Tim Purdon (Vogel Law Firm)

President Barack Obama has come under fire for his nomination of Tim Purdon for North Dakota U.S. Attorney, with some critics saying the prominent Democrat received the nomination for his party allegiance rather than his experience, Fox News reported Saturday.

Critics say that Purdon was chosen over more-qualified candidates due to his political connections. Purdon — who was on the executive committee of the North Dakota Democratic-NPL Party from February 2006 until his resignation earlier this month — has no prosecutorial experience. Read about his full background here.

Bill Brudvik, who had been a candidate for the job, initially criticized Obama for the nomination of Purdon in an interview with the Fargo Forum, but on Saturday he declined comment to Fox News. “I’ve said way too much,” Brudvik told Fox.

Others who were under consideration for the job were Jasper Schneider, a state representative and Fargo attorney; Janice Morley, an Assistant U.S. Attorney in Fargo; and Rebecca Thiem, an attorney with Zuger Kirmis & Smith in Bismarck.

Scott Hennen, a conservative commentator in North Dakota, blasted Purdon’s political connections and his background as a criminal defense attorney, Fox News reported.

“Talk about the fox guarding the hen house,” he wrote on his Web site. “Looks like Purdon’s lifetime service to the Democrats — raising mega bucks for big government-loving tax-hiking liberals — is getting rewarded.”

Purdon has the support of his state’s delegation.

Democratic Rep. Earl Pomeroy, in a statement, called Purdon an “outstanding choice.”

“He is well respected and an example of how dedication, education and hard work pay off. He has a distinguished record and has proven his ability to enforce the law with conviction and courage,” Pomeroy added. “We are confident he will make a fine U.S. attorney, upholding the Constitution and protecting all North Dakotans.”

In a written statement to Fox News, Sen. Kent Conrad (D-N.D.) also defended Purdon.

“Tim Purdon is a talented attorney with a distinguished legal record. As has been stated previously, Senator Conrad has complete confidence in Mr. Purdon’s ability to enforce the law and serve the people of North Dakota,” Conrad wrote.

If confirmed, Purdon would replace Drew Wrigley, who was the district’s U.S. Attorney from 2001 until Sept. 11, 2009. The district’s current acting U.S. Attorney is Lynn C. Jordheim.

A former federal prosecutor who was charged with arranging the murder of a federal witness in a drug case will not face the death penalty if convicted, The Associated Press reported Sunday.

In May 2009, New Jersey defense attorney Paul Bergrin was arrested in connection with a 14-count racketeering indictment.  Bergrin is a former Essex County assistant prosecutor, the DOJ said. He was an assistant U.S. Attorney from 1985-1990.

The charges included arranging the murder of a witness. The case was brought in New Jersey by then-acting U.S. Attorney Ralph Marra, who is now the office’s First Assistant U.S. Attorney.

Federal prosecutors say Bergrin used threats, bribes and murder to discourage witnesses from testifying. In addition, Bergrin passed the name of an informant to associates of a client in a drug case. The informant was fatally shot in Newark, N.J., in 2004.

The decision not to seek the death penalty in the case was made by Attorney General Eric Holder, according to the AP. The New Jersey U.S. Attorney’s office run by Paul Fishman did not comment on the decision.

Lawrence Lustberg, one of Bergrin’s attorneys, told the Asbury Park Press, “Obviously, he’s relieved.”

“He still recognizes that while the death penalty is off the table, his life is on the line. If he is convicted of a number of these allegations, he could spend the rest of his life in prison,” Lustberg added.

In an unrelated case in October 2009, Bergrin was sentenced to time served in connection with running a Manhattan brothel.

President Barack Obama on Saturday signed into law legislation that would temporarily extend three controversial provisions of the Patriot Act that had been set to expire.

The House took final congressional action on the measure on Thursday, voting 315-97 to keep in place the Patriot Act’s “lone wolf,� business records and “roving wiretap� powers until Feb. 28, 2011. The Senate had passed the bill by voice vote Wednesday night.

Here is a summary of the provisions that were due to expire:

• Lone wolf: Allows the government to track a target without any discernible affiliation to a foreign power, such as an international terrorist group. The provision applies only to non-U.S. persons. The government has never used it.
• Business records: Allows investigators to compel third parties, including financial services and travel and telephone companies, to provide access to a suspect’s records without the suspect’s knowledge.
• Roving wiretaps: Allows the government to monitor phone lines or Internet accounts that a terrorism suspect may be using, regardless of whether others who are not suspects also regularly use them. The government must provide the Foreign Intelligence Surveillance Act court with specific information suggesting a suspect is purposely switching means of communication to evade detection.

More than 400 law professors are urging the Senate to vote on Justice Department Office of Legal Counsel nominee Dawn Johnsen at the “earliest possible date.”

Dawn Johnsen (Indiana University)

The professors wrote in a Feb. 1 letter to Senate Majority Leader Harry Reid (D-Nev.) that delays on Johnsen’s confirmation are “extraordinary.” Johnsen’s nomination was initially submitted in February 2009 and was returned to the White House in December. She was re-nominated in January, but has been held over four times in the Senate Judiciary Committee.

