Facing a grilling before the House Committee on Oversight and Government Reform last week, former Department of Energy official Jonathan Silver turned to Dickstein Shapiro for help. But the firm's effort on Silver's behalf backfired when committee members directed their ire at the law firm.
Committee chairman Darrell Issa (R-Calif.) produced a copy of what he termed "a disturbing" email from an unnamed Dickstein employee. It read: "If possible, please do not direct questions to Jonathan Silver.…He's a client of my firm. :)" Issa said, "From the committee's standpoint, the question is whether to refer this to the bar association, whether it's an interference with Congress, which I find it to be." Appearing perplexed, Silver, who oversaw the loan program that funded now-bankrupt solar power company Solyndra, said he was not familiar with the email but would look into it.
"I want an explanation from your counsel on why we shouldn't refer this to the American Bar Association," Issa said. Dickstein, Issa said, "has represented a lot of individuals here. This one crosses the line.…When represented by counsel, we expect [counsel] to know more than the witness and keep the witness out of this embarrassing situation." The committee's ranking Democrat, Elijah Cummings (D-Md.), also expressed concern. "As a lawyer and an officer of the court, this concerns me greatly," he said. A Dickstein spokeswoman said the firm is investigating and Silver "had no knowledge of the communication." — Jenna Greene
A ROLE FOR INSTITUTIONALIZED DISSENT?
For Neal Katyal, former acting solicitor general at the U.S. Department of Justice, speaking in the nation's "marble palace" — the U.S. Supreme Court — is a familiar experience. The Hogan Lovells partner took to a very different stage and audience on September 9 as part of the centennial anniversary of the Peace Palace, home of the International Court of Justice in The Hague, Netherlands.
Clad in sports coat, sports shirt and sneakers, Katyal stood before a live audience as his speech, "Standing Up for the Rule of Law in an Age of Terror," was live-streamed on the website of TED, the nonprofit that invites the world's leading thinkers to share ideas. Katyal offered viewers what he called a simple idea: "institutionalize dissent." Allow dissent to flourish in government, he said — not just between agencies but within them. If government becomes a "tool of dissent," Katyal said, answers can be found to controversies such as the use of drone strikes and government surveillance.
"There is no standing body to argue against drone strikes and ­surveillance," Katyal said, adding, "We can change that."
Earlier this year, in an opinion piece published in The New York Times, Katyal advocated for a panel, within the executive branch, that would serve as a "national security court" to review government decisions about targeted killing.
TED conference organizers reached out to Katyal about six months ago to ask if he was interested. "I accepted the invitation because it was a place to start the discussion," he said. — Marcia Coyle
JUDGE RULES FOR GOVERNMENT, BUT NOT WITHOUT ADVICE
Last week, U.S. District Judge Rudolph Contreras ruled for the government in a dispute over whether prosecutors are withholding information that could help exonerate a death row inmate. Contreras determined that the prisoner and his lawyer, Blythe Taplin, failed to meet their evidentiary burden to force the government to turn over information — or even acknowledge the existence of any documents.
Justice Department lawyers fought Taplin's request for information about the man her client, Rogers Lacaze, convicted in 1995 on three counts of first-degree murder, asserts is the true killer. Taplin, represented by a team from Miller & Chevalier, including Mark Rochon and Mary Lou Soller, sued the government in November 2012. Contreras ruled that the lawsuit doesn't show that the FBI is likely to have any documents that link the would-be killer to the murders themselves. The complaint, Contreras said, doesn't allege that the FBI investigated the murders for which Lacaze is serving time.
Contreras ruled for the government, yes, but there were a few lines­ — tacked on at the end of his 13-page ruling­ — that could offered Lacaze some hope.
"The Department of Justice must also be the department of justice," Contreras wrote in a footnote. "Mr. Lacaze is on death row. That is neither a routine nor trivial matter, and Ms. Taplin's allegations raise serious questions. Although FOIA may not require that the FBI review any responsive documents it may possess…it may wish to do so nonetheless." — Mike Scarcella
GOOGLE EYES OPEN SESSION
Lawyers for Google Inc., represented by Albert Gidari Jr. of Perkins Coie, want the secretive Foreign Intelligence Surveillance Court in Washington to hold a public hearing on the company's request to provide more details about the government's demands for subscriber information.
Google and other technology companies last week filed amended petitions in the court, which hears government surveillance requests. Gidari, a privacy partner in Perkins' Seattle office, said in court papers that Google seeks oral argument in public to ensure that an "issue of public concern is debated and decided with the utmost transparency." — Mike Scarcella
HELIUM'S LOW POINT
With only days to go before the closure of the Federal Helium Reserve, high-technology manufacturers made a plea to Congress last week to keep the storehouse's gas flowing for their products. Scheduled to stop sales on October 7, the Texas-based storage reservoir accounts for about 40 percent of the U.S. helium supply, which companies use for party balloons, to make semiconductor chips and in medical-imaging devices, among other products.
More than 120 organizations, including General Electric Co., International Business Machines Corp. and Intel Corp., sent a letter to congressional leaders on September 10, lobbying for legislation that would keep the reserve open. The Semiconductor Industry Association-led coalition said in its letter that allowing the depot to close would cause "a needless disruption to the U.S. economy that would put millions of jobs at risk." In April, the U.S. House of Representatives passed a bill that would keep the taps open past next month. The Senate's version is pending. — Andrew Ramonas
NATIONAL SECURITY LEADER
John Carlin has served as the U.S. Department of Justice's top national security lawyer for the past six months — amid the steady stream of press reports, rooted in the leak of court documents, about once-secret government surveillance programs. Now, it looks as though Carlin could keep the post. Obama last week nominated the career federal prosecutor to be the permanent assistant attorney general for the division. Carlin took over after Lisa Monaco took a counterterrorism post at the White House.
Carlin has been principal deputy assistant ­attorney general and chief of staff for Justice Department's National Security Division since 2011. Before that, the Harvard Law School graduate was chief of staff to Federal Bureau of Investigation Director Robert Mueller III for four years. He also spent a five-year stint as an assistant U.S. attorney in the District of Columbia. — Todd Ruger
BACK TO JAIL
For less than 24 hours, Ali Mohamed Ali was a free man. After spending more than two years in jail on charges that he aided Somali pirates, Ali was released on September 5. U.S. District Judge Ellen Segal Huvelle, concluding that Ali's due process rights had been ­violated, rejected the government's argument that he posed a flight risk. The government's legal team, including assistant U.S. attorney Peter Smith, lodged an appeal.
On September 6, the U.S. Court of Appeals for the D.C. Circuit ordered Ali back into custody. The appellate panel — judges David Tatel, Thomas Griffith and Brett Kavanaugh — offered no explanation, except that the government "satisfied the requirements for an injunction pending appeal."
A lawyer for Ali, Matthew Peed of Clinton Brook & Peed, said in an email that "twenty-eight months is far too long for a non-violent defendant who is presumed to be innocent to suffer in D.C. Jail." — Zoe Tillman