The BLT: The Blog of Legal Times

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.

DOJ Defends Review of Associated Press Phone Records

Updated 11:20 p.m.

The U.S. Justice Department is defending its review of two months of phone records for a group of reporters and editors at the Associated Press, which called the government action "a massive and unprecedented intrusion" into newsgathering.

The news agency publicly disclosed the Justice Department's review of the phone records in a protest letter to Attorney General Eric Holder Jr. "There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters," Gary Pruitt, president and chief executive officer of the AP, wrote.

"That the Department undertook this unprecedented step without providing any notice to the AP, and without taking any steps to narrow the scope of its subpoenas to matters actually relevant to an ongoing investigation, is particularly troubling," Pruitt said. Prosecutors collected records on 20 separate phone lines.

A statement from the U.S. Attorney's Office for the District of Columbia did not reveal the nature of the investigation. The Justice Department, however, has previously disclosed that the Maryland and District of Columbia U.S. attorneys are investigating, among other national security matters, the leak of information that provided the substance of an Associated Press story, published in May 2012, about an alleged terrorist plot that was thwarted.

Members of Congress on Wednesday will get a chance to question Holder about the rare move to subpoena newspaper reporters' phone records. Holder is scheduled to testify at the House Judiciary Committee for an oversight hearing.

DOJ Asks D.C. Circuit to Keep Surveillance Law Memo Secret

The Justice Department wants to keep secret an internal legal memo that addresses the scope of the authority under which the FBI can seek records from telecommunications companies.

DOJ lawyers have asked the U.S. Court of Appeals for the D.C. Circuit to protect the Office of Legal Counsel memo from disclosure in an ongoing public records suit. The government contends the document is protected by the deliberative process privilege.

"Mandatory disclosure of OLC's opinions would chill deliberative discussions within the Executive Branch," Daniel Tenny, a Justice Department appellate lawyer, said in a brief filed in the appeals court May 7. "OLC serves a valuable role in providing confidential legal advice to federal agencies as they develop their policies."

DOJ Report Urges Prison Reform for Compassionate Release

A comprehensive review of the federal prison system’s compassionate release program revealed a lack of standards for the evaluation of whether an inmate qualifies for a reduction in sentence, according to a U.S. Justice Department report published today.

The department's Office of the Inspector General found Bureau of Prisons staff had "varied and inconsistent understandings of circumstances that warranted consideration of compassionate release." Prison officials, the report also concluded, don't have effective procedures in place to inform inmates about the potential for compassionate release.

Under the program, the bureau can ask a federal judge to end a sentence based on "extraordinary and compelling" circumstances that were not present at the time the defendant was sentenced. In the six-year review period ending in 2011, the report said 142 inmates were approved for, and received, compassionate release. Click here for a copy of the report.

The DOJ report cited "multiple failures" in the implementation of compassionate release. The report found, among other things, disparate criteria for eligibility. For instance: at some prisons, only inmates with a life expectancy of six months or less were eligible. At others, inmates with a life expectancy of under a year were deemed eligible.

The Morning Wrap

The Am Law 100: "For the first time ever neither Skadden, Arps, Slate, Meagher & Flom nor Baker & McKenzie heads The Am Law 100’s gross revenue rankings, as DLA Piper—already the world’s largest firm by head count—claims the top spot." The 2013 Am Law 100 full report is here. Features include: Spring Awakening, and Disappearing Act. Here's a look at how an enormous contingency fee, coupled with merger integration, boosted Kilpatrick Townsend & Stockton.

Silenced: Federal agents' reading of Miranda rights to Boston bombing suspect Dzhokhar Tsarnaev silenced him, officials said Thursday. In The Boston Globe, the carjack victim recounts his night riding at gunpoint with the Tsarnaev brothers. "Danny thought about his burgeoning startup and about a girl he secretly liked in New York. 'I think, ‘Oh my god, I have no chance to meet you again,’” the victim recalled, according to the Globe. Tsarnaev is now being held in a prison medical center.

