Four Former U.S. Attorneys File Amicus Brief Supporting Microsoft in “Gag Order” Lawsuit

Mike McKay

Mike McKay

Four former U.S. Attorneys from the Western District of Washington have filed an amicus brief in support of Microsoft Corp.’s lawsuit against the U.S. Department of Justice regarding government searches of customer email. Microsoft’s complaint seeks to strike down a law that prevents the company, and others like it, from timely informing its customers when the government seeks their data.

The former U.S. Attorneys joining the brief are: Jeffrey Sullivan (who was USA from 2007 to 2009); NAFUSA member John McKay (2001 to 2007); Kate Pflaumer (1993 to 2001); and NAFUSA Foundation President Mike McKay (1989 to 1993). They were joined by Charles Mandigo, who was the FBI Special Agent in Charge in Seattle from 1999 to 2003.

In their brief, the former federal law enforcement officials observed they have “a combined 80 years of real-life experience fulfilling their obligation to keep the public safe while operating within the bounds of the Constitution. They have a unique perspective on how to achieve the balance between public safety and personal liberty, particularly with respect to government searches and seizures of private information.” They argued that “law enforcement can function effectively—even in the cloud—while following the Fourth Amendment’s requirement of notice to individuals whose private information has been searched.”

As reported by The Seattle Times, all of the former officials have experience seeking secrecy orders but are concerned about the increasing use of the orders.

John McKay

John McKay

“Because of the nature of the cloud, the government has gotten lazy and is no longer making specific showings of need as to why secrecy orders should be granted,” John McKay told the Times

McKay is now in private practice at Davis Wright Tremaine, which is representing Microsoft in the case, but his involvement in the brief was in his personal capacity, he said.

NAFUSA Members on Both Sides of Pipeline Debate

Tim Purdon

Tim Purdon

NAFUSA member Tim Purdon will represent the Standing Rock Sioux tribal leaders who have been sued by Dakota Access LLC in federal court in Bismarck, North Dakota, for protesting the pipeline construction. As reported on August 29, NAFUSA member Bill Leone is representing Dakota Access in the related litigation in federal court in Washington, DC where the tribe is suing the U.S. Army Corps of Engineers, and Dakota Access is an intervenor.

The tribe is protesting the pipeline’s route passing through ancestral lands, threatening burial grounds, sacred sites and other historical significant areas. The Bismarck complaint alleges the tribal leaders tried to block Dakota Access from entering and exiting the construction site. U.S. District Judge Daniel Hovland granted a temporary restraining order against the tribal leaders and others. A hearing is set for September 8 to determine if a preliminary injunction should issue.

Purdon served as the U.S. Attorney for the North Dakota until last year when he resigned and is now a partner in the Bismarck office of Robbins Kaplan, where he is co-chair of the American Indian Law and Policy Group.


Leone Argues Against Sioux Tribe in Pipeline Row


Bill Leone

Bill Leone

Law 360 reported on August 24, 2016 Sioux Tribe Says ‘Cultural Survival’ At Stake In Pipeline Row, that “the Standing Rock Sioux Tribe urged a D.C. federal judge to block construction on the $3.8 billion crude oil pipeline slated to run through what it considers the tribe’s ancestral lands, calling the Dakota Access Pipeline a threat to its ‘cultural survival’ that was not adequately reviewed by the federal government before its approval”.

The tribe urged U.S. District Judge James E. Boasberg to grant a preliminary injunction saying  “it was important to hear from tribe members themselves about the importance of the various sites.”

Law 360 reported that the tribe argued that the pipeline’s route passes through ancestral lands, threatening burial grounds, sacred sites and other historically significant areas. The cultural surveys done for the project were done by out-of-state consultants and without the participation of the tribe, it said.

During the hearing, NAFUSA member William J. Leone of Norton Rose Fulbright US LLP, an attorney for intervenor defendant Dakota Access, insisted that those surveys were completed by “qualified archeologists” and subsequently shared with the tribes.
That the surveys were completely unsupervised is “simply not true,” Leone said.
Leone said it would be “horribly unfair” to the developers, laborers and their families to issue an injunction and “change the rules” at the last minute.

