying landscape.

Partnering in 2009: Our special report on law firm partners suggests that rain-making partners may be on the move this year, and reports on the state of the now-shaky financial model that has traditionally supported partnerships.