King & Spalding partner Paul Clement resigned Monday after vehemently disagreeing with his firm’s decision to withdraw as the attorneys representing the House of Representatives in defending the Defense of Marriage Act in court.
The firm of Bancroft PLLC immediately announced he would join the firm as partner, where Clement will continue his work for the House.
King & Spalding said its controversial decision to serve as counsel to the House had not been properly vetted. The law it said it will no longer defend defines marriage a union between a man and a woman. Earlier this year, the Justice Department announced it would no longer defend the law in court after concluding it violates the rights of gays and lesbians. House Speaker John Boehner (R-Ohio) then said he would lead a defense of the law, hiring Clement.
Clement, a former Solicitor General in the George W. Bush administration, resigned in a pointed letter.
“I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases were the passions run high, “Clement wrote.
He continued: “Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”
Clement also made what could be a veiled reference to his former firm in a statement about his new firm. “I have known my Bancroft partners for more than 20 years,” Clement said. “They put clients first and deliver results. Bancroft offers its clients premier talent, without all the baggage of a mega firm. We are shaking up the D.C. legal establishment.”
King & Spalding announced on Monday that it was withdrawing as the attorneys representing the House of Representatives in defending the Defense of Marriage.
The announcement prompted Paul D. Clement, the attorney working for the House, to resign and say he would continue to represent the House.
The firm was under pressure from progressive and gay, lesbian, bisexual and transsexual groups.
In a statement announcing the withdrawal, Chairman Paul D. Hays Jr. said the firm had not totally reviewed its representation before taking on the assignment, but gave no additional reason for withdrawing.. “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate,” he said. “Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”
House Speaker John A. Boehner (R-Ohio) last week announced that Clement, a firm partner and former Solicitor General in the George W. Bush administration, would represent the House in the challenge, since the Justice Department decided not to defend the law. Boehner also said he believed the DOJ should pay the cost of representing the House. The contract with the firm called for Clement and other attorneys to be paid $520 an hour, up to a maximum of $500,000.
House Minority Leader Nancy Pelosi (D-Calif.) challenged the decision, questioning the ethics and transparency surrounding it.
In addition, many groups have protested the decision. The Huffington Post reported that a grass roots organizing group, CREDO Action, was circulating a protest petition and had targeted firm employees with ads on Facebook. In addition, Jon Davidson, legal director of Lambda Legal, said last week that the decision would hurt the firm’s recruitment efforts.
The Supreme Court has rejected a request from Virginia’s attorney general to immediately consider a review of the recent health care overhaul passed by Congress and signed by President Barack Obama the Associated Press reported.
The high court generally does not like to place issues on a fast track and the Justice Department argued the law should be considered in appellate courts before reaching the Supreme Court.
By turning down the request by Virginia Attorney General Ken Cuccinelli, the court will allow the health law to be considered in appellate courts. Three appeals court hearings are scheduled in May and June.
Connecticut Sen. Richard Blumenthal (D-Conn.) Sunday called on the Justice Department to convene a federal grand jury to investigate gasoline prices and attack “the kind of illegal speculation and trading hedge fund activity that may be driving prices up.”
Speaking on CBS’s “Face the Nation,” Blumenthal commended President Barack Obama for convening a multi-agency task force to investigate the federal government needs to go further.
Attorney General Eric Holder, at Obama’s request has announced the formation of the multi-agency task force to probe speculation in the gasoline and oil markets.
“The problem is it is not investigatory, it is more to monitor and follow the developments,” Blumenthal said, discussing the task force. “I commend and applaud the president for focusing on this issue, but I think there really needs to be an investigation involving, for example, subpoenas and compulsory process which I used as attorney general in similar investigations.”
“The Justice Department should take the lead, seize this moment and send a message, a very strong deterrent message, that this country will not tolerate the kind of illegal speculation and trading and hedge fund activity that may be driving prices up,” Blumenthal said. “Just to give you one fact: The amount of trading and hedge fund activity, the energy positions, are at an all-time high in this country’s history, up 64 percent from just a few years ago. And the indicia of potential illegal activity, whether civil or criminal, I think certainly justify the Department of Justice investigation immediately and comprehensively right now.”
Earlier this year, Kevin Ohlson made a secret trip to upstate New York.
Ohlson, then Attorney General Eric Holder’s chief of staff, supposedly was visiting his family. York. He also made what appeared to be a routine check at a federal prison in Otisville.
