The full Senate on Tuesday is set to consider three nominees for top Justice Department positions, including two posts long held by temporary appointees.
The chamber is scheduled to hold final votes on the nominations of James Cole for Deputy Attorney General, a job without a Senate-confirmed appointee since February 2010, and Virginia Seitz for Office of Legal Counsel Assistant Attorney General, a post held by temporary appointees since 2004. The Senate also will hold a final vote on the nomination of Lisa Monaco for National Security Division Assistant Attorney General, a position that last had a Senate-confirmed leader in March.
The decision to hold the votes came after Senate leaders last week reached an agreement that allowed the nominees to come to the Senate floor and be voted upon.
Senate leaders made the deal after hammering out various matters with the Justice Department, including concerns Sen. Charles Grassley, the top Republican on the Senate Judiciary Committee, raised about his ability to effectively conduct his probe into Operation Fast and Furious, a controversial Bureau of Alcohol, Tobacco, Firearms and Explosives gun smuggling program.
The Republican senator had expressed frustration that he didn’t get the documents and records House Oversight Committee Chairman Darrell Issa (R-Calif.) received from the DOJ about the program which allowed guns to fall into the hands of Mexican drug cartels in an effort to track them. The DOJ had told Grassley that it would not provide the senator with access to documents that were made available to the House Oversight Committee because federal agencies typically only respond to committee chairmen and Grassely isn’t one.
But Attorney General Eric Holder now has said the Department will give Grassely the same access to information, witnesses and documents that is provided to Issa and the DOJ Inspector General, which also is investigating the program. In return, Republican senators lifted holds on the nominees.
Democrats have fought particularly hard for a final vote on Cole, whom President Barack Obama first nominated for the No. 2 post at the DOJ in May 2010.
In December, Democrats pushed for a vote on Cole before the Senate adjourned sine die. But Republican opposition forced the chamber to return his nomination to the White House.
The president in January installed him through a recess appointment that ends when the current congressional session concludes later this year. Obama also renominated him in January, and the Senate Judiciary Committee endorsed him along a party-line vote in March.
In May, the Senate held an unsuccessful cloture vote on Cole’s nomination, preventing an up-or-down vote on him at the time.
Republicans have expressed concerns about a 2002 article he authored supporting civilian trials for terrorism suspects and his time as an independent monitor for insurance giant AIG, which the Federal Reserve bailed out during the 2008 financial industry crisis.
Cole also was the House ethics committee special counsel who investigated then-Speaker Newt Gingrich (R-Ga.) in the 1990s for the mishandling of tax-exempt organizations for political purposes. The House gave Gingrich a rare formal reprimand and ordered him to pay a $300,000 penalty.
The last nominated, Senate-confirmed Deputy Attorney General was David Ogden, who resigned in February 2010. Gary Grindler served as acting Deputy Attorney General after Ogden’s resignation. Grindler is now the Chief of Staff to Attorney General Eric Holder.
Cole, a former DOJ Criminal Division official, was a partner at the law firm of Bryan Cave LLP in D.C. prior to his recess appointment.
As for Seitz and Monaco, they have moved through the Senate with relative ease. The Senate Judiciary Committee approved their nominations by unanimous consent in May.
Seitz, whom Obama nominated January, would be the first Assistant Attorney General endorsed by the Senate to lead the OLC since 2004, when Jack Goldsmith resigned after disagreeing with George W. Bush administration officials about the administration’s aggressive post-Sept. 11 national security policies. Principal Deputy Assistant Attorney General Caroline Krass currently heads the office.
She is Obama’s second nominee for the post. His first nominee, Dawn Johnsen, withdrew in April 2010 after more than a year of Republican criticism about her opposition to the Bush administration’s national security policies and her pro abortion-rights views.
The OLC gives legal advice to the president and other administration officials on various issues, including national security matters. The office was in the middle of the bitter dispute over the use of harsh interrogation methods against terrorism suspects, methods critics called torture.
Seitz, like Johnsen, is a member of the American Constitution Society, a left-leaning legal group. She also clerked for Justice William Brennan, who was a member of the Supreme Court’s liberal wing. Seitz is married to acting Deputy Solicitor General Roy McLeese.
