The BLT: The Blog of Legal Times

DOJ Grant Management Questioned on Capitol Hill

U.S. Justice Department officials took heat over agency’s expenses Wednesday on Capitol Hill, where legislators criticized grant programs and questioned spending on air travel and prison purchases during the tight fiscal climate in Washington.

At a House subcommittee hearing titled “Luxury Jets and Empty Prisons,” Senator Tom Coburn (R-Okla.), testified that DOJ “has been one of the worst offenders.” Grants continue to be managed poorly as the department does not evaluate whether certain programs overlap or whether programs should be consolidated, Coburn said in prepared remarks.

That criticism and others leveled at the Justice Department are not exactly new. “In fact, for the 11th consecutive year, the DOJ Inspector General continues to include grant management on its list of ‘Top 10 Management Challenges’ facing the DOJ,” said Coburn, who puts out a “Wastebook” every year highlighting duplicative and overlapping government spending.

DOJ Official Testifies on 'Significant Challenges' in Campaign Finance Investigations, Prosecutions

The U.S. Justice Department is “hampered” from uncovering corruption and enforcing campaign finance laws in the aftermath of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, a top prosecutor testified Tuesday on Capitol Hill.

Current laws don’t always give prosecutors the warning signals needed to investigate when individuals or certain nonprofits might be violating campaign finance laws, said Mythili Raman, the acting assistant attorney general in DOJ criminal division.

The result: it is easier to get away with illegally buying influence over elections and concealing the conduct, said Raman, who took over the leadership of the division after the departure of Lanny Breuer last month.

New Congressional Research Report Looks at Recess Appointments

The U.S. Court of Appeals for the D.C. Circuit’s interpretation of President Barack Obama’s recess appointments to a federal labor board could have a “substantial impact on the future division of power between the president and Congress,” according to a new Congressional Research Service report.

The D.C. Circuit’s January 28 ruling in Noel Canning v. National Labor Relations Board, written by then-Chief Judge David Sentelle, restricted the power of the president to make recess appointments. The appellate court said the president can only make an appointment under "the recess" of the Senate.

If the U.S. Supreme Court upholds the decision, the ruling will mark a shift toward increased Senate control over the appointment of government officials, the CRS report said.

Sequestration Drives Scheduling Changes at D.C. Federal Court

To accommodate expected furloughs in federal law enforcement and defender services agencies, the U.S. District Court for the District of Columbia will stop scheduling most criminal matters on alternating Fridays from April 26 through September 30, court officials said.

Unlike those agencies and some federal courts, however, the D.C. court isn't planning to furlough or fire staff before the end of the fiscal year in September as part of mandated federal budget cuts known as sequestration. Under sequestration, which took effect March 1, non-defense agencies faced five percent in budget cuts.

New arrests will still be processed on the alternating Fridays, U.S. District Chief Judge Royce Lamberth said, while ongoing criminal trials will be recessed. He said the decision was made in consultation with the local U.S. attorney, U.S. Marshal, and Federal Public Defender's offices. Civil cases won't be affected; Lamberth said the U.S. attorney's office indicated that they expect to have lawyers available.

Justice Dept. Asks Court to Dismiss Suit over Secret Court’s Opinions

Updated 5:58 p.m.

The Foreign Intelligence Surveillance Court in Washington operates largely out of the public spotlight, issuing secret orders that are not generally available for public review. In a pending lawsuit, the U.S. Justice Department is fighting to block the disclosure of information about a case in which the court determined government surveillance activity violated the law.

Last August, the advocacy group Electronic Frontier Foundation sued the department in U.S. District Court for the District of Columbia to try to get any written order or opinion from the surveillance court about that case. The lawsuit followed the release of information from U.S. Senator Ron Wyden (D-Oregon) about once instance when the secret court found the government's implementation of the Foreign Intelligence Surveillance Act had "circumvented the spirit of the law."

The government said it declassified four statements and permitted Wyden to disclose the information "in an effort to strike the right balance between government transparency and the protection of critical intelligence activities." The Justice Department on Monday night filed court papers asking a judge to terminate the case, saying that no more information about the apparent transgression can be, or should be, revealed to the public.

