The BLT: The Blog of Legal Times

White House: Confirming Judges a 'Top Priority'

The White House is ramping up its information campaign on President Barack Obama's judicial nominees, ahead of a possible push this fall to confirm more judges.

In a post on its official blog late on Thursday, the White House criticized the Senate for not voting on 20 pending nominees before leaving Washington for its August recess. It also highlights recent statements by Stephen Zack, then the president of the American Bar Association, and the editorial board of The Washington Post, both calling for a faster confirmation process for nominees.

“Creating a judicial pool for the 21st Century, one with intellect, fair-mindedness and integrity that resembles the nation that it serves, is a top priority for President Obama and his administration,” the blog post says.

Some administration allies have complained that judges have not been a top priority for Obama, especially compared with the emphasis that President George W. Bush placed on the issue. Obama lags behind Bush and President Bill Clinton at this point in their presidencies on the number of judges confirmed — something that is at least partly a reflection of Obama’s large legislative agenda. Obama himself rarely talks about judges.

Accompanying the White House’s blog post is a graphic about the president’s nominees and the delays they’ve faced. It notes that Obama’s nominees have generally waited months between a successful committee vote and a final vote, and it highlights some of the costs of judicial vacancies, such as longer waits for civil trials.

Republicans argue that they have treated Obama’s nominees fairly, and they note that most nominees, unlike some of Bush’s, have had little trouble getting a committee hearing or committee vote. They say Obama has been slow in nominating judges, and they criticize the qualifications of some nominees.

“As I’ve stated more than once, the Senate must not place quantity confirmed over quality confirmed. These lifetime appointments are too important to the federal judiciary and the American people to simply rubber-stamp them,” Sen. Charles Grassley (R-Iowa), the top Republican on the Senate Judiciary Committee, said at a committee meeting last month.

Of the nominees who have been confirmed, Obama has succeeded in his goal of diversifying the federal judiciary. As The National Law Journal has reported, Obama’s appointees to the bench make up the most diverse group ever along racial, ethnic and gender lines.

Obama’s supporters see this fall as a key opportunity to confirm more judges before the Senate’s pace slows further during the 2012 election year.

Court Upholds Ban On Foreign Citizens Donating To Candidates

A three-judge panel this afternoon in Washington upheld the constitutionality of the ban against foreign citizens donating money to candidates in state and federal elections.

The plaintiffs, including Benjamin Bluman, a Sidley Austin associate in New York, sued the Federal Election Commission last year in U.S. District Court for the District of Columbia, arguing the ban violates the First Amendment.

U.S. District Judges Rosemary Collyer and Ricardo Urbina, sitting with Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit, said today the U.S. Supreme Court has long held the government may prohibit foreign citizens from “activities that are part of democratic self-government in the United States.”

Kavanaugh, writing for the three-judge court, said the Supreme Court has allowed the government to ban aliens from teaching at public schools, voting, serving as jurors and working as police or probation officers.

“Under those precedents, the federal ban at issue here readily passes constitutional muster,” Kavanaugh said in the decision.

The court, which heard argument in May, called it a “straightforward principle” that foreign citizens do not have a constitutional right to participate in democratic self-government.

“In our view, spending money to influence voters and finance campaigns is at least as (and probably far more) closely related to democratic self-government than serving as a probation officer or public schoolteacher,” the court said.

Bluman’s work visa, the court said, allows him to stay in the country until November 2012. Bluman, the court said, plans to apply for a second three-year term. Bluman wants to donate to candidates, including President Barack Obama.

The co-plaintiff, Asenath Steiman, is a dual citizen of Israel and Canada. Steiman, a medical resident in New York City, wants to contribute to Sen. Tom Coburn (R-Oklahoma) and the yet-to-be-determined Republican nominee for president.

Jones Day associate Warren Postman, who argued for Steiman and Bluman, said the plaintiffs are reviewing the court opinion and planning to appeal.

Kavanaugh noted four U.S. Supreme Court justices found it, in his words, "beyond rationale debate," in Citizens United v. FEC, that the government may ban foreign contributions and expenditure. In Citizens United, the high court divided 5-4 in overturning the ban on corporate spending on elections.

