The BLT: The Blog of Legal Times

DOJ Says No Contempt Case to be Filed Against Holder

Attorney General Eric Holder Jr. will not face a grand jury investigation into whether he should be charged with criminal contempt of Congress for his role in responding to a congressional subpoena, the Justice Department said in a letter to House Speaker John Boehner.

James Cole, the deputy attorney general, said in the letter that the department determined Holder's response to the subpoena for documents about the Fast and Furious gun-tracking probe was not a crime. The letter (PDF), which was sent Thursday night, said DOJ will not present the case to a grand jury "or take any other action to prosecute the Attorney General."

That Holder wasn't likely to face a criminal charge was expected. The House is expected to file a civil suit to try to force disclosure of certain documents. Iowa Sen. Chuck Grassley, the ranking Republican on the Senate Judiciary Committee, wants to know whether U.S. Attorney Ronald Machen Jr. even saw the House criminal contempt citation before rejecting it.

Grassley today sent a letter to Machen that it was impossible for him to have "undertaken any such independent assessment" of the citation before turning it down. Grassley said Boehner's office received the letter before the citation was transmitted to Machen.

In Dispute Over Drones, ACLU Asks Court not to Delay Hearing

Updated 4:59 p.m.

The American Civil Liberties Union today asked a federal appeals court in Washington not to delay hearing a dispute over access to any government documents concerning the use of drones to conduct targeted killings.   The Justice Department, representing the CIA, earlier this month asked the U.S. Court of Appeals for the D.C. Circuit to send the dispute back (PDF) to the trial court for additional proceedings.

The DOJ request followed the government's June 20 filing in a related Freedom of Information Act case pending in Manhattan federal district court. In the New York filing, DOJ lawyers urged a trial judge to shut down the litigation, saying, among other things, that the "requests involve highly classified information."   ACLU deputy legal director Jameel Jaffer said today in the D.C. Circuit that the appeals court should keep its Sept. 20 hearing date. The government's filings in New York, Jaffer said, don't affect the dispute in Washington.

D.C. Appeals Court: No Punishment for Exercising Right to Cross-Examination

In a two-page order in late May, the District of Columbia Court of Appeals reversed the sentence of a man convicted of drug possession, finding that the judge wrongfully penalized him for cross-examining a government witness. Yesterday, the court expanded on its decision, offering a strong defense of an individual's Sixth Amendment right.

"We cannot reverently repeat Wigmore’s famous dictum that cross-examination 'is beyond any doubt the greatest legal engine ever invented for the discovery of truth,' and in the next breath condemn and penalize a defendant for using that engine," Judge Stephen Glickman wrote in the opinion (PDF), referring to early 20th-century American legal scholar John Henry Wigmore.

Following a bench trial in January, District of Columbia Superior Court Judge Jennifer Anderson found Bobby Thorne guilty of heroin possession. At sentencing, she indicated that she had taken into account the fact that Thorne's attorney insisted on cross-examining the government's chemist, even though there was no dispute about the identity of the drugs. The appeals court found that Anderson's statements were proof that she had run afoul of Thorne's constitutional rights.

FTC Okays Sony Bid to Purchase EMI's Music Publishing Business

The Federal Trade Commission today announced that it has given Sony/ATV Music Publishing a green light to proceed with its acquisition of EMI's music publishing business.

Still pending before the agency is a far more controversial bid by Universal Music Group to acquire EMI's music recording business.

London-based EMI was seized by Citigroup Inc. in February 2011 after its owner, a British private equity firm, was unable to meet loan obligations.

In a June 28 letter to Sony counsel Deborah Feinstein, a partner at Arnold & Porter, EMI counsel Paul Yde of Freshfields Bruckhaus Deringer, Citigroup counsel Wayne Dale Collings of Shearman & Sterling, and investment fund Mubadala counsel Elaine Johnson of Allen & Overy, the FTC said it was closing its investigation into the music publishing transaction. "Upon further review of this matter, it now appears that no further action is warranted by the Commission at this time," the FTC stated.

Fort Hood Shooting Victims Hire Lobbyist on Compensation Issues

A group that represents victims of the 2009 Fort Hood, Texas, shooting and their families has enlisted a law firm for lobbying help in Washington.

Dinsmore & Shohl is advocating for the Coalition of Fort Hood Heroes on "[p]olicy reform related to, and equity and compensation for all victims of, the Fort Hood massacre," according to a lobbying registration report filed with Congress this week. Maj. Nidal Hasan, a psychiatrist, is accused of killing 13 and wounding more than two dozen soldiers and civilians during the Nov. 5, 2009, shooting.

