Main Content
August 19, 2011
On a slow summer Friday afternoon comes word that former presidential candidate and U.S. Sen. John Edwards (D-N.C.) has switched up his legal team, dropping former Obama White House counsel Greg Craig and bringing in prominent D.C. white-collar defense attorney Abbe Lowell.
The change was recorded Friday in filings with the U.S. District Court in North Carolina where Edwards is under criminal indictment for allegedly accepting nearly $1 million in campaign donations routed to a woman he had an affair with and who later gave birth to Edwards's child. The court filings gave no explanation for the change in legal counsel.
Neither Craig nor Lowell responded to requests for comment on the development, which was first reported by NPR's Nina Totenberg. She said the change was "apparently for both financial and tactical reasons."
A lawyer for Edwards in North Carolina, James Cooney, declined to comment when reached by POLITICO Friday afternoon. Cooney and colleague Wade Smith are apparently staying on.
Edwards's selection of Craig, who went to Skadden Arps from the White House, struck some in D.C. legal circles as a curious one since his resume would have made a decision not to indict Edwards or to accept a mild plea bargain difficult because it could look to some like a political deal involving President Barack Obama's former lawyer.
Lowell, who recently rejoined Chadbourne & Parke, is currently representing former Sen. John Ensign (R-Nev.) in an investigation into very similar claims that gifts made in connection with an affair he had may have actually been campaign donations. Ensign has not been indicted. Lowell also handled high-profile cases involving lobbyist Jack Abramoff and another involving the prosecution of two pro-Israel lobbyists for allegedly illegally handling classified information.
UPDATE: This post has been updated with details of Totenberg's report and Cooney's declining to comment.
Posted by Josh Gerstein 05:03 PM
- comments closed
- permalink
August 19, 2011
The Justice Department is asking a federal judge to throw out a lawsuit 10 members of Congress filed in June, demanding that U.S. military support for the NATO operation in Libya be shut down because President Barack Obama's orders violate the Constitution and the War Powers Resolution.
In a brief filed Friday afternoon, Justice Department lawyers say lead plaintiff Rep. Dennis Kucinich (D-Ohio) and the other lawmakers are free to push anti-war measures in Congress but they have no right to relief in the courts.
"Plaintiffs are fully able, in their legislative capacities, to seek their desired goal. A decade of binding precedent, however, squarely forecloses their standing to seek this goal through the judicial system when their legislative efforts have failed in Congress," said the brief filed under the name of Assistant Attorney General Tony West and other DOJ officials.
The DOJ brief argues, in essence, that the dispute about authorization for use of military force against Libya is a political one and not readily susceptible to resolution by the courts. The brief (posted here) relies primarily on Campbell v. Clinton, a D.C. Circuit ruling from 2000 that rejected a challenge to the involvement of U.S. troops in Bosnia and Kosovo.
One interesting and potentially awkward aspect of the Justice Department's opposition to the suit: the acting head of the Justice Department's Office of Legal Counsel reportedly concluded that the continued involvement of U.S. forces in Libya after 90 days passed violated the War Powers Resolution. That's essentially the position taken by the House members in their lawsuit. Of course, there's always the possibility that even if the Libya action violates the WPR, the WPR is unconstitutional, but that's an argument the Obama administration would likely prefer not to make if it can avoid it.
Posted by Josh Gerstein 04:35 PM
- comments closed
- permalink
August 17, 2011
White House visitor records maintained by the Secret Service are subject to the Freedom of Information Act and must be disclosed if not covered by one of the law's exemptions, a federal judge ruled Wednesday.
U.S. District Judge Beryl Howell issued the decision on a lawsuit brought by a conservative legal watchdog group, Judicial Watch. The group's suit sought White House access records from January to September 2009, when President Barack Obama instituted a new and unprecedented policy of releasing the names of nearly all White House visitors.
In the case, Obama's Justice Department took the position the government had under the Bush administration: that the White House visitor records were not subject to FOIA because they belonged to the president and not the Secret Service. However, Howell rejected that argument.
"The Secret Service argues that it is unable to dispose of the records freely because they are ultimately White House records and not agency records. This argument is circular," Howell wrote in her 19-page ruling (posted here). "The claimed restrictions on disposal stem from the defendant’s assumption that the documents are under Presidential control — the exact point that the defendant seeks to prove to establish that the documents are not subject to FOIA."
The Justice Department also argued that the records could implicate national security issues, but Howell said that was no reason to declare all the data requested by Judicial Watch to be beyond the reach of FOIA.
Given the Obama policy to release this information going forward, the implications of Howell's ruling could be limited. However, if the decision is upheld, it means that what the White House has touted as a voluntary disclosure policy would not be voluntary any more.
For what it's worth, Howell is an Obama nominee confirmed to the bench late last year.
The White House and Justice Department had no immediate comment on the ruling.