Judge Gives DOJ Reprieve In WikiLeaks Document Dispute

Updated 4:04 p.m.

The Justice Department was unable Friday to meet a court-imposed deadline to provide guidance to lawyers involved in Guantánamo Bay detainee litigation over how the attorneys can access and use publicly available WikiLeaks documents.

DOJ lawyers asked Judge Paul Friedman of Washington federal district court to grant the department a one-week extension, until June 10, to finalize guidance for lawyers handling Guantánamo habeas cases.

Friedman this afternoon granted the department’s request (PDF) for more time, the third such motion filed in recent weeks.

David Remes, who leads the human rights law firm Appeal for Justice, is demanding access to and use of WikiLeaks documents. He said in court papers (PDF) filed today that Friedman should reject the government’s request. The department, Remes said, has no incentive to finalize its guidance if DOJ continues to receive extensions.

“The government’s rationale for its extension request has no logical limit,” Remes said. “Each time the government has requested an extension, it has offered the same rationale: that it is still working on its guidance for counsel’s handling of documents that every member of the public except counsel can examine and discuss publicly.”

Remes said WikiLeaks documents depict his client, Saifullah Paracha, “in the most sinister light.” Fairness, Remes said, “mandates that Mr. Paracha be allowed to respond in public to the government’s accusations in the publicly known documents.”

In April, Remes asked Friedman to issue an order giving him access to WikiLeaks documents, which include hundreds of pages of classified government files on current and former Guantánamo Bay prisoners. Remes filed the request (PDF) on an emergency basis.

“Any member of the general public can view these files, download them, print them, circulate them, and comment on them,” Remes said. Remes said he “fears that he will face potential sanctions, legal or otherwise, if he does exactly the same things without express government permission.”

Remes holds a “secret” security clearance. He said he is concerned the government will revoke his clearance—and possibly prosecute him—if he views the Wikileaks documents. Losing that clearance, Remes said, would render him unable to represent current or future detainee clients.

The guidance, DOJ lawyers said, will address how habeas counsel may access WikiLeaks material, how lawyers can use the information in the Guantánamo habeas litigation and the extent to which counsel may publicly discuss the documents.

“Because the guidance must strike a delicate balance between the interests of all petitioners’ counsel in securing access to the WikiLeaks materials and the United States Government’s interest in the protection and proper handling of classified information, it remains under consideration at senior levels of the United States Government and could not be finalized by today’s deadline,” Justice lawyer Stephen Elliott of the Civil Division’s federal programs branch said in a court document.

Army Reserves Medic Set for Plea Hearing in Child Pornography Case

A plea hearing is scheduled next week in federal district court in Washington for an Army Reserves paramedic charged with distributing child pornography.

Federal prosecutors initially filed a complaint (PDF) against Christopher Medovich in December 2010 in U.S. District Court for the District of Columbia. On March 31, an information was lodged against Medovich, whose arraignment and plea hearing is scheduled for April 20 before U.S. District Judge Reggie Walton.

Court papers reveal Medovich was caught in an undercover sting that played out over a couple of days in August, when Medovich was in Kuwait. Medovich, a member of an Army Reserves ambulance unit based in Richmond, spent most of last year overseas, according to court records.

During chats with an undercover officer, Medovich allegedly sent eight images of child pornography, prosecutors said. Medovich, 27, said in the chat, according to investigators, that he is sexually active with his 5-year-old daughter and that he drugs her while she is sleeping.

Several days after the Internet chats, investigators issued a subpoena to Yahoo! Inc. to acquire the subscriber information associated with Medovich’s e-mail address. Authorities determined, based on a review of Internet protocol addresses, that Medovich transmitted images of child pornography from Kuwait.

Woman's Suit Over MTV's 'Real World' Videos Survives Legal Hurdle

A woman featured on MTV's "The Real World" who claims she was drunk when she signed an agreement with the show's producers won a victory in federal court here today when a judge refused to hand the case over to an arbitrator.