She has been a partner at the law firm of Sidley Austin LLP since 1998.
Monaco, whom Obama tapped in March, has been the Principal Associate Deputy Attorney General under Cole since January. She previously held several posts within the DOJ since 1998, including a stint as a top adviser to FBI Director Robert Mueller.
Monaco would succeed David Kris, who resigned as the National Security Division Assistant Attorney General in March to join the private sector. Todd Hinnen is currently heading the division on an acting basis.
She would be the fourth permanent National Security Division Assistant Attorney General if confirmed by the Senate. The National Security Division was created in 2006.
Former Illinois Gov. Rod Blagojevich was convicted on Monday of nearly all the corruption charges against him, as a federal jury of 11 women and one man in Chicago concluded that he had essentially tried to sell his official position for his own selfish ends.
Blagojevich, found guilty in his second trial, faces some 20 years in prison and fines of hundreds of thousands of dollars when he is sentenced by Judges James Zagel of the Northern District of Illinois. The verdict was a huge victory for U.S. Attorney Patrick Fitzgerald, who showed his interest in the case by sitting in on a number of days of testimony.
“It’s in God’s hands,” Blagojevich said as he left his home with his wife, Patti, to hear the verdict, according to Station WLS in Chicago. “My hands are shaking, my knees are weak. I can’t seem to stand on my own two feet.”
The panel convicted the former governor of 17 of the 20 counts against him, acquitting him of one and unable to decide on the remaining two. The most sensational of the charges, and the basis of many of the guilty findings, was that Blagojevich tried to auction off the Illinois Senate seat vacated by Barack Obama when he was elected president in 2008. Blagojevich was arrested shortly after Election Day.
Blagojevich, 54, was accused of trying to use his official position to get campaign contributions, land a cabinet-level post or other high-paying job and other wrongdoing that added up to wire fraud, attempted extortion, bribery, extortion conspiracy and bribery conspiracy, as The New York Times noted.
Monday marked the 10th day of deliberations. Blagojevich’s first trial, last year, ended with jurors able to agree on only one of 24 counts, a relatively minor charge of lying to investigators. There was a general feeling, based in large part on jurors’ comments, that prosecutors had managed to muddy their narrative with too much information. So this time around, prosecutors simplified their story line, reduced the number of charges and trimmed their witness list.
Blagojevich, a Democrat, testified at his second trial, unlike the first, and denied any corrupt conduct — although his testimony did nothing to dispel the notion that politics is a calculating, bare-knuckle business in Chicago. That impression was amply reinforced by the hundreds of recorded telephone conversations between Blagojevich and his advisers that were recorded by investigators.
Observers said Blagojevich showed little emotion when the verdict was read, but that his wife seemed stunned. Since there is no parole in the federal prison system, Blagojevich can anticipate serving most of whatever sentence is pronounced, minus some 15 percent for good behavior. He can, of course, appeal — but most federal convictions survive higher court scrutiny.
Some people, past and present, in the Boston office of the FBI are nervous, now that Beantown gangster James “Whitey” Bulger has been captured after 16 years in hiding. That’s the clear message emerging from Boston media accounts of the Bulger case, Allan Lengel writes on his Tickle the Wire blog.
It’s long been known that Bulger was an informant for the FBI, and that the bureau protected him accordingly. Did the protection go so far as sabotaging the investigations of other agencies into the activities of Bulger, who has been implicated in as many as 19 murders? Was the FBI half-hearted in its pursuit of Whitey?
The FBI has already been embarrassed by the long-running case. In one of those “only in Boston” episodes, former Boston FBI agent John “Zip” Connolly is alleged to have tipped off Bulger, a fellow “Southie,” that he was about to be arrested. Connolly is in prison, having been convicted of racketeering and murder, and it’s safe to say that people who care deeply about the FBI’s image wish he’d never donned the black suit and starched white shirt that make up the unofficial “uniform” of the bureau.
“It may be true that the new crop of agents and federal prosecutors are clean and wanted Whitey,” Michelle McPhee wrote in The Boston Herald. “But there are too many unanswered questions about how he got away in the first place that should make U.S. Attorney Carmen Ortiz want to hand this case to an independent body, so the taint of the dirty Boston FBI office of the past does not leave a stench all over the work the feds are doing in this city now.”