"We've been retained to ensure that the interests of the Fort Hood heroes are protected and to ensure that the government does right by these people," said Dinsmore partner Reed Rubinstein, who is handling the account.

Marcia Coyle discusses the health care case on the News Hour

The National Law Journal's chief Washington correspondent discusses the Court's decision upholding the Obama health care overhaul on the PBS News Hour.

 

The Morning Wrap

Upheld: Chief Justice John Roberts Jr. "shuffles the deck" with the U.S. Supreme Court's health care decision, The National Law Journal's Tony Mauro reports today. Roberts "managed to stay true to his conservative roots while still, at the end of the day, crafting a majority that upheld the law that conservatives so roundly hate." Mauro and NLJ senior Washington correspondent Marcia Coyle have more coverage and analysis here on a special page about the health care decision.

Around the country: The New York Times has analysis of the decision here. The Washington Post: "Roberts's health-care decision stuns many but is in line with his outlook." Here's a look at newspaper front pages around the country. And this: the scene at Harvard Law.

See you in court: The House of Representatives is preparing to sue Attorney General Eric Holder Jr. in Washington's federal trial court over access to internal documents about the Fast and Furious gun-tracking debacle. The House yesterday, in a historic vote, found Holder in contempt of Congress for his refusal to disclose certain DOJ papers about the gun probe. Coverage here in The Wall Street Journal.

Getting close: The U.S. Justice Department is nearing a civil and criminal settlement with BP PLC and Transocean Ltd. over the Gulf of Mexico oil spill disaster, The Wall Street Journal reports. Civil fines could range from $5.4 billion to $21 billion. Settlement talks ramped up in recent weeks.

In Historic Vote, House Finds AG Holder in Contempt of Congress

The House of Representatives voted to find Attorney General Eric Holder Jr. in contempt of Congress this afternoon, a controversial and historic move that almost certainly sets up a battle in federal courts between Congressional Republicans and the White House.

At the heart of the contempt resolution are documents the Department of Justice has not turned over to the House Oversight and Government Reform Committee as part of a probe into the botched Fast and Furious gun smuggling operation.

From there, the debate spiraled out into partisanship, with Democrats accusing Republicans of a "craven, crass partisan move" and "shameful election-year politicking," and Republicans accusing Holder of misleading Congress and the White House of hiding something.

With Health Care Ruling, Surprise, Jubilation and Angry Calls for Repeal

By Legal Times Staff

As news spread of today's U.S. Supreme Court ruling largely upholding the Patient Protection and Affordable Care Act, the reaction in the crowd outside the court mirrored responses around Washington, with almost equal parts surprise, elation and outrage.

In the hours leading up to the announcement, hundreds of supporters, opponents and spectators gathered on the sidewalk in front of the court. One group knelt in prayer. Others marched in circles to a drumbeat. Chants ranged from, "Hey hey, ho ho, Obamacare has got to go" and "Tyranny never, freedom forever," to "We love Obamacare."

A cheer went up as opponents of the law heard that its key provision, the so-called individual mandate, had been struck down. But then they heard that perhaps it hadn't. The crowd grew quiet as demonstrators consulted with one another and their electronic devices to find out what exactly had happened, and a new cheer rose up from supporters of the law as they learned that the Court had, in fact, ruled in their favor.

Calls from Republican lawmakers and conservative interest groups to repeal the law came swiftly. GOP presidential candidate Mitt Romney pledged to push for repeal if elected. "Obamacare was bad law yesterday, it is bad law today," he said at a press conference today.

Inside the Supreme Court on a Historic Morning

As soon as the justices emerged from behind the velvet curtain at 10 a.m. this morning, clues about how the Supreme Court would rule on health care were apparent.

Justice Stephen Breyer had a broad smile on his face, while Justice Antonin Scalia looked downward morosely, as if attending a wake. But it would take a few minutes before the Obama administration's victory in the hard-fought litigation over health care decision would be apparent.

First, the Court disposed of the other two pending cases. In United States v. Alvarez, the Court struck down the Stolen Valor Act, which makes it a crime to lie about having won a military honor. Justice Anthony Kennedy announced the 6-3 ruling briefly, knowing the main attraction was yet to come. He framed it, as many expected the Court would, as a classic First Amendment case in which, holding its collective nose, the Supreme Court rules that the First Amendment must protect "speech we detest."