The BLT: The Blog of Legal Times

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.

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.

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.

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."

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.)

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.