"This is a major victory for open government and an embarrassing defeat for the Obama administration,” Tom Fitton of Judicial Watch said in a statement. “This administration will now have to release all records of all visitors to the White House — or explain why White House visits should be kept secret under law. It is refreshing to see the court remind this administration that the rule of law applies to it.”
UPDATE: This post has been updated with comment from Fitton.
Posted by Josh Gerstein 03:46 PM
- comments closed
- permalink
August 17, 2011
President Barack Obama's top White House lawyers are now all women, which is apparently a first, Legal Times's David Ingram reports.
A new deputy White House counsel, Leslie Kiernan, started this week with a portfolio that includes vetting and ethics issues, Ingram reported. A White House spokesman confirmed the hire to POLITICO. In her previous job at Zuckerman Spader, Kiernan did some work for the White House, including interviewing Supreme Court nominee Sonia Sotomayor before her nomination.
While Obama's preference at town hall meetings is for strict "boy, girl, boy, girl" gender equality, the hierarchy of his White House counsel's office is now all female. Kathryn Ruemmler runs the operation. Beyond Kiernan, the other two deputies are Kimberley Harris, who handles responses to Congressional inquiries, and Avril Haines, who tackles national security issues.
Of course, Obama's former White House counsel Bob Bauer is far from out of the picture: While he's back in private practice, he now provides legal advice to Obama through his reelection bid.
Posted by Josh Gerstein 03:21 PM
- comments closed
- permalink
August 17, 2011
Here (via White House photographer Pete Souza) is what appears to be the first glimpse inside the new armored bus that President Barack Obama is using on his bus trip through the Midwest:
Posted by Josh Gerstein 12:29 PM
- comments closed
- permalink
August 16, 2011
Larry Klayman -- the conservative gadfly and attorney whose prolific lawsuits made him the bane of the Clinton administration -- just won a round in court against the Obama administration's health care reform effort.
Klayman and a new legal group he founded, Freedom Watch, filed suit in 2009 against President Barack Obama and what Klayman called the "Obama Health Reform De Facto Advisory Committee." The suit alleges that as the administration pressed for passage of health care reform legislation, White House officials set up a panel of lobbyists from the pharmaceutical industry, the U.S. Chamber of Commerce, the AARP, the American Medical Association and others to build support for the measure.
The lawsuit claims that by meeting secretly and through its allegedly unbalanced composition, the group violated an open government law, the Federal Advisory Committee Act.
Justice Department lawyers moved to throw out Klayman's suit on a variety of grounds, but on Friday, U.S. District Court Judge Richard Roberts ruled that part of Klayman's suit can go forward.
"Freedom Watch has alleged sufficiently in its complaint that the committee here was an advisory committee under the FACA, Freedom Watch may be entitled to mandamus review against the president, and dismissing the complaint on separation of powers grounds would be premature," Roberts wrote in a 15-page ruling (posted here).
Roberts, a Clinton appointee, did raise the possibility that the case could be moot since the health care bill passed more than a year ago. However, the possibility of forcing disclosure of records related to the alleged committee could be enough to allow the case to proceed, lawyers said.
A Justice Department spokesman said officials were reviewing the judge's decision.
Legal analysts said they doubt Klayman will ultimately win the suit. However, the judge's ruling could clear the way for discovery in the case. Klayman became famous in the 1990s for his use of depositions and document requests to harangue Clinton administration officials. His suits often managed to tie Clinton aides in knots and sometimes exposed them to political embarrassment and legal bills, regardless of the final outcome.
"It is a huge decision," Klayman said in a phone interview. "I'm going to go back and ask for discovery….The past is a prologue. I want to see how they were meeting before to see if they're still meeting that way now. Given the number of regulations involved and the cost to the economy, you can bet they’re communicating."
The current suit has already put the current administration in an uncomfortable spot: despite Obama's professed commitment to transparency, the Justice Department argued that private individuals have no right to enforce the 1972 sunshine law to obtain access to an advisory committee of private individuals consulted by the White House.
In March 2005, during the Bush administration, the U.S. Court of Appeals for the Ninth Circuit ruled that private individuals could not enforce the sunshine law. However, two months later, the court withdrew that opinion without explanation.
Klayman's legal crusades while he was at the helm of the conservative watchdog group Judicial Watch were so colorful that they spawned a semi-fictional character: Harry Klaypool on "The West Wing." Klayman eventually had a falling out with Judicial Watch. He sued the group and last week was formally sanctioned by a federal judge for repeatedly ignoring filing deadlines and refusing to comply with discovery orders.
"I have moved to disqualify that judge. I filed an ethics complaint against her to have her removed. She is notorious," Klayman told POLITICO. "What she did to me is payback."
The Clinton administration's health care reform efforts were also the subject of a suit under FACA. The administration eventually conceded the case and released all the records of committees it set up to work on reform legislation. That suit was brought by a conservative doctors' group, the American Association of Physicians and Surgeons.