But as recounted by The Washington Post Sunday, the trip was anything but routine. Ohlson was looking for a place to house Khalid Sheik Mohammed, the self-admitted Sept. 11 mastermind, while he stood trial in the Southern District of New York. Ultimately, Justice Department officials abandoned the idea, deciding that the decision to house Mohammed in upstate New York would not alleviate the political heat the administration already was taking over housing him in Manhattan during his trial.
Earlier this month, Holder announced that the administration was abandoning plans to try Mohammed in a civilian court, and instead he would be tried in a military commission.
The Attorney General had announced in November 2009 that KSM and his alleged accomplices would be tried in a Manhattan federal court as part of President Barack Obama’s effort to close the Guantanamo Bay detention center. But after backlash from Republicans and Democrats, the White House said that it would consider using military commissions for the prosecutions.
The Post story presents an extensive account of the administration’s efforts to close the prison at Guantanamo Bay and transfer detainees held to a prison in the U.S. That plan,one of Obama’s high priorities, later was overshadowed by his extensive effort to pass health reform legislation.
Among the anecdotes recounted in the Post story are that:
- Administration officials, including the president himself were shaken when the president asked DOJ attorney Matthew G. Olson, how many Guantanamo detainees could be prosecuted. Olson, who headed an interagency task force reviewing the case of every detainee, responded that fewer than 20, which later increased to 36. The president appeared upset at the number, since during his election campaign, he had said that nearly all of the prisoners would be prosecuted or transfered. White House officials, according to the newspaper, were in such “disbelief” that they directed DOJ officials to write a memo explaining why more could not be prosecuted. In many cases, the intelligence gathered on the men was not court-worthy, the newspaper said.
- DOJ officials felt “sandbagged” by the New York City Police Department when department officials presented inflated security estimates on the cost of housing the detainees in the city. NYPD Commissioner Ray Kelly talked about creating security rings around the courthouse, at an annual cost of about $200 million a year. That estimate came two months after New York Mayor Michael Bloomberg had welcomed Holder’s announcement that Guantanamo detainees would be tried in a Manhattan courthouse less than a mile from Ground Zero.
- Obama did not press Holder when the Attorney General called the president to inform him that he would be returning the case against Mohammed and his four co-defendants to the Defense Department.
The much-maligned Public Integrity section of the Justice Department received a major boost Friday, as an Alabama gambling hall owner pleaded guilty to attempting to bribe legislators in exchange for their votes to legalize electronic bingo in the state.
The guilty plea by Ronald E. Gilley represents a major victory for a DOJ section that has faced criticism as the prosecution of public officials in Alaska has fallen apart. And earlier this month, the judge in the Alabama case threatened to impose sanctions on prosecutors in the Alabama bingo case for delays in giving the defense materials it needed.
Gilley pleaded guilty to one count of conspiracy to commit federal program bribery, six counts of federal program bribery and four counts of money laundering.
“Ronald Gilley thought votes could be bought and sold in Alabama,” said Assistant Attorney General Lanny Breuer. “He participated in an audacious scheme to bribe state legislators into supporting a law that would fatten his wallet. But he, like his co-conspirators, was stopped in his tracks. Now, Mr. Gilley must face the consequences of his corruption.”
Gilley, along with 10 co-defendants, were charged on 39 counts by a federal grand jury in October. Two current Alabama state legislators, two former Alabama state legislators, three lobbyists, one businessman, an employee of Gilley and an employee of the Alabama legislature are among the 10 defendants whose cases are pending in connection with the probe. Their trial is scheduled to begin June 6.
Court documents show Gilley owned a controlled-interest in a gambling development in Houston County, Ala., and wanted to offer electronic gambling. He admitted that he offered things worth millions of dollars to members of the Alabama legislature in exchange for their votes. He also pleaded guilty to encouraging lobbyists working for him to offer bribes.
Gilley faces a maximum penalty of five years in prison and a $250,000 fine on the conspiracy charge. Each count of federal program bribery carries a maximum penalty of 10 years in prison and a $250,000 fine. Each count of money laundering carries a maximum penalty of 20 years in prison and a $500,000 fine. In connection with the money laundering charges, Gilley agreed to forfeit $200,000. A sentencing date has not been set.
The Public Integrity section has been criticized for an Alaska corruption case that saw several prosecutions fall apart amid charges that prosecutors withheld damaging information about a businessman who helped them. In the most celebrated case, the conviction of the late Republican Sen. Ted Stevens was overturned, but not before the senator lost a reelection bid that some say he would have won had it not been for the prosecution.
