The White House and the Justice Department are vetting the head of the Office of Professional Responsibility, Mary Patrice Brown, for a federal judgeship, according to two people familiar with the matter.
Brown, a well-regarded career prosecutor, is expected to secure a nomination to the U.S. District Court for the District of Columbia, assuming she clears her FBI background check and American Bar Association review, the people said.
Brown was tapped to lead the Justice Department’s ethics unit in April, amid a high-profile probe of former Office of Legal Counsel lawyers whose legal opinions paved the way for waterboarding of terrorism detainees. Her office reportedly determined that the lawyers — John Yoo, now a law professor, and Jay Bybee, now a federal judge — violated professional standards in blessing some of the Bush administration’s most controversial national security policies.
The Justice Department official who oversees OPR in the Deputy Attorney General’s office, David Margolis, softened the report to say the lawyers were guilty of “poor judgment” but not of professional misconduct — a finding that would have warranted referrals to state bar associations, Newsweek reported.
The issue would almost certainly be raised in Brown’s Senate confirmation hearings. Many Republicans strongly oppose disciplining Yoo or Bybee for their work during the Bush administration in the aftermath of the 9/11 attacks, while many Democrats have called for them to account for approving an interrogation method that Attorney General Eric Holder and others have equated with torture.
Brown, just the third OPR counsel since the office was created in 1975, came from the U.S. Attorney’s Office for the District of Columbia, where she was chief of the Criminal Division. The Justice Department announced the move the day after a federal judge criticized OPR for dragging its feet in an investigation of possible misconduct in the botched prosecution of former Alaska Sen. Ted Stevens. The events were unrelated.
The judge, Emmet Sullivan, took the extraordinary step of appointing a special prosecutor to investigate government lawyers for possible criminal contempt. Sullivan’s actions also set in motion a series of reforms designed to ensure that prosecutors meet their obligations to turn over evidence to defendants. (Brown would be Sullivan’s colleague on D.C.’s federal trial court, among the most prestigious in the country.)
The OPR investigations of the Stevens prosecutors and of the former OLC lawyers elevated the profile of Brown’s office. Rarely do OPR findings see the light of day, much less become the subject of congressional inquiries, as the OLC probe has. As a result, the office has received more complaints, Brown has said.
Delegate Eleanor Holmes Norton sent Brown’s name to the White House, along with eight others, for three vacancies on the court. (The names were generated by Norton’s nominating commission, the same group that interviewed candidates for U.S. Attorney in the District.) The White House appears to have pared the list down to three names, and the Justice Department’s Office of Legal Policy has been assisting with the vetting since December, the people said.
The lawyers being considered for the other two vacancies are Venable LLP partner Robert Wilkins, former special litigation chief for the D.C. Public Defender Service, and D.C. Superior Judge James “Jeb” Boasberg, who was an Assistant U.S. Attorney in District before his confirmation in 2002, the people said.
Brown could not be reached for comment. Wilkins and Boasberg declined to comment.
The court has a fourth vacancy as of late December, when U.S. District Judge Paul Friedman took senior status. It’s unclear whether the White House will select a nominee from Norton’s list, ask for more names or conduct its own search.
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D.C. U.S. District Court Judge Paul Friedman became one of the first judges to employ the same sentencing guidelines for powder cocaine and crack offenses, The Blog of the Legal Times reported today.
Defendant Anthony Lewis was sentenced to 162 months for possessing 18.7 grams of crack, but yesterday Friedman lowered his sentence to 130 months, according to The BLT. Northern District of Iowa U.S. District Court Judge Mark Bennett implemented the same standards as Friedman last month, The BLT said.
“Thus, in the future, this Court will apply the 1-to-1 ratio in all crack cocaine cases and then will separately consider all aggravating factors applicable in any individual case, such as violence, injury, recidivism or possession or use of weapons,” Friedman wrote, according to The BLT.
The House Judiciary crime, terrorism and homeland security subcommittee is considering a series of bills that will revise the 100-to-1 ratio between crack and powder cocaine penalties established by Congress in the 1980s. The decades old law gives the same five-year mandatory minimum sentence for the sale of five grams of crack cocaine as it does for the sale of 500 grams of powder cocaine.
The Justice Department has called for the end of the disparity between crack and powder cocaine sentencing. DOJ Criminal Division Assistant Attorney General Lanny Breuer the current sentencing policies – which disfavor blacks because crack is generally sold in poor urban communities – are “hard to justify.”