Posted by Josh Gerstein 04:43 PM
- comments closed
- permalink
August 12, 2011
President Barack Obama is urging Latino voters to spend less time pressing him to ease the enforcement of immigration laws and more time pressing Republican lawmakers to get behind immigration reform legislation.
"The problem right now is not on the Democratic side. ... Everybody for some reason is letting the Republican Party off the hook on this issue, either by hoping that I can take a unilateral action or that somehow Democrats can change the way Congress works," Obama said during a roundtable Monday with journalists for Spanish-language U.S. newspapers. "The fact is, is if Latinos all across the country said, 'Until the Republican Party is willing to cooperate on bipartisan, comprehensive immigration reform, we can’t support the Republican Party,” I promise you that’s something that would get the attention of the Republican Party."
"But that’s not where the energy is. So much time has been spent trying to see if we can do something administrative," Obama complained, according to an account by Antonieta Cadiz in La Opinion. "It’s as if people just give up on the idea of ever changing Republicans’ minds and, as a consequence, they don’t feel any pressure to try to do the right thing when it comes to immigration reform. That’s where the pressure needs to be applied."
During the discussion with Latino reporters, he was also asked about reports that, despite an Obama administration policy to focus deportation efforts on violent criminals, thousands of illegal immigrants have been deported because of traffic violations and drug offenses.
"One of the things that [Immigration and Customs Enforcement] has done is to provide more direction to its agents out on the field, in terms of what are the priorities; how are we focusing on the most serious criminals," Obama said. "That does not mean that that has all embedded itself at the operational level. So there may be still situations where there are resources being used, in terms of deporting somebody who had a DUI or had some other minor traffic violation. But overall, the direction that's being moved in is to say, look, you should prioritize."
Obama also said the administration is trying to limit the impact of immigration enforcement on families, but some of that is inevitable in the absence of legislation that would legalize some of the millions of illegal immigrants in the U.S.
"We’re going to keep on trying to improve our administrative functions so that we’re minimizing the separation of families, so that people who are basically decent hardworking people don't get caught up in the system when we’re not focusing, when we haven’t done as good of a job as we need to, focusing on criminals who definitely need to be deported," Obama said. "But in the absence of Congress acting, there’s going to continue to be this tension and these problems."
Here are links to other Spanish-language accounts of the president's roundtable, which did not appear on his public schedule but was featured briefly in a video the White House released Friday: El Nuevo Herald, Washington Hispanic and El Tiempo Latino.
Posted by Josh Gerstein 06:00 PM
- comments closed
- permalink
August 12, 2011
President Barack Obama has forcefully rejected calls for Attorney General Eric Holder to resign over a controversial federal law enforcement operation that allegedly allowed hundreds of guns to flow to Mexican drug cartels.
Rep. Allen West (R-Fla.) and the National Rifle Association have called for Holder's resignation over Operation Fast and Furious, the Bureau of Alcohol, Tobacco Firearms and Explosives investigation that monitored suspicious gun sales. Several of the weapons have been recovered from drug gangs in Mexico and two guns were found at the scene of the shooting death of a U.S. Border Patrol Agent last December.
However, when asked at a roundtable with Spanish-language print media on Monday whether Holder should quit, Obama flatly said, "No."
"He was kind of uncomfortable with the question, I'd say," one of the journalists on hand, Antonieta Cadiz of La Opinion, said. (Read her story here, or the Google Translation into English here.)
Holder has ordered an Office of Inspector General probe into Fast and Furious, which Congress is also investigating. The attorney general said last week that the practice of "gun-walking" allegedly involved in the ATF operation was "not an appropriate technique."
"That is not a technique that should ever be used," Holder told a news conference at the Justice Department.
Posted by Josh Gerstein 05:24 PM
- comments closed
- permalink
August 10, 2011
House Homeland Security Committee Chairman Peter King (R-N.Y.) is asking for investigations into whether Obama administration officials are sharing classified information with movie producers planning a feature film about the May 1 raid that killed Al Qaeda founder Osama bin Laden.
In a letter Tuesday to the inspectors general of the Defense Department and the Central Intelligence Agency, King pointed to reports that director Kathryn Bigelow and writer Mark Boal are getting special access to the Navy SEALs and others involved for a Sony Pictures film.
"The administration's first duty in declassifying material is to provide full reporting to Congress and the American people in an effort to build public trust through transparency of government," King wrote. "In contrast, this alleged collaboration belies a desire of transparency in favor of a cinematographic view of history."
At a press briefing Wednesday, White House press secretary Jay Carney called King's allegations "ridiculous" and "simply false."
"When people, including you in this room, [who] are working on articles, books, documentaries or movies that involve the president, ask to speak to administration officials, we do our best to accommodate them to make sure the facts are correct. That his hardly a novel approach to the media. We do not discuss classified information," Carney said. "I would hope as we face a continued threat from terrorism, the House Committee on Homeland Security would have more important topics to discuss than a movie."
"There is no difference in the information that we have given to anybody who is working on this topic from what we gave to those of you in this room who worked on it in the days and weeks after the raid itself," Carney added.
