The BLT: The Blog of Legal Times

Conservative Group Sues IRS Over Tax-Exempt Status

The emerging controversy over how the Internal Revenue Service applied greater scrutiny to conservative groups is headed to federal court in Washington.

A Texas-based conservative group called True the Vote, Inc. filed suit Tuesday against the IRS in U.S. District Court for the District of Columbia. The complaint for declaratory action against the agency echoes revelations last week that the IRS used political criteria to target conservative groups for extra scrutiny on applications from tax-exempt organizations.

True the Vote says the IRS targeted its application—which has been pending for three years—because of the its political affiliation with Tea Party organizations. The group wants a judge to declare the IRS policy of targeting groups unconstitutional and enjoin the agency from the behavior in the future.

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."

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.

D.C. Superior Court Nominees Testify in the Senate

Two lawyers who spent most of their careers on opposite sides of a courtroom testified today before a U.S. Senate committee in the hopes of serving together on the District of Columbia Superior Court bench.

Washington solo practitioner Michael O'Keefe, whose practice is mostly in criminal defense and family law, and Robert Okun, chief of the special proceedings division at the U.S. attorney's office in D.C., were nominated by the White House in March. At today's hearing, they pitched their extensive history practicing in Superior Court and experience working with a variety of litigants, including those without a lawyer.

Neither nominee faced criticism. Sen. Mark Begich (D-Alaska), who chairs the subcommittee overseeing District of Columbia affairs, said they were "well-qualified" to serve. The nominees did face questions from Sen. Rand Paul (R-Ky.), the subcommittee's ranking member, about their views on the city's gun laws, which have been the subject of legal challenges; both said they would abide by rulings from the U.S. Supreme Court and District of Columbia Court of Appeals.

The Morning Wrap

Defending: Attorney General Eric Holder Jr. says he's confident prosecutors didn't botch any guidelines in the collection of phone records from The Associated Press, telling reporters that the investigation of a leak required "very aggressive" action. The National Law Journal has this report on the flap over the subpoenas. Holder told NPR that he's unsure how many media subpoenas he has authorized. POLITICO reports here on Holder's reemergence in the national spotlight.

Back again: "In the aftermath of a national tragedy, Kenneth R. Feinberg has become the essential man," The New York Times reports today. Feinberg has been a central figure in dividing up victim compensation funds following major catastrophes.

Pause button: A candidate for Brooklyn district attorney wants CBS to delay airing a reality series about the office's work under the leadership of Charles Hynes. The challenger, Abraham George, says the program would run afoul of election finance laws. "We are surprised that this candidate would not know about the First Amendment," a CBS spokesman said. "This is obviously a publicity push by a politician."

The limit: The National Transportation Safety Board is recommending states cut drunk-driving thresholds from .08 to .05. "The proposal, among others by the board, faces a long road before, if ever, becoming the law of the land. It took more than 20 years for all the states to act after the NTSB recommended reducing the drunk driving threshold in 1982," according to a report in The Baltimore Sun.