U.S. District Judge Amy Berman Jackson needed only one week to deliver cutting ripostes to both sides of one of the most closely watched separation-of-powers cases in Washington.
First up: U.S. Department of Justice attorneys. They wanted Jackson to dismiss a lawsuit against Attorney General Eric Holder Jr. brought by the House Committee on Oversight and Government Reform. The suit, filed last year, seeks enforcement of the committee’s subpoena targeting documents related to the Operation Fast and Furious gun-running controversy.
Holder refused to produce certain records on the ground the information is covered by the executive privilege. Jackson, in her September 30 ruling, rejected the Justice Depart­ment argument that the judiciary should play no role in reviewing the privilege claim.
“In the Court’s view, endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here,” Jackson wrote.
Next up: the House General Counsel’s Office. House lawyers wanted Jackson to keep the case moving — over the government request to put the litigation on hold amid the shutdown. “There are no exigent circumstances in this case that would justify an order of the Court forcing furloughed attorneys to return to their desks,” Jackson wrote on October 3.
“Moreover,” the judge wrote, “while the vast majority of litigants who now must endure a delay in the progress of their matters do so due to circumstances beyond their control, that cannot be said of the House of Representatives, which has played a role in the shutdown that prompted the stay motion.” — Todd Ruger
JUSTICE DEPT. TAKES ON NORTH CAROLINA
Texas was only a start. The U.S. Department of Justice last week filed suit against North Carolina over its new voting law, pursuing the challenging case just weeks after suing the Lone Star State over a voter identification law. DOJ said North Carolina took “aggressive steps” to restrict the voting rights of blacks just months after the November 2012 election, when the state saw its highest-ever voter turnout. Jocelyn Samuels, acting assistant attorney general in the Civil Rights Division, said the North Carolina bill “was issued in a very expedited fashion that did not allow time for normal public debate and the usual process that would be followed by the legislature.” The suit, announced September 30 during a press conference, seeks to strike provisions that include a voter ID requirement and restrictions on early voting. The department also wants to once again force North Carolina officials to submit for “preclearance” — from the department or a federal court — before making certain electoral law changes. — Todd Ruger
OPEN FOR BUSINESS
U.S. Supreme Court oral arguments can often be the best show in town for tourists. If the government shutdown continues this week, it will be just about the only show in town. And if that increases crowds at the court, that’s fine with the Supreme Court Historical Society, whose mission is to spread the word about the court to the widest possible audience. It also runs a gift shop that can suffer when tourist visits decline. When the shutdown began on October 1, the society posted an invitation on its website reminding the public that the court is open and touting the building as one of Washington’s “most aesthetically pleasing architectural icons.” Visitors who watch oral argument, the society added, “can enjoy some of the finest oratory in the nation as they watch history in the making.” There’s a 24-minute film on the history of the court and live lectures by the court curator’s office. And, yes, at the gift shop you can purchase gavel-headed pencils, Justice Sonia Sotomayor’s memoir and Supreme Court holiday ornaments. — Tony Mauro
After an action-packed three-year tenure, David Meister is calling it quits as head of the 130-­lawyer Enforcement Division at the U.S. Commodity Futures Trading Commission. A former partner at Skadden, Arps, Slate, Meagher & Flom, Meister guided the once-obscure division as it “transitions to being a key financial regulator,” as he put it in an interview last year, bringing “high impact cases…that influence market behavior.” The Dodd-Frank Act gave the CFTC jurisdiction over the $300 trillion swaps market and handed agency enforcers new grounds to go after wrongdoers. On Meister’s watch, the division brought a record number of cases, targeting some of Wall Street’s biggest players including JPMorgan Chase & Co., Goldman Sachs Group Inc. and Morgan Stanley & Co. He also led the prosecution against megabanks for manipulating the Libor benchmark interest rate, netting record penalties of almost $1.3 billion. Gretchen Lowe, the Enforcement Division’s chief counsel, will serve as acting ­director for enforcement. Meister has not announced his plans. In a news release, CFTC chairman Gary Gensler said Meister “brought energy, talent and experience to our critical mission to protect the public from fraud and abuse and ensure market integrity.” — Jenna Greene
“The United States Government firmly supports a policy of appropriate transparency with respect to its intelligence activities.” Thus began the U.S. Department of Justice’s highly anticipated filing last week in the Foreign Intelligence Surveillance Court, where a group of companies, including Google Inc. and Microsoft Corp., are fighting for the ability to disclose more information about court-ordered demands for subscriber ­information. The operative word here: “appropriate.” The ­government in its September 30 filing opposed the companies’ requests. The disclosure of more FISA court information “would be invaluable to our adversaries, who could thereby derive a clear picture of where the government’s surveillance efforts are directed and how its surveillance activities change over time,” DOJ National Security Division lawyers Nicholas Patterson and Jeffrey Smith wrote in the court filing. LinkedIn Corp., represented by Munger, Tolles & Olson, and the cloud storage site Dropbox Inc., represented by Wilson Sonsini Goodrich & Rosati, recently joined the legal fight in the intelligence surveillance court. — Mike Scarcella
The clock’s ticking for prosecutors in Washington to bring a new indictment against a group of Blackwater USA private security guards who were first charged in 2008 for their alleged roles in the shooting of more than a dozen Iraqi civilians in Baghdad. One former guard, Donald Ball, ­however, won’t be a defendant in any new case. Last week, assistant U.S. attorneys Anthony Asuncion and T. Patrick Martin of the Washington U.S. attorney’s office national security section, asked the presiding judge to dismiss the indictment. A spokesman for the prosecution office would only say that the government exercised its “discretion in dismissing the charges against Mr. Ball based on its assessment of the admissible evidence against him.” Four guards remain in the controversial case, which was thrown out — and then revived, on appeal — amid allegations of government misconduct. Ball’s lawyer, Steven McCool of Mallon & McCool said in an email that U.S. Attorney Ronald Machen Jr. “should be congratulated for dismissing the case against Don Ball. However, those prosecutors who falsely accused an innocent man should be ashamed of themselves.” The government has until October 21 to secure any superseding indictment. — Mike Scarcella
Local attorneys hoping to become the District of Columbia’s first elected attorney general will have to keep waiting. Washington residents voted in 2010 to switch from an attorney general appointed by the mayor to an elected one. The first election was scheduled for 2014. Amid debate over the scope of the elected attorney general’s authority, though, the D.C. Council voted in July to postpone the election until 2018. On October 1, Councilmember Tommy Wells (D-Ward 6), chairman of the judiciary and public safety committee, unsuccessfully introduced a measure to move the election back to 2014. Delaying the vote would be contrary to the will of the voters, Wells said. Councilmember Jack Evans (D-Ward 2), said the delay was needed to resolve questions about the shape of the new office. Besides, Evans said, no one had publicly declared candidacy. Wells said he had been approached by several “highly qualified” candidates interested in the job. His amendment lost, 7-6. — Zoe Tillman
As the federal trial court in Washington works to correct years of clerical errors, dozens of unsealed court documents that were not easily accessible in the past are being published online for the first time. U.S. District Senior Judge Royce Lamberth launched an inquiry earlier this year after learning unsealed documents were never placed on the public docket in a high-profile government leaks case. He said last week that his investigation revealed unsealed documents in sealed cases were not being made readily accessible to the public. As the court reviews cases dating to 2005, Lamberth said officials will upload documents to the website. He said the filings had stayed hidden because of human error and there was no evidence of “nefarious” conduct in the clerk’s office. — Zoe Tillman