CIA spokeswoman Marie Harf said the agency's cooperation with Hollywood is routine. "As part of our public outreach, this agency — like others in our government — has over the years engaged with writers, documentary filmmakers, movie and TV producers and others in the entertainment industry. Our goal is an accurate portrayal of the men and women of the CIA, their vital mission and the commitment to public service that defines them," she said.
Harf had no comment on whether Boal attended a CIA ceremony in June congratulating those involved in the raid.
Pentagon spokesman Col. Dave Lapan also described the military's work with the filmmakers as routine. "This film project is only in the script development phase, and DoD is providing assistance with script research, which is something we commonly do for established filmmakers," he said.
Lapan said the military is helping make sure the filmmakers' "facts are correct" but added that no formal decision about whether to provide military support to the film will be made until a script is completed. "We do not discuss classified information," he added.
King noted that in the wake of a series of authorized briefings and leaks soon after the raid, top officials including then-Joint Chiefs of Staff Chairman Mike Mullen and former CIA Director (now Defense Secretary) Leon Panetta complained that such disclosures could jeopardize future missions. Former Defense Secretary Robert Gates suggested that the White House breached an agreement not to provide further details about the operation.
King's letter makes no direct reference to the possibility that Obama officials are cooperating with the cinematic effort in order to boost President Barack Obama's reelection bid, but he referenced a New York Times column Sunday in which Maureen Dowd made that assertion.
"The White House is also counting on the Kathryn Bigelow and Mark Boal big-screen version of the killing of bin Laden to counter Obama’s growing reputation as ineffectual," she wrote. "Just as Obamaland was hoping, the movie is scheduled to open on Oct. 12, 2012 — perfectly timed to give a home-stretch boost to a campaign that has grown tougher."
Dowd added: "The moviemakers are getting top-level access to the most classified mission in history from an administration that has tried to throw more people in jail for leaking classified information than the Bush administration."
The New Yorker recently published — with some cooperation from the White House — a very detailed article about the bin Laden raid. The author later acknowledged he had no direct conversations with the SEALs who carried it out.
— with Julie Mason and Abby Phillip
UPDATE: This post has been updated with quotes from Carney, Harf and Lapan.
Posted by Josh Gerstein 01:11 PM
Tags:
- CIA,
- Classified Information,
- Defense Department,
- Films,
- Jay Carney,
- Leaks,
- Navy Seals,
- Osama Bin Laden,
- Pentagon,
- Peter King,
- Special Forces
- comments closed
- permalink
August 10, 2011
Federal prosecutors want permission to introduce evidence that the public will not see and to use screens to shield the identities of some witnesses during the upcoming trial of former CIA officer Jeffrey Sterling, who is accused of leaking top-secret information to a New York Times reporter.
In a court filing late Tuesday, prosecutors said the unusual measures are needed to safeguard national security secrets and to assure the safety of witnesses who worked undercover as officers or agents for the U.S.
"In light of national security, counterintelligence, and personal safety concerns, the government asks that some of those witnesses be referred to throughout the public proceedings by the initial of their true last name (e.g., Mr. D. for John Doe), and that a screen be used to prevent the identities of several of those current or former officers from being revealed to the public," prosecutors said in the motion submitted to U.S. District Court Judge Leonie Brinkema in Alexandria, Va.
Sterling faces 10 felony counts relating to allegations that he told Times reporter James Risen about Operation Merlin, a CIA effort to transmit flawed nuclear weapon designs to Iran. In his 2006 book, "State of War," Risen said the Russian defector to the U.S. that the CIA used to convey the information to Iran actually pointed out the flaws to the Iranians. Prosecutors have said aspects of Risen's account are false but they have not been specific.
Sterling's lead defense attorney, Ed MacMahon, bridled at the prosecution requests to prevent the public from seeing some witnesses and evidence at the trial, which is currently set for Oct. 17. "Sterling's entitled to a public trial and we're going to do everything we can to make sure he actually gets a public trial and not one controlled by the CIA," MacMahon said in a brief interview Wednesday.
The Sixth Amendment to the U.S. Constitution guarantees defendants the right to a public trial and to confront witnesses against them. However, judges have on some occasions allowed use of nonpublic evidence, pseudonyms, screens or even disguises for witnesses.
One of the most controversial techniques proposed by the prosecution, the so-called silent witness rule, allows the judge, the prosecution, the defense and the jurors to see a document while a witness is being questioned about it. Defense lawyers and press advocates have complained that the technique amounts to secret testimony because the jury is effectively receiving evidence to which the public has no access.
Defense attorneys have also complained that the secrecy measures, when used at trial, send a not-so-secret signal to jurors that the court has concluded that the matters at issue involve national security secrets — effectively encouraging jurors who must decide that issue to reach the same conclusion.
Prosecutors also revealed Tuesday that the Russian defector, referred to in court papers as "Human Asset No. 1," may be called as a witness at Sterling's trial. In the court filing (posted here), prosecutors said they are likely to request that his identity and name be protected through use of the same techniques.
