The Senate Appropriations Commerce Justice science subcommittee passed its version of the DOJ budget by voice vote this afternoon.

The Senate bill includes $27.4 billion for the Justice Department — $300 million less than the House bill. Read our reports on the House bill here and here. The Senate Appropriations Committee is slated to markup the bill tomorrow.

Here’s a Senate CJS subcommittee summary of the DOJ budget:

The bill provides a total of $27.38 billion for the Department of Justice, which is $1.29 billion above the enacted level and $311 million above the President’s budget request.

• State and Local Law Enforcement – The Committee provides a total of $3.16 billion for state and local law enforcement, which is $63 million below the enacted level and $412 million above the President’s budget request:

o $510 million for Byrne Justice Assistance Grants (JAG), state formula grants to assist local law enforcement

o $658 million for Community Oriented Policing Service (COPS) grants, including      $100 million for a COPS hiring program

o $407 million for juvenile justice and delinquency prevention

o $435 million to prevent violence against women

o $265 million to prevent, investigate and prosecute crimes against children

• Bureau of Prisons (BOP) – BOP is provided $6.08 billion, which is $92 million below the enacted level and $2.4 million above the President’s budget request. The Committee provides the full budget request for salaries and expenses for the Bureau of Prisons.

• Federal Bureau of Investigation (FBI) – The FBI is provided $7.9 billion, which is $612 million above the enacted level $52 million above the President’s budget request. Of that total, $25.5 million is provided to hire at least 50 new special agents to investigate mortgage fraud, $52 million to address internet crimes against children and a $22 million increase for critical surveillance and mobility capabilities for national security and criminal investigations.

• U.S. Marshals Service – The U.S. Marshals Service is provided $1.15 million, which is $198 million above the enacted level and equal to the President’s budget request. This includes $35 million to support 100 new Deputy U.S. Marshals to implement the Adam Walsh Act.

• Drug Enforcement Administration (DEA) – The DEA is provided $2 billion, $75 million above the
enacted level and equal to the President’s request.

• Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) – ATF is provided $1.12 billion, which is $66.5 billion above the enacted level and equal to the President’s request.

• Crime Victims Fund (CVF) – The bill permits the expenditure of $705 million from the CVF for grants to assist victims of crime. This is $70 million above the enacted level and $5 million above the President’s request.

So, last week the Supreme Court ruled that criminal defendants have no constitutional right to access DNA evidence after they are convicted — a position defended by the Justice Department.

The department’s decision not to disavow the Bush-era stance, to the utter disappointment of innocence advocates, underscored ”the tension between the eagerness of interest groups for a new administration to change direction, and the institutional reluctance in the solicitor general’s office to shift gears too suddenly, for fear of losing credibility with the high court,” The National Law Journal’s Tony Mauro wrote in this February piece.

Last week, we reported that Attorney General Eric Holder seemed to address that tension, distinguishing between “what is constitutional” and “good policy.”

In his speech at the at the American Council of Chief Defenders Conference in Georgetown, Holder once again explained the department’s stance on the issue:

The Department’s commitment to ensuring that justice is done is why, for example, I think defendants should have access to DNA evidence in a range of circumstances. DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty. As you know, the Supreme Court held last week that there is no substantive due process right to access DNA evidence in post-conviction proceedings. But the Department distinguishes what is constitutional from what is good policy. And we have maintained that in a full and fair justice system, it is good policy to permit such access. Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue.

Forty-seven states already have, and Alaska, where District Attorney’s Office for the Third Judicial District v. Osborne originated, is considering an access law. Massachusetts and Oklahoma are the only states without laws on the books.

Edwin Meese III

The discussions lapsed during the Bush administration, as it dealt with events of 9/11 and reconstituted the Justice Department to counter terrorist threats. Holder, like Reno and Meese, has been gregarious in his first months in office, addressing groups of all kinds — from federal judges to corporate defense lawyers to public defenders.

In remarks at the American Council of Chief Defenders Conference, Holder said he wanted to pick up where Meese and Reno left off:

During these meetings, I want to discuss topical issues of interest and concern to you and to explore how we can find the resources necessary to address the challenges that have been identified.  This will be a chance for public defense representatives to give us their feedback on how well our criminal justice system works.

