State Bars May Be Ones To Discipline Disgraced DOJ Lawyers, IG Says

Former DOJ lawyers involved in the recent politicized hiring scandal are unlikely to face criminal prosecution but could face bar sanctions, the Justice Department's inspector general said today.
At this morning's hearing before the Senate Judiciary Committee about his report into the hiring practices, Inspector General Glenn A. Fine said there isn't sufficient evidence to prosecute former officials for making false statements.
There are no criminal sanctions for breaking civil service laws, he added.
But Fine noted that the department's Office of Professional Responsibility is due to make recommendations to relevant bar authorities about the conduct of their members.
The chief architects of the political hirings, Kyle Sampson (pictured) and Monica Goodling, are both attorneys.
Fine was responding to Democratic senators outraged that the alleged perpetrators of the unlawful hirings would face no further punishment aside from losing their jobs.
"It looks like they are getting away with it scot-free," said Sen. Sheldon Whitehouse, D-R.I.
In addition to facing possible bar sanctions, Fine stressed that neither Goodling nor Sampson would be allowed to work for the Justice Department again and would be unlikely to be considered for any federal government position.
Sampson currently practices law as a partner in the Washington office of Hunton & Williams.
According to the firm's website, he is only admitted to practice in Utah.

Goodling More Than "Crossed The Line," DOJ Inspector General Finds

Last year, former DOJ official Monica Goodling conceded that she may have "crossed the line" in taking into account political affiliations when making recommendations for non-political positions.
Today, the Justice Department's Inspector General concluded that she not only broke department rules, she also broke the law.
Her former colleagues, Kyle Sampson and Jan Williams, committed similar offenses, Inspector General Glenn A. Fine found.
If that wasn't enough, Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee, said Goodling, Sampson and their former boss, ex-Attorney General Alberto Gonzales, may have committed perjury when they testified before his committee last year.
"I have directed my staff to closely review this matter and to consider whether a criminal referral for perjury is needed," Conyers said.

UPDATE: DOJ Reaction To Senate IP Enforcement Bill

The Justice Department didn't get back to me with a comment about the new Senate IP enforcement bill until after the deadline for the print Daily Journal last night.
Here's what spokesman Evan Peterson had to say:
"We are pleased that the Senate continues to share the Department's commitment to protecting intellectual property rights. We are supportive of many of the provisions in The Enforcement of Intellectual Property Rights Act of 2008, inluding those that the Department included in our own legislative proposal last year. We do anticipate having revisions to propose. In particular, we are looking closely at provisions similar to those that posed concerns for us in earlier bills, such as the provision that would establish, within the Executive Office of the President, an Intellectual Property Enforcement Coordinator."

Leahy/Specter Drop New IP Enforcement Bill

At a press conference today, Sen Patrick Leahy, D-Vt., and Sen. Arlen Specter, R-Pa., introduced a new IP enforcement bill.
The legislation includes language from several other IP-related bills that have been floating around the Senate in recent years.
It has some similarities with the House's PRO-IP Act, although one House staffer working on the issue noted that there are a fair few differences.
For example: although both bills would create a new IP enforcement coordinator in the executive branch, the House version would give that person greater powers, the staffer noted.
Unlike the House bill, the Senate version would give the Justice Department the right to bring civil enforcement actions against infringers.
Details on the new bill are available here.
*See Friday's print edition of the Daily Journal for more.

Senators Take Another Shot At SCOTUS

For the second time in a month, Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, held a hearing today to condemn a series of recent Supreme Court decisions.
On the previous occasion, the focus was on equal pay case Ledbetter v. Goodyear and Riegel v. Medtronic, a medical device liability case.
This time Leahy had Exxon v. Baker in his sights.
That's the case in which the court last month ruled that punitive damages for the Exxon Valdez oil spill could not exceed the $500 million the jury awarded in compensatory damages.
The jury originally awarded $5 billion in punitive damages.
Leahy said the justices had provided ExxonMobil "the reward it was seeking" over the last 15 years of litigation.
"The Supreme Court did so by relying on its cases that read into the Constitution a protection for corporations that simply does not exist," he added.
But Leahy's attempt to portray the court as pro-business was somewhat undercut by testimony from Patricia Ann Millet, who co-chairs Akin Gump's Supreme Court practice.
She noted that the business community lost about half the cases it had before the court last term.
"There has not been a seismic shift in the court's decision-making," she said.

