AAG Caldwell Cites Lack of Experience and Oversight at Some U.S. Attorney’s Offices

Leslie Caldwell

Leslie Caldwell

Leslie Caldwell, Assistant Attorney General for the Criminal Division, expressed some surprising views yesterday at a Federalist Society event on criminal overreach at the National Press Club in D.C.

As reported by Jody Godoy of Law 360,

She observed that the “quality of the lawyers” and resources varies greatly between U.S. attorney’s offices.

“I acknowledge there are cases that get filed that shouldn’t be filed. There are districts where the oversight is not what it should be. The experience level is not what it should be,” Caldwell said.

She said DOJ Criminal Division attorneys get “far more robust” training than federal prosecutors out in the states do. And when asked about how the DOJ enforces a provision in the U.S. attorney’s manual advising prosecutors to consider noncriminal options, Caldwell replied that the manual is “much more regularly used in Washington, in the Criminal Division, than it is in the field.”

She encouraged attorneys to raise concerns with DOJ headquarters, known as Main Justice, and gave a couple of anecdotes illustrating how higher-ups killed ill-conceived cases.

In one instance, Caldwell said, Main Justice put the brakes on an attempt by an unnamed U.S. attorney to indict two partners at a major Chicago law firm who were representing a corporate client. The lawyers had attempted to get more time to respond to a subpoena and were nearly hit with an obstruction-of-justice charge.

“That prosecutor had never had that conversation before with a defense lawyer. That prosecutor didn’t know that that’s how things work … supervisory ranks did not recognize that that was not obstruction of justice,” Caldwell said, adding “thank goodness” a review by Main Justice was required.

Another time DOJ higher-ups stepped in, according to Caldwell, was when a small district attempted to indict all the adult residents of a town on racketeering charges since they were members of a religious sect that got its income through government program fraud.

In another example Caldwell gave, the DOJ in Washington played a mitigating role when a U.S. attorney tried to get high penalties for a bank facing treasury sanctions violations.

The cases illustrate that escalating concerns with a case can sometimes be effective, Caldwell said.

“It’s not always going to work when you appeal beyond the line attorney, but we recommend that if you feel strongly about a case, you at least ask to be heard,” Caldwell said.

John Richter

John Richter

NAFUSA member John Richter, another member of The Federalist Society panel remarked, according to Godoy, that even at DOJ headquarters, other sections lack criminal experience. Richter, a partner at King & Spalding, had represented Vascular Solutions, Inc., a medical device company that was acquitted of criminal off-label promotion earlier this year in a case prosecuted by a U.S. Attorney’s office and a unit from Main Justice.

Click here to view video of The Federalist panel discussionhttp://www.fed-soc.org/multimedia/detail/the-limits-of-federal-criminal-law-event-audiovideo

Mary Jo White to Step Down at SEC

Mary Jo WhiteOn Monday, November 13, 2016, NAFUSA member Mary Jo White announced she will step down as the head of the Securities and Exchange Commission two years before the end of her term. She will depart at the conclusion of Obama’s term in January. White served as the United States Attorney for the Southern District of New York 1993-2002. She was approved by the Senate through a unanimous consent motion after facing little opposition through the confirmation process. White, formerly a partner at Debevoise & Plimpton, was named in 2013 one of “The Most Influential Lawyers in America” by the National Law Journal.


Fiske Fellows Celebrate 15 Years

Fiske Fellows

The University of Michigan Law Quadrangle reported in its Fall 2016 issue that NAFUSA member Robert Fiske (SDNY 1976-1980) celebrated in July the 15th anniversary of the program he developed at the law school to launch government service careers.

In July, Fiske Fellows gathered in Washington, D.C., to celebrate the 15th anniversary of the program that helped them get their starts, and the man who made it possible. In 2001, Bob Fiske, ’55, HLLD ’97, created the Robert B. Fiske Jr. Fellowship Program for Government Service to encourage recent Michigan Law graduates to pursue positions as government lawyers. The fellowship pays both college and law school debt for three years plus a stipend; it has supported 49 fellows to date. Fiske, who is senior counsel at Davis Polk & Wardwell LLP, has spent large portions of his career in public service and says the synergy between public service and private practice makes people who do both better at each. “I want graduates to reap the life-changing benefits of government service without having to worry about their debt.” As evidenced by the tributes presented to Fiske at the celebration, he has more than accomplished that mission.

The 2016 Fellows are pictured below with Bob Fiske (left to right) Caroline Flynn, ’13, U.S. Department of Justice, Office of Legal Counsel; Ben Clark, ’14, Consumer Financial Protection Bureau; John Broderick, ’13, environment and natural resources division of the U.S. Department of Justice; and Megan DeMarco, ’16, New York County District Attorney’s Office.