Holder’s talk, at the Ritz-Carlton in Georgetown, painted a bleak picture of the state of indigent defense. He spoke of contract attorneys and assigned lawyers who don’t receive enough compensation to cover their overhead, of overwhelming caseloads that prevent lawyers from fulfilling their legal and ethical responsibilities to their clients, and of budget shortfalls in the public defense system.

In addition to more dialogue, the department, he said, would expand its collection of data on public defense programs and host a national conference to develop best practices and to strategize on how to get more funding for a system that has been walloped by the financial crisis.

“As you can tell, this is an ambitious agenda – that’s because there is a lot that can be done,” Holder said. “Putting together the conference and achieving its goals will require help from people like you, who are in the trenches of indigent defense.”

For a copy of Holder’s full remarks, click here.

Mary L. Smith (Schoeman, Updike & Kaufman)

Last week, we reported that the DOJ issued a defense of President Obama’s nominee to head the the Department’s Tax Division, Mary L. Smith.  But tax bloggers were not satisfied.  ”The Tax Lawyers Blog,” run by tax attorney Peter Pappas, responded with a post titled: “White House Says DOJ Tax Division Nominee is Qualified, I say Bologna,” while “Taxgirl,”run by Kelly Phillips Erb, went with “Justice Tax Division Nominee Has No Tax Experience.”

Pappas took particular issue with the DOJ’s claim that “The Tax Division is not a policymaking entity.” He noted that the last two Tax Division chiefs, Eileen O’Connor and Nathan Hochman, had extensive experience in tax law. O’Connor, for example, was a corporate tax law specialist at the IRS. “And how is it that an essential qualification of the job is not a thorough grounding in substantive tax law?” Pappas wrote. And it seems that Taxgirl is just shocked that so many people wrote recommendation letters for Smith, including Hochman. You can read Hochman’s letter here.

I get it. We all get it. When it comes to the Saudi government, there are certain lines the U.S. absolutely won’t cross, even when it means compromising our principles.

I’m talking about the eight years of litigation by family members of 9/11 victims who have tried to recover damages from prominent Saudis alleged to have financed terrorist front groups. The South Carolina law firm Motley Rice, which spent millions of dollars financing the civil suit, has been screwed at every turn. Its document intensive case was originally assigned to a blind — yes, blind — judge, who has since died. The Bush administration opposed the lawsuit, arguing it violated the Saudis’ sovereign immunity, even though some of the alleged terrorist financiers were just prominent businessmen, not official members of the royal family. Two federal judges and the Second Circuit Court of Appeals threw out the lawsuit based on the sovereign immunity claim. It’s now up for review before the Supreme Court, in the 9/11 family members’ last chance to keep it alive.

The 9/11 family members’ had hoped that the Obama administration wouldn’t oppose the lawsuit going to trial. But that was naive, or wishful, thinking. Last month, the Obama DOJ agreed with the Bush administration, filing a brief with the Supreme Court siding with the Saudis and arguing against allowing the lawsuit to proceed.

Well, now in the ninth inning, Motley Rice has thrown up its hands and given the New York Times a trove of previously undisclosed documents linking Saudis to terrorist financing. Read Eric Lichtblau’s story here. View 109 pages of the documents given to the NYT by Motley Rice here. 

As the NYT says, there’s no “smoking gun” in the lawsuit linking the Saudi royals directly to 9/11. And the Saudis have denied the allegations. But there’s a lot of other interesting new material in the NYT story:

• A sworn statement from a witness in Afghanistan who said in 1998, he saw a representative of Saudi Prince Turki al-Faisal hand a check worth about $267 million to a top Taliban leader. (Prince Turki is a former Saudi intelligence chief and ex-ambassador to the U.S.)
• Internal Treasury Department documents showing the U.S. believed the International Islamic Relief Organization, a charity supported by members of the Saudi royal family, had showed “support for terrorist organizations” at least through 2006. (A U.S. office of the IIRO was investigated by the Treasury Department in an operation dubbed “Greenquest” that culminated in massive raids on Islamic charities in Northern Virginia in 2002 – another big case that has so far gone nowhere).
• Statement from a self-described al-Qaeda member who told the lawyers that another Saudi royal family gave money and supplies to Qaeda terrorists in Bosnia in the 1990s.