The Alabama case is being prosecuted by Deputy Chief Justin V. Shur, Trial Attorneys Edward T. Kang, Eric G. Olshan, Barak Cohen and E. Rae Woods of the Criminal Division’s Public Integrity Section; Senior Litigation Counsel Brenda K. Morris of the Criminal Division; and Assistant U.S. Attorneys Louis V. Franklin and Steve P. Feaga of the Middle District of Alabama.
On Monday, the jurors in the case of Raj Rajaratnam are likely to begin deliberations, trying to decide if the billionaire founder of the Galleon Group LLC hedge fund was an unscrupulous inside trader or if he made his fortune by shrewd but legal investing.
There were no Good Friday proceedings in the Manhattan courtroom of Judge Richard J. Holwell of the Southern District of New York. So the last arguments the jurors heard before heading into the Easter Weekend were on Thursday, as prosecutor Jonathan Streeter began to rebut the defense’s closing summation.
Imagine yourself just an average investor, Streeter asked the jurors, according to an account in The New York Times. Imagine yourself trying to sift through the mountains of information available nowadays. “Now imagine that you have all that plus you have an insider at a bunch of companies,” Streeter said. “Which do you think has a huge advantage?”
Chief defense lawyer John Dowd, of course, saw things through a different prism. “He took advantage of public information available to the whole world, and that’s why you must acquit,” Dowd said of his client, according to The Times’ account.
Streeter is expected to finish his rebuttal early enough on Monday for the judge to instruct the jurors, who will decide if Rajaratnam should go to prison for a couple of decades for conspiracy and securities fraud, or walk free, albeit quite a few million dollars poorer after he pays his lawyers.
Or maybe the jurors won’t decide. Maybe they will be so stupefied by the mass of evidence they’ve been subjected to since early March that they will be deadlocked. It only takes one juror to stall things. Or, perhaps, they will deliberate for many, many hours and collectively conclude that their inability to decide should go in the defense’s favor. Rajaratnam is not obligated to prove his innocence, after all.
And while we’re on the subject of psychology, generally speaking, consider what Dowd said about one prosecution witness who had pleaded guilty, like nearly a score of others, to testify against his erstwhile friend Rajaratnam: “Belligerent, hostile, uncooperative and downright bizarre.”
It’s standard in criminal trials for the defense to attack prosecution witnesses who plead guilty in return for leniency. The defense tells jurors, in essence, that they shouldn’t believe people who have already admitted their own wrongdoing and betrayed someone’s trust in doing so.
To which the prosecution generally replies: We can’t always choose our witnesses. People with knowledge of crimes are often criminals themselves. That’s the way of the world. Besides, our witnesses have every incentive to tell the truth. That’s the only way they’ll get a break.
One difference in this case is that the people who pleaded guilty and agreed to cooperate with prosecutors don’t look like criminals. Until recently, in fact, they may not have thought of themselves as criminals. (One sad side story in the whole episode is that of a young lawyer caught up in the inquiry who pleaded guilty to charges that could send him away for years, as Main Justice reports in a separate account.)
There has been plenty of speculation about how each side is doing. Was Rajaratnam smart not to take the stand? Probably, in the opinion of several observers. But some lawyers not connected with the case thought the defense made a tactical mistake in not deflating tidbit of information about a witness, letting the prosecution pounce on it instead in cross-examination (see our earlier report).
But is it possible that the prosecution offered too much information? “The jury’s patience with the nearly two-month long trial appeared to wear thin,” The Times reported on Thursday’s session. “As Mr. Streeter continued his summation past 5 p.m. — the hour at which the court usually breaks for the day — two jurors groaned. Another rolled her eyes and put on her coat.”
The government’s high-profile prosecution of a group of Blackwater Worldwide security guards charged with manslaughter and weapons violations for a 2007 shooting in Baghdad that killed more than a dozen civilians has been reinstated, more than a year after it was dismissed for what a judge called prosecutorial misconduct.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit on Thursday reversed the Dec. 31, 2009, decision of U.S. District Judge Ricardo Urbina in Washington, sending the case back to the trial court.
Assistant U.S. Attorney Ken Cole led the prosecution team, which included AUSA Jonathan Malis.
Urbina had concluded that the cases against all five guards should be dismissed because the prosecution was tainted by improper use of compelled statements that the defendants made to State Department investigators after the shooting in Baghdad’s Nisur Square. The 2007 incident sparked outrage in Iraq and put enormous political pressure on the U.S. to prosecute the guards. Likewise, Urbina’s dismissal of the case on New Year’s Eve 2009 was greeted in Iraq with dismay and anger.
