Kyl Takes On Reporter-Source Privilege

Most lawyers probably wouldn’t be too happy to hear that Congress was considering giving journalists legal protections that go further than those enshrined in attorney-client privilege.
Jon Kyl certainly wasn’t.
The Republican senator from Arizona balked Thursday morning when he realized that a proposed shield law for journalists would give reporters more protection than lawyers receive through the attorney-client privilege.
Kyl, who is an attorney himself, highlighted for his colleagues on the Senate Judiciary Committee a section of the Free Flow of Information Act as a cause of concern.
The bill as originally drafted would protect a reporter even when he or she is either involved in a criminal act or was the principle witness.
“This exceeds even the attorney-client privilege,” said an outraged Kyl.
He managed to persuade members of the panel, most of whom are attorneys, to amend the bill so that the reporter privilege would not apply in such circumstances.
Kyl’s lengthy intervention meant that senators didn’t get around to voting on the bill itself at Thursday’s meeting.

Leahy Still Not Committed To Banning Waivers

The influential chairman of the Senate Judiciary Committee still appears lukewarm about supporting legislation that would ban the Justice Department from seeking attorney-client privilege waivers in corporate fraud investigations.
Sen. Patrick J. Leahy, D-Vt., made a fleeting appearance at a Senate hearing on the issue Tuesday before rushing off to meet Judge Michael B. Mukasey, the attorney general nominee.
The hearing coincided with opponents of the waiver policy, including the Association of Corporate Counsel, issuing a report alleging that prosecutors routinely put undue pressure on corporate defendants and do not follow the department's own rules.
In his opening remarks, Leahy said he is “deeply concerned about the lawlessness” within the Bush administration’s Justice Department.
But he then went on to say that the December 2006 revised guidelines issued by then-Deputy Attorney General Paul McNulty were “a step in the right direction.”
Leahy also warned of the dangers of the corporate bar using the concerns about attorney-client privilege to try and “create favored status” before the law.
“I don’t want to overreact to the department’s overreacting,” he said.
Sen. Arlen Specter, R-Pa., the leading proponent of legislation that would ban the use of waivers, said he has seen no evidence that waivers should ever be used.
“It’s hard for me to conceive of any situation where it’s justifiable,” he added.
*For more on the report issued by opponents of the Justice Department's policy, see today's print edition of the Daily Journal.

Olson Plays It Cool

Theodore B. Olson is playing it cool as his name circulates Washington as a possible replacement for outgoing Attorney General Alberto Gonzales.
Olson, a senior partner in the Washington, D.C. office of Gibson Dunn & Crutcher, told the Daily Journal Wednesday he is trying to focus on his legal practice while the president makes his decision.
“All this flurry of activity can drive someone crazy,” he said. “I’m working on a brief.”
Olson declined to comment further on the White House’s job search, saying only of a potential nomination that he would “cross that bridge when I come to it.”
He compared the debate over who will replace Gonzales to fantasy football, noting that it means little until the president nominates someone.
Told of Senate Majority Leader Harry Reid's pledge to block the nomination if he is chosen, Olson joked that “it’s good to know before there’s a nomination.”
*See Thursday's print edition of the Daily Journal for more.

House Passes Patent Reform Bill

The House of Representatives passed the bipartisan Patent Reform Act Friday afternoon on a 220-175 vote.
The bipartisan authors of the bill, H.R. 1908, say it will streamline the patent system and reduce the amount of costly litigation that arises over contested patents.
The Senate has not yet passed its version of the legislation, but it is scheduled for debate within the next month.
The House version would, among other things, bring the United States patent system more into line with Europe and Japan, change the way damages are calculated, and tinker with the post-grant review process.
Rep. Lamar Smith, R-Texas, the ranking member of the judiciary committee, stressed the bipartisan nature of the legislation while recognizing that some industries – notably the biotechnology and pharmaceutical sectors – aren’t happy with it.
“It’s impossible to satisfy completely every interested party,” he conceded during the debate.
The bill also contains venue provisions that would prevent those who challenge patents – sometimes known as patent trolls because they have no intent of developing products based on their patents - from filing suit wherever they want.
Under the proposed new law, they would have to do so in a jurisdiction where the defendant is based or has a major presence.
This would stop the “most glaring instances of forum-shopping,” said San Jose Democrat Zoe Lofgren, whose district includes many companies that support the bill.
Among the opponents of the legislation was Huntingdon Beach Republican Rep. Dana Rohrabacher, who denounced the legislation as a “disaster for individual inventors” that would benefit only the high-tech and financial services industries.
Such groups would like to “do away with the patent system altogether if they could,” he said.
*For more on the patent reform debate, see Monday’s print edition of the Daily Journal.

Former Deputy Attorney General Paul J. McNulty Speaks

Former Deputy Attorney General Paul J. McNulty, who left the Justice Department in July in the aftermath of the U.S. attorney firing scandal, told the Daily Journal Wednesday that he has no regrets about his role in the affair.
Most famously, McNulty testified before the Senate in February that the eight fired U.S. attorneys, including Carol Lam in San Diego and Kevin Ryan in San Francisco, were dismissed for performance related reasons.
The U.S. attorneys, with the exception of Ryan, disputed that characterization, amid claims from Democrats that the White House had led the purge for political reasons.
McNulty later blamed the inaccuracies in his testimony on Justice Department White House liaison Monica Goodling.
Speaking on his second day in his new position at the Washington D.C. office of Baker & McKenzie, McNulty said he left the department with his head held high.
“You can’t control these things,” he said of the scandal. “I felt when I left the department I had the respect of my colleagues.”
As for Goodling, who disputed his suggestion that she supplied him with incorrect information, McNulty said he had set the record straight when he testified before the House in June.
“I felt pretty satisfied that my answers were thorough,” he said.
McNulty revealed he had not yet fully taken in his move to private practice after 20 years in public service.
“My head is spinning,” he said.
He added that he had a “dream run” in a career that saw him serve as legislative counsel in Congress and as a U.S. Attorney for the Eastern District of Virginia before rising to the rank of Deputy Attorney General in March 2006.
McNulty declined to comment on the question of who should succeed Attorney General Alberto Gonzales, who announced his resignation last week.