Prosecutors said they expected the use of the silent-witness procedure would occupy only about 40 minutes of questioning during the trial. If the judge opposes using such a procedure, prosecutors asked that she close the courtroom altogether and release a transcript of the testimony after it has been edited to remove classified information.
The same prosecutor who is handling Sterling's case, William Welch, recently proposed using the silent-witness rule as well as a series of codes at the trial of a former National Security Agency staffer who faced leak-related charges. The judge in that case rejected that approach, according to lawyers involved. The case was settled through a plea bargain and never went to trial.
In 2007, a federal judge ruled against the bulk of the government's request to use the silent-witness procedure as well as secret recordings at the trial of two pro-Israel lobbyists accused of obtaining and disclosing classified information. The judge said he might allow the procedure on a document-by-document basis. That case was dropped by the Justice Department in 2009.
During a 2006 trial for alleged Hamas operatives in Chicago, the judge closed the courtroom as members of Israel's secretive Shin Bet security service testified in the case. The press and public were permitted to hear the proceedings from a nearby room.
Brinkema ruled late last month that prosecutors cannot require Risen to testify about his confidential sources. It is unclear whether the government will seek to appeal her ruling.
Posted by Josh Gerstein 10:55 AM
- comments closed
- permalink
August 09, 2011
The U.S. Army private arrested in Texas last month for allegedly plotting an attack on Fort Hood was indicted Tuesday by a grand jury in Waco.
The three counts handed down against Pfc. Naser J. Abdo include possession of a firearm and ammunition by a fugitive from justice and possession of a unregistered destructive device.
When he was arrested on July 27 in Killeen, Abdo was said to be plotting a bomb attack on Fort Hood. Abdo was AWOL from his post at Fort Campbell, Ky.
He faces up to 10 years in prison on each charge if convicted, The Associated Press reported. Naser is being held without bond and has yet to enter a plea.
Read the text of the press release issued by the U.S. Attorney's Office for the Western District of Texas:
» Continue reading Accused Fort Hood bomb plotter indicted
Posted by Politico Staff 08:40 PM
- comments closed
- permalink
August 08, 2011
A federal appeals court ruled Monday that two Americans who claim they were tortured while in U.S. military custody in Iraq can pursue a lawsuit against former Secretary of Defense Donald Rumsfeld.
The 2-1 ruling from the U.S. Court of Appeals for the Seventh Circuit appears to be the highest-level court success for lawyers seeking to use the courts to impose accountability for what critics view as national security excesses under President George W. Bush. Monday's decision came in a lawsuit brought by Donald Vance and Nathan Ertel, employees of a firm that did security work in Iraq. Vance spent three months in military detention and Ertel six weeks in conditions and suffering from abuse they claim amounted to torture.
"United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens," Judge David Hamilton wrote, joined by Terence Evans. "When civilian U.S. citizens leave the United States, they take with them their constitutional rights that protect them from their own government."
"Sorting out the appropriate remedies in this complex and perilous arena is Congress’s role, not the courts’,"Judge Daniel Manion wrote in dissent. "I agree with the court that allegations of torture against a U.S. citizen are a very serious matter. But given the significant pitfalls of judicial entanglement in military decision-making, it must be Congress, not the courts, that extends the remedy and defines its limits."
While Rumsfeld was sued personally, he is being represented in the case by the Justice Department. The government also usually pays any damages awarded in such cases.
A Justice Department spokeswoman had no immediate comment on the ruling, but Rumsfeld's private attorney blasted the appeals court's ruling.
"Today’s decision by the Seventh Circuit Court of Appeals is a blow to the U.S. military," attorney David Rivkin said. "According to two judges on the court, the judicial branch is best-suited to decide how to handle detainees captured and held in foreign war zones. ... Having judges second-guess the decisions made by the armed forces halfway around the world is no way to wage a war. It saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America."
The Seventh Circuit decision (posted here) comes as two other appeals courts, the Ninth Circuit and the Fourth Circuit, face somewhat similar appeals involving an alleged terrorist held in military custody and allegedly tortured in the U.S.: Jose Padilla. A district court in California allowed a suit against former Justice Department lawyer John Yoo to proceed, but a judge in South Carolina rejected a similar suit against Rumsfeld and other officials.
Just last week, a district court in Washington State allowed a suit by another civilian U.S. citizen who sued Rumsfeld claiming torture by U.S. forces in Iraq. How the full array of cases comes out is hard to predict right now, but it seems certain that one or more of them will head to the Supreme Court.
(h/t Lawfare)
CORRECTION: An earlier version of this post misstated at one point the date of the Seventh Circuit's ruling. It came Monday.
Posted by Josh Gerstein 05:30 PM
- comments closed
- permalink
August 08, 2011
A three-judge court ruled Monday that a federal law banning most foreigners from donating to U.S. political campaigns is constitutional.