2016 Fiske fellows

The Law Quadrangle also reported the Fiske was selected by the American Inns of Court to receive the 2016 Lewis F. Powell Jr. Award for Professionalism and Ethics. The award was presented at the Supreme Court of the United States. Fiske is senior counsel at Davis Polk & Wardwell LLP.

Vaira Laments the Decline of Skilled Trial Lawyers

NAFUSA member Peter Vaira discussed the “vanishing trial lawyer” in an article printed in The Legal Intelligencer on November 14, 2016, The Important Role of a Trial Lawyer. Vaira points out that “Civil trials have diminished drastically, and, because of that, the number of skilled trial lawyers has declined.” He suggests training young lawyers to learn trial skills and argues this kind of training is the responsibility  of the entire bench and bar. He closes with: “fellow bar members, do not let this great feature of the law practice wither away for the sake of economy in discovery or reducing training costs.”

Vaira (ED Pennsylvania 1978-1983) is a member of Greenblatt, Engle, Funt & Flores in Philadelphia.

Charlton Defends Comey

Paul Charlton

Paul Charlton

NAFUSA member Paul Charlton (Arizona 2001-2007) penned an OpEd on November 4, 2016 in The Washington Post, in defense of FBI Director James Comey: James Comey has always believed in doing what’s right and ignoring politics.

Charlton writes:

Now Comey, the director of the FBI, is being accused of interfering in the presidential election for notifying Congress last week that federal agents had found new emails that could be pertinent to the bureau’s investigation into Hillary Clinton’s private server. What Comey is doing, though, is what he’s always done: standing up for what he believes is right, no matter the political consequences.


While many may disagree with Comey’s decisions today, we are better served if we reserve judgment. In the near future, the nation will look back and realize the wisdom of trusting a public servant with moral character.

Concerns Raised Over Comey Letter to Congress

On Friday, October 28, 2016, F.B.I. Director James B. Comey, sent members of Congress a letter that his agency was looking into a potential new batch of messages from Hillary Clinton’s private email server. On October 30, nearly 100 former federal prosecutors and high-ranking officials of the Department of Justice published an Open Letter From Former Federal Prosecutors and High-Ranking Officials of the U.S. Department of justice: 20161030_doj-letter-with-signatories.

As former federal prosecutors and high-ranking officials of the U.S. Department of Justice, we know that the impartiality and nonpartisanship of the United States justice system makes it exceptional throughout the world. To maintain fairness and neutrality, federal law enforcement officials must exercise discipline whenever they make public statements in connection with an ongoing investigation. Often, evidence uncovered during the course of an investigative inquiry is incomplete, misleading or even incorrect, and releasing such information before all of the facts are known and tested in a court of law can unfairly prejudice individuals and undermine the public’s faith in the integrity of our legal process.

For this reason, Justice Department officials are instructed to refrain from commenting publicly on the existence, let alone the substance, of pending investigative matters, except in exceptional circumstances and with explicit approval from the Department of Justice officials responsible for ultimate supervision of the matter. They are also instructed to exercise heightened restraint near the time of a primary or general election because, as official guidance from the Department states, public comment on a pending investigative matter may affect the electoral process and create the appearance of political interference in the fair administration of justice.

It is out of our respect for such settled tenets of the United States Department of Justice that we are moved to express our concern with the recent letter issued by FBI Director James Comey to eight Congressional Committees. Many of us have worked with Director Comey; all of us respect him. But his unprecedented decision to publicly comment on evidence in what may be an ongoing inquiry just eleven days before a presidential election leaves us both astonished and perplexed. We cannot recall a prior instance where a senior Justice Department official- Republican or Democrat-has, on the eve of a major election, issued a public statement where the mere disclosure of information may impact the election’s outcome, yet the official acknowledges the information to be examined may not be significant or new.

Director Comey’s letter is inconsistent with prevailing Department policy, and it breaks with longstanding practices followed by officials of both parties during past elections. Moreover, setting aside whether Director Comey’s original statements in July were warranted, by failing to responsibly supplement the public record with any substantive, explanatory information, his letter begs the question that further commentary was necessary. For example, the letter provides no details regarding the content, source or recipient of the material; whether the newly- discovered evidence contains any classified or confidential information; whether the information duplicates material previously reviewed by the FBI; or even “whether or not [the] material may be significant.”

Perhaps most troubling to us is the precedent set by this departure from the Department’s widely- respected, non-partisan traditions. The admonitions that warn officials against making public
statements during election periods have helped to maintain the independence and integrity of both the Department’s important work and public confidence in the hardworking men and women who conduct themselves in a nonpartisan manner.