The woman, Golzar Amirmotazedi of Bethesda, who was a non-cast member of the show, is suing MTV Networks and its parent, Viacom Inc., for airing video last year that allegedly humiliated her. Her suit [.pdf] in Washington’s federal trial court claims invasion of privacy and emotional distress. She is seeking more than $5 million in compensatory and punitive damages.

Lawyers for Viacom allege Amirmotazedi was not intoxicated when she signed a four-page agreement that said an arbitrator would decide any dispute. The agreement covers the terms of entry into “The Real World” group house in addition to a person’s appearance on the show itself.

After a night of drinking with the show’s cast at a midtown bar called The Sign of the Whale, Amirmotazedi signed the document before walking into “The Real World” guest house near Dupont Circle in Northwest Washington. She alleges she was later kicked out of the house because she refused to have sex with one of the men living there, according to the suit.

Senior Judge Gladys Kessler today denied Viacom’s request to let an arbitrator decide whether Amirmotazedi’s intoxication defense has merit. Voluntary intoxication, Kessler said, under District law, is a “type of mental capacity defense that permits an individual to avoid a contract if she was so intoxicated at the time of formation that she could not understand the terms and conditions of the agreement.”

The lawyers in the case dispute the events that led up to Amirmotazedi’s signing of the arbitration agreement.

Amirmotazedi’s attorneys, Jason Ehrenberg and Michael Tilghman II of Washington’s Bailey & Ehrenberg, claim cast members “fed her” eight to 10 drinks. Amirmotazedi said she has no recollection of signing the four-page arbitration agreement due to her heavy intoxication.

Lawyers for Viacom, represented by Washington’s Levine Sullivan Koch & Schulz, argue Amirmotazedi was not drunk at the time she signed the agreement. The TV program has a policy of prohibiting intoxicated people into the group house, according to Viacom’s attorneys, who include Levine Sullivan partner Michael Sullivan.

Viacom’s lawyers said an arbitrator, not a judge, should first decide the merits of Amirmotazedi’s intoxication defense. Click here for Viacom’s motion to compel arbitration.

Sullivan said this afternoon he is reviewing the opinion. He declined to comment immediately on the next steps. It was not immediately known whether Viacom planned to ask the U.S. Court of Appeals for the D.C. Circuit to review whether Kessler got it wrong.

Ehrenberg said this afternoon Kessler’s ruling is "significant from the standpoint that there is not a lot of case law that discusses” the legal issues that surfaced in Amirmotazedi’s suit.

“It’s an important case because we think someone was taken advantage of, quite frankly,” Ehrenberg said. “This is a case where this one individual appeared she was too intoxicated to consent” to signing a contract.

Kessler's ruling, Ehrenberg said, could "provide some protection for young people who get into these situations” on reality television programming. A status conference in the case is scheduled for later this month.

Conservative Blogger Andrew Breitbart Files to Move Shirley Sherrod Libel Lawsuit to Federal Court

Attorneys for conservative blogger Andrew Breitbart filed Friday in U.S. District Court for the District of Columbia to move the libel lawsuit brought against Breitbart by former U.S. Department of Agriculture official Shirley Sherrod into federal court.

Sherrod filed suit on Feb. 11 in D.C. Superior Court against Breitbart and Larry O’Connor, who blogs for Breitbart’s Web sites; a third, unnamed, defendant is also listed in the suit. In the complaint, Sherrod argues that the D.C. Superior Court is the proper venue because major events at issue took place in the District.

In his petition, Breitbart’s attorney, Eric Kuwana of Katten Muchin Rosenman, claims that because Sherrod is seeking damages that will likely exceed $75,000 and all of the parties live outside of the District, the case should be handled in federal court. Bruce Sanford of Baker & Hostetler is representing O’Connor.

Sherrod’s attorneys, Thomas Clare and Thomas Yannucci of Kirkland & Ellis, could not immediately be reached for comment.

Sherrod, former Georgia state director for rural development for USDA, sued Breitbart and the two co-defendants for defamation after a clip of Sherrod speaking at a March 2010 event was posted on Breitbart’s Web site.