Money flow: The New York Times investigates the long legal history of farmers' discrimination claims, exposing how Obama administration political appointees in the Agriculture and Justice departments engineered a "stunning" deal to commit $1.3 billion to thousands of Hispanic and female farmers who had never claimed bias in court. The Times says the deal was made over the objections of career lawyers and agency officials who said the evidence didn't support systemic discrimination.

Q&A: McDermott's Bobby Burchfield & Paul Thompson

It's been almost two years since Paul Thompson and Bobby Burchfield have shared the title of co-managing partner of McDermott Will & Emery's Washington office. In that time the firm has added partners to its ranks and made a high-profile move to Capitol Hill.

Thompson, who focuses his practice on white-collar criminal defense, congressional investigations and appellate work, recently celebrated his six-year anniversary with the firm. Burchfield, who has served as co-managing partner since he joined the firm in 2004, practices in corporate litigation. He is also a member of the firm's management committee.

Legal Times sat down with Burchfield and Thompson in the firm's office to discuss the firm's business, goals for the D.C. office and Washington politics.

After Privacy Fix, Law Firm's Netflix Advocacy Ends

A year after Greenberg Traurig revealed that it started lobbying for Netflix Inc., the law firm's work for the video subscription service ended.

Greenberg Traurig filed a lobbying termination report with Congress last week, saying it stopped advocating for Netflix on February 28. President Barack Obama on January 10 signed into law legislation that amended the Video Privacy Protection Act, the target of Greenberg Traurig's lobbying.

Netflix hired Greenberg Traurig to push for the amendment bill, which gave the company's U.S. members the ability to use Facebook to automatically share details about movies and television shows they watch.

U.S. Supreme Court Visitor Presses False Arrest Case

A man who was arrested inside the U.S. Supreme Court last year for refusing to remove his jacket is fighting to keep alive his lawsuit in Washington federal district court.

The high court visitor, Fitzgerald Scott, was wearing a jacket painted with the words "Occupy Everywhere." The authorities determined the clothing, with its accompanying message, violated a federal law that restricts certain expressive activity inside the Supreme Court. Scott refused to remove the jacket. He was arrested.

Scott alleges in his suit in U.S. District Court for the District of Columbia that the authorities had no ground to arrest him. U.S. Justice Department lawyers said in February, in court papers seeking the dismissal of the case, that federal law prohibited the political message on Scott's jacket. Police had ample cause to ask Scott to remove the jacket or leave the building, according to DOJ.

Scott's attorney, Jeffrey Light, a Washington solo practitioner, this week responded to the government's effort to end the case. How to resolve the dispute? Light pointed to a 1971 case in which the high court reversed the conviction of a man who wore a jacket that said "F---k the Draft" inside a courthouse in Los Angeles.

Study Finds Shared Blame for Judicial Vacancies

At almost every Senate judicial confirmation vote, both political parties unleash a flurry of statistics about the high number of vacancies on the federal court benches. Democrats use the numbers to paint Republican senators as obstructionists. Republicans use numbers to blame the White House for being slow on nominations.

So who actually bears responsibility when a vacancy doesn't even have a nominee? Both sides do, according to a new study by Russell Wheeler, a Brookings Institution fellow and judicial confirmation process expert.

That is, at least as far as the Wheeler can discern about a nominations process generally conducted outside of public view. He looked at the history of nominations and the 84 actual and future vacancies on the district and circuit courts.

Greenberg Traurig Lobbyist’s Disclosure Questioned

By Todd Ruger and Andrew Ramonas

A Greenberg Traurig lobbyist is at the center of a U.S. senator’s investigation into how "political intelligence" can affect markets. The inquiry includes an examination of the lobbyist’s email about a dramatic change in government’s health care policy more than an hour before it was announced.

Senator Chuck Grassley (R-Iowa) is seeking all of Greenberg Traurig's internal and external communication about the April 1 announcement by the Centers for Medicare and Medicaid Services dealing with proposed rate cuts, according to a letter Grassley wrote this month to the law firm’s outside counsel.

The letter focuses on how Height Securities, a Washington political intelligence firm, issued an advisory to its clients at 3:42 p.m. that day about the move, about 45 minutes before the announcement. Trading volume for the top three affected stocks jumped by $662.8 million in the final minutes of trading, Grassley said.