Mukasey Surprises With Call For Congressional Action On Detainee Trials

Attorney General Michael Mukasey unexpectedly asked Congress to take a new look at detainee trials in the light of a recent Supreme Court decision.
In a speech today, Mukasey said that the court's decision in Boumediene v. Bush left a lot of questions unresolved.
"Unless Congress acts, the lower federal courts will determine the exact procedural rules that will govern the more than 200 cases that are now pending," the attorney general said.
His comments come as the Guantanamo Bay trial of Ossama bin Laden driver Salim Hamdan is about to begin.
This is all news to Sen. Patrick Leahy, D-Vt., who - as chairman of the Senate Judiciary Committee - would have a major role in passing any new legislation.
"Given the judiciary committee’s long interest in this subject, it is regrettable that the attorney general neither consulted with nor informed the committee about this request before his speech," Leahy said in a statement.
He said Congress is unlikely to get to the issue until next year when, he noted, there will be a new president in office.

After Yoo ... Ashcroft

Former Justice Department lawyer John Yoo (pictured), now a professor at UC Berkeley Law, was the focus of attention once again at a House Judiciary Committee hearing today into the Bush administration’s interrogation procedures.
Yoo himself testified last month, but this time it was the turn of his former boss, John Ashcroft.
But even the presence of the former attorney general wasn’t enough to stop Democrats taking a pop at Yoo’s role in writing two infamous memos that included broad interpretations of executive power.
“I don’t question Mr. Yoo’s patriotism or love of country, but I do question his legal analysis,” said Rep. Zoe Lofgren, D-San Jose.
Prominent Washington lawyer Walter Dellinger, who heads the Supreme Court practice at O’Melveny & Myers, also laid it on thick.
He described a “deeply flawed process” that produced a “disastrous legal opinion” that “was, I think, a virtually shocking assertion of presidential authority.”
Even Ashcroft conceded that Yoo’s work contained analysis of “arguable appropriateness.”
But before throwing Yoo under the bus, Ashcroft did have some kind words for the embattled professor.
“John Yoo is a noted expert in national security, he is a person of incredible intelligence, and he’s an outstanding person who wanted to serve America,” Ashcroft said.

False Claims Act Revisions Put U.S. Chamber On Defensive ... Again

The U.S. Chamber of Commerce's Institute for Legal Reform is getting increasingly used to playing defense now that Democrats have controlled Congress for almost two years.
For the second time in two days the pro-business, anti-trial lawyer group had its eyes on the House Judiciary Committee today and wasn't pleased with what it saw.
Yesterday, it was a subcommittee vote to approve three anti-mandatory arbitration bills that was the cause of concern.
Today, it was a full committee vote on revisions to the False Claims Act, the law that allows whistleblowers to make fraud claims against government contractors (and share some of the proceeds).
The legislation, known as the False Claims Act Correction Act, is aimed at encouraging more whistleblowers to come forward.
Democrats think that the $20 billion recouped by the government since 1986 thanks to the law is peanuts considering that, as Sen. Patrick Leahy, D-Vt., noted at a hearing earlier this year, the U.S. has spent $500 billion in Iraq and Afghanistan in recent years.
But as far as the Institute for Legal Reform is concerned, the problem here is that the bill has the fingerprints of the trial lawyer bar all over it.
"The far-reaching expansion of the FCA [False Claims Act] sought by the trial lawyer lobby would have a disproportionate affect on small companies," said the institute's president, Lisa Rickard.
These companies would "hesitate to compete for government contracts out of fear that one minor mistake could trip a lawsuit that costs them their business" if the law was to pass, she added.