Conservative senators have voiced concerns about Johnsen’s opposition to President George W. Bush’s national security policies and her past work for an abortion rights group.

“This level of obstruction is simply unacceptable,” the law professors wrote in the letter, which was posted on the panel’s Web site this week. “It frustrates the ability of executive branch agencies and departments to serve critical public needs. And it defies the deference traditionally provided Presidents in shaping their administrations, particularly with respect to sub-Cabinet level positions.”

They added: “Professor Johnsen has the experience, the integrity, and the intellect to head this critical office.”

One of the signatories, Catholic University law professor Victor Williams, submitted an additional letter to the committee, which included the editorial he wrote here.

Here are all the signatories:

Harry Hopkins
University of Alabama School of Law

Paul Bender
Arizona State University Sandra Day O’Connor College
of Law

Michael O’Connor
Phoenix School of Law

Kenneth Salzberg
California Western School of Law

Francine Lipman
Chapman University School of Law

Robert Calhoun
Golden Gate University School of Law

Drucilla Ramey
Golden Gate University School of Law

Rachel Van Cleave
Golden Gate University School of Law

John Schick
Humphreys College Laurence Drivon School of Law

Bridgit Lawley
John F. Kennedy University School of Law

Gary Williams
Loyola Law School Los Angelos

Donald Polden
Santa Clara University School of Law

Margaret Russell
Santa Clara University School of Law

David Sloss
Santa Clara University School of Law

Beth Van Schaack
Santa Clara University School of Law

Stephanie Wildman
Santa Clara University School of Law

Eric Wright
Santa Clara University School of Law

Patricia Cain
Santa Clara University School of Law

Marina Hsieh
Santa Clara University School of Law

Christopher Cameron
Southwestern Law School

Craig Christensen
Southwestern Law School

Janet Cooper Alexander
Stanford Law School

Thomas C. Grey
Stanford Law School

Pamela Karlan
Stanford Law School

Mark A. Lemley
Stanford Law School

Miguel Mendez
Stanford Law School

Michael Wald
Stanford Law School

Kathryn Abrams
UC Berkeley School of Law

Maria Blanco
UC Berkeley School of Law

Carolyn Blum
UC Berkeley School of Law

Christopher Edley
UC Berkeley School of Law

David Oppenheimer
UC Berkeley School of Law

Paul Schwartz
UC Berkeley School of Law

David Sklansky
UC Berkeley School of Law

Floyd Feeney
UC Davis School of Law

Lisa C. Ikemoto
UC Davis School of Law

Carlton F.W. Larson
UC Davis School of Law

Carter C. White
UC Davis School of Law

Mark Aaronson
UC Hastings College of the Law

Naomi Roht-Arriaza
UC Hastings College of the Law

Carrie Hempel
UC Irvine School of Law

Richard Abel
UCLA School of Law

Grace Blumberg
UCLA School of Law

Robert Goldstein
UCLA School of Law

Clyde Spillenger
UCLA School of Law

John M. Adler
University of San Francisco School of Law

Peter Jan Honigsberg
University of San Francisco School of Law

Michael Iglesias
University of San Francisco School of Law

Rebecca Brown
University of Southern California Gould School of Law

Kim S. Buchanan
University of Southern California Gould School of Law

Mary Dudziak
University of Southern California Gould School of Law

Niels Frenzen
University of Southern California Gould School of Law

Ariela J. Gross
University of Southern California Gould School of Law

Daria Roithmayr
University of Southern California Gould School of Law

Thomas Griffith
University of Southern California Gould School of Law

Gregory Keating
University of Southern California Gould School of Law

Lawrence Levine
University of the Pacific, McGeorge School of Law

John Sims
University of the Pacific, McGeorge School of Law

Melissa Hart
University of Colorado Law School

Scott Moss
University of Colorado Law School

Alan Chen
University of Denver Sturm College of Law

Nancy Ehrenreich
University of Denver Sturm College of Law

Justin Marceau
University of Denver Sturm College of Law

Paula Rhodes
University of Denver Sturm College of Law

Howard Rosenberg
University of Denver Sturm College of Law

Ann Scales
University of Denver Sturm College of Law

Kris Miccio
University of Denver Sturm College of Law

Melanie Abbott
Quinnipiac University School of Law

Jennifer Brown
Quinnipiac University School of Law

Sara Bronin
University of Connecticut School of Law

Timothy Everett
University of Connecticut School of Law

Richard Michael Fischl
University of Connecticut School of Law

Bruce Ackerman
Yale Law School

Lea Brilmayer
Yale Law School

Denny Curtis
Yale Law School

Robert Gordon
Yale Law School

Judith Resnik
Yale Law School

Reva Siegel
Yale Law School

Stephen Wizner
Yale Law School

Nancy Abramowitz
American University Washington College of Law

Susan Carle
American University Washington College of Law

Angela Davis
American University Washington College of Law

Sean Flynn
American University Washington College of Law

Amanda Frost
American University Washington College of Law

Egon Guttman
