The BLT: The Blog of Legal Times

FEC: Larry Craig Misused Campaign Funds for Personal Legal Expenses

A federal judge in Washington today expressed doubt that former U.S. Senator Larry Craig properly used campaign money when he spent hundreds of thousands of dollars on personal legal expenses following his arrest in 2007 in a sex sting at an airport in Minnesota.

The Federal Election Commission in June 2012 sued Craig in U.S. District Court for the District of Columbia, saying the $200,000 he spent was not an "ordinary and necessary" expense incurred as part of his duty as a senator. The FEC wants Craig to repay the money and also pay a penalty. Craig was a senator from Idaho from 1991 to 2009.

Andrew Herman of Washington's Brand Law Group, representing Craig and his U.S. senate campaign committee, argued today at a hearing in the case that Craig had authority to use privately raised campaign funds in connection to expenses that arose while he was on official travel as a senator.

Herman rooted his argument in a January 2007 election commission advisory opinion that addressed a retired congressman's use of funds to pay legal bills associated with a U.S. Justice Department criminal investigation. Herman said the FEC "has buyer's remorse with this opinion." Jackson seemed incredulous, however.

Lawyers for Deloitte Seek to Buy Time in Subpoena Spat with SEC

Seeking time to fight a court order in a subpoena enforcement dispute, lawyers for a Deloitte Touche Tohmatsu unit in China filed "emergency" papers in Washington asking a judge to postpone a hearing scheduled for next week.

The U.S. Securities and Exchange Commission in September 2011 turned to Washington's federal trial court to try to convince a judge here to force the audit and tax firm to turn over information about its work for Longtop Financial Technology Ltd.

The subpoena enforcement action has been on hold since the SEC said it was negotiating with Chinese officials to acquire audit documents concerning a Deloitte unit in that country. Those talks, however, failed, SEC attorneys said. In court papers, SEC lawyers said Chinese officials remain "unwilling or unable to provide the SEC with meaningful assistance in its enforcement investigations."

Magistrate Judge Deborah Robinson on March 4 lifted the six-month hold on the subpoena proceedings and ordered the lawyers in the spat to meet next week in court. On Wednesday, Deloitte's attorneys at Sidley Austin and Latham & Watkins asked that a hearing on the merits of the subpoena fight, scheduled for March 13, be postponed. Deloitte's request is here.

Judge Declares Mistrial in Drug Case at Center of Landmark Supreme Court Ruling

For the U.S. Justice Department, the third time wasn't the charm in the high-profile drug prosecution of Washington nightclub owner Antoine Jones. A federal judge today declared a mistrial, the latest setback for the government after a loss in the U.S. Supreme Court last year.

The trial was the third for Jones, who represented himself, and the government after an earlier mistrial in 2007 and then last year's historic Supreme Court ruling that voided Jones's life sentence. The high court concluded the warrantless use of a tracking device violated Jones' rights under the Fourth Amendment, a ruling whose scope is being assessed in courts across the country.

In the third trial, the government was prohibited from using the GPS tracking device data to try to connect Jones to a house in Maryland where the authorities, in 2005, found hundreds of thousands of dollars in cocaine and cash. Jones in recent weeks filed numerous handwritten motions that questioned court orders and government evidence.

Jurors last week told U.S. District Judge Ellen Segal Huvelle in Washington several times that the panel was deadlocked. (The panel, in the end, was split 6-6.)

Senate Committee Approves Three District Court Nominees

The Senate Judiciary Committee approved Thursday three judicial nominees for district courts in New York, California and Louisiana, as well as the nominee to become chairman of the Privacy and Civil Liberties Oversight Board.

The committee unanimously voted to approve Nelson Roman to be a judge for the Southern District of New York and Shelly Dick for the Middle District of Louisiana. The other nominees had opposition from Republicans: William Orrick for the Northern District of California was approved 11-7, and David Medine for the privacy board was approved 10-8.

In opposing Orrick, Senator Chuck Grassley (R-Iowa) said that he had concerns about some of Orrick's views, particularly on immigration. Grassley, the ranking minority on the committee, also said that Orrick had provided "non-responsive" answers to some of Grassley's questions. "Mr. Orrick's non-responsiveness rises to a level well above what we typically see from nominees," Grassley said.

DOJ: Dismiss Suit Over Supreme Court Visitor's 'Occupy Everywhere' Jacket

Fitzgerald Scott was viewing exhibits inside the U.S. Supreme Court last year when a police officer confronted him and demanded he remove his jacket.

Painted on the jacket were these words: "Occupy Everywhere." The deputy chief of the Supreme Court Police, Timothy Dolan, told Scott to take off the jacket or leave the building. Scott, according to Dolan, was violating the law that restricts expression inside the high court: no signs and no demonstrations.

Dolan, according to prosecutors, warned Scott he'd be arrested if he didn't comply. Scott was charged, under District of Columbia law, with unlawful entry. (He wasn't booked on the federal law that prohibits certain expressive activity inside the Supreme Court building.) Prosecutors, however, later abandoned the case. Scott filed suit in Washington federal district court.

