UPDATE: The Justice Department issued a statement about the Tribe brief this morning, the text of which is at the end of this post. Other changes have been made in this post to clarify the department's position.
Harvard Law School professor Laurence Tribe’s name was yanked from an amicus curiae brief in a major Supreme Court climate change case earlier this month after the Justice Department told him his recent service in the department made it improper for him to be on the brief.
The department invoked the law barring former senior employees from seeking to influence their onetime colleagues for one year after their departure. Tribe served until last December as a senior counselor to the Justice Department.
Tribe’s co-counsel Tristan Duncan of Shook, Hardy & Bacon in Kansas City said on Friday the Justice Department’s action amounted to “interfering with our clients’ petition rights.” She said, “We feel blindsided and frustrated,” adding that “the impact of our arguments is diluted by the fact that [Tribe's] respected voice is not identified on the brief.” She declined to say if she is planning legal action against the department.
The dust-up, as well as Duncan’s willingness to go public with it, reflects the high-stakes nature of Supreme Court briefing, and the value many clients place on hiring marquee legal talent for their submissions to the Court –- especially when the representation seems counter-intuitive.
A liberal icon, Tribe nonetheless came down in the brief on the side of the energy industry, espousing the view that issues like climate change are “textually committed” to the political branches and are ill-suited for resolution by courts. Tribe declined comment.
Tribe filed the brief Feb. 4 with his name on it as counsel of record in American Electric Power Co. v. Connecticut, which asks whether states and environmental groups can use common law nuisance suits to challenge the role of utility companies in global warming. Tribe’s clients included the industry- and consumer-supported Consumer Energy Alliance, the American Trucking Associations, Peabody Energy Corp., and the Petroleum Marketing Association of America. Copies of Tribe’s brief went to all parties including the Justice Department, which is representing the Tennessee Valley Authority, a party in the case.
On Feb. 7, just hours before the filing deadline by Duncan’s account, the Justice Department “insisted” that Tribe’s name be removed because of the ethics law barring former employees from seeking to “influence” the department for a period after they leave. The brief was re-submitted without Tribe's name, listing Duncan instead as counsel of record.
Tribe, on leave from his professorship at Harvard Law School, worked from March 2010 until early December 2010 as a senior counselor for access to justice issues for the department. In January 2010, before he started his job, Tribe co-authored a Washington Legal Foundation paper with Duncan and then-Harvard 3L student Joshua Branson, arguing that global warming was a “political question” beyond the reach of courts and nuisance suits.
Duncan said that before he left the department in December, Tribe had “solicited and obtained guidance on the work he could do,” which led him to believe he could sign the brief because it seeks to influence the Court, not the solicitor general’s office, which already took a position similar to Tribe’s in the case. But the department’s ethics office opined that by serving the brief on the SG’s office, required by Court rules, Tribe would be seeking to influence the office. Greenwire first reported on the successive briefing Friday afternoon.
“We did not want to be in noncompliance, but we take issue with the department’s interpretation,” said Duncan. She said the department indicated that the Tribe brief could have been acceptable it if had not actually been sent to the SG’s office, even though service is required by Court rules. That distinction, she said, “has us scratching our heads.”
Duncan said the second brief was identical to the first except for the omission of Tribe’s name. She added that Tribe remains co-counsel to the clients in the case.
In a written statement Saturday, Duncan also said, “It’s a strange alchemy that would lead the Justice Department to use technical rules about which briefs must be served on whom as a way to transform an entirely proper attempt to persuade the Supreme Court to steer clear of public nuisance claims about alleged global warming into an improper attempt to influence the Solicitor General, who had already filed a brief for the TVA to pretty much the same effect. The chemistry that, in DOJ’s ethics lab, transformed those technical rules into a formula for removing the name of a leading constitutional scholar from that amicus brief by virtue of his recent public service on behalf of justice is almost as strange as the chemistry that is said to make carbon emissions warm the earth.”
UPDATE: This morning, Justice Department spokeswoman Tracy Schmaler sent us this statement about Tribe and the brief: "When the Justice Department was contacted regarding Professor Tribe's participation in this case, he was advised that the post-employment statute barred him from being included as counsel of record in this matter, one in which the Department represents a party. This statutory restriction does not bar behind the scenes advice to a client. 18 U.S.C. 207(c)(1), which imposes a one-year prohibition on communications by former senior Executive Branch officials to their former department when those communications are knowingly made with the intent to influence the department 'in connection with any matter on which such persons seeks official action by any officer or employee of such department.'"