The clip appeared to show Sherrod, who is black, admitting she discriminated against white farmers seeking her help in 1986; the full video, released shortly after, shows that Sherrod was saying that while she initially wondered if she should be focusing her efforts on helping black farmers in need, she realized that economic circumstances, not race, should determine who receives assistance. She noted that she helped the white farmers save their farm.

The original clip immediately went viral after it was posted on July 19 and, by the end of the day, Sherrod complied with a request that she submit her resignation. When the full video was released the following morning, however, Sherrod received a number of apologies, including from Agriculture Secretary Tom Vilsack and President Obama.

District Court Judge Richard Leon has been assigned to the case.

E-Mail: Hunton & Williams Expected 'Huge Gains'

Hunton & Williams stood to be the channel for $2 million in monthly subcontractor payments as part of a plan to discredit anti-corporate critics, according to e-mails that are drawing intense scrutiny of the law firm.

The firm hoped to build a lucrative practice around investigating critics such as U.S. Chamber Watch and WikiLeaks, and it worked with three private security companies in a partnership they called “Team Themis,” the e-mails say. Lawyers saw “potential for huge gains” as a result of liberal anger, one security employee wrote in an e-mail.

The e-mails — which are publicly available online — have been burning up liberal blogs since they were posted in recent days. Hackers who collectively call themselves “Anonymous” say the more than 71,000 e-mails are internal discussions involving the private security companies and, in hundreds of the e-mails, Hunton & Williams.

A review of the e-mails suggests how profitable Hunton & Williams thought the business could be. Partners at the firm wanted to do work for the U.S. Chamber of Commerce, Bank of America and at least one other entity.

An employee of one subcontractor, Palantir Technologies, visited Hunton & Williams’ office in Washington on Nov. 30 and, according to an e-mail he wrote the next day, came away optimistic about the business opportunity.

“They still think that this team (H&W, Themis) has potential for huge gains in this market especially since ‘the results of the election made some people angry,’” wrote the employee, Matthew Steckman. He added, “god I love these guys.”

Several messages describe a proposal in which the law firm, at the suggestion of partners John Woods and Richard Wyatt Jr., would pay $2 million a month for six months to the three subcontractors. It’s not clear what the firm’s income was to have been.

“According to John while 2mill was more than they expected it was not ‘Dead on Arrival’ and Richard is looking to push that number to the Chamber,” Steckman wrote Dec. 1, in apparent references to Woods and Wyatt. He added that once the team completed a “Phase I,” then they will brief the Chamber on the results “to get them to pony up the cash for Phase II.”

The deal never happened, according to the U.S. Chamber of Commerce. The organization said in a statement that it knew nothing of the proposals and never made any payments for them. “No money, for any purpose, was paid to any of those three private security firms by the Chamber, or by anyone on behalf of the Chamber, including Hunton and Williams,” it said.

DOJ Targets Online Sale of Counterfeit Goods

More than 80 Web sites allegedly selling counterfeit goods are temporarily out of business this morning following a national intellectual property enforcement action targeting the sale and distribution of fake merchandise, Justice Department officials said today.

Federal authorities obtained orders seizing the domain names of 82 Internet retail sites that were selling sports equipment, shoes, handbags, sunglasses, DVDs, music and software, according to the Justice Department. The Web sites include "burberryoutlet-us.com," "tieonsale.com," "handbagcom.com" and "coachoutletfactory.com." A full list of the domain names is here.

“With today’s seizures, we are disrupting the sale of thousands of counterfeit items,” Attorney General Eric Holder Jr. said in prepared remarks today. “We are cutting off funds to those looking to profit from the sale of illegal goods and exploit the ingenuity of others.”

The undercover sting targeted retailers the authorities suspected were selling and distributing counterfeit goods. If an item was confirmed as a fake, a U.S. magistrate judge issued a seizure order for the domain name. DOJ officials said the enforcement action follows an earlier effort, announced in June, in which seizure warrants were executed against nine Web sites.