But the most incredible news in the NYT piece is this: the Justice Department had Motley Rice destroy copies of U.S. intelligence documents describing Saudi finances that were leaked to the lawyers anonymously, and is trying to prevent a judge from ever reviewing them. 

I have no doubt that DOJ line prosecutors and investigators at Treasury are dispirited by the cover up. The diplomats and the pragmatists have won out. This is a big victory for the State Department over the DOJ.

Good thing Motley Rice had so much money from its tobacco and asbestos cases in the 1990s. It sure did pour a lot of those winnings down a rathole here. At least it did a public service in gathering so much material on al-Qaeda – most of which is now part of the public record in some form, even if it hasn’t been entered into the record of the lawsuit.

Sens. Patrick Leahy (D-Vt.) and Orrin Hatch (R-Utah) continued to press the case for patent reform in editorials published today in The Hill, while Congress Daily reported today that Senate Judiciary Committee staffers are meeting with key players about the 2009 Patent Reform Act which passed the panel in April.

The bill, which was introduced by Leahy and Hatch, is the third attempt by Congress to overhaul the patent system since 1952. Leahy said the legislation would put new safeguards on the patent application system to prevent people from receiving patents for inventions that that they did not create, improve the process to challenge contested patents and implement better guidelines for courts to use when assessing damages in patent cases. Leahy aides and Senate Judiciary Ranking Member Jeff Sessions (R-Ala.) staffers reached a “sticking point” last week over how the legislation should handle a challenge to a patent’s validity after it is issued, according to Congress Daily.

Leahy and Hatch said the United States will soon fall behind in the global economy without patent reforms.

Leahy, chair of the Senate Judiciary Committee, said in his editorial here:

If we are to maintain our position at the forefront of the world’s economy, if we are to continue to lead the world in innovation and production, and if we are to continue to benefit from the ideas of the most creative citizens, then we must have a patent system that produces high-quality patents, that limits counterproductive litigation over those patents, and that makes the entire system more streamlined and efficient.

Reforming our patent system will stimulate the American economy through structural changes, rather than taxpayer dollars. At a time when we are taking significant steps to restore and revitalize our economy, Congress should do its part and pass the Patent Reform Act without delay.

Hatch said in his editorial here:

(W)e have not made significant updates to the patent system since 1952. Put another way, the last time the patent system was significantly changed, the structure of DNA had not been discovered; gasoline was around 27 cents a gallon; and we had not yet gone to the moon. Cell phones, MP3 players, GPS navigators and the Internet were far beyond anyone’s imagination. Technology has surpassed what anyone would have ever imagined back then, but unfortunately, our patent system has not been able to keep up with the growth in American innovation. The courts have interpreted the law in light of change, but that piecemeal process has left areas of the law unclear and out of balance — leaving some important, unresolved gaps.

But the bill has its critics. The Innovation Alliance and the Manufacturing Alliance on Patent Policy, which represent many manufacturing and high-tech businesses, have said the legislation doesn’t do enough to stop abuse during post-grant reviews, according to Congress Daily. The Patent Office Professional Association also expressed concern over the burden that new procedures would put on the Patent Office, which has experienced cutbacks from a downturn in the amount of applications filed, Congress Daily said.

The House Judiciary Committee is still working on its own version of the patent reform bill. The House legislation is backed by House Judiciary Chair John Conyers (D-Mich.) and Ranking Member Lamar Smith (R-Texas), but some House members still aren’t sure about the bill which has many of the same features as the Senate bill.

Reps. Don Manzullo (R-Ill.) and Marcy Kaptur (D-Ohio) wrote editorials in The Hill today criticizing the House bill.

Kaptur said the legislation would weaken patent protections and help powerful technology companies.

She said:

Our patent system is the finest in the world. There are patent concerns that Congress can and should address, starting with the high cost of fees for inventors who hold less than three patents. However, this legislation addresses fictions of global corporations and the proposed solutions are special fixes that benefit these few giants at the expense of everyone else.

Manzullo said the bill would unnecessarily pit different economic sectors against another and would not have equal benefits for all inventors.

He said:

I have had serious concerns with previous patent reform efforts. I have successfully worked with the House Judiciary Committee to develop lower fees for small inventors and protect them from the premature release of their patent. Unfortunately, contentious issues in patent reform keep re-emerging.

