The U.S. Justice Department's Office of Legal Counsel regularly is called upon to advise executive agencies on matters ranging from the extent of executive privilege to the lawfulness of recess appointments.The department has disclosed hundreds of opinions — check out the OLC website to read them — but not every legal memo has seen the light of public scrutiny. Last week, Citizens for Responsibility and Ethics in Washington sued DOJ to try to obtain "all binding opinions" OLC has issued.
"There exists within OLC and DOJ a body of law that, while binding on the executive branch, is not accessible to the public," CREW executive director Melanie Sloan and chief counsel Anne Weismann wrote in the complaint.
The Justice Department didn't immediately respond to a request for comment about the suit, pending before U.S. District Judge Emmet Sullivan.
CREW's complaint said that, "despite the binding nature of the opinions and advice the attorney general and now OLC render, DOJ's publication practices vary widely." OLC's archive goes back to 1933. Four volumes cover the years 1940 to 1982. "There is no publicly available figure of the exact number of opinions OLC has issued," CREW's complaint said.
In one pending dispute over a secret OLC memo, DOJ argued — successfully — that the deliberative-process privilege shields the document from public disclosure. The U.S. Court of Appeals for the D.C. Circuit is set to review the case this fall. — Mike Scarcella
NEW FACES AT THE SUPREME COURT
Justices will see some new faces at the lectern arguing on behalf of the United States this fall.
Roman Martinez, an associate at Latham & Watkins, and Rachel Kovner, now at the U.S. Attorney's Office for the Southern District of New York, have been hired as assistants to the solicitor general.
Martinez and Kovner replace Leondra Kruger, who left for the Justice Department's Office of Legal Counsel, and Pratik Shah, who has been hired to be co-leader of the Supreme Court practice at Akin Gump Strauss Hauer & Feld. Another newcomer will be Ian Gershengorn, recently named principal deputy solicitor general after Sri Srinivasan joined the U.S. Court of Appeals for the D.C. Circuit. Gershengorn leaves a top post in the DOJ Civil Division.
Martinez and Kovner know their way around the court. Kovner clerked for Justice Antonin Scalia in 2007-2008. Martinez clerked for Chief Justice John Roberts Jr. in 2009-2010 and previously for Judge Brett Kavanaugh on the D.C. Circuit. — Tony Mauro
REQUESTED: $44 MILLION
Earlier this year, Fannie Mae and its former auditor, KPMG LLP, reached a $153 million settlement in a securities fraud class action. As the agreement moves toward final court approval, lawyers for the class members are seeking more than $44 million in fees and expenses. The plaintiffs' lawyers are seeking 22 percent of the settlement fund — about $29.1 million, after certain expenses and costs are subtracted, the maximum the lawyers said they'd request. According to a motion for fees filed on August 16 in U.S. District Court for the District of Columbia, the plaintiffs' lawyers are also seeking about $15.2 million for expenses. W.B. Markovits of Markovits, Stock & DeMarco in Cincinnati served as lead counsel for the plaintiffs in recent years. He replaced prominent attorney Stanley Chesley, who left the case in 2011 as he dealt with disciplinary proceedings in Kentucky; he was eventually disbarred. Bernstein Liebhard and Cohen Milstein Sellers & Toll also served as lead plaintiffs' counsel. — Zoe Tillman
The filmmakers who put together Zero Dark Thirty about the killing of Osama bin Laden had extraordinary access to intelligence and defense officers who participated in planning the May 2011 raid in Pakistan. Director Kathryn Bigelow and writer Mark Boal were introduced to a U.S. Navy SEAL and four CIA officers. Does that make the names of the officials a matter of public record? Last week, U.S. District Judge Rudolph Contreras, ruling in a Freedom of Information Act suit, said the government can keep the names secret. "In short, Judicial Watch does not know — and, outside of this suit, apparently has no way of learning — the names of these individuals," Contreras wrote. "That fact is strong evidence that those names are not in the public domain." Judicial Watch lawyers, including Christopher Fedeli, argued in court papers that "whatever privacy interest remains is outweighed by the incremental public interest in publication." Fedeli said the challengers are considering whether to take the fight to the U.S. Court of Appeals for the D.C. Circuit. "We are disappointed that the court gave a pass to the Obama administration's selective secrecy," Fedeli wrote in an email. — Mike Scarcella
Appellate courts regularly issue per curiam opinions, leaving the author's identity unknown. Last week, the U.S. Court of Appeals for the Fourth Circuit took back an unsigned, "unpublished" opinion and attached a judge's name to it. The court, at the request of the U.S. Justice Department's Lindsey Powell, published what had been an unpublished opinion. (Unpublished opinions are not binding precedent in the circuit.) The government argued that the court's earlier opinion — finding that a political consultant violated the Telephone Consumer Protection Act via automated campaign messages — warranted publication based on the significance of the issues. Powell said the court's ruling in Maryland v. Universal Elections Inc. "will likely have application in numerous future cases, both in this circuit and others." Lawyers for Maryland and for the defendants in the case also supported the Justice Department's argument that the original opinion, issued on July 29, should be published. On August 28, the appellate panel — Circuit Judges Robert King and Steven Agee, sitting with U.S. District Judge David Norton — amended the original opinion. Norton wrote it. — Mike Scarcella
Cameron Kerry asked the U.S. business community for a final favor before stepping down as U.S. Commerce Department general counsel: Dispel concerns about U.S. privacy protections. Delivering his final public remarks as Commerce GC last week, Kerry said companies have a key role to play in demonstrating that the United States is committed to consumer privacy. Kerry said businesses that promote privacy protection will help the United States after former National Security Agency contractor Edward Snowden leaked details to the press about the agency's far-reaching access of user information held by technology firms. "This is ultimately about trust," Kerry said in his remarks in Washington. "The government can try to create a trusted framework. But it's up to companies to build that trust." Kerry said he would continue to be a part of the conversation on privacy after his departure. "I know my voice will still be heard as a citizen," said Kerry, who joined Commerce in 2009 as the agency's top lawyer. — Andrew Ramonas
CLOSE TO HOME
A breach-of-contract suit filed against Georgetown University by a multimillion-dollar donor was transferred last week from Texas federal district court to Washington, where it'll play out just several blocks from the law school campus. Scott Ginsburg, who graduated from the law school in 1978, accused it of reneging on a deal to name a new recreational facility after him in ­recognition of a $5 million donation. He sued in March to recover $7.5 million in donations he made over the years. The school insisted that Ginsburg agreed to give up his naming rights after he was found civilly liable for insider trading, and filed a counterclaim for $9 million it said he still owed. On August 26, Judge Sam Lindsay of U.S. District Court for the Northern District of Texas granted Georgetown's motion to move the case to Washington. The judge agreed with the law school that Washington was a more appropriate forum, given the proximity to key witnesses and strong public interest in litigating the case where Georgetown and the facility at issue were located. Houston-based Hogan Lovells litigation partner Bruce Oakley represents Georgetown. — Zoe Tillman
Akin Gump Strauss Hauer & Feld wants to help the Washington metropolitan area dash for Olympic gold. The firm is serving as legal counsel to D.C. 2024, the group examining a bid to bring the 2024 Summer Olympic Games to the nation's capital. Anthony Pierce, the partner in charge of Akin's Washington office and a D.C. 2024 board member, said the firm is offering pro bono legal counsel. One of the first hurdles for the nonprofit is to raise money and present a plan to the U.S. Olympic Committee. If the Washington area is selected as a contender — above other American cities that make their own bids — it would compete with other countries for the honor to host the games. The International Olympic Committee is expected to choose a host city by 2017. — Matthew Huisman