In his remarks, Holder called enforcement of intellectual property rights a top priority at the Justice Department. “Make no mistake: Intellectual property crimes are not victimless, and they are not risk-free,” the attorney general said.

Nine U.S. Attorney Offices, including offices in Washington, Manhattan, New Jersey and Florida, participated in the investigation. Seventeen domain names were seized in the District of Columbia, U.S. Attorney Ronald Machen Jr. said.

In a statement, U.S. Senate Judiciary Chairman Patrick Leahy (D-Vt.) touted pending legislation that would give the Justice Department power to seek an injunction against a domain name of an Internet site "dedicated to infringing activities" even when the domain name is not registered in the United States.

"We can no longer sit on the sidelines while American intellectual property is stolen and sold online using our own infrastructure," Leahy said in a statement. "This costs American jobs, hurts our economy, and puts consumers at risk."

Media Companies Push for Free Speech in Robert Wone Civil Case

Several media companies and a blog dedicated to the unsolved murder of Washington lawyer Robert Wone have asked a D.C. Superior Court judge not to impose a gag order in a civil case tied to the 2006 homicide.

Lawyers for the three defendants in the wrongful death suit recently requested a gag order to minimize the potential for juror bias. The Wone family lawyers, including a Covington & Burling team, are opposed to a gag order.

Earlier this week, lawyers for the blog WhoMurderedRobertWone.com filed papers in D.C. Superior Court in opposition to the proposed gag order. The Washingtonian magazine and Albritton Communications joined the motion.

Charles English Jr., an Ober, Kaler, Grimes & Shriver partner in Washington who represents the media interveners, said the proposed order would constitute a prior restraint on speech, prohibiting the attorneys in the case from speaking about the litigation rather than disciplining them afterwards for any ethical violation.

“The scope of the gag order is breathtaking,” English, who chairs the firm’s food and agriculture group, wrote in court papers. The proposed restriction on speech would prevent reporters from asking mundane questions of the lawyers—including the date of any future status conference and the expected length of trial.

There is no evidence to support the defense lawyers’ fears that statements from attorneys in the case will affect the trial, English said.

The defendants, former Arent Fox litigation partner Joseph Price, Victor Zaborsky and Dylan Ward, are scheduled to stand trial in October 2011. A mediation session is scheduled for next June.

Price, Zaborsky and Ward were acquitted in late June on criminal charges that included obstruction and conspiracy.

Virginia Thomas Backs Off Debate on the Constitution, Healthcare

A conservative group headed by the wife of U.S. Supreme Court Justice Clarence Thomas says it is not taking a position on the constitutionality of the Democrats' healthcare overhaul, despite a position paper that carried her name.

The latest controversy involving Virginia Thomas appears to have begun when the position paper was posted on the website of Liberty Central, a conservative group that she founded last year. Liberty Central did not issue the paper, the group said in a statement today, but instead was relaying it from another group, the Conservative Action Project.

The position paper reads in part, regarding the new healthcare law: “With the U.S. Constitution on our side and the hearts and minds of the American people with us, freedom will prevail.”

The position paper, which is still available on Liberty Central’s website, originally included Virginia Thomas’ name, according to a story today in the Los Angeles Times. The newspaper cites legal experts questioning her involvement, given that the constitutionality of parts of the healthcare law could be considered by the Supreme Court.

In response to the Los Angeles Times story, Liberty Central released a statement today saying that the position paper carried Virginia Thomas’ name by mistake.

“She did not review the memo, it was reviewed by staff who mistakenly signed off with her name on it,” says the statement from Sarah Field, COO and counsel for Liberty Central. “As a result, we have asked CAP to remove her name and they did so immediately. Liberty Central assiduously avoids taking a position on the constitutionality of this, and other issues, and will continue to do so in the future.”

Virginia Thomas also made headlines this week when news broke that she left a voice message on the office phone of Anita Hill, who in 1991 accused Clarence Thomas of sexual harassment.

UPDATE (5:14 p.m.): The position paper has been removed. Click here (PDF) for the page as of 11:32 a.m.