The BLT: The Blog of Legal Times

Stevens Has His (First) Day in Court

Sen. Ted Stevens would like to be tried in Alaska, and soon. It looks like he'll get at least the second part of his wish.

At the Republican senator’s arraignment in the U.S. District Court for the District of Columbia this afternoon, Judge Emmet Sullivan set a rough date of Sept. 24 for Stevens' trial on making false statements. The quick pace came at the request of Stevens' attorney, Williams & Connolly's Brendan Sullivan Jr., who said the senator hopes to "clear his name before the general election."

(Bear with us -- the arraignment had three Sullivans: the judge, the defense attorney, and Justice Department lawyer Ed Sullivan, who did not speak.)

"It is the first time in my life I've asked for a speedy trial," Brendan Sullivan joked, stressing the government's timing left him little recourse. Stevens would only need a week to present his defense, Sullivan said. "This is not a complex case."

Brenda Morris, principal deputy chief of Justice's Public Integrity Section, largely agreed to the timeline. The government's case would take three weeks to present, she said. After a recess to determine if he could find space in his calendar, Judge Sullivan acceded to the request.

The defense's requested venue change might prove trickier, as Morris objected to moving the case out of the District. But observing that most of the prospective witnesses are in Alaska -- a state where Stevens, currently the Senate’s longest serving Republican, is known as "Uncle Ted" -- Brendan Sullivan said he intended to file a motion for change of venue.

Sullivan ran the entire show for the defense. Arriving 40 minutes early, he chatted with Stevens and Williams & Connolly partner Robert Cary. When it came to enter a plea, Stevens walked forward, but did not speak.

"We plead not guilty, your honor," Sullivan said. Turning to his client a moment later, he suggested, "Why don't you sit down?" Stevens, who was wearing a rumpled gray suit, did and remained silent for the rest of the arraignment.

Asked whether the government had offered any plea bargains in the case or planned to, Morris said no. Later in the hearing, she backtracked. "There are no plea offers at this time, just to be clear," she told Judge Sullivan.

Hashing out a timeline for discovery went smoothly. The prosecution agreed to turn over everything it deems discoverable -- including what Morris described as "videotape, audiotape, consensual monitoring" -- on a 500-gigabyte disk, prompting a later joke from Brendan Sullivan.

"I never did get what a gigabyte is," Sullivan said, prompting Morris to reiterate that the disk needed to have a 500-gigabyte capacity.

"We'll give you 501," Sullivan responded.

The remainder of the arraignment was devoted to scheduling matters. It ended around 2:20 p.m. Stevens was released on his own recognizance and a promise to surrender his passport. With photographers and video crews stationed at every door of the courthouse, he walked without speaking to the 3rd Street exit with his wife Catherine and his attorneys. A black Cadillac was waiting for him.

From a client of Sullivan's, the silence was hardly unexpected.

"Sullivan's not going to talk to us after this, is he?" one reporter asked another during a quiet moment in the arraignment.

"I don't think so,” the other responded. "He never talked to us during the Oliver North trial."

FAMM Names New State Legislative Affairs Director

Deborah Fleischaker has been named director of state legislative affairs for Families Against Mandatory Minimums.

Fleischaker will coordinate the organization’s campaigns in Massachusetts, Michigan, New Jersey, and Kansas and will work to identify other states in which FAMM’s efforts to reform state mandatory minimum sentences could be effective.

“I’m a big proponent of fair and proportionate sentencing,” she says. “Our prison populations are huge, and there are some real common sense reforms that states can undertake that treat nonviolent offenders humanely and save the state money at the same time.”

Before joining FAMM, she was director of the American Bar Association’s Death Penalty Moratorium Implementation Project. The project pushed for moratoriums and reforms in eight states.

Fleischaker says she is excited to be working with FAMM because she feels “like I have a real opportunity to make a difference.”

Court Confirms Arbitration Award for Bernabei & Katz

Thanks to a D.C. Court of Appeals decision handed down today, Lynne Bernabei and Debra Katz might finally receive the $5,268 they were awarded six years ago in a dispute over legal fees.

The two lawyers, who ran the now-defunct Bernabei & Katz, won an arbitration award in 2002 after Shirley Bolton, whom the firm represented in a lawsuit against the U.S. Army for allegedly failing to promote her, refused to pay any legal fees. According to the opinion, Bernabei & Katz terminated its representation because Bolton was not paying their fees.

The D.C. Court of Appeals confirmed the arbitration award today and dismissed Bolton’s counterclaim, which alleged negligence and malpractice on the firm's part. However, the court’s opinion leaves open the possibility of Bolton amending or clarifying her answer.