American University Washington College of Law

Peter Jaszi
American University Washington College of Law

Elliott Milstein
American University Washington College of Law

Corrine Parver
American University Washington College of Law

Nancy Polikoff
American University Washington College of Law

Mary Schwartz
American University Washington College of Law

Herman Schwartz
American University Washington College of Law

Ann Shalleck
American University Washington College of Law

Robert Goldman
American University Washington College of Law

Jeffrey Lubbers
American University Washington College of Law

Juan E. Mendez
American University Washington College of Law

Binny Miller
American University Washington College of Law

Catherine Klein
Catholic University of America Columbus School of Law

Victor Williams
Catholic University of America Columbus School of Law

Neil H. Buchanan
George Washington University Law School

Phyllis Goldfarb
George Washington University Law School

Jane Aiken
Georgetown University Law Center

Peter Edelman
Georgetown University Law Center

David Luban
Georgetown University Law Center

Mari Matsuda
Georgetown University Law Center

Carrie Menkel-Meadow
Georgetown University Law Center

Naomi Mezey
Georgetown University Law Center

Cornelia T.L. Pillard
Georgetown University Law Center

Abbe Smith
Georgetown University Law Center

William L. Taylor
Georgetown University Law Center

Frank Wu
Howard University School of Law

Stephen B. Pershing
University of California Washington Center

Laurie A Morin
University of District of Columbia, David A. Clark
School of Law

Francis Catania
Widener University School of Law

Jules Epstein
Widener University School of Law

Michael Slinger
Widener University School of Law

Andrew Strauss
Widener University School of Law

Barbara Bernier
Florida A&M University College of Law

Nancy Hogshead-Makar
Florida Coastal School of Law

Thomas Hornsby
Florida Coastal School of Law

Christopher J. Roederer
Florida Coastal School of Law

Ediberto Roman
Florida International University College of Law

Leonard Strickman
Florida International University College of Law

Larry Krieger
Florida State University College of Law

Marilyn Cane
NOVA Southeastern University Law Center

Danaya Wright
University of Florida, Levin College of Law

David Abraham
University of Miami School of Law

Robert Schapiro
Emory University School of Law

William Edmundson
Georgia State University College of Law

Georgia L. Lynn Hogue
Georgia State University College of Law

Mary Radford
Georgia State University College of Law

Jason Solomon
University of Georgia School of Law

Jon Van Dyke
University of Hawaii at Manoa William S. Richardson
School of Law

Robert Hunter
Drake University Law School

Suzanne Levitt
Drake University Law School

Patrick Bauer
University of Iowa College of Law

Lois Cox
University of Iowa College of Law

Margaret Raymond
University of Iowa College of Law

Barbara Schwartz
University of Iowa College of Law

Joan Steinman
Chicago-Kent Coll of Law

Natalie Brouwer Potts
Chicago-Kent College of Law

Steven Heyman
Chicago-Kent College of Law

Nicole Martinez
Chicago-Kent College of Law

Christopher Seaman
Chicago-Kent College of Law

Carolyn Shapiro
Chicago-Kent College of Law

Margaret Stewart
Chicago-Kent College of Law

Dan Tarlockj
Chicago-Kent College of Law

Susan Bandes
DePaul University College of Law

Patty Gerstenblith
DePaul University College of Law

Steven Greenberger
DePaul University College of Law

L. Song Richardson
DePaul University College of Law

Walter Kendall
John Marshall Law School

Allen Shoenberger
Loyola University Chicago School of Law

Albert Alschuler
Northwestern University School of Law

Mary Anne Case
University of Chicago Law School

Craig Futterman
University of Chicago Law School

Richard McAdams
University of Chicago Law School

Geoffrey R. Stone
University of Chicago Law School

Kevin Brown
Indiana University Maurer School of Law

Fred Aman
Indiana University Maurer School of Law

James Francis Bailey
Indiana University Maurer School of Law

Patrick Baude
Indiana University Maurer School of Law

Jeannine Bell
Indiana University Maurer School of Law

Kenneth Dau-Schmidt
Indiana University Maurer School of Law

Ann Gellis
Indiana University Maurer School of Law

Charles Geyh
Indiana University Maurer School of Law

Sophia Goodman
Indiana University Maurer School of Law

Betsy Levin
Indiana University Maurer School of Law

Ajay Mehrotra
Indiana University Maurer School of Law

Aviva Orenstein
Indiana University Maurer School of Law

Cynthia Reichard
Indiana University Maurer School of Law

Lauren K. Robel
Indiana University Maurer School of Law

John Scanlan
Indiana University Maurer School of Law

Carwina Weng
Indiana University Maurer School of Law

Leandra Lederman
Indiana University Maurer School of Law

Shawn Boyne
Indiana University School of Law – Indianapolis

Jeffrey O. Cooper
Indiana University School of Law – Indianapolis

George Edwards
Indiana University School of Law – Indianapolis

Robert Katz
Indiana University School of Law – Indianapolis

