The U.S. Department of Justice’s effort to keep confidential a presidential directive addressing global development failed last week.
U.S. District Judge Ellen Segal Huvelle assailed the government for its position in the Freedom of Information Act litigation — calling it “troubling” — and she ordered the disclosure of the document at issue in the case.
On Dec. 17, Huvelle, siding with the challengers, said she “rejects the government’s unwarranted expansion of the presidential communications privilege at the expense of the public’s interest” in the production of public records.
The Washington-based Center for Effective Government, whose lawyers include Julie Murray of Public Citizen Litigation Group, sued the U.S. Department of State and the U.S. Agency for International Development in April to obtain a copy of the global development document. Obama signed the directive in September 2010.
Justice Department lawyer Ethan Davis of the Civil Division argued in court papers that “the privilege question in this case begins and ends with the fact that the Presidential Policy Directive on Global Development is a communication directly involving the President.”
The government, Huvelle said, “appears to adopt the cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight — to engage in what is in effect governance by ‘secret law.’ ” Huvelle challenged what she called the government’s “ limitless approach.”
The document, Huvelle said, was a “final, non -classified, presidential directive that has been widely distributed within the Executive Branch.” The White House, the judge also noted, touted the directive online at the time it was issued as a “first of its kind by a U.S. administration.” — Mike Scarcella
FORMER BUSH LAWYER CHASTISED
Driven by an animus against homosexuals, Scott Bloch, a former head of the Office of Special Counsel in the George W. Bush administration, improperly reassigned a group of Washington employees to Detroit, according to a government report released on Dec. 18. Bloch, special counsel from 2003 to 2008, told a government contractor he planned to “ship out” gay staffers and “had a license to do this,” the 56-page report said. The contractor, Richard Trefry, is a founder of Military Professional Resources Inc. and a former Army inspector general. Trefry spoke about Bloch as part of an Office of Personnel Management inspector general investigation into former employees’ allegations about prohibited personnel practices Bloch may have carried out at the agency, which advocates for federal whistleblowers. “Mr. Bloch and his immediate staff offered an array of ostensible explanations [for the reassignments] in press releases, Congressional testimony, and interviews with the investigative team, seeking to link the reassignments to the bona fide operational needs of the agency,” the report says. Bloch, who is a solo practitioner in Washington, said in a written statement the report is “a rehash of old unsubstantiated stories and muddled statements” that he claimed he never made.
Debra Katz of Katz, Marshall & Banks, who represented the employees in this matter, said “Bloch caused tremendous harm to the mission of OSC.” — Andrew Ramonas
DOJ DEFENDS LAW CURTAILING PROTESTS AT SUPREME COURT
The government has a “legitimate interest” in prohibiting demonstrations on U.S. Supreme Court grounds, the U.S. Department of Justice asserted in a brief in the U.S. Court of Appeals for the D.C. Circuit on Dec. 16. In Hodge v. Talkin, the department is urging the court to restore the law banning assemblages, processions and displays on court property.
Judge Beryl Howell of the U.S. District Court for the District of Columbia struck down the law in June, declaring it “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” Soon after Howell’s decision, the marshal of the court, Pamela Talkin, issued a new “Regulation Seven” banning protests — this time invoking a different law that authorizes her to establish rules to maintain “suitable order and decorum.”
The Justice Department brief relies heavily on its traditional argument that the ban is based on the government’s interest in preventing the public perception that the justices can be swayed by protests or public opinion. “Unlike other parts of government, courts do not make decisions by reference to public opinion,” Justice Department lawyer Daniel Tenny wrote.
Jeffrey Light, a Washington lawyer representing Harold Hodge, said the government’s argument does not hold water. “Assuming that a protest somehow creates the false impression that the court can be swayed,” Light said, “the response in a democracy is more speech, not silencing speech.” The court has numerous ways, Light added, to “correct that false impression” through statements of its own. — Tony Mauro
FRANKEN PUSHES ARBITRATION FAIRNESS
Congress last week began its push to undo recent U.S. Supreme Court rulings on arbitration. Sen. Al Franken (D-Minn.) held a hearing Dec. 17 on his bill, the Arbitration Fairness Act of 2013, which he said would prohibit the use of mandatory predispute arbitration clauses in civil rights, employment, consumer and antitrust areas. Leslie Overton, a deputy assistant attorney general in the U.S. Department of Justice’s Antitrust Division, testified about the government position in American Express Co. v. Italian Colors Restaurant. Franken said the January 2013 high court ruling “did away with the effective vindication rule, which prevented corporations from drafting arbitration clauses in a way that implicitly forced consumers, workers and small businesses to waive their federal rights.” Overton told senators that the arbitration agreement in that case made it prohibitively expensive for merchants to assert antitrust claims. “We noted in our brief that the effective vindication rule was set out in the Mitsubishi case in 1985 and has been vindicated a number of times since,” Overton said. Franken responded: “It seems to me the Roberts Court went out of its way once again to overturn precedent in a way that actually benefits large corporations over consumers and small businesses and employers.” — Todd Ruger
JEH JOHNSON CONFIRMED AT HOMELAND SECURITY
Jeh Johnson has received Senate confirmation to serve as the leader of the U.S. Department of Homeland Security. The Senate on Dec. 16 confirmed him as the successor to Janet Napolitano, who stepped down as the agency’s secretary in September. The vote was 78 to 16. Johnson, a litigation partner in the Washington office of Paul, Weiss, Rifkind, Wharton & Garrison, will join U.S. Attorney General Eric Holder Jr. and U.S. Department of Transportation Secretary Anthony Foxx as the third African American in President Obama’s cabinet. “In Jeh, our dedicated homeland security professionals will have a strong leader with a deep understanding of the threats we face and a proven ability to work across agencies and complex organizations to keep America secure,” Obama said in a written statement. Obama said Johnson “helped to shape some of our most successful national security policies and strategies.” — Andrew Ramonas
BRYAN CAVE ELECTS CHAIRWOMAN
Washington white-collar and securities enforcement lawyer Therese Pritchard is in line to take over the top leadership role at Bryan Cave from longtime chairman Don Lents, the firm announced last week, making her the first woman and the first partner outside of St. Louis to lead the firm in its 140-year history. Bryan Cave’s partnership finalized a vote on Dec. 16 on the succession plan, following a recommendation of the firm’s 15-member executive committee. Pritchard will assume her new role in October. Pritchard, who says she’s “proud and excited” about taking on the job, joins a small but growing contingent of female law firm leaders in The Am Law 200. She joined the firm in 1999 from Gibson, Dunn & Crutcher, where she’d worked as counsel for a few years after a decades-long career in government. — Sara Randazzo