In attempting to prevent a watchdog group from filing a friend of the court brief in support of indicted former Sen. John Edwards, the Justice Department highlighted inconsistency in the federal government’s policy towards the filings, according to an analysis by two lawyers in private practice.
Anthony J. Franze and R. Stanton Jones, lawyers in Arnold & Porter LLP’s appellate and Supreme Court practice group, say that while they have no connection to the Edwards case, they are concerned by how the federal government looks upon amicus curiae briefs filed on behalf of private parties in cases where the government is a party. They called on the Department of Justice to formulate a formal policy on the procedure.
“While a nongovernmental amicus generally must obtain the parties’ consent or leave of court, the United States may file an amicus brief in any case without consent or leave of court,” the two lawyers said in an article written for the Bloomberg Law Report.
“We believe that it is inappropriate for the government to oppose the participation of prominent organizations as amicus curiae in important cases in the federal courts,” Jones said in an email to Main Justice. “And we think the government’s approach in the Edwards case again firmly illustrates the need for a formal Department of Justice policy regarding nongovernment amicus briefs.”
The amicus in the Edwards case was filed by Citizens for Responsibility and Ethics in Washington after a federal judge in North Carolina granted permission for it on Oct. 17. The Justice Department opposed the brief in a Sept. 26 filing.
The watchdog group supports Edwards’ motion to dismiss charges that he illegally used campaign money to conceal pregnant mistress Rielle Hunter from the public eye during his unsuccessful 2008 presidential campaign. Both Edwards and CREW argued that the charges were the result of prosecutorial abuse of the justice system.
In its amicus brief, CREW argued the government is attempting to apply the Federal Election Campaign Act in an improper and unconstitutional manner by stretching the definition of what constitutions a campaign contribution. In a motion for leave to file the brief, CREW said the government had never before opposed the group’s filing of an amicus in support of its position.
The government argued in September that CREW’s proposed brief would not advance the legal arguments in the case and “instead consists largely of conjecture based on purported ‘facts’ gleaned from news articles.” The government added: “[T]here is no place for this form of storytelling in a criminal case.”
Franze and Jones described the government’s opposition as “wrong” and “unusual,” arguing that it was based on the “too narrow and grudging” opinion of Judge Richard A. Posner of the Seventh Circuit. The two described Posner as “the primary proponent of a restrictive amicus standard,” whose theory was subsequently disputed by Supreme Court Justice Samuel Alito while he was a federal judge on the Court of Appeals for the Third Circuit.
The Arnold & Porter attorneys also questioned the notion that the CREW amicus didn’t include “arguments and materials not discussed in Edwards’s motion to dismiss” and, even if it did, “the district court likely will spend more time comparing the two briefs in considering the government’s opposition, than if the government had simply consented to the filing.”
The two lawyers said that the government could avoid a similar litigious brouhaha in the future if the Department of Justice formulates an across-the-board policy on private parties’ amici curiae.
“The Department’s U.S. Attorney’s Manual already requires the Solicitor General’s authorization for the filing of amicus briefs on behalf of the government, but does not address policies concerning nongovernmental amicus,” Franze and Jones wrote. “The Justice Department should update the Manual to provide that the United States should grant consent for timely amicus briefs absent exceptional circumstances or an abuse of the amicus process.”
They added: “The Manual further should require divisions of the Department and U.S. Attorneys to obtain the Solicitor General’s authorization to refuse consent or oppose the filing of such briefs. This policy would help ensure consistency, comport with longstanding government amicus practice, and avoid the perception of ‘viewpoint discrimination’ by the United States.”