Eleanor Kinney
Indiana University School of Law – Indianapolis

Norman Lefstein
Indiana University School of Law – Indianapolis

William Marsh
Indiana University School of Law – Indianapolis

David Orentlicher
Indiana University School of Law – Indianapolis

Fran Quigley
Indiana University School of Law – Indianapolis

Florence Wagman Roisman
Indiana University School of Law – Indianapolis

Joseph Bauer
Notre Dame Law School

Kent Hull
Notre Dame Law School

Jeanne Jourdan
Notre Dame Law School

Penelope Andrews
Valparaiso University School of Law

Bruce Berner
Valparaiso University School of Law

Ivan Bodensteiner
Valparaiso University School of Law

Paul Brietzke
Valparaiso University School of Law

Dan Gioia
Valparaiso University School of Law

Rosalie Levinson
Valparaiso University School of Law

D. A. Jeremy Telman
Valparaiso University School of Law

David Gottlieb
University of Kansas School of Law

Alvin Goldman
University of Kentucky College of Law

Samuel Marcosson
University of Louisville Brandeis School of Law

Cedric Powell
University of Louisville Brandeis School of Law

Robert Lancaster
Louisiana State University Law Center

Ken Murchison
Louisiana State University Law Center

Mitchell Crusto
Loyola University New Orleans College of Law

James Klebba
Loyola University New Orleans College of Law

M. Isabel Medina
Loyola University New Orleans College of Law

Kent Greenfield
Boston College Law School

Elizabeth Bartholet
Harvard Law School

Carol Steiker
Harvard Law School

Frank Michelman
Harvard Law School

Curtis Nyquist
New England School of Law

Elizabeth Spahn
New England School of Law

Peter D. Enrich
Northeastern University School of Law

Hope Lewis
Northeastern University School of Law

James Rowan
Northeastern University School of Law

Michael Avery
Suffolk University Law School

Karen Blum
Suffolk University Law School

Eric Blumenson
Suffolk University Law School

Matthew H. Charity
Western New England College School of Law

William Childs
Western New England College School of Law

Anne Goldstein
Western New England College School of Law

Sudha Setty
Western New England College School of Law

Garrett Epps
University of Baltimore School of Law

Christopher Peters
University of Baltimore School of Law

Elizabeth J. Samuels
University of Baltimore School of Law

Clinton Bamberger
University of Maryland School of Law

Douglas Colbert
University of Maryland School of Law

Martha Ertman
University of Maryland School of Law

Mark A. Graber
University of Maryland School of Law

Susan Hankin
University of Maryland School of Law

Deborah Hellman
University of Maryland School of Law

Sherrilyn Ifill
University of Maryland School of Law

Susan Leviton
University of Maryland School of Law

Barbara Olshansky
University of Maryland School of Law

Jana B. Singer
University of Maryland School of Law

Rena Steinzor
University of Maryland School of Law

Katherine L. Vaughns
University of Maryland School of Law

Marley S. Weiss
University of Maryland School of Law

Roger Wolf
University of Maryland School of Law

Gordon G. Young
University of Maryland School of Law

Orlando Delogu
University of Maine School of Law

Catherine Grosso
Michigan State University College of Law

Kimberly O’Leary
Thomas M. Cooley Law School

Joan Mahoney
Wayne State University School of Law

Tom Romero II
Hamline University School of Law

Carol Chomsky
University of Minnesota Law School

Jennifer Green
University of Minnesota Law School

Heidi Kitrosser
University of Minnesota Law School

Gregory Shaffer
University of Minnesota Law School

Christina Kunz
William Mitchell College of Law

Denise Roy
William Mitchell College of Law

Daniel R. Mandelker
Washington University School of Law

Matthew Hall
University of Mississippi School of Law

H. Jefferson Powell
Duke Divinity School

Neil Siegel
Duke Divinity School

Diane Alarcon
Duke University School of Law

Carolyn McAllaster
Duke University School of Law

Thomas Rowe
Duke University School of Law

Eric M. Fink
Elon University School of Law

Fred Williams
North Carolina Central University School of Law

Michael Gerhardt
University of North Carolina School of Law

Bill Marshall
University of North Carolina School of Law

Gene Nichol
University of North Carolina School of Law

Kathryn Sabbeth
University of North Carolina School of Law

J. Wilson Parker
Wake Forest University School of Law

Marvin Ammori
University of Nebraska – Lincoln College of Law

Eric Berger
University of Nebraska – Lincoln College of Law

Ann Freedman
Rutgers School of Law – Camden

Sarah Ricks
Rutgers School of Law – Camden

James Pope
Rutgers School of Law – Newark

Peter Simmons
Rutgers School of Law – Newark

Frank Askin
Rutgers School of Law- Newark

Solangel Maldonado
Seton Hall University School of Law

Marc Poirier
Seton Hall University School of Law

Jon Romberg
Seton Hall University School of Law

Sedillo Lopez Antoinette
University of New Mexico School of Law

Lynne Henderson
William S. Boyd School of Law, University of Nevada,
Las Vegas

Jeffrey W. Stempel
William S. Boyd School of Law, University of Nevada,
Las Vegas

