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When news broke Feb. 9 about the departure of the U.S. Department of Justice’s third in command, Rachel Brand, it became the latest wrinkle at a department beset by personnel vacancies, the Russia investigation, DACA litigation and policy reversals under Attorney General Jeff Sessions.
Brand, who heads to Walmart as executive vice president, global governance and corporate secretary, hasn’t disclosed her reasons for leaving, though an NBC report quotes friends and former colleagues who said the role was too good to pass up. In the same report, the Justice Department, via a spokeswoman, pushed back against anonymous sources who said Brand was leaving because she was unhappy or that she might eventually be asked to oversee the Russia investigation.
Whatever the reasons, what’s clear is that the DOJ has experienced a period of tremendous change. In addition to Brand’s departure, these are the highlights from the DOJ’s turbulent start to the year, culled from previous NLJ reports.
When Justice Department lawyers defended special counsel Robert Mueller in court for the first time in early February, the department’s political appointees were absent from the DOJ’s motion to dismiss a lawsuit from Paul Manafort challenging the investigation’s authority. Political leaders of the office are routinely placed as the first name on a document. It’s unclear why Chad Readler, the acting chief of the Civil Division, was not on the motion. (Reporting by Cogan Schneier/NLJ)
Several news organizations and nonprofits sued the Justice Department to force disclosure of memos written by former FBI Director James Comey, who wrote them to memorialize conversations with President Donald Trump about the Russia investigation. U.S. District Judge James Boasberg of the District of Columbia agreed with the Justice Department, which argued the release of the memos would interfere with the Russia investigation. (Reporting by C. Ryan Barber/NLJ)
White-collar defense attorneys are still unclear about federal enforcement priorities a year into President Donald Trump’s administration as top posts at the Justice Department go unfilled. “Strikingly, after a full year, it remains very hard to say anything definitive about likely developments in the white-collar arena under the current administration,” a team of attorneys at Wachtell, Lipton, Rosen & Katz said in a recent post on the New York University School of Law’s “Compliance & Enforcement” blog. (Reporting by C. Ryan Barber/NLJ)
The Department of Justice has petitioned the U.S. Supreme Court to weigh in on its rescission of the Obama-era Deferred Action for Childhood Arrivals policy, bypassing the U.S. Court of Appeals for the Ninth Circuit. Earlier, U.S. District Judge William Alsup of the Northern District of California ordered the Justice Department to keep DACA in place. The DOJ filed a notice of appeal to the Ninth Circuit, but Sessions also took the rare step of bypassing a federal appeals court to ask the Supreme Court to rule on the merits of the case. (Reporting by Cogan Schneier/NLJ)
During arguments in January in a major Ohio voting challenge, Justice Sonia Sotomayor confronted U.S. Solicitor General Noel Francisco for breaking from 24 years of precedent set by past SGs who said using failure-to-vote as a reason to remove voters from state rolls is a violation of the National Voter Registration Act. The change in position spurred competing amicus briefs from former Justice Department leaders and Civil Rights Division officials. (Reporting by Marcia Coyle/NLJ)
California experienced a buzzkill around its legalization of marijuana at the beginning of the year when Sessions followed shortly after revoking Obama-era guidance on the department’s prosecution of marijuana crimes. The memo that Sessions revoked told U.S.attorneys to focus on more serious crimes like drug cartels and cross-border trafficking, and less on marijuana outlets complying with state regulatory schemes. The memo’s revokement gives U.S. attorneys more prosecutorial discretion, and was criticized for creating uncertainty in the cannabis industry. (Reporting by Cheryl Miller/The Recorder)
Mark Bauer is managing editor of The National Law Journal and Texas Lawyer. Contact him at firstname.lastname@example.org. On Twitter: @MarkBauer
There may be another way: "non-mutual offensive collateral estoppel." The concept is fairly established in the law, but it has not been used much. And judges and arbitrators have broad discretion whether to apply it in any given case.
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