Urbina’s language at the time was scathing against the prosecutors, saying they “purposely flouted” instructions from a department “taint team” intended to keep the tainted statements out of the prosecution, and accusing them of withholding exculpatory evidence. His decision gave extraordinary detail about the department’s internal struggles to build the case and criticized Assistant U.S. Attorney Ken Kohl in Washington and others on his team.
But the appellate-panel judges, Senior Judge Stephen Williams and Judges Merrick Garland and Douglas Ginsburg, said Urbina had made “a number of systemic errors based on an erroneous legal analysis.”
The D.C. Circuit remanded the prosecution with instructions for Urbina to determine what evidence the government presented against each defendant that was tainted and “in the case of any such presentation, whether in light of the entire record had shown it to have been harmless beyond a reasonable doubt.”
The court said, among other things, the “presence, extent and possible harmfulness” of tainted evidence must be reviewed on an individual basis even though the government brought a single indictment charging five guards.
“We’re pleased with the ruling and assessing the next steps,” Justice Department spokesman Dean Boyd said.
The Blackwater guards were contractors to the State Department, and in that capacity they had been compelled to give statements to State investigators after the shooting deaths. But the Supreme Court has ruled that compelled statements may not be used against defendants in later prosecutions – a fact that made prosecution of what was already a politically charged case even more difficult.
A leak of the guards’ original statements to the news media complicated matters for prosecutors as they tried to sort through what witnesses knew first-hand, versus what they had read of the disallowed statements in news articles.
“To the extent that evidence tainted by the impact of one defendant’s immunized statements may be found to have accounted for the indictment of that defendant, it does not follow that the indictment of any other defendant was tainted,” Williams wrote for the panel. “The district court assumed the contrary.”
“We’re pleased with the ruling and assessing the next steps,” said Dean Boyd, a Justice Department spokesman.
The defendants in the case are Paul Slough, Evan Liberty, Dustin Heard, and Donald Ball. The government had moved previously to dismiss charges against a fifth guard for North Carolina-based Blackwater, which renamed itself as Xe Services after the shooting.
Justice Department attorney Demetra Lambros argued the case on appeal for the government.
The law firm hired by the Republican-controlled House to defend the Defense of Marriage Act is facing criticism from a leading lesbian, gay, bisexual and transsexual legal group, The Huffington Post reported Friday.
The House will pay King & Spalding $520 an hour — up to $500,000 — to defend the 1996 law that restricts the definition of marriage to a union between a man and a woman. George W. Bush Solicitor General Paul Clement, a D.C.-based partner at the firm, will lead the defense.
Jon Davidson, legal director of Lambda Legal, an LGBT advocacy group, told The Huffington Post that the firm’s acceptance of the case is “depressing.”
“I think it’s going to hurt them in their recruiting of future lawyers,” Davidson told the website. He added that he would oppose working with King & Spalding on cases as long as the firm was defending DOMA.
Since 2008, King & Spalding has received a 95 out of 100 rating on the Corporate Equality Index put out by the Human Rights Campaign, another LGBT rights organization. The law firm also has a “LGBT Lawyers” website that touts its commitment to recruiting LGBT law students and supporting LGBT organizations.
A spokesman for the law firm didn’t immediately respond to requests for comment from Main Justice.
House Minority Leader Nancy Pelosi (D-Calif.) and Speaker John Boehner (R-Ohio) have exchanged pointed letters over the decision to hire King & Spalding to defend the act.
Federal officials in Alabama apparently made a serious security blunder, allowing confidential information about sealed cases to become publicly available on the court system’s online-lookup service, The Smoking Gun website reported on Friday.
The security breach occurred over the past nine months in the Middle District of Alabama, as details of 40 sealed court applications filed by federal prosecutors were uploaded to PACER, the web-based records system used by hundreds of thousands of defense lawyers, prosecutors, journalists, researchers, private investigators, and government officials, The Smoking Gun said.
U.S. Attorney Leura Canary was said to be “appalled” to discover that court employees had made the confidential information publicly available. Prosecutors’ reactions reportedly ranged from shock to incredulity as the extent of the security lapse became clear.
“It is likely impossible to determine if the sensitive information was viewed or disseminated by other PACER users, let alone gauge whether any cases were jeopardized by the posting of the sealed material,” The Smoking Gun said. By late Thursday afternoon, the confidential information — if it could still be called that — had been removed from public access.
The Middle District includes Montgomery, Alabama’s second-largest city, and 23 counties.