The panel of two district court judges and one appeals court judge rejected a lawsuit filed last year on behalf of a Canadian man and a Canadian-Israeli woman who have worked in the U.S. but don't have permanent residence here. Federal law says only U.S. citizens and permanent-resident aliens can give to parties or campaigns or make indpendent expenditures on their behalf.
"The Supreme Court has drawn a fairly clear line: the government may exclude foreign citizens from activities 'intimately related to the process of democratic self-government,'" Circuit Judge Brett Kavanaugh wrote in an opinion joined by District Court Judges Ricardo Urbina and Rosemary Collyer. "Politicial contributions and express-advocacy expenditures are an integral aspect of the process by which Americans elect officials to federal, state, and local government offices."
The judges noted that the Supreme Court has approved laws that allow only citizens to serve as schoolteachers, police and probation officers. "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," Kavanaugh wrote.
When the Supreme Court ruled last year in Citizens United that corporations could make independent expenditures on behalf of candidates, some commentators warned of a possible flood of foreign money into U.S. elections. President Barack Obama was among those who suggested foreign companies could take advantage of the decision to spend money on U.S. elections.
The case decided Monday was in part an effort to try to leverage Citizens United to allow donations by foreign individuals. However, the judges rejected that. "In our view, the majority opinion in Citizens United is entirely consistent with a ban on foreign contributions and expenditures," Kavanaugh wrote. (The opinion is posted here.)
Because the case arose from language in the McCain-Feingold law, also known as the Bipartisan Campaign Reform Act of 2002, it went to an unusual three-judge panel for the first hearing. That panel's ruling can be appealed directly to the Supreme Court. The lawyers who brought the case told my colleague Ken Vogel Monday that they plan to do just that.
UPDATE: This post has been updated to reflect the planned appeal.
CORRECTION: An earlier version of this post misstated at one point the date of the three-judge panel's ruling. It came Monday.
Posted by Josh Gerstein 04:01 PM
- comments closed
- permalink
August 06, 2011
Attention summer travelers: Those who feel abused or deceived by airline frequent flier programs can pursue lawsuits to vindicate their claims, a federal appeals court ruled Friday.
The U.S. Court of Appeals for the Ninth Circuit ruled that Rabbi S. Binyomin Ginsberg should be allowed to proceed with a lawsuit alleging Northwest Airlines breached common-law duties of good faith and fair dealing when it kicked him out of the airline's WorldPerks frequent flier program in 2008.
A District Court judge said Ginsberg's claim was preempted by the 1978 federal law that deregulated the airline industry.
But the three-judge appeals court panel said in its opinion (posted here) the claim of bad faith in connection with a frequent flier program was sufficiently distinct from the pricing and scheduling of flights that it could go forward.
Ginsberg was a platinum elite level member of WorldPerks before he was terminated from the program. He contends he was kicked out because he "complained too frequently," the appeals court said.
(h/t San Francisco Chronicle via How Appealing)
Posted by Josh Gerstein 05:58 PM
- comments closed
- permalink
August 05, 2011
Terror suspect Umar Abdulmutallab is asking that his trial for allegely attempting to bomb a Northwest Airlines flight be moved outside Michigan and seeking to prevent prosecutors from using statements he made while "heavily sedated," according to new court filings.
In a motion filed Friday (posted here), Abdulmutallab and a lawyer who is assisting him argue that publicity about the alleged bombing attempt will make it "unlikely" to find a fair jury in Michigan for his trial, set to begin in October.
"Media coverage in this matter has assisted in creating an environment of hostility toward Defendant Abdulmutallab in the State of Michigan," the motion says. "Within the State of Michigan, there exist preconceived notions of guilt and an overall hostility towards the Defendant ... Many of the passengers on the plane in which this alleged incident occurred either reside in the State of Michigan, or have ties to this state."
"The only way to ensure that Defendant Abdulmutallab receives a fair and impartial jury is to change the venue," the motion adds.
Abdulmutallab is planning to represent himself at trial, but attorney Anthony Chambers has been assigned to advise the suspect, who's charged with attempting to detonate a weapon of mass destruction, attempted murder and other crimes in connection with the Dec. 25, 2009, incident about a Northwest flight from Amsterdam to Detroit. No one was hurt in the attempt because the bomb failed to detonate.
In a separate motion filed Friday (posted here), Abdulmutallab and Chambers seek to prevent the government from using statements made by the Nigerian native while he was undergoing medical treatment for burns incurred in the alleged bombing attempt. The motion says Abdulmutallab was drugged with the painkiller Fentanyl during one interview and therefore his statements were involuntary. The filing also says investigators questioned Abdulmutallab over the objections of medical personnel.
"Hospital staff told federal agents that the Defendant was in no position to conduct a legal interview because he had just been administered 300 mg of fentanyl," the motion says. "Hospital staff were direct and clear when advising federal agents that the Defendant would not be able to conduct a legal interview for four to six hours ... Federal agents bypassed the hospital staff's advice and interviewed the Defendant anyways."