Lazos Sylvia
William S. Boyd School of Law, University of Nevada,Las Vegas

Anthony Farley
Albany Law School

Nancy Ota
Albany Law School

Laurie A. Shanks
Albany Law School

Anita Bernstein
Brooklyn Law School

Susan Herman
Brooklyn Law School

Bailey Kuklin
Brooklyn Law School

Michael Madow
Brooklyn Law School

Elizabeth M. Schneider
Brooklyn Law School

Caitlin E. Borgmann
City University of New York School of Law

Rebecca Bratspies
City University of New York School of Law

Susan J. Bryant
City University of New York School of Law

Frank Deale
City University of New York School of Law

Julie Goldscheid
City University of New York School of Law

Natalie Gomez-Velez
City University of New York School of Law

Franklin Siegel
City University of New York School of Law

Vivian Berger
Columbia Law School

Barbara Black
Columbia Law School

Ellen P. Chapnick
Columbia Law School

Katherine Franke
Columbia Law School

Jack Greenberg
Columbia Law School

Jamal Greene
Columbia Law School

Elizabeth Scott
Columbia Law School

Jane M. Spinak
Columbia Law School

Kendall Thomas
Columbia Law School

Cynthia Grant Bowman
Cornell University Law School

Bernadette Meyler
Cornell University Law School

Steven Shiffrin
Cornell University Law School

George Conk
Fordham University School of Law

Elizabeth Cooper
Fordham University School of Law

Sheila Foster
Fordham University School of Law

Abner Greene
Fordham University School of Law

James Kainen
Fordham University School of Law

Robin Lenhardt
Fordham University School of Law

Russell G. Pearce
Fordham University School of Law

Martin Flaherty
Fordham University School of Law

Rachel Vorsan
Fordham University School of Law

Eric M. Freedman
Hofstra University Law School

Monroe Freedman
Hofstra University Law School

Carlin Meyer
New York Law School

Sylvia Law
New York University School of Law

Burt Neuborne
New York University School of Law

Kenji Yoshino
New York University School of Law

Derrick Bell
New York University School of Law

Sarah Burns
New York University School of Law

Norman Dorsen
New York University School of Law

Deborah Ellis
New York University School of Law

Barbara Atwell
Pace University School of Law

Steven Goldberg
Pace University School of Law

Vanessa Merton
Pace University School of Law

Richard Ottinger
Pace University School of Law

Hazel Weiser
Society of American Law Teachers

Charles Bobis
St. John’s University School of Law

Marie Ashe
Suffolk University Law School

Leslie Bender
Syracuse University College of Law

Howard Glickstein
Touro Law Center

Eileen Kaufman
Touro Law Center

Marjorie Silver
Touro Law Center

Martha McCluskey
University at Buffalo Law School

Rolf Olsen Jr.
University at Buffalo Law School

Melvyn Durchslag
Case Western Reserve University Franklin Thomas
Backus School of Law

Kenneth Ledford
Case Western Reserve University Franklin Thomas
Backus School of Law

Gary Simson
Case Western Reserve University Franklin Thomas
Backus School of Law

Robert Strassfeld
Case Western Reserve University Franklin Thomas
Backus School of Law

