Inadmissible: John Ashcroft Rebuked; Fried, Frank's Death-Row Victory; and More

WHITE HOUSE GIVES ASHCROFT RARE REBUKE

Usually, the White House communications office strives to stamp out any suggestions of discord within the Bush administration.

But last week, in a surprisingly forceful statement, White House spokesman Scott McClellan publicly rebuked Attorney General John Ashcroft for releasing 30 pages of internal memos on Clinton-era Department of Justice policies for information sharing between intelligence agents and criminal prosecutors.

McClellan said the president — who had just finished a closed-door session with members of the Sept. 11 commission — was “disappointed” by the release of the memos and that the Justice Department had not consulted the White House before posting the documents on its Web site.

Going public with the criticism right after the president’s testimony seemed an effort to mend partisan fences with Sept. 11 commission members and to distance the administration from statements made by Ashcroft during his April 13 appearance before the commission. In his testimony, Ashcroft said policies implemented during commission member Jamie Gorelick’s tenure as deputy attorney general contributed to intelligence failures in the months leading up to the 2001 terrorist attacks.

The documents — which remained on the Web after McClellan’s remarks — include the declassified Gorelick memo, as well as requests from former U.S. Attorney for the Southern District of New York Mary Jo White to loosen some of the policy’s constraints.

Sen. John Cornyn (R-Texas), who requested the release of the documents, says they “show that [Gorelick] was substantially involved in the development of the information-sharing policy.”

With passage of the USA Patriot Act in 2001, elaborate procedures for walling off criminal investigations from intelligence inquiries became unnecessary because of amendments to the Foreign Intelligence Surveillance Act, or FISA, a key tool in national security investigations.

An April 30 report to Congress shows broader use of FISA warrants than ever before. According to the report, the number of surveillance requests approved by the secret Foreign Intelligence Surveillance Court jumped from 1,228 in 2002 to 1,724 in 2003, an increase of 40 percent. The court rejected four requests, though two of those were subsequently granted with modifications.

The court also made significant adjustments to 79 applications in 2003 — a step taken only three times in the previous seven years combined.

— Vanessa Blum

SECURITIES BLANKET

In the midst of massive accounting restatements and a management shakeup, the Nortel Networks Corp. has pulled in Washington counsel to help it deal with regulatory matters. The telecommunications equipment maker hired David Becker in the D.C. office of Cleary, Gottlieb, Steen & Hamilton to assist it in securities enforcement matters. Becker did not return calls for comment. Last month, the Securities and Exchange Commission and the Ontario Securities Commission opened investigations into the Brampton, Ontario-based company’s accounting. Nortel says it expects restatements to cut in half 2003 earnings. Wilmer Cutler Pickering is conducting an independent review on the restatements for Nortel’s audit committee. On April 28, Nortel fired Chief Executive Officer Frank Dunn, Chief Financial Officer Douglas Beatty, and Controller Michael Gollogly.

— Lily Henning

OVERTURNED

After 16 years working on behalf of Texas death row inmate Max Soffar, Fried, Frank, Harris, Shriver & Jacobson D.C. lawyers won a long-awaited victory in his case April 21. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit granted Soffar a new trial, ruling that he did not receive effective trial representation from his lawyer. Soffar claims he falsely confessed involvement in the 1980 murders of three youths at a Houston bowling alley. He had been interrogated by police for three days and did not have a lawyer present. The firm began representing Soffar in 1988, and it has been a “long and eye-opening” journey, says securities partner James Schropp, lead attorney in the case. In 2000, a 5th Circuit panel granted Soffar a new trial based on alleged Miranda violations, but the order was overturned during an en banc review. The Texas Attorney General’s Office will seek en banc review of the April 21 order as well.

— Lily Henning

FACA FIGHTING

The relatively obscure Federal Advisory Committee Act was very much in the news last week. The Supreme Court heard arguments on public interest groups’ efforts to use the law to obtain the records of Vice President Dick Cheney’s energy task force. But that’s not the only important FACA front that has opened up. On April 7, Howard Crystal and Eric Glitzenstein of D.C.’s Meyer & Glitzenstein sent a letter to the recently created presidential commission on U.S. intelligence about Iraqi weapons programs. Citing FACA, the lawyers told the commission that as a federal advisory panel, it’s obliged to hold open meetings and to make public its documents and minutes, except for classified materials. The letter also questioned whether the panel is “fairly balanced in terms of points of view,” another FACA requirement. Unlike the Sept. 11 commission, the weapons commission is not exempt from FACA, the letter says. On April 21, the commission’s general counsel, Stewart Baker, replied. He wrote that the panel’s members “bring a wealth of relevant experience as well as a variety of viewpoints” to their task. But Baker said he was not conceding that the commission is subject to FACA or that FACA can constitutionally be applied to it. “The letter raises more questions than it answers,” says Crystal, who hints that litigation may be around the corner: “Our clients are now thinking about what their next step will be.” Crystal represents the Natural Resources Defense Council and the Center for Arms Control and Non-Proliferation.