Arbitration Bills Take First Step

Today the House Judiciary Subcommittee on Commercial and Administrative Law passed out three anti-mandatory arbitration bills.
The subcommittee approved the Arbitration Fairness Act, which would pretty much ban mandatory arbitration agreements, and two related bills that would ban the practice in nursing home and autmobile contracts.
The bills will now go forward to the full judiciary committee.
The move was welcomed by one of mandatory arbitration's biggest critics, consumer advocacy group Public Citizen.
"The three bills passed by the subcommittee will level the playing field between consumers and big business by ensuring that all arbitrations are truly voluntary, said David Arkush, the director of Public Citizen's Congress Watch section.
The Senate Judiciary Committee is scheduled to vote on its version of the nursing home bill at its business meeting Thursday.

Alternatives To Prison On Sentencing Commission's Agenda

In a somewhat gloomy conference room in Washington, D.C. today, the U.S. Sentencing Commission kicked off its two day forum on alternatives to incarceration.
Before reformers maddened by the fact that the U.S. has the highest rate of incarceration in the world get too excited, it's not at all clear what will come out of the event, if anything.
The commission stresses that it's merely a fact-finding exercise that consists mostly of finding out what individual states are doing to tackle the twin problems of overcrowded prisons and lack of cash to pay for more prisons.
Ryan King, an analyst at the pro-reform Sentencing Project, began proceedings with a call to arms, making it clear to his audience of Capitol Hill staffers and other Washington policy types where he thinks the blame lies.
"It doesn't have to be this way," he said. "Policy-makers made this mess and policy-makers can clean it up."

Bush Signs Wiretapping Law; ACLU Files Suit

An hour or so after President Bush signed into law the FISA Amendments Act, the ACLU filed a lawsuit challenging its constitutionality.
Plaintiffs include journalists who report oveseas, nonprofit groups that work abroad, and human rights organizations.
They all say the new law gives a green light to the government to wiretap their phone calls overseas without any judicial oversight.
"The new law allows the government to conduct dragnet surveillance that has no connection to terrorism," said ACLU lawyer Jameel Jaffer.
This is not likely to be the only complaint generated by passage of the law.
The Electronic Frontier Foundation, which represents plaintiffs that sued phone companies that were involved in the administration's previously secret wiretapping program, is planning its own suit.
They will challenge the provision of the bill that grants immunity to the phone companies.

BREAKING: DOJ Announces Proposed Changes to McNulty Memo

The Justice Department announced this evening proposed changes to its policy of seeking attorney-client privilege waivers in corporate investigations.
Most notably, whether or not a corporation waives privilege will not be taken into account when making charging decisions.
In future, in order to be eligible for cooperation credit, corporations “need not disclose, and the government may not demand” attorney work product and attorney-client privileged communications, Deputy Attorney General Mark Filip said in a letter to lawmakers.
Prosecutors are also barred from considering whether corporations advance attorneys’ fees to employees or whether corporations enter into joint defensive agreements.
Sen. Patrick Leahy, D-Vt., the chairman of the Senate Judiciary Committee welcomed the development.
“The department appears poised to make substantive changes to its policy,” he said. “I have emphasized for years the importance of the attorney-client privilege and have said the department must take all necessary steps to correct the abuses documented earlier in this Administration and to address lingering concerns."
*See Thursday's print edition of the Daily Journal for more on this.

As Senate Considers Immunity For Telcos, Plaintiffs Vow To Fight On

As I report in today's Daily Journal (subscribers only), lawyers for the plaintiffs who sued the telcos for their role in allegedly spying on Americans are considering what to do if, as expected, Congress authorizes retroactive immunity for the defendants this week.
The Senate is due to take up the bill again today.
Clearly, it's an uphill battle, but the San Francisco-based Electronic Frontier Foundation is vowing to fight on.
They will challenge the constitutionality and application of the law and could also file a new suit against the government.
Legal experts think that EFF's evidence from an AT&T whistleblower could come in handy in such a case because it could show that the plaintiffs have standing under the Foreign Intelligence Surveillance Act.