Members of Congress should not be forced to choose between constituents in various economic sectors on an issue as complex and important as patent reform, especially during a recession. Rather than repeating failed tactics from the 110th Congress, the House and Senate Judiciary committees should strive for real consensus.

Conyers reassured House members that the legislation wasn’t set in stone.

He said in his editorial here:

(A)ll stakeholders should understand that the House patent reform bill, H.R. 1260, will undergo further changes. I assure you that whatever changes we put forward will not be designed to harm or help any particular industry, but to preserve a patent system that all inventors and companies, no matter their size, can use and rely on.

U.S. Attorney Patrick Fitzgerald and his crew in the Northern District continue their crack-down on mortgage fraudsters. The office charged 37 individuals and  four businesses in five separate cases. Lots of numbers. The cases are being handled by assistant U.S. attorneys Brian Netols and Steven Block, Assistant U.S. Attorney Diane MacArthur, Assistant U.S. Attorney David Glockner, and Assistant U.S. Attorney Clifford Histed.

From the DOJ news release:

CHICAGO — Forty-one defendants are facing federal charges relating to various mortgage fraud schemes in five separate cases made public today by federal law enforcement officials.  In some of the schemes, the defendants were charged with falsely inflating the values of dilapidated homes in urban areas.  Other schemes feature a twist where defendants were charged with deals involving million-dollar condominiums in a Chicago high-rise and sprawling homes in affluent suburbs.  A total of 37 individuals and four businesses, including a title company that closed on allegedly fraudulent loans, are facing new federal charges relating to mortgage fraud in five separate cases in Chicago, federal law enforcement officials announced today.  The defendants include a vice president of the title company, mortgage brokers, loan officers, real estate investors, appraisers and an attorney.  Together the cases involve more than $48 million in fraudulently-obtained mortgages issued by various lenders and secured by scores of residential properties in the Chicago area, including two in the suburbs of Wheaton and Glenview.  As a result, the various lending companies suffered millions of dollars in losses after the loans went into default and the properties were foreclosed upon.

The Obama administration has published 13 previously secret Bush-era legal memos by the Justice Department’s Office of Legal Counsel. But the Most Transparent Administration Ever has released just one OLC opinion of its own since President Obama took office more than five months ago.

Marty Lederman (georgetown.edu)

What gives? This slow trickle of information appears at odds with the battle cries for transparency issued during the Bush years by law professors Martin Lederman and David Barron — now top Obama political appointees at the OLC — as well as Dawn Johnsen, the president’s choice to head the office whose nomination has been stalled in the Senate.

Johnsen, who spoke of the need for more transparency during her confirmation hearings, helped write a 2004 manifesto signed by Lederman, who is now the office’s deputy assistant attorney general, and Barron, the acting assistant attorney general.  Also signing on was Lisa Brown, now the White House staff secretary; and Christopher Schroeder, nominated to head the DOJ’s Office of Legal Policy.

David Barron (harvard.edu)

No. 6 on the list of “Principles to Guide the Office of Legal Counsel” declares, “OLC should publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.” The memo continues:

In all events, OLC should in each administration consider the circumstances in which advice should be kept confidential, with a presumption in favor of publication, and publication policy and practice should not vary substantially from administration to administration. The values of transparency and accountability remain constant, as do any existing legitimate rationales for secret executive branch law.

So where are the opinions? We know from news reports and congressional hearings that the office has generated at least one big memo on the D.C. voting rights bill. (Attorney General Eric Holder reportedly disagreed with the OLC’s view that giving the District a vote in the House was unconstitutional, prompting him to seek advice elsewhere in the department.) And former OLC lawyers say DOJ’s “brain” is constantly mulling legal questions large and small from the White House and executive agencies.

The Washington Post reported last week that the OLC is refereeing a dispute between the Treasury Department and Neil Barofsky, the inspector general overseeing the $700 billion bailout of the financial industry. Treasury believes it has legal authority over Barofsky’s office; Barofsky says such an arrangement would threaten his independence as watchdog for the Troubled Asset Relief Program. OLC has been reviewing the matter since April.

There is typically a lag time for release of the opinions, but it’s difficult to measure it. The OLC Web site doesn’t give enough information to determine the average wait, and it varies with each administration. For instance, the Bush administration waited more than a year to publish a controversial opinion that it could bypass laws intended to prevent taxpayer money from going to religious groups that hire only staff members of the same faith. The opinion was issued in June 2007 and quietly released by the Bush administration on the OLC Web site last October.