— Jonathan Groner

SENTENCING SPOT

Ronald Weich, a white collar crime litigator and D.C. partner at Zuckerman Spaeder, is in line to become a member of the U.S. Sentencing Commission. Weich is being put forward by Democrats on the Senate Judiciary Committee to fill a Democratic slot on the seven-member body. The committee makes federal sentencing policy and updates the Sentencing Guidelines. Although President George W. Bush has not yet made a nomination for the vacancy, Weich got a big boost April 29 when Judiciary Chairman Orrin Hatch (R-Utah) mentioned him at a committee meeting. “I have encouraged the White House to meet with Ron and consider nominating him,” Hatch said. If nominated and confirmed by the Senate, Weich would serve through October 2005, filling the remainder of U.S. Circuit Judge Diana Murphy’s six-year term. Murphy stepped down at the end of January. By law, no more than four members of the commission can be from the same political party. Weich, 44, was chief judiciary counsel to Sen. Edward Kennedy (D-Mass.) from 1995 to 1997. He declines comment on his possible nomination.

— Jonathan Groner

WEIL-ED MAN

Retired George Washington University professor Stephen Chitwood, founder of the school’s Center for Law Practice Strategy and Management, has joined Newtown, Pa.-based Altman Weil as an adjunct legal consultant. “It was a firm that seemed to me to be very compatible with my background,” he says. Chitwood has counseled the leaders of both private and government law offices for more than 25 years. In 1995, Chitwood, a business professor who also holds a J.D., founded the law practice center as a partnership between the law and business schools. The center holds roundtables for managing partners of the city’s largest law offices. About 30 managing partners participate in the breakfast meetings held six times a year. Chitwood hosts similar meetings for government general counsel. He will work from Alexandria, Va., and continue to host his roundtables through GWU.

— Marie Beaudette

PROGRESSIVE’S PROGRESS

The American Constitution Society has named Lisa Brown, former counsel for Vice President Al Gore, as its executive director. Brown had been the acting executive director since June. “I am incredibly excited. . . . This organization is tremendously important right now,” Brown says. “Conservatives have dominated the debate for so long, and we have to fight back. This debate will shape the legal system and society.” The ACS is a national organization of students, lawyers, judges, and scholars promoting a progressive vision of law, policy, and the Constitution. It was founded in 2001 as a liberal answer to the conservative Federalist Society by Georgetown University Law Center professor Peter Rubin. ACS now claims more than 100 chapters at law schools, as well as lawyer chapters in several major cities. Brown came to ACS from civil rights firm Relman & Associates. She was previously a partner at Shea & Gardner before joining the Department of Justice and, later, Gore’s office. She worked for Gore from April 1997 to January 2001. In a news release, Rubin calls Brown, “a woman of extraordinary talent and achievement. . . . [W]ith her at the helm [the Board] is confident that ACS’s best days are ahead of it.”

— Bethany Broida

TOKING CARE OF BUSINESS

There was a bit of stoner irony surrounding U.S. Solicitor General Theodore Olson’s recent petition asking the U.S. Supreme Court to review Raich v. Ashcroft. That ruling by the U.S. Court of Appeals for the 9th Circuit protects medical marijuana patients who grow marijuana for their own use from getting busted by federal authorities. Cannabis activists expected the government to appeal; they just didn’t know when. They were surprised when the petition was filed on April 20. “420″ is slang that describes when it’s time to toke up, and April 20 is used by activists to heighten awareness of marijuana-related issues. William Dolphin, communications director for the marijuana activist group Americans for Safe Access, says he doesn’t think the government lawyers know about 420, though “you wonder if there is somebody in the [DOJ] office with a sense of humor.” DOJ spokesman Charles Miller, however, says the filing was “totally happenstance. Our attorneys didn’t even know that term.”

— Jeff Chorney, The Recorder