This afternoon, the U.S. Attorney's Office for the District of Columbia asked a federal judge in Washington to dismiss Scott's case, which claims the authorities had no basis to make an arrest. The complaint also said the jacket's "pure speech" was protected under the First Amendment.

After Months of Delay, Senate Confirms Tenth Circuit Nominee Unanimously

Updated 11:20 a.m.

The Senate voted unanimously to confirm Robert Bacharach to the U.S. Court of Appeals for the Tenth Circuit on Monday, ending a confirmation saga that had become a prime example of how Senate partisan politics has slowed down the process of filling the nation's federal courts.

With the 93-0 vote, Bacharach became the second circuit court judge confirmed this month. He is part a slate of judicial nominees left over from last Congress, which Democrats in the Senate Judiciary Committee have been quickly pushing through to the full Senate.

Bacharach, currently a magistrate judge in the Western District of Oklahoma, waited more than a year after his nomination for the vote. He was first eligible for a full confirmation vote in May, more than 290 days ago. Republicans filibustered his nomination in July, however, even though Bacharach had wide support.

D.C. Circuit Appears Skeptical of FCC in Tennis Channel Case

A federal appeals court in Washington today appeared poised to strike down a Federal Communications Commission decision that found the country's largest cable television provider discriminated against the Tennis Channel by restricting its distribution to a sports package.

A lawyer for the commission, Peter Karanjia, faced tough questions from a panel of the U.S. Court of Appeals for the D.C. Circuit, where Comcast Cable Communications LLC is fighting the FCC order. The agency ruling was the first-ever in two decades under a provision of federal communications law that Congress enacted to promote competition and diversity in cable television programming.

Judges on the D.C. Circuit panel expressed concern about whether the Tennis Channel's complaint is time-barred and whether the agency order could expand the power of the government to regulate the speech of other entities. One judge, Brett Kavanaugh, said the FCC "has a serious problem with the First Amendment here."

The appeals court didn't immediately rule in the closely watched case. Bloomberg L.P. filed papers in support of the FCC. On the other side, the National Cable & Telecommunications Association wants the FCC order vacated. A team from Gibson, Dunn & Crutcher represents Comcast.

DOJ Intervenes in Whistleblower Suit Against Lance Armstrong

For a couple of years, the federal government has remained on the sidelines of a lawsuit in Washington that alleges Lance Armstrong and others made false claims to the U.S. Postal Service in connection with the agency's sponsorship of a professional cycling team.

The U.S. Justice Department announced today, ending months of speculation, that the government is jumping into the suit to back the plaintiff, Floyd Landis, who rode with Armstrong on the professional team the USPS-sponsored between 2002 and 2004. The government alleges Armstrong's use of performance-enhancing substances was a violation of the USPS sponsorship agreement. This amended complaint was filed today.

"Lance Armstrong and his cycling team took more than $30 million from the U.S. Postal Service based on their contractual promise to play fair and abide by the rules—including the rules against doping,” Ronald Machen Jr., the U.S. Attorney for the District of Columbia, said in a statement. “The Postal Service has now seen its sponsorship unfairly associated with what has been described as ‘the most sophisticated, professionalized, and successful doping program that sport has ever seen.’"

Lawyers who represent whistleblower said the case will be closely watched for what will likely be the battlefield of the dispute: Was the USPS harmed?

Venable Sees Net Income, Profits Per Partner Rise in 2012

Bolstered in part by a strong year for the firm's real estate and tax practices, Venable saw a nearly 6 percent increase in gross revenue, up to $376 million from $355 million in 2011, according to our reporting. The firm said profits per partner were up 3.7 percent to $845,000.

Revenue per lawyer was up 2.7 percent, from $730,000 to $750,000, and net income was up 3.1 percent to $134 million. The number of equity partners—159—remained unchanged at Venable. The overall number of partners increased to 265, up 3.5 percent. The total number of lawyers at the firm also went up, from 488 to 501.

"When I look at how we did in 2012, month to month, the second half of the year for us was quite strong," said Venable co-managing partner Robert Waldman, who leads the firm's representation of tax-exempt organizations. "We feel very good about where we are now," he said later. "The firm is very healthy."

In Damage-Control Effort, Senator Assembles Veteran D.C. Legal Team

Updated at 5:42 p.m.

Senator Robert Menendez (D-N.J.) is seeking help in Washington as he faces allegations about personal improprieties, assembling a damage-control team that includes at least two lawyers and a consultant who served as U.S. Attorney General Eric Holder Jr.'s top spokesman.

Menendez, chairman of the Senate Foreign Relations Committee, has enlisted McDermott Will & Emery partner Stephen Ryan, Perkins Coie partner Marc Elias and Vianovo partner Matthew Miller, the former Justice Department spokesman, according to news reports.

Ryan, a veteran lobbyist, leads the government strategies practice group at McDermott. Elias heads the political law practice at Perkins Coie.