Charles Cooper, of Cooper & Kirk, who was head of OLC from 1985 to 1988, said the office began systematically reviewing opinions for release during the Reagan administration. He said the office typically deferred to the client agency when deciding whether to make an opinion public. “But potential political embarassment was not a concern we yielded to,” Cooper said.

The Bush administration never released memos about the legality of harsh interrogation techniques, domestic military force and domestic surveillance. But those memos were the first that the Obama DOJ released after taking office. (Click here and here for links to the Bush memos.)

The Justice Department did not respond to a request for comment about the lack of published OLC opinions by the Obama administration.

The one opinion the office published, on May 20, dealt with the question of whether Obama’s appointment of then-Sen. Hillary Clinton to be Secretary of State violated the Constitution’s Ineligibility Clause because Congress authorized a pay raise for the post while she was serving her term. OLC ruled that a salary rollback for the post, which immediately preceded her appointment, achieved compliance with the clause.

The ruling reversed an opinion penned by Cooper in 1987. ”I’d very much like to see them release opinions in addition to the only one that reversed my opinion,” he joked.

Former OLC lawyer Neil Kinkopf, a professor at Georgia State University College of Law who served in the OLC during the Clinton administration, said in an interview that Johnsen’s problems in the Senate are likely hampering the office’s efforts to be transparent. Without a leader in place, it’s tricky for lower-level staff to make ”systemic decisions about what’s going to be the policy on publishing opinions or making ad hoc decisions about when to publish,” he said.

Kinkopf, who also signed the 2004 “principles” manifesto, said it’s probably too early for opinions on big-ticket items such as health-care reform and detainee issues. But he said the office has likely dealt with many routine matters, such as transition-related questions about appointing and removal powers (the Clinton opinion falls in the former category). “What you have is the administration formulating policy, so there might not yet be an occasion for an OLC opinion,” Kinkopft said. He added, “OLC is part of the policy process, too, so not having a head [of the office] can literally impede policy-making.”

Holder has indicated as much in congressional testimony. In May, he told members of the Senate Judiciary Committee that getting Johnsen confirmed was “probably my top priority,” as the department juggles reviews of interrogation and detention policies, and of the remaining detainees at Guantanamo Bay.

International law firm King & Spalding hired Former Deputy Principal Solicitor General Daryl Joseffer as a litigation partner at its Washington office, according to a news release today.

Daryl Joseffer (DOJ)

Joseffner served directly under then Solicitor General Paul Clement, who left his post last year to return to King & Spalding where he worked before becoming Solicitor General in 2001. Joseffner also served four years as Assistant to the Solicitor General before becoming Deputy Principal Solicitor General. He filed more than 100 briefs and argued almost a dozen cases in the Supreme Court on patent, energy, pharmaceutical and environmental issues during his time in the Office of the Solicitor General, the news release said.

“Daryl is a highly regarded appellate advocate with substantial oral argument experience before the U.S. Supreme Court, where he gained a reputation for handling difficult intellectual property and other business cases,” Clement said in a statement. “His high court and federal appeals background adds increased dimension to our ability to assist clients in developing a comprehensive approach to their litigation needs from trial through appeal.”

Clement and Joseffner aren’t the only members of the Bush Justice Department hired recently by King & Spalding. Jeffrey S. Bucholtz, Former Acting Assistant Attorney General and Principal Deputy Assistant Attorney General for the Civil Division, joined the firm in March.

Rhode Island U.S. Attorney Robert Corrente will join Burns and Levinson LLP July 1 at the law firm’s Providence, R.I. office, according to a news release.

Robert Corrente (DOJ)

We reported last week that Corrente will step down as U.S. Attorney at midnight on Friday after serving five years in the office. He received praise for setting up an anti-gang educational program and successfully prosecuting many health care and white-collar fraud cases while he was Rhode Island’s top federal prosecutor.

“Bob is one of the most prominent attorneys in Rhode Island and we are thrilled to have him join our growing Rhode Island litigation practice,� Burns & Levinson managing partner David Rosenblatt said in the news release. “As a U.S. attorney he has earned a reputation as a fearless and diligent prosecutor and we know as a private practice attorney he will show these same attributes in the pursuit of our clients’ interests.