Peter Shane
Ohio State University Moritz College of Law

William Jordan
University of Akron School of Law

Margery Koosed
University of Akron School of Law

Christopher Bryant
University of Cincinnati College of Law

Ann Hubbard
University of Cincinnati College of Law

Bert Lockwood
University of Cincinnati College of Law

Benjamin G. Davis
University of Toledo College of Law

Rebecca Zietlow
University of Toledo College of Law

Lyn Entzeroth
University of Tulsa College of Law

Michael Blumm
Lewis and Clark Law School

Mark Peterson
Lewis and Clark Law School

Gilbert Carrasco
Willamette University College of Law

David Cohen
Drexel University Earle Mack School of Law

Anil Kalhan
Drexel University Earle Mack School of Law

Scott Burris
Temple University Beasley School of Law

Burton Caine
Temple University Beasley School of Law

Theresa Glennon
Temple University Beasley School of Law

David Kairys
Temple University Beasley School of Law

Muriel Morisey
Temple University Beasley School of Law

Jan Ting
Temple University Beasley School of Law

Mark Anderson
Temple University Beasley School of Law

Margaret deGuzman
Temple University Beasley School of Law

Susan DeJarnatt
Temple University Beasley School of Law

Mark Rahdert
Temple University Beasley School of Law

Henry Richardson
Temple University Beasley School of Law

David Sonenshein
Temple University Beasley School of Law

Edwin Baker
University of Pennsylvania Law School

Robert Gorman
University of Pennsylvania Law School

Anne Kringel
University of Pennsylvania Law School

Sarah Paoletti
University of Pennsylvania Law School

Jules Lobel
University of Pittsburgh Law School

John Simpkins
Charleston School of Law

Thomas Crocker
University of South Carolina School of Law

Patrice Kunesh
University of South Dakota School of Law

Fran Ansley
University of Tennessee College of Law

Maroney Terry
Vanderbilt University Law School

Richard Carlson
South Texas College of Law

Emily Hartigan
St. Mary’s University School of Law

Reynaldo Valencia
St. Mary’s University School of Law

Peter Linzer
University of Houston Law Center

Jim Perdue
University of Houston Law Center

Norma Cantu
University of Texas at Austin School of Law

Kristine Huskey
University of Texas at Austin School of Law

Sanford Levinson
University of Texas at Austin School of Law

Frederick Mark Gedicks
Brigham Young University Law School

Laura Kessler
University of Utah S.J. Quinney College of Law

Darryl Brown
University of Virginia School of Law

George Rutherglen
University of Virginia School of Law

Timothy Jost
Washington and Lee University School of Law

Hari Osofsky
Washington and Lee University School of Law

Liz Ryan Cole
Vermont Law School

Stephanie Farrior
Vermont Law School

Joan Vogel
Vermont Law School

Tayyab Mahmud
Seattle University School of Law

John A. Strait
Seattle University School of Law

Kali Murray
Marquette University Law School

Paul Secunda
Marquette University Law School

R. Alta Charo
University of Wisconsin Law School

Marc Galanter
University of Wisconsin Law School

Linda Greene
University of Wisconsin Law School

Caprice Roberts
West Virginia University College of Law

Michael Duff
University of Wyoming College of Law

Charles James, the Justice Department’s antitrust chief under both Bush administrations, questioned the “secondary theories of liability” being used by the DOJ in the prosecution of foreign corruption in an interview with Corporate Counsel released Friday.

James discussed the theories in relation to an “oil for food” investigation that he settled in 2007 while working for Chevron. On Thursday, Chevron announced that James was retiring as an executive vice president at the company.

In November 2007, Chevron agreed to pay $30 million to settle allegations that it had violated the Foreign Corrupt Practices Act during its participation in the United Nations’ oil-for-food program. In its complaint against Chevron, the Securities and Exchange Commission alleged that bribes had been made by the intermediaries who helped Chevron purchase 78 million barrels of crude oil from Iraq between April 2001 and May 2002. Chevron neither confirmed nor denied the charges in its settlement

In the interview with Corporate Counsel, James said that he was not sure if due diligence is enough to keep a company from being held liable for crimes committed by intermediaries in the company’s employ, and that he questioned secondary theories of liability — holding the company liable for actions taken by its employees or contractors — as a policy resolution.

Below is excerpt of the interview, click here to see the rest of it

Q: Let’s first talk about corruption. You settled an “oil for food” investigation in 2007 for $30 million. Do you think regulators sometimes interpret the FCPA too aggressively?

A: I’m certainly not going to say that prosecution of foreign corruption is inappropriate. We settled that case and put it behind us. But I continue to think we had a strong and worthwhile legal position. One of challenges in that space is that there are virtually no FCPA cases that get litigated. This was a case in which it was alleged that Chevron should have known the people it engaged in arms-length transactions with were giving money to the Saddam Hussein regime. Nobody ever said Chevron gave anyone a dime.

Q: That certainly puts the onus on companies to do due diligence on their intermediaries. Have you improved compliance during your time overseeing the function?

A: Yes, we have increased our due diligence in this and other areas. But I’m not altogether sure, if your conduct is going to be judged by what a person actually did, that you’re really protected by due diligence. That’s one of the risks in enforcement based on secondary theories of liability. I question that as a policy resolution but in individual cases you have to do what you have to do.

In a letter Friday, Republicans on the Senate Judiciary Committee accused Attorney General Eric Holder of being “non-responsive and intentionally evasive” about questions they had raised concerning current Justice Department lawyers who previously represented Guantanamo detainees.

The letter, first reported by ABC News, was signed by all seven Republican members of the committee. In it, they again asked Holder to provide a list of all political appointees within the DOJ who represented detainees before joining the department or those who worked for organizations that advocate changes to terrorism policies. The senators also asked whether any of the lawyers who had previously represented or advocated for detainees had been asked or voluntarily agreed to recuse themselves from working on detainee issues for the DOJ.

Chuck Grassley (Getty Images)

Sen. Charles Grassley, R-Iowa, first questioned Holder about potential conflicts of interest for lawyers who previously worked with detainees during a November oversight hearing. In response to Grassley’s questioning, Assistant Attorney General Ronald Weich replied  in a Feb. 18 letter that 10 politically-appointed DOJ lawyers fit his description. Six had represented detainees and four previously advocated on detainee issues, although none as registered lobbyists, he said. Weich noted in particular that Principal Deputy Solicitor General Neal Katyal previously represented a Guantanamo Bay detainee and that Jennifer Daskal, an attorney in the National Security Division, previously worked for Human Rights Watch, an international human rights organization that advocates against torture.

In the letter Friday, the senators chastised the department for not providing a full list of names.

“The February 18 response does not provide complete answers and raises a host of new questions,” the letter reads. “Simply put, this letter is at best nonresponsive and at worst, intentionally evasive.

The letter added that the lack of a complete response leaves them with “serious concerns about who is providing advice on detainee matters.”

The senators requested that Holder reply to the questions before March 12.