Abdulmutallab's filing also says the statements should be excluded from any trial because he was not read his Miranda rights during the interview in question.
Federal prosecutors filed their own motions in the case on Friday, including one seeking to prevent the suspect from asking questions that could reveal sensitive national security secrets.
Posted by Josh Gerstein 06:12 PM
- comments closed
- permalink
August 05, 2011
The Justice Department is asking that a Nigerian man accused of trying to blow up a Northwest Airlines flight near Detroit in 2009 and set to go on trial in October be barred from asking questions that could expose sensitive national security information.
The public version of a motion filed Friday in U.S. District Court in Detroit doesn't specify what subjects prosecutors don't want the defendant, Umar Abdulmutallab, to explore. However, the prosecution gave Judge Nancy Edmunds that information in a separate, sealed filing.
In the public motion (posted here), prosecutors asked to preclude "the defendant from inquiring of certain subjects during the cross-examination of government witnesses, because cross-examination of these subjects may result in the disclosure of classified information." The prosecution also sought to deny Abdulmutallab access to some records related to his prosecution because the information is sensitive and not necessary or essential to his defense.
Abdulmutallab is planning to represent himself at his trial, but Edmunds has assigned a defense lawyer to be on standby to assist him. It's unclear how the defefendant would be advised of the subject matters he could not inquire about. The public version of the prosecution motion does not address that point.
Abdulmutallab was arrested on Dec. 25, 2009, after he allegedly attempted to bomb Northwest Airlines Flight 253 as it approached Detroit on a flight from Amsterdam. He came to be known as the underwear bomber because the explosives he was allegedly carrying were said to have been sewn into his underwear. Passengers on the plane said they saw smoke and sparks, but there was no explosion. Abdulmutallab suffered serious burns to his groin area during the incident.
Prosecutors say Abdulmutallab was trained by and fitted with the bomb by the Al Qaeda in the Arabian Peninsula. He is charged with eight felonies, including attempted use of a weapon of mass destruction and attempted murder. He faces a maximum sentence of life in prison if convicted.
Posted by Josh Gerstein 05:49 PM
- comments closed
- permalink
August 05, 2011
The Justice Department is warning a federal appeals court not to disclose classified information about the National Security Agency's domestic surveillance programs during upcoming arguments on a lawsuit challenging the NSA's effort.
Three judges from the U.S. Court of Appeals for the Ninth Circuit are scheduled to hear arguments in Seattle on Aug. 31 in Jewel v. National Security Agency, a series of cases arguing that the federal government's domestic surveillance programs violate the Constitution.
On Wednesday, Justice Department Attorney H. Thomas Byron sent the court a letter (posted here) essentially warning the judges that since the argument is taking place in a courtroom open to the public the court should be careful not to discuss any national security secrets during the session.
"All classified information has been provided to the Court with the understanding that the secrecy of this information will be properly protected," Byron said. "We are prepared to argue this case publicly, in an open courtroom, without referring to any classified information ... If the Court has questions about the classified information in the record, we are prepared to address those questions in an appropriate secure environment with only the judges, cleared court personnel, and the attorneys for the government present, to ensure appropriate safeguards against disclosure."
The Justice Department filed a classified brief in the case, as well as declarations that are not public and which plaintiffs' lawyers have not seen. The parties challenging the surveillance objected to the government's classified brief, but on Thursday the panel assigned to the case ruled, 2-1 that the secret brief would be accepted. Judge Harry Pregerson, one of the court's most vocal liberals, was the dissenter, though he did not explain his thinking. Judges Michael Hawkins and Margaret McKeown voted to accept the secret arguments from the government. (A copy of the court's order is posted here.)
The lawsuits argue that the NSA's efforts to monitor e-mails and telephone calls in the U.S. violate the Fourth Amendment despite legislation Congress passed in 2008 — with then-Sen. Barack Obama's vote — that sought to legalize a program President George W. Bush initiated without congressional authority after the Sept. 11 attacks.
Posted by Josh Gerstein 03:12 PM
- comments closed
- permalink
August 04, 2011
A prominent Los Angeles trial lawyer has agreed to plead guilty to two misdemeanors for giving employees and a relative a total of $20,000 to donate to former Sen. John Edwards's presidential campaign in 2003, court documents show.
The L.A. attorney, Pierce O'Donnell, has agreed to serve six months in jail and to pay a fine of $20,000, according to a plea agreement filed Thursday afternoon in federal court.
O'Donnell's case drew national attention in 2009 when Judge James Otero issued a surprising ruling that reimbursing a campaign contribution to a federal candidate did not violate federal law. Last year, a federal appeals court overruled Otero and reinstated the charges. Earlier this year, the Supreme Court declined to take up the case.
When the case was filed back in 2008, O'Donnell was indicted on three felony charges. The judge struck two of those charges in his ruling and later dismissed one at the request of prosecutors. With only misdemeanors on his record, O'Donnell could regain his law license, which was suspended after the charges were filed. His trial was set to open Aug. 30.