Rep. Stephen Lynch (D-Mass.) agrees. He told The Herald he wants the Justice Department to investigate how the FBI handled Bulger.
For the record, Lengel notes that the questioning of the FBI’s resolve in the case prompted Boston FBI Richard DesLauriers to issue a statement on Friday: “Any claim that the FBI knew Mr. Bulger’s whereabouts prior to the FBI’s publicity efforts this week are completely unfounded. When we learned his location, he was arrested promptly.”
Several House members on Thursday introduced legislation to apply new crack cocaine sentencing guidelines to inmates already in prison and defendants who have pending cases.
The bill offered by Reps. Robert Scott (D-Va.), Ron Paul (R-Texas), John Conyers (D-Mich.), Roscoe Bartlett (R-Md.), Alcee Hastings (D-Fla.) and Keith Ellison (D-Minn.) would retroactively apply the more lenient sentencing guidelines for crack cocaine offenses that are in the 2010 Fair Sentencing Act. The act brought down the sentencing disparities between crack and powder cocaine offenses in an attempt to fix what many considered to be an unjust discrepancy between sentences involving crack cocaine, more usually involving black offenders, and powder cocaine, often involving white offenders.
“There is absolutely no reason that individuals sentenced under the old crack cocaine laws should not receive the benefit of the FSA,” Scott said in a statement. “Congress has acknowledged that the 100-to-1 disparity was fundamentally unfair and had a racially disparate impact. People sentenced under the old law should not be required to serve out sentences imposed as a result of what Congress has now recognized to be an unjust law.”
Attorney General Eric Holder earlier this month urged the U.S. Sentencing Commission to retroactively apply the new sentencing instructions. But a retroactive application of the guidelines has garnered stiff opposition.
Sen. Charles Grassley of Iowa, the top Republican on the Senate Judiciary Committee, on Thursday threatened to take legislative action in an effort to ensure the 2010 Fair Sentencing Act is applied prospectively. He said in remarks prepared for a Senate Judiciary Committee meeting that retroactive application would pose “a major threat to public safety.”
“Most of these offenders are violent and likely to reoffend,” Grassley said. “Although these offenders are now serving time for crack cocaine offenses, the vast majority have been convicted of serious crimes in the past.”
The National Association of Assistant United States Attorneys, the leading organization of federal prosecutors, also has pushed against retroactively applying the sentencing instructions. NAAUSA President Steven H. Cook wrote in a letter earlier this month to Judge Patti B. Saris, the U.S. Sentencing Commission chairman, that retroactive application would cause “immeasurable crime impact” and “erode the confidence of the law enforcement community.”
An FBI raid on a data center Tuesday is connected to an investigation into Latvians who allegedly put malware in Internet advertisements that would barrage the computers of victims with notifications to purchase bogus antivirus software, The New York Times reported.
FBI agents early Tuesday morning raided a hosting facility in Reston, Va., used by Switzerland-based company DigitalOne, knocking down some websites. On Thursday, the Justice Department announced the indictments of individuals from Latvia and the confiscation of more than 40 computers and servers as part an ongoing investigation into international cyber crime.
The DOJ said it disrupted two Latvian criminal groups that allegedly sent out “scareware,” which aims to trick victims into supplying their credit card information to scammers.
One group is accused of running websites that displayed fake virus scans and other scams. The group earned more than $72 million from the sale of fake antivirus software and infected hundreds of thousands of computers, according to the DOJ.
The other group allegedly sent out their malware using ads it purchased for the website of the Minneapolis Star Tribune. The ads functioned properly at first, but they later were altered to allow the distribution of the malicious software, according to the DOJ. At least $2 million was lost from the scam, the Department said.
“Cybercrime is profitable, and can prey upon American consumers and companies from nearly any corner of the globe,” Assistant Attorney General Lanny Breuer of the DOJ Criminal Division said in a statement. “We will continue to be aggressive and innovative in our approach to combating this international threat.”
Antitrust authorities in the U.S. will sign later this summer an agreement with their counterparts in China to collaborate in reviewing mergers that need to be cleared by both countries, a top Justice Department official said Friday.