Since the suit was first filed, Katz and Bernabei have gone their separate ways. Katz is a co-founder of Katz, Marshall & Banks. Bernabei is a co-founder of Bernabei & Wachtel.

No Absolute Immunity for White House Aides, Judge Rules

UPDATE: Here come the responses. Click here for a statement by John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee, and click here for a statement by Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee. Both committees are investigating the U.S. attorney firings.
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U.S. District Judge John Bates has released his decision in Committee on the Judiciary of the United States House of Representatives v. Miers, et al. White House Chief of Staff Josh Bolten and former White House Counsel Harriet Miers do not enjoy absolute immunity from congressional subpoenas, Bates ruled.

The White House tried to shield Miers and Bolten from the House Judiciary Committee's demands for documents and testimony about the U.S. attorney firings, but Bates rejected the argument that the President could confer absolute immunity to his aides. (Click here for some background on the lawsuit. And click here for a recap of oral arguments in June.)

“The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law,” Bates wrote in the 93-page opinion.

Bates noted that the decision was “very limited.” While it kills the absolute immunity claim, the decision is silent on the specific claims of executive privilege that Miers and Bolten may assert. That could come later, now that Bates has cleared the way for the lawsuit to go forward, but he nudged the parties toward a political fix.

“Although standing ready to fulfill the essential judicial role to ‘say what the law is’ on specific assertions of executive privilege that may be presented, the Court strongly encourages the political branches to resume their discourse and negotiations in an effort to resolve their differences constructively, while recognizing each branch’s essential role,” Bates said.

The judge ended his introduction with an observation from Justice Robert Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.

Morning Wrap

Cadwalader Lays Off 96: Cadwalader, Wickersham & Taft attributed the layoffs of 96 lawyers to its slow-going real estate finance and securitization practices. The most recent wave of layoffs comes after Cadwalader laid off 35 lawyers in January, according to the New York Law Journal, via Law.com.

United Accuses Pilots Association: The Associated Press reports United Airlines has accused the Air Line Pilots Association of abusing sick time and refusing to fly extra hours. United said it has lost about $8 million in revenue due to 329 flight cancellations between July 19 and July 27.

House Passes Tobacco Legislation: For the first time ever, the House of Representatives passed legislation that would regulate the tobacco industry, according to The Associated Press. The Family Smoking Prevention and Tobacco Control Act would place tighter restrictions on tobacco advertising and issue federal penalties against selling to minors.

Not Making the Grade: The Washington Post reports 9,612 people, including some who might work in the government and military, may have purchased fake high school diplomas and college degrees. The list has not been made public by the government.

Foley Hoag Picks Up Counsel From Miller & Chevalier

Melida Hodgson has joined Foley Hoag as counsel in the firm’s Washington Office.

Hodgson had previously spent a little over two years in Miller & Chevalier’s Washington office as counsel. Before that, she served as associate general counsel in the Office of the United States Trade Representative for seven years.

Her move to Foley Hoag was prompted by the firm’s international arbitration practice, which she says is a better fit for her work.

“I wanted to focus my practice on trade policy and investment policy work, and that wasn’t really a priority [at Miller & Chevalier],” Hodgson says. “They have a great tax practice and a great litigation group, but international arbitration was not what they’re focusing on.”

Hodgson says she is still in talks with Miller & Chevalier about how to divvy up the clients she worked with at the firm, but for now she is “jumping into” work with Foley Hoag’s existing clients and the international arbitration team there.

Now Lawyers Are LEED Accredited

Jeffrey Lesk, a partner at Nixon Peabody, has earned a credential that only four other lawyers in Washington can boast: He has become a LEED accredited professional.

Why? So that he can better advise clients seeking LEED certification, of course.

LEED certification is a widely recognized standard for rating how “green” buildings are. The LEED system, a project of the U.S. Green Building Council, rates new and renovated buildings on a number of criteria, including choosing a suitable site, conserving energy and water throughout the building process, using low-impact materials, and preserving indoor air quality.

According to Lesk, earning accreditation requires applicants to choose one of three exam tracks, each with its own textbook-like manual, and then pass a test on the subject matter. The three tracks focus on new buildings, existing buildings, and commercial interiors.

Only about 75 lawyers have achieved LEED accreditation nationwide. The accreditation is usually pursued by building developers, architects, engineers, and designers.

Lesk predicts that earning LEED certification for buildings will become much more important for Washington developers in the next few years as the District’s Green Building Act of 2006 goes into effect. The act phases in LEED requirements for all new construction and renovation projects over a four-year period.