Margolis Family to Join Us in San Diego

Photo by Katherine Frey/The Washington Post

Photo by Katherine Frey/The Washington Post

David’s wife, Debby, and his daughter, Cheri, will attend the San Diego conference as  honored guests of NAFUSA. David, who passed away on July 12, 2016, was scheduled to be a our luncheon speaker on his 51 years at Justice. Deborah Daniels shared a recent Margolis obituary from The Week. 

As is our custom, an American flag was flown over Main Justice on August 19, 2016, as the request of NAFUSA. It will be presented to Debby and Cheri at the October conference. It represents the high regard in which David was held by his colleagues.

Jim Robinson Remembered

Former NAFUSA President Jim Robinson died six years ago on August 6, 2010. The DOJ Criminal Division remembered Jim in This Week in the Criminal Division Bulletin (August 22,2016).




James K. Robinson served as Assistant Attorney General of the Criminal Division from 1998 to 2001.

Mr. Robinson was born in Grand Rapids, Michigan, in 1943.  He graduated from Michigan State University and earned a law degree from Wayne State University in Detroit in 1968.  Mr. Robinson then clerked for Judge George Edwards of the United States Court of Appeals for the Sixth Circuit.  He subsequently became an associate at a Detroit law firm and later a partner at another, where he specialized in litigation.

In 1975, Mr. Robinson began service on the five-member committee of the National Conference of Bar Examiners that drafts the evidence questions for the Multistate Bar Exam.  In 1977—at the age of 33—he was named United States Attorney for the Eastern District of Michigan, which had one of the heaviest caseloads in the nation at that time.  In 1981, Mr. Robinson returned to his Detroit law firm, Honigman, Miller, Schwartz & Cohn.  While in private practice, he chaired the committee that drafts the Michigan Rules of Evidence and he co-authored a three-volume treatise and a courtroom handbook on the rules of evidence.

Mr. Robinson was named Dean and Professor of Law at the Wayne State University Law School in 1993.  That same year, Chief Justice William Rehnquist appointed him to the Advisory Committee on the Federal Rules of Evidence.

In August 1995, Assistant Attorney General Jo Ann Harris resigned her position in the Criminal Division.  For almost three years, John C. Keeney served as Acting Assistant Attorney General until President Bill Clinton nominated Mr. Robinson in April 1998.  Mr. Robinson faced a skeptical Senate Judiciary Committee at his nomination hearing.  The Committee expressed dissatisfaction with the uneven prosecution of narcotics offenses, leaks of grand jury material, and potential prosecution of elected officials for purportedly political reasons.  The Washington Post reported that Mr. Robinson “deflected the thunder by promising to apply the law even-handedly.”  He was confirmed a few months later.  As Assistant Attorney General, Mr. Robinson increased the Division’s focus on transnational crime and stationed attorneys at U.S. Embassies throughout the world.  He also helped expand the Division’s resources for drug trafficking and computer crime.

Mr. Robinson left the Division in 2001 and became a partner at Cadwalader, Wickersham & Taft in Washington, D.C.  From 2001 to 2002, he was retained as a consultant by the United Nations Center for International Crime Prevention in Vienna to conduct a global study on the transfer of funds of illicit origin with respect to the negotiation of the United Nations Convention Against Corruption.

On August 6, 2010, Mr. Robinson died at the age of 66 of cancer.  He left behind two children, five grandchildren, and his widow, Marietta “Marti” Robinson, who is now a commissioner with the Consumer Product Safety Commission.  In a condolence letter to Mrs. Robinson, then-Attorney General Eric Holder wrote, “As Assistant Attorney General, Jim embodied the steady and steely resolve under pressure that we need and expect from our public servants.  Every action that he took, and every decision that he made, reflected his singular desire to do justice and serve the people of this nation.”

[Photo: Grand Rapids Press]