The DOJ, the Federal Trade Commission, and three agencies in China will sign on July 27 a memorandum of understanding, Antitrust Division chief Christine Varney said at a speech at the U.S. Chamber of Commerce.
“This is a breakthrough moment for us,” Varney said.
The agreement will allow the agencies to conduct joint reviews, exchange information, and work together on matters in front of regulators in both countries, Varney said.
The memorandum resembles a two-decade agreement in place between U.S. and European antitrust enforcers. That cooperation has been expanding to other countries in the past few years.
The agencies signed a similar agreement with Russia in 2009, and is drafting one with Indian authorities.
“These are our stepping stones to get us further along the line of a universal commitment to procedural fairness, due process, and transparency,” Varney said.
As emerging economies put in place antitrust regimes, the business community has raised concerns that foreign regulators could use competition laws to promote their own trade interests.
“An MOU among competition agencies will not cure this problem, but it is a first step,” Varney said.
In an 18-minute speech at the top business lobby, Varney defended her two-year record at the helm of the Antitrust Division.
“Many of you, either with gleeful anticipation or with horrified anticipation, thought I had a big agenda, and I was going to go around using Section Two to devastate or liberate the American economy,” Varney said, referring to her decision to withdraw a controversial Bush-era report on the section of antitrust law that deals with monopolies as one of her first acts on the job.
“You were wrong,” she said. “I didn’t have an agenda, I don’t have an agenda,” she said.
The acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives has indicated that he will resist calls for him to step down amid growing controversy over the agency’s now-infamous gun-trafficking surveillance operation, the Los Angeles Times reported.
Kenneth E. Melson is reportedly eager to tell Congress the extent of his and other officials’ roles in operation “Fast and Furious,” which allegedly ordered thousands of guns to be sold to straw buyers, lost from law enforcement surveillance and allowed into Mexico.
At a House Oversight and Government Reform Committee hearing last week, several ATF agents testified that Melson was closely involved in overseeing the operation – at one point requesting live video feed of gun dealers selling to straw buyers linked to the Mexican drug cartels, they said.
But at least two anonymous sources told the LA Times that Melson will not be the “fall guy” for the program and that he appears open to an appearance before Congress if given approval by the Justice Department.
Meanwhile, one of the two congressman leading the charge against Melson, Rep. Darrell Issa (R-Calif.), traveled to Mexico on Friday in an attempt to spur further investigation from its government. There, he will join eight other U.S. lawmakers for a meeting on Saturday at the federal police command center in Mexico City.
He and Sen. Charles Grassley (R-Iowa) have led the congressional investigation into Fast and Furious, and both have expressed their intention to hold high-level ATF and DOJ officials responsible for the “reckless” operation.
In a letter to Arturo Sarukhan, Mexico’s U.S. ambassador, Issa and Grassley requested serial numbers for all firearms his government thought might be connected to the operation as well as all numbers for guns recovered in violent crimes.
“This information would be tremendously helpful to us in determining the full scale of the effects of Operation Fast and Furious, which includes the deaths of both Mexican and American citizens,” the two wrote. “We have a shared interest with you in getting to the bottom of this matter.”
Their request coincides with the revelation that two AK-47s recovered at the scene of shootout with suspected killers of a well-known Mexican attorney were linked to Fast and Furious. Further investigation found that the guns were linked to the torture and killing of Mario Gonzalez Rodriquez, the brother of former Chihuahua attorney general Patricia Gonzalez Rodriguez.
Mexican authorities have not commented on the case, citing ongoing investigations.
Two more guns from the operation were recovered last December after a shootout near Rio Rico, Ariz., between Border Patrol agents and a group of Mexican bandits apparently preying on migrants crossing the border. Border Patrol agent Brian A. Terry was shot and killed during the gunfire.
Terry’s death kicked off Issa’s investigation of the ATF, a spokesman for Issa’s office said yesterday. But Justice Department officials have warned that the probe may jeopardize ongoing cases against dozens of suspects involved in Terry’s shooting.
During last week’s hearing, Assistant Attorney General Ronald Weich urged investigators to work with the department to ensure the integrity of confidential information and potential trial witnesses.