UPDATED 3/9/10: An earlier version of this post incorrectly stated that Holder is scheduled to appear before the Senate Judiciary Committee on March 12. The Republican senators asked Holder reply to their questions by March 12. The committee plans to hold an oversight hearing with Holder sometime in March, but a date has not yet been set.

Denise O'Donnell (gov)

The resignation on Thursday of Denise E. O’Donnell as New York’s deputy secretary for public safety and commissioner of the Division of Criminal Justice Services could wind up propelling her toward a run for New York attorney general, The Buffalo News reports.

O’Donnell, who served as the U.S. Attorney for the Western District of New York from 1998 to 2001, resigned as one of New York Democratic Gov. David Paterson’s top aides, to protest the handling of the latest scandal in New York state government. O’Donnell complained that the state police, which was under her purview, was involved in the affair, saying that she had been assured that the state police was not involved.

O’Donnell in a statement said that communication by the governor and state police with a woman who requested a protective order against Paterson aide David Johnson, was “unacceptable regardless of their intent.â€� The Buffalo News reports O’Donnell claimed she was misled by the state police — one of the agencies she oversaw — about its role in the incident.

According to the newspaper, “The departure of Buffalo’s Denise E. O’Donnell from two top criminal justice posts in the Paterson administration serves as more than a statement of moral outrage — though that’s certainly part of it. It also allows O’Donnell to pursue her long-held dream of running for attorney general.”

The former federal prosecutor previously sought the Democratic nomination for attorney general in 2006 but did not get the necessary 25 percent at the party’s state convention in Buffalo to qualify for the primary ballot that year, the newspaper reports. She withdrew from the race at the convention.

But, following Friday’s announcement by Paterson that he is ending his bid for a full term, the Democratic field has all but been cleared for state Attorney General Andrew Cuomo to seek the Democratic nomination, The Buffalo News reported.

If that came to pass, O’Donnell would be a likely candidate for Cuomo’s job as state attorney general. In addition to her past efforts to seek the position, she also retained a huge war chest  — nearly $350,000 cash on hand — from her 2006 bid, according to the newspaper.

With action from Congress not expected before Sunday, the deadline for a settlement in a long-running case on the misuse of Indian trust funds was extended until mid-April, a Justice Department spokeswoman confirmed to Main Justice.

“In order for the agreement to remain valid after its existing February 28, 2010 legislative enactment deadline, the parties have agreed to extend that deadline through Friday, April 16, 2010,” DOJ spokeswoman Melissa Schwartz said.

The parties announced on Dec. 8 that they had reached a settlement in Cobell v. Salazar, a lawsuit that accused the Interior Department of  mishandling funds in trust funds that belong to individual American Indians.

One of the largest class action lawsuits against the U.S. government, the case was originally filed in 1996 by Elouise Cobell on behalf of more than 300,000 American Indians holding individual accounts. In the waning days of 2009, both parties agreed to extend the year-end deadline for final resolution of the settlement to Feb. 28, 2010.

Because Congress will not pass the required legislation before Sunday, the deadline was extended once again.

In late January, both sides were hopeful they could meet the deadline, but left open the option of extending it if Congress was unable to reach the deadline.

Keith Harper (Kilpatrick Stockton).

“We’re certainly hopeful that we will get passage of that,� Associate Attorney General Thomas Perrelli told Main Justice in late January. “I don’t have any specifics. But we remain hopeful that it’s going to get passed.�

Keith Harper, a Kilpatrick Stockton lawyer representing Cobell, told Main Justice in late January that the settlement did not have any serious opposition.

“The holdup doesn’t have anything to do with our particular legislation,� said Harper. “Both sides have been supportive of this resolution.�

‘There are a lot of moving parts, but both sides agree that this is the right thing to do,� said Harper. “Whether we can continue to extend the deadline is another question, but right now all energies are focused and we’re feeling very good.�

Harper was not immediately available to comment on the latest extension.

February 26, 2010

For Immediate Release

Sessions Criticizes OPR Report on Office of Legal Counsel Memoranda

WASHINGTON—U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, delivered an opening statement today at the hearing on the Office of Professional Responsibility investigation into the Office of Legal Counsel memoranda. Sessions’ remarks, as prepared, follow:

“Mr. Chairman, for the last several years, the Judiciary Committee has debated extensively the legal and policy questions surrounding how we conduct the war with al Qaeda and other terrorist organizations. We will continue to do so as part of our very important responsibilities in this Committee.

“I think it is important, however, to put this hearing in context. Today, we are discussing memos that were written in 2002, repealed by the Department of Justice in 2004, and whose subject is an interrogation technique—waterboarding—that was only used on three people and never employed by the military. Yet here we are in 2010, in large part because of the missteps and delays by the Department’s Office of Professional Responsibility, holding a hearing on a Friday morning to dredge up this issue once last time.

“In the aftermath of September 11th, lawyers in the Department of Justice and our national security professionals had one unifying goal: preventing the next terrorist attack. The pressures were enormous. The lawyers’ job was to determine where the legal lines should be drawn and to push as close to those lines as possible in order to give our intelligence professionals the tools they needed.