Prosecutors may have agreed to the downsized case to avoid the possibility of a trial in which O'Donnell could have alleged some sort of conspiracy to punish him for his political views or his legal work challenging the rich and powerful. Such arguments helped Michigan trial lawyer Geoffrey Fieger win an acquittal in 2008 on similar charges that he and a law partner used straw donors or conduits to give more than $100,000 to Edwards's 2004 campaign.
O'Donnell's ultimate sentence will be up to Otero, but if he declines to go along with the parties' recommendation the plea deal will essentially be canceled and a trial could take place.
The case does not appear to be related to the election-law indictment pending against Edwards, a North Carolina Democrat accused of participating in an illegal scheme to transfer more than $900,000 in cash and gifts to cover up an affair and out-of-wedlock child he fathered during his unsuccessful 2008 bid for the presidency.
CORRECTION: An earlier version of this post stated incorrectly that a federal judge in Virginia also ruled that conduit donations were not illegal. In fact, he ruled that the ban on corporate donations to political campaigns is unconstitutional.
Posted by Josh Gerstein 06:52 PM
- comments closed
- permalink
August 04, 2011
Efforts federal prison authorities are making to restore the mental competency of Tucson shooting suspect Jared Loughner do not need to be videotaped, a federal judge ruled Thursday, rejecting a request from Loughner's lawyers.
U.S. District Court Judge Larry Burns acknowledged that he did order officials to videotape an assessment they did earlier this year that led to a ruling that Loughner was not competent to stand trial for a January shooting spree that killed six people and left Rep. Gabrielle Giffords (D-Ariz.) gravely wounded. However, the judge said he wasn't willing to require the Federal Medical Center in Springfield, Mo., to videotape all treatment sessions during the remainder of a four-month period before Loughner's competence will be again evaluated by the court.
"The defendant’s original competency examination was videotaped, and this was apparently very distracting to the defendant and a hindrance to the FMC staff conducting the examination. More than once, in fact, the defendant questioned the need for the camera while the staff was interacting with him, and on one occasion in particular he reacted violently to it," Burns wrote. "The court is concerned that further videotaping will pose an impediment to the mission of the FMC staff, which requires the staff to work with the defendant to determine whether he can be restored to competency to stand trial."
In an order posted here, Burns said he believes the FMC staff are owed "substantial deference" in how to handle Loughner and that they are free to videotape him if they decide to.
Burns earlier refused a defense request to prevent doctors at the medical center from forcibly medicating Loughner. A federal appeals court temporarily blocked his decision and ordered the facility not to drug Loughner. However, doctors there did so anyway, citing an emergency involving his mental health. The appeals court has not taken any action over what the defense contends was a violation of that court's directive.
Posted by Josh Gerstein 11:32 AM
- comments closed
- permalink
August 03, 2011
A federal judge who ruled last week that New York Times reporter James Risen did not have to testify about his confidential sources in connection with an upcoming leak trial said in her decision that prosecutors had not demonstrated that Risen's testimony was critical to proving their case.
"A criminal trial subpoena is not a free pass for the government to rifle through a reporter's notebook," U.S. District Court Judge Leonie Brinkema of Alexandria, Va., wrote in an opinion made public on Wednesday. "The government must establish that there is a compelling reason for the journalist's testimony and that there are no other means for obtaining the equivalent of that testimony."
Prosecutors subpoenaed Risen to testify at the trial of former CIA officer Jeffrey Sterling, who's facing 10 felony charges after allegedly giving Risen information about a top-secret CIA program to provide flawed nuclear designs to Iran in an effort to undercut that country's nuclear program.
While Risen may be spared being required to identify his sources, Brinkema said she doesn't expect Sterling's role to remain a mystery. Court records say a former intelligence official who has not been publicly identified has testified that Risen told him Sterling was a source for information about the CIA Iran program published in Risen's 2006 book, "State of War."
Prosecutors argued that the former official's testimony would be inadmissible hearsay, but Brinkema ruled that it would not be because it is possible that Risen could have been charged criminally for receiving classified information and statements that tend to prove an individual's guilt may not be hearsay. (Risen has never been charged with a crime and was offered immunity if he testified in the case.)
Brinkema has authorized prosecutors to obtain testimony from Risen vouching for the accuracy of his reporting and of quotes printed in the book and his articles.
Brinkema's opinion was temporarily withheld by the court for a classification review and still does not appear in the court's docket. However, the Times posted it online Wednesday evening.
Prosecutors have indicated they believe that a decision to quash the subpoena to Risen would be appealable in advance of trial. However, the only precedent they cited was from another judicial circuit not the 4th Circuit, which includes Virginia. The prosecution has yet to take a formal appeal from Brinkema's ruling.
Posted by Josh Gerstein 10:42 PM
- comments closed
- permalink
Back to top
