The BLT: The Blog of Legal Times

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."

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.

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.

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.

In Commencement Address, Verrilli Offers Lessons Learned

Solicitor General Donald Verrilli Jr. on Friday offered some words of advice for the graduating class of the University of the District of Columbia David A. Clarke School of Law.

“First, expect some adversity to come your way, you are going to get knocked down,” Verrilli, the commencement speaker, told the class. “It happens to everyone; it certainly happened to me and you could be pretty sure it is going to happen to you."

Verrilli, the U.S. Justice Department’s top Supreme Court advocate, addressed the graduating class for about ten minutes. There wasn’t any mention of the recent high-profile cases he’s argued—including the Affordable Care Act and same-sex marriage—or any of the criticism aimed at him. Verrilli was more philosophical in his talk.

D.C. Circuit Weighs Child Pornography Restitution Case

The thorny question of how to calculate restitution to victims of child pornography came back before the U.S. Court of Appeals for the D.C. Circuit last week, with the U.S. Department of Justice defending a proposed formula.

Friday's arguments marked the second time the court considered the case of Michael Monzel. Monzel pleaded guilty to one count each of distribution and possession of child pornography. A trial judge ordered Monzel to pay $5,000 to a victim known by the pseudonym "Amy," but on remand from the D.C. Circuit reduced the award to zero, finding the government didn't produce evidence on how much of Amy's losses he caused.

The government appealed, arguing U.S. District Judge Gladys Kessler was wrong to reduce the award and that its proposed formula – dividing a victim's total losses by the number of individuals found criminally responsible and then adjusting based on certain factors – represented a fair solution. Monzel's lawyer, Federal Public Defender A.J. Kramer, said the formula was arbitrary and that Kessler was right to reduce the award after the government presented no evidence linking his client to specific losses.

The Morning Wrap

Chevron Allegations: Chevron Corp. on Friday accused Patton Boggs of fraud in a case that ended in a $19 billion environmental pollution judgment against the oil company in Ecuador, The Litigation Daily reports.

Ginsburg Roe: U.S. Supreme Court Justice Ruth Bader Ginsburg on Saturday said she backs a woman's right to choose to have an abortion, but the Roe v. Wade decision was too sweeping, The Associated Press reports.

Facebook Departure: Facebook Inc. general counsel Theodore Ullyot is leaving the company, The Recorder reports.

The Morning Wrap

Facing scrutiny: FBI Director Robert Mueller III's "12-year tenure under two presidents is facing scrutiny, months from his longtime plans to step down in September, as hearings begin on Capitol Hill into what happened in Boston and why," The New York Times reports today. Mueller took over leadership of the FBI one week before the Sept. 11 attacks.

Bloggers win: "The U.S. Court of Appeals for the Ninth Circuit sided with bloggers in a closely watched copyright dispute Thursday, ruling that a company suing them for posting articles lacked standing to do so," The Recorder reports.

Plundered: From The Washington Post today: "A global posse of cyberthieves, armed with laptops in place of guns, hacked into financial institutions and stole $45 million from automated teller machines in a first-of-its-kind heist made for the 21st century, authorities in New York said Thursday." More coverage here and here.

Speaking: Top lawyers will hit the commencement circuit in the coming weeks, addressing law schools across the country, The National Law Journal reports. "U.S. Solicitor General Donald Verrilli, Jr., wins the prize for busiest graduation speaker. He will address graduates of the University of the District of Columbia David A. Clarke School of Law on May 10; of Duke Law School graduates the next day; and of Boston University School of Law on May 19."

Rail Companies Push to Decertify Class in Antitrust Case

Freight rail companies accused of scheming to bump up rates through "aggressive" fuel surcharges argued this morning to undo a court order certifying a class in the case, arguing the decision was based on a faulty model of injuries and that the order would unfairly force them to settle.

The class – thousands of businesses that shipped products via freight rail – sued the four largest freight railroad companies in the United States for antitrust violations in 2007. U.S. District Senior Judge Paul Friedman certified a class last summer, which pushed up the total possible damages into the billions, according to court papers in the litigation.

Sidley Austin's Carter Phillips, arguing for the rail companies, told a U.S. Court of Appeals for the D.C. Circuit panel today that Friedman's order conflicted with a U.S. Supreme Court decision in March on class certification in antitrust cases. The plaintiffs' expert created a model that identified injuries to entities outside the class, he said, which under the high court's ruling in Comcast Corp. v. Behrend would bar class certification.