Confirmation Hearing Set for D.C. Circuit Nominee

U.S. Court of Appeals for the D.C. Circuit nominee Sri Srinivasan will get a confirmation hearing this month, and he’s receiving more support from some top Washington lawyers.

The Senate Judiciary Committee has scheduled an April 10 hearing for Srinivasan, currently the principle deputy solicitor general. President Barack Obama first nominated Srinivasan ten months ago.

Republicans have delayed Srinivasan's hearing, saying they want to know more about his role in the abrupt settlement of a Fair Housing Act case a year ago and get more documents about the case from the Department of Justice. But committee Chairman Senator Patrick Leahy (D-Vt.) last month announced he had accommodated the Republicans' request for more time and that "if some members have questions or concerns, they can raise them with the nominee directly."

Akin Gump Registers to Lobby for U.S. Airways

Akin Gump Strauss Hauer & Feld has become the third firm this year to start lobbying for U.S. Airways Group Inc., which is looking to merge with American Airlines Inc. parent company AMR Corp.

The law firm filed paperwork with Congress on Friday to advocate for U.S. Airways, joining recent hires The Gibson Group and Chesapeake Enterprises, as well as three firms that lobbied for the Tempe, Ariz.-based company in 2012, according to congressional records. U.S. Airways, which spent $2.8 million on federal government advocacy last year, entered 2013 with lobbyists from Podesta Group, The Cormac Group and Vandor Strategies, in addition to in-house lobbyists.

Akin is lobbying for U.S. Airways on "[a]viation, commerce and judiciary issues," according to its congressional filing. Austin, Texas-based senior policy adviser Ryan Thompson is handling the account.

D.C. Circuit Revives Suit over DOJ Hiring Misconduct

A federal appeals court today revived a privacy suit rooted in a "dark chapter" at the U.S. Justice Department in which top officials assessed politics and ideology to screen applicants vying for entry-level slots in the prestigious Honors Program.

In the suit in Washington's federal trial court, several applicants to the program alleged they were not selected for interviews in 2006 based on their political affiliation. An internal DOJ report in 2008 concluded that top officials improperly considered First Amendment-protected speech to eliminate candidates. The lawsuit, filed in 2008, relied on the publication of the internal investigation.

Those senior officials, the U.S. Court of Appeals for the D.C. Circuit said today, had an obligation to preserve Internet records about each candidate "given that Department investigation and future litigation were reasonably foreseeable." The records have since been destroyed.

Writing for the court, Judge Judith Rogers said a jury should be allowed to hear a claim of spoliation—that is, that two remaining plaintiffs, Matthew Faiella and Daniel Herber, were "harmed by creation and use of the destroyed records." The screening committee at the time comprised Michael Elston, chief of staff to the deputy attorney general, and Esther McDonald, counsel to the associate attorney general. The D.C. Circuit opinion is here.

Budget Cuts Start to Hurt Courts

The effects of this month's steep federal budget cuts are becoming clearer in court districts across the country, with judges, clerks and legal agencies from California to New York announcing courthouse closings and furloughs.

In Colorado, U.S. Chief District Judge Marcia Krieger ordered an end to hearings and trials in criminal cases on every Friday for five months, from April 26 through September. The federal public defenders, prosecutors and marshals face furloughs, Krieger wrote, and they are "integral to proper adjudication of criminal matters."

As in Colorado, other courts are targeting Fridays for closures because the supporting agencies and their attorneys will take furloughs. The clerk of court in the Central District of California announced it will severely curtail services at its three courthouses on seven Fridays from April through, accepting only mandatory and emergency filings.

Lanny Breuer Returns to Covington & Burling in New Leadership Role

Lanny Breuer, one of the longest-serving leaders of the U.S. Justice Department’s criminal division, is returning to Covington & Burling to take on a newly created role as vice-chairman of the firm.

Breuer is joining his former firm on Thursday, after nearly four years as the assistant attorney general in charge of the Criminal Division. "As I said to my wife, this will be my third first day at the firm," Breuer said during an interview this week.

In the role of vice chair, Breuer will serve as a liaison for the firm, its clients and government officials. He'll resume his former practice in white-collar criminal defense and civil litigation, representing both companies and individuals. "In that way, those are some things I did for the division," Breuer said. "I do think there will be a balance and I'll have to figure it out."