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Two government lawyers have learned a harsh truth: Mess with the Court of International Trade and you’ll do hard time. Three weeks ago, a judge on the little-known federal court in New York threw lawyers from the Justice Department and the Commerce Department in jail for appealing one of his orders in a long-running case — a move the judge viewed as a deliberate attempt to stall. Now, the tussle has mushroomed into a steel-cage death match. The judge, Thomas Aquilino, wants to launch a criminal investigation into the Justice Department’s handling of the oil industry trade case at issue. And the department is asking the U.S. Court of Appeals for the Federal Circuit to rein him in. Last week, Aquilino, apparently still furious with the DOJ for failing to carry out his orders, appointed a special prosecutor to conduct an investigation. Then, Solicitor General Theodore Olson got involved, securing an order from the Federal Circuit freezing Aquilino’s investigation in its tracks. The Justice Department has asked the Federal Circuit to rule that Aquilino has no authority to conduct such an investigation. Aquilino’s probe is on hold while the parties in the case respond to Justice’s request, but the judge isn’t backing down. In an Aug. 31 filing before the appeals court, Aquilino called the department’s actions “overreaching on the part of a new national administration” and suggested they were “a genuine attempt to obstruct the pursuit of justice.” The events have cast a rather dramatic light on the Court of International Trade, a federal court that mainly handles disputes concerning international restrictions on goods and commodities. Its judges, like their federal brethren, are appointed for life and must be confirmed by the Senate. Aquilino was named to the bench by President Ronald Reagan in 1985. He declined to be interviewed for this article, but those who know him call him moderate and reasonable — and not prone to rash actions. His conduct this month has been the talk of trade lawyers in Washington, D.C., and New York. “Judge Aquilino has not been any kind of rabid radical judge,” says Joshua Floum, a San Francisco lawyer who has appeared before Aquilino several times. “He’s been quite conservative in giving the government the benefit of the doubt.” Floum was part of Aquilino’s most publicized case. In 1996, the judge ruled that the United States must bar shrimp imports from nations that fail to prevent sea turtles from drowning in shrimp nets. Floum complains that the Commerce Department has ignored Aquilino’s order ever since, and, ironically, it is a similar complaint that has fueled Aquilino’s actions in his current dispute with the Justice Department. CRUDE CASE The Justice Department represents Commerce in a complaint filed by a group of independent oil producers who charged that the leading oil producing nations — Saudi Arabia, Venezuela, Mexico, and Iraq — sold crude oil at unfair prices to the U.S. market in 1998 and 1999, a tactic known as dumping. The independent producers, who call their alliance Save Domestic Oil, wanted the Commerce Department to conduct an investigation into their claims. Last year, Aquilino ordered the department to fully consider the request by evaluating whether the producers adequately represent small oil companies. But the Commerce Department ignored the judge and appealed to the Federal Circuit, despite the fact that such orders are rarely appealable. In July, the Federal Circuit, as the judge had expected, dismissed the appeal out of hand — and set off Aquilino as a result. The government sought — but never obtained — a stay from the appeals court to halt enforcement of Aquilino’s order. And more than 250 days after the judge entered his order, it still hadn’t been carried out. In an Aug. 10 hearing, Aquilino was clearly tired of waiting. He accused the Justice Department of filing the appeal simply to “stall and delay” the proceedings. The Justice Department attorney on the case, Civil Division lawyer Lucius Lau, disagreed. He argued the appeal was made in good faith and tried to stave off criminal sanctions — a rarity for cases involving federal lawyers. “It would be inappropriate for the court to utilize [its] powers to punish parties that advance incorrect legal theories,” Lau said. But Aquilino was not mollified. He pressed Lau to identify lawyers in the Justice Department who made the decision to pursue the appeal. “It may be necessary for the court to detain you until such time as you specify today those names,” Aquilino warned. But Lau refused to name names. Finally, Aquilino had U.S. marshals lead Lau and another lawyer, Commerce Department attorney Robert Heilferty, away. They were taken across Foley Square in Manhattan to the federal detention area at the U.S. Courthouse — where they cooled their heels for four hours. At one point, Thomas Wilner, a D.C. lawyer in the case representing Venezuela, tried to reason with Aquilino. “The reputation of Mr. Lau and Mr. Heilferty is beyond reproach,” argued Wilner, a partner with Shearman & Sterling. Later in the day, an Assistant U.S. Attorney, John McEnany, showed up to defend Lau and Heilferty. But Aquilino clearly was in no mood to be cowed, even blaming the stormy August weather outside the courtroom on the government. “Your Honor,” McEnany responded, “I understand this weather came from Minnesota.” McEnany told Aquilino that the Justice Department would provide a list of names to the judge the following week. Aquilino then freed the two government lawyers. The department eventually gave the judge a laundry list of senior Justice and Commerce Department officials, including former Solicitor General Seth Waxman, who were involved in green-lighting the appeal. Still, the department stands by its lawyers. “We’ve reviewed the transcript of the trial and we’ve found no basis for the action taken by the judge against Mr. Lau,” a department spokesman says. But Aquilino hasn’t relented. He has pledged to conduct a probe of the department’s actions and appointed Terence Stewart, a D.C. lawyer experienced in international trade issues. Stewart subsequently withdrew from the assignment, and a replacement hasn’t been named. Meanwhile, the Justice Department has run to the Federal Circuit to try and have Aquilino stopped. The appeals court has temporarily halted the proceedings until it decides what to do. Some who know the international trade court well suggest that Aquilino is one of several judges who are tired of having the government ignore their orders. There is a common perception that the Federal Circuit looks favorably on actions taken by federal agencies — and those agencies simply have to wait for the appeals court to overturn the trade court’s rulings. “That may cause the government to believe it can treat decisions of the Court of International Trade lightly,” Floum says. Perhaps not anymore.

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