According to the LEED site, the other LEED accredited lawyers in Washington are David Blake, a partner at Seyfarth Shaw; Keith McGlamery, a partner at Ballard Spahr Andrews & Ingersoll; Casius Pealer, an associate at Reno & Cavenaugh; and Shannon Sentman, an associate at Holland & Knight.

DOJ Inspector General Testifies in Congress

Justice Department Inspector General Glenn Fine took questions today from members of the Senate Judiciary Committee on the two recent reports by his office and the Office of Professional Responsibility on how politics influenced hiring in the department.

A few highlights:

• When asked how 34-year-old Monica Goodling, the onetime White House liaison, was able to “rule the day,” Fine said she and the others, like John Nowacki, a deputy in the Executive Office for U.S. Attorneys, “did not understand the traditions of the Department of Justice.”

Fine placed blame on Goodling’s superiors. The most recent report outlines nearly a dozen instances in which officials as high up as the deputy attorney general rolled over for Goodling. The problem was “people not objecting, people not standing up. A few did, but I think most didn’t,” Fine said.

• Fine said the Office of Professional Responsibility plans to notify state bars of the misconduct outlined in the report. That means Goodling, D. Kyle Sampson, the chief of staff to former Attorney General Alberto Gonzales, and others accused of violating civil service laws and Justice Department policy could face disbarment. But it’s unlikely they’ll see anything more serious.

“We did not think there was a sufficient basis for criminal prosecution for false statements,” Fine said.

• When asked about the 40 or so immigration judges who were selected based on their politics in violation of the law, Fine said he knew of a few who didn’t make it past the probationary period. Others, he said, “are doing well.”

Even though the judges, who were handpicked in most cases by the White House, weren’t required to compete with other qualified candidates, Fine suggested there was little anyone could do now.

“It would be difficult, if not impossible, to see ex post facto if they’re qualified now,” Fine said.

One Year Later: No Comment from Chief Justice Roberts on his Health

One year after he suffered a seizure near his summer home in Maine, Chief Justice John Roberts Jr. is not commenting on the current state of his health. In response to a series of written questions from Legal Times about possible medications or changes in lifestyle, or whether he has suffered any more seizures or other health problems, Roberts offered only a "no comment."

Last July 30, according to a press release issued that day by the Court, the chief justice experienced "minor scrapes" during a "benign idiopathic seizure" near his Hupper Island summer home. He was hospitalized overnight and released after extensive tests showed "no cause for concern." Because he had suffered a similar unexplained seizure in 1993, some medical experts said his condition fit the basic definition for epilepsy.

In his public appearances and on the bench, Roberts has shown no signs of abnormalities in the last year. But the widely publicized episode was disconcerting, and was viewed by commentators as a potentially life-changing event for the chief justice, now 53. "On a clear summer day, he became a middle-age man in need of emergency medical treatment," wrote Linda Greenhouse in the New York Times soon after the episode. "Might this encounter with illness even change the way John Roberts sees himself, his job or the world?"

But as with most other justices with health problems through history, Roberts has not offered the public the same kind of detailed medical report that has become routine for presidents and other public figures, preferring instead to let his work speak for itself.

But that is not enough, says University of Cambridge professor David Garrow, who has written extensively about the infirmities of Supreme Court justices. "Given how much public attention his seizure attracted at the time, it ill behooves both the chief justice individually, and the Court as an independent branch of government, to refuse to comment whatsoever about a genuine matter of public concern involving one of the government's top officials."

Morning Wrap

Sprint Pays: The Washington Post reports a California court ruled Sprint Nextel must pay $18.3 million in cash to customers who paid early-termination penalties and $54.8 million must be credited to customers who were charged but had not yet paid. The court said the penalties are not rates and therefore not legal, according to California law.

Congress Members Seek More Power for FDA: The Wall Street Journal reports two members of Congress, Rep. John Dingell (D. Mich.) and Sen. Chuck Grassley (R. Iowa) are trying to give the Food and Drug Administration more power to issue fines, order drug recalls, and limit drug industry advertising in wake of deaths connected with Chinese-made blood thinners and instances of salmonella outbreaks.

DOJ Can't Hide Amnesty Agreements: The D.C. Circuit ruled the Department of Justice could not hide amnesty agreements it had made with other companies. The court’s decision increases the likelihood that redacted versions of the amnesty agreements will be available to the public, according to Corporate Counsel via Law.com.

Ref Doesn't Play by Rules: Former NBA referee Tim Donaghy has been sentenced to 15 months in jail for giving insider tips on basketball games to gamblers. Donaghy violated a corporation’s right to honest services, which is guaranteed by the Anti-Drug Abuse Act of 1988, according to The New York Law Journal, via Law.com.