We believe that adherence to longstanding Justice Department guidelines is the best practice when considering public statements on investigative matters. We do not question Director Comey’s motives. However, the fact remains that the Director’s disclosure has invited considerable, uninformed public speculation about the significance of newly-discovered material just days before a national election. For this reason, we believe the American people deserve all the facts, and fairness dictates releasing information that provides a full and complete picture regarding the material at issue.

Former Attorney General Eric H. Holder led the list of signatories, which also included 15 NAFUSA members: James Cole, Larry Thompson, Wayne Budd, Lourdes Baird, Paul Coggins, Jenny Durkan, Melinda Haas, Tim Heaphy, Scott Lassar, Mike McKay, Neil MacBride, Bill Nettles, Tim Purdon, Don Stern, and Anne Tompkins.

In a related development, The New York Times Sunday, October 30, quoted NAFUSA member George Terwilliger,

“There’s a longstanding policy of not doing anything that could influence an election,” said George J. Terwilliger III, a deputy attorney general under President George Bush. “Those guidelines exist for a reason. Sometimes, that makes for hard decisions. But bypassing them has consequences.”

He added, “There’s a difference between being independent and flying solo.”

Margaret Currin Receives Order of the Long Leaf Pine

Margaret Currin

Margaret Currin

NAFUSA Past President Margaret Currin was presented with the Order of the Long Leaf Pine at Campbell University Law School on October 15, 2016, during the Law School’s 40th Anniversary Celebration. The honor, among the most prestigious presented in the State of North Carolina, was signed by Governor Pat McCrory.

Currin served as the United States Attorney for the Eastern District of North Carolina (1988-1993). Currin was the first student to matriculate into Campbell University’s brand new law school in the fall of 1976, graduating second in her class, cum laude, 1979. After law school, she served as a legistrative assistant and counsel to U.S. Senator John Tower. She returned to Campbell Law in 1981 as an assistant dean and associate professor. Following her time as U.S. Attorney, Currin returned to Campbell Law and remained until her retirement in May 2013.

Click here to read press release from Campbell Law

Selden Files 11th Circuit Brief Opposing DOJ on False Claims Case

Jack Selden

Jack Selden

On March 31, 2016, NAFUSA member Jack Selden and his firm, Bradley Arant Boult Cummings LLP, won summary judgment on behalf of AseraCare, Inc. in an important False Claims Act case. Judge Karon Bowdre held that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims. Judge Bowdre struck down a $200 million FCA case against the hospice provider, holding that the government’s second guessing of physicians’ medical judgment alone cannot prove false claims.

On Monday, October 17, 2016, Selden and his team from Bradley, urged the Eleventh Circuit to preserve the AseraCare’s high-profile victory with its opening brief. As reported by Law360 on October 18, 2016:

Monday’s brief focused heavily on a pivotal ruling in which the judge limited the DOJ’s evidence in the trial’s first phase to expert testimony and patient records, which were meant to demonstrate objective falsity. On the eve of trial, the DOJ attempted to introduce more evidence, but the judge concluded that its attempt came too late.

According to AseraCare, the DOJ “severely limited its evidence” by not disclosing the evidence sooner, making the eventual grant of summary judgment “straightforward and inevitable.”

“Because of the government’s self-imposed limits on its evidence pertaining to the FCA’s falsity element, the government did not have sufficient evidence to create a jury question,” AseraCare wrote.

In its opening brief, the DOJ in August warned that health care providers could easily escape FCA liability under the district court’s reasoning simply by pointing to differences of opinion among doctors about appropriate treatment. But AseraCare pushed back on that assertion, arguing that its case only came down to differences of opinion because of the DOJ’s limited evidence.

“Although the district court made clear that, ‘without more,’ a difference of opinion among physicians would not be sufficient evidence of falsity, the government ignores the words ‘without more’ when it makes the specious argument that the district court’s holding would unduly impede the government’s ability to pursue fraud,” AseraCare wrote.

Terminal illness means that a patient is expected to have six months or less to live. Medicare patients who elect hospice care get treatment aimed at improving quality of life but also must give up Medicare coverage for potential lifesaving treatment.

In Monday’s brief, AseraCare also accused the DOJ of glossing over statutory language that says certifications of terminal illness should be based on physician judgment.

“The government completely ignores that Congress established a certifying physician’s clinical judgment as the sole criterion for a patient’s eligibility for the Medicare hospice benefit,” according to AseraCare.

The DOJ is also contending that the district judge conflated two required elements of FCA liability: a false claim and knowledge of falsity. Its reasoning was that differences of opinion are relevant only to knowledge of falsity — an element of FCA liability that was to be explored in a second trial phase that never took place.

But AseraCare on Monday said that the DOJ’s contention “misses the mark.” It argued that because evidence presented in the first trial phase was limited to objective falsity, the two elements therefore “could not have been conflated.”