“The rules of the House do not easily permit a committee to keep documents confidential,” Weich said.
In a earlier committee hearing, ranking member Elijah E. Cummings (D-Md.) released a letter addressed to Issa saying that he had revealed documents sealed by a federal court while conducting his investigation.
But Weich’s remarks seemed only to frustrate Chairman Issa, who says DOJ officials have failed to adequately cooperate with his committee in responding to subpoenas he issued for hundreds of documents on Fast and Furious. To illustrate his point, he held up dozens paper sheets almost entirely filled with black redaction blocks.
“The pages go on like this forever,” Issa said.
The DOJ’s Office of Inspector General has also opened an investigation of the operation.
President Barack Obama is expected to nominate a U.S. Attorney for the Southern District of Texas who is backed by the state’s Republican senators, but was not recommended by his party’s own House members, The Houston Chronicle reported Thursday.
The nomination of Kenneth Magidson, an Assistant U.S. Attorney in the Houston-based U.S. Attorney’s office, could come as soon as next week. If nominated by the president and confirmed by the Senate, Magidson would become the first appointed U.S. Attorney from the Obama administration to lead one of the four offices.
The state’s Republican senators, John Cornyn and Kay Bailey Hutchison, recommended in 2009 that Obama nominate Magidson. The Texas House Democrats led by Rep. Lloyd Doggett didn’t publicly announce a recommendation for the post in 2009. But their first choice is lawyer Larry Veselka, a former Harris County Democratic Party chairman, according to The Chronicle.
Home-state senators traditionally recommend candidates to the White House — unless both of the state’s senators are of different parties than the president. In cases in which senators are of a different party than the president, the White House often relies on House members who are members of the president’s political party.
But in Texas, Doggett and the state’s Republican senators submitted separate lists of U.S. Attorney candidates. Of the six announced U.S. Attorney candidates submitted to Obama in 2009, only two had the support of the Texas House Democrats and Republican senators.
Obama nominated one of those two candidates, John B. Stevens Jr., last year for Eastern District of Texas U.S. Attorney. But he withdrew his name from consideration after the Senate Judiciary Committee stalled on his confirmation.
Stevens was the only Texas U.S. Attorney nomination made by Obama thus far. Career prosecutors have led the four U.S. Attorneys’ offices in the absence of Obama appointees. Texas is one of only a few states that doesn’t have at least one appointed U.S. Attorney in place.
The Senate has confirmed 76 of Obama’s U.S. Attorneys thus far. There are 93 U.S. Attorney posts across the nation.
“I’m a little dumbfounded by their inactivity and their unwillingness to move forward,” Cornyn told The Chronicle. “They haven’t made this a priority.”
White House spokesman Reid Cherlin told Main Justice in March that filling the U.S. Attorney vacancies in Texas “is a priority’ and the White House hoped “to nominate candidates soon.”
Don DeGabrielle, whom Bush appointed in 2006, resigned as Southern District of Texas U.S. Attorney in November 2008. Jose Angel Moreno has led the office since February 2010.
After years of false starts, the House took a pivotal step Thursday toward finally sending the president patent reform legislation.
The House voted 304-117 in favor of the measure that supporters have said would provide the most significant update to the patent system in 60 years. The Senate approved its version of the bill by a 95-5 vote in March. The bills now will have to be reconciled.
“Today’s vote is a victory for America’s innovators and job creators who rely on our patent system to develop new products and grow their businesses,” House Judiciary Committee Chairman Lamar Smith (R-Texas) said in a statement. “The America Invents Act is the most significant jobs creation bill passed by Congress this year. No longer will American inventors be forced to protect the technologies of today with the tools of the past.”
The Senate and House bills would ensure that the first person who submits an application gets the patent, switching from a “first-to-invent” system. The bills also are designed to help the Patent and Trademark Office get more money to address an application backlog that includes more than 700,000 submissions.
The House bill overcame a last-minute stumbling block over concerns from Chairmen Paul Ryan (R-Wis.) of the House Budget Committee and Harold Rogers (R-Ky.) of the House Appropriations Committee about a provision allowing the Patent and Trademark Office to keep the fees it gathers from patent applicants, according to The Associated Press. The fees currently are put into the Treasury, and the Patent and Trademark Office receives congressional appropriations to fund its operations.