“In his book The Terror Presidency, Jack Goldsmith noted as much. He talks about the “national security lawyer’s dilemma,� which is borne out of the conflicting commands these lawyers receive on a daily basis:

Stay within the confines of the law, even when the law is maddeningly vague, or you will be investigated and severely punished; but be proactive and aggressive and imaginative, push the law to its limit, don’t be cautious, and prevent another attack at all costs, or you will also be investigated and punished.

“Times have really changed, perhaps because of the fear created by Jack Goldsmith’s “dilemma� and investigations like the one undertaken by the Office of Professional Responsibility in this matter. Whatever the reason, the Obama Administration has taken a dangerous turn away from the lessons we learned in the aftermath of 9/11.

“In 2010, we have an Administration that has not only repealed tough and effective interrogation techniques, but announced to terrorists around the world that we have done so in favor of the Army Field Manual. We have an Administration that gave Miranda warnings and a lawyer to a terrorist who tried to blow up an airplane on Christmas Day, rather than question him aggressively for intelligence purposes so we could learn all we could as quickly as we could about al Qaeda in Yemen. We have an Administration that insists on giving Miranda warnings to terrorists caught during wartime on the battlefields in Iraq and Afghanistan. We have an Administration that has announced that it intends to hold an Article III criminal trial for KSM and other terrorists held at Guantanamo Bay, rather than prosecuting them through military commissions, which are constitutionally appropriate and have a long history of use in the United States.

“These policy decisions are troubling, and in my view dangerous. For reasons inexplicable to me, perhaps because this Administration wants to curry favor with the far Left, the ACLU and the human rights crowd that now seems to populate the Department of Justice, we have taken a step back.

“And I am afraid that investigations like the one OPR conducted against Jay Bybee and John Yoo have sent a devastating message to those who might serve as national security lawyers. In the immediate aftermath of September 11th—under pressures so great that Attorney General Mukasey and Deputy Attorney General Mark Filip noted that they would wish it on “no American, ever, and certainly no member of the Department of Justice�—John Yoo and Jay Bybee crafted two legal memoranda on the subject of enhanced interrogation techniques. One of these memos was later leaked to the press and a Member of Congress, Frank Wolf of Virginia, called for an investigation of the circumstances surrounding the drafting of the memo.

“After five and half years, two drafts and one final report later, the Office of Professional Responsibility concluded, apparently without any legal or factual basis, that Mr. Bybee and Mr. Yoo had violated legal ethics rules and deserved to be referred for sanctions by state bar authorities.

“There is much that can be discussed about OPR’s work in this matter, most of it not flattering. They dropped their first version of their report on Attorney General Mukasey on December 23rd, 2008, at the end of the Administration and with little time to respond. The first report was filled with gaping holes, shoddy legal analysis and something even worse: a clear desire to punish John Yoo and Jay Bybee, even if the facts didn’t support it.

“Later versions of the OPR report attempted to change the legal standard, to a heightened one that OPR contended applied only to Yoo and Bybee—the unfair equivalent of moving the goalposts in the middle of the game.

“And someone, by press accounts perhaps OPR lawyers themselves, repeatedly leaked the draft reports and conclusions to the media, including liberal bloggers, in a transparent attempt to embarrass Yoo and Bybee and grow public support for their flawed conclusions. That is unacceptable, and I am going to want to know whether the Department is investigating these leaks to determine whether they came from within DOJ.

“Fortunately in this matter, cooler and wiser heads prevailed. The senior career official at the Department, David Margolis, rejected OPR’s misguided efforts. Mr. Margolis, who has conducted the final review of every discipline matter of this sort in the last 17 years, drafted a 69-page opinion that lays out in great details the serious problems with OPR’s analysis. The Washington Post has called this opinion “courageous� and “correct.� I agree.

“So where do we go from here? How does OPR rebuild its reputation and credibility? Can it even do so? And most importantly, how can we undo the damage that misguided investigations of this sort have on the willingness of national security lawyers to take on the tough questions and provide candid legal advice without fear that their reputation and livelihoods will be threatened if they give advice that falls out of political favor years later with the benefit of hindsight?

“These are the issues I hope we might focus on today. Thank you, Mr. Chairman.�

###

Code Pink protesters at the Senate Judiciary hearing on Friday (photo by Ryan J. Reilly).

At the conclusion of Friday’s Senate Judiciary hearing on the Office of Professional Responsibility’s look into the authors of the so-called “torture memos,” two protester from Code Pink asked pointed questions to Sen. Patrick Leahy (D-Vt.) — which he ignored — about why key witnesses were not called to testify.

“There’s no accountability,” said one protester. “There’s so many unanswered questions that we could use the power of subpoena to get the answers to. I think the American people are demanding accountability, the American people feel lost out here.”

She also asked why David Margolis was not forced to testify at the hearing.

Medea Benjamin, co-founder of Code Pink, said her organization wanted to see John Yoo and Jay Bybee in jail.

Earlier in the hearing, Leahy asked Benjamin to lower her sign, which was positioned to be within the frame of the C-SPAN camera broadcasting the hearing.

Video of the conclusion of the hearing is below.