Under a deal reached between Republican House leaders, a Treasury fund would be established for fees received beyond the office’s budget. Only the Patent and Trademark Office could access the fund, keeping the money out of the reach of lawmakers who might want to spend it on other things. But the office would need to notify Congress how it would use the fund before accessing it.
The Senate bill currently has the provision that would allow the Patent and Trademark Office to keep the fees it gathers from patent applicants. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said in a statement that he was “disappointed” that House leaders changed the language concerning fee diversion in the House legislation. But the senator said the legislation still will benefit inventors and manufacturers, and he will work to send it to the White House, which has expressed support for the House bill.
Rep. John Conyers of Michigan, the top House Judiciary Committee Democrat, and Rep. James Sensenbrenner (R-Wis.), a former House Judiciary Committee chairman, and Reps. Donald Manzullo (R-Ill.) and Dana Rohrabacher (R-Calif.), had different thoughts.
They wrote in a “Dear Colleague” letter on Tuesday that the legislation would “cost jobs, harm small start-up inventors, and stifle innovation and investment here in the United States.” In the letter, the House members expressed opposition to several of the bill’s provisions, including the proposed switch from a “first-to-invent” system and the fee diversion stipulation worked out this week.
“HR 1249 will not solve the 700,000-plus application backlog in the US Patent and Trademark Office, and in fact, invites more problems for American inventors and innovators,” Sensenbrenner said in a statement Wednesday. “If we really want to solve the problems in the patent office, we ought to pass a clean bill that allows the PTO to retain its fees and improve the processing of patent applications.”
Whether they decide to prohibit it or legalize it, marijuana regulation should be left up to state, not federal, governments, say a group of congressmen.
Reps. Barney Frank (D-Mass.) and Ron Paul (R-Texas) introduced HR 2306, or the “Ending Federal Marijuana Prohibition Act of 2011,” Tuesday to end the federal prohibition of marijuana and allow state and local laws to govern its use and regulation.
“We do not believe the federal government should be involved in prosecuting adults for smoking marijuana,” Frank said. “I do not think prohibition is ever the effective way to deal with those things.”
The bill’s passage would delight legalization activists nationwide, but it would also address a mounting conflict between states that have legalized marijuana in some form and the federal Controlled Substances Act, which still prohibits its possession.
Several state officials have expressed hesitancy to enact legalization legislation before the federal government clarifies its position on enforcement. For example, New Jersey Governor Chris Christie has held up his state’s medical marijuana program and asked Attorney General Eric Holder in a letter for guidance.
Holder has said he will clarify DOJ’s stance but has not yet.
Arizona Attorney General Tom Horne even filed suit against the Justice Department seeking a court judgment on whether state officials could implement the new Arizona Medical Marijuana Act, which state voters passed in November.
“If this bill passes on the federal level, then all those threatening letters and all that huffing and puffing from U.S. Attorneys will disappear,” said Rob Kampia, executive director of the Marijuana Policy Project.
The bill would remove marijuana from the federal schedule of controlled substances entirely and remove marijuana-specific penalties in the CSA. It would also allow individuals – if state law permits – to grow and sell marijuana in states that choose to make it legal.
To date, 14 states have decriminalized the possession of marijuana and 16 states and the District of Columbia have made provisions for medical marijuana.
Frank said he doesn’t expect the measure to pass this session but decided to introduced it as a step to further popularize the issue.
“I don’t expect it to pass this Congress, but I do think we’re making progress,” Frank said. “This is an educational process that is going on.”
He said another bill aimed more specifically at protecting medical-marijuana states from federal law will also be introduced this session.
Ending the federal ban would also empower states to regulate and tax marijuana, which could make the bill popular with states’-rights oriented Republicans, said Aaron Houston, executive director of Students for Sensible Drug Policy.
Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, or NORML, compared the bill to the repeal of prohibition, when some states chose to make alcohol legal while others preserved the ban for decades.
“Some states who are keen on it will move on it, some states will not,” Pierre said.
