Wagner Joins Gibson Dunn

Ben Wagner

Gibson, Dunn & Crutcher LLP announced today that NAFUSA member Benjamin Wagner, former U.S. Attorney for the Eastern District of California, will join the firm as a partner in the Palo Alto office.  Wagner’s practice will focus on government investigations and white collar defense. He will join fellow NAFUSA members Chuck Stevens, Ted Olson and Debra Yang at Gibson.

“Ben will be an outstanding addition to the firm,” said Ken Doran, Chairman & Managing Partner of Gibson Dunn.  “He enjoys a very strong reputation within the Department of Justice and is well-connected in the U.S. Attorneys’ community.  He is widely recognized for his superb trial and advocacy skills, his eloquent writing, his sound judgment and his integrity.  With his 24 years in government, capped by six-plus years as the U.S. Attorney, Ben has incredible depth in both criminal and civil litigation and investigations.  He brings experience and gravitas that will reinforce our ability to demonstrate to clients that we can field the strongest team of white collar lawyers with a profound understanding of, and years of experience in, criminal investigations and litigation necessary to resolve their matters effectively.”

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Pocker Elected VP of Nevada State Bar

Richard Pocker

NAFUSA member Richard Pocker has been elected vice president of the Nevada State Bar. Pocker is the administrative partner for the Nevada office of Boies, Schiller & Flexner LLP. His practice includes civil and criminal litigation, as well as employment law.  He was selected for inclusion in Best Lawyers in America for 2010, 2011, 2012, 2013, 2014 and 2015.

After his graduation from the University of Virginia Law School in 1980, Pocker’s career began with service in the U.S. Army Judge Advocate General’s Corps with the Seventh Infantry Division, followed by a six-year stint with the U.S. Attorney’s Office for the District of Nevada. Beginning as an assistant U.S. attorney in 1985,  Pocker rose through the ranks to become first the chief assistant U.S. attorney, and ultimately the United States Attorney in 1989.

After departing the U.S. Attorney’s Office, Pocker entered private practice, where he was a partner in the Las Vegas law firm of Dickerson, Dickerson, Consul & Pocker from 1991 to 2005. He joined Boies, Schiller & Flexner in 2005.

In 1996, he returned briefly to government service, serving as chief counsel to the Select Subcommittee on the United States Role in the Iranian Arms Transfers to Croatia and Bosnia, leading a congressional investigation of national security intelligence and foreign policy issues on behalf of the International Relations Committee of the United States House of Representatives. He served as chair of the Federal Litigation Section of the Federal Bar Association (2007 to 2010),

Back home in Nevada, he served on the Southern Nevada Disciplinary Board for the Nevada State Bar from 1993 to 2003, the last four years as the Board’s cRichard Pockerhair.  In 2006, he was honored as a patron of the Nevada Law Foundation, an organization dedicated to the provision of legal services to the indigent. In May 2011 he was elected to the Nevada State Bar’s Board of Governors, and has served on that Board continuously since then, reelected a third term in 2015. In 2015 he was awarded the State Bar of Nevada’s Medal of Justice Award, for his service on the board of the Nevada Bar Foundation.

 

Registration Continues for San Diego Conference

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Registration is open for the 2016 NAFUSA conference to be held at the Hotel Del Coronado in San Diego October 6-8.

REGISTER HERE

The conference will begin with a cocktail reception on Thursday evening, October 6, 2016, at the Hotel Del Coronado, honoring Michael Dreeben on his 100 Supreme Court arguments. Golf will be available on Thursday morning at Torrey Pines South, on a first come first served basis to the first 28 to register.  Golf is sold out.

On Friday morning President Vega will call the conference to order and introduce our sponsors. Following the traditional roundhouse introduction of members, Hon. Robert Conrad, U.S. District Judge, WD North Carolina, will give the ethics presentation:  “Berger v US…The Rest of the Story: Ethical lessons behind Justice Sutherland’s famous dictum.” The morning program will close with a panel discussion on national security v privacy, with Charlie Savage of The New York Times, Steve Zipperstein, general counsel of Blackberry, Jim Baker, general counsel of the FBI, Marc Zwillinger, and Ken Wainstein. On Friday afternnoon, we will enjoy a picnic lunch on the USS Midway. On Friday evening, various adminstration classes will hold their reunions.

Saturday morning’s CLE program will include a dialogue with Monty Wilkinson, Director of EOUSA and Richard Hartunian, Chair of the AGAC, moderated by President Vega, followed by the presentaton of the J. Michael Bradford Award to the AUSA of the year. Dean Erwin Chemerinsky will speak on the Supreme Court and the moring will close with a panel discussion on asset forfeiture reform with Marshall Miller, M. Kendall Day, Sharon Levin, Marc Levin and Margaret Dooley-Sammuli.The conference will close with a Saturday evening banquet and business meeting, and with Charlie Savage as the keynote speaker. Click here to view the latest draft of the nafusa-program-san-diego-2016.

Rooms will be available at the Del Coronado at the special conference rate of $295 a night, plus a $15 a day Resort Charge. Rooms will be available at the conference rate for the 3 days prior and after, subject to availability. The cut off for hotel rooms at the conference rate was September 6, 2016, but Deputy Director Lisa Rafferty is holding a few cancellations.

The NAFUSA registration charge remains $400 for members and $300 for spouses,  which includes the social events except golf. You may bring guests to individual events at separate charges. Registration fees are fully refundable up to one week prior to the conference. After that date, we will be unable to offer refunds as the hotel and caterers need final counts for meals.

NAFUSA Members Make Indian Country Hot List

On July 27, 2016, Indian Country Today Media Network.com named NAFUSA members Tim Purdon, Brendan Johnson and Troy Eid to their Five for Fighting Indian Law Practitioners: 2016 Hot List. Suzette Brewer describes the virtues of each:

Tim Purdon

Tim Purdon

When Tim Purdon and Brendan Johnson left the U.S. Attorney’s office in North Dakota and South Dakota, respectively, to create the American Indian law division at the national firm of Robins Kaplan LLP in 2015, it caused a minor earthquake in the Indian law community. Many wondered how the Feds would fill these enormous gaps, who would match their many accomplishments. In just under five years as federal prosecutors, they made the radical decision to shift away from decades of friction with the tribes to forge a more collaborative approach to improving public safety on Indian reservations in the Dakotas.

 

Brendon Johnson

Brendan Johnson

In the last year, the two close friends―known as the “Dakota Boys”―have translated that approach to develop the American Indian law division at Robins Kaplan, pushing into new territory as they represent tribal clients, including the Rosebud Sioux Tribe, who recently sued the Indian Health Service for closing down the only emergency room on its reservation in South Dakota, as well as successfully representing Oglala Sioux tribal member Alex White Plume in his industrial hemp case. 

Troy Eid

Troy Eid

Fresh out of Stanford and working as a young legislative assistant to Congressman Jim Kolbe of Arizona in the mid-1980s, Troy Eid was thrown in the deep end of tribal politics when he was sent to Arizona to talk with the Navajo Nation leadership regarding the tribe’s appropriations requests. Instead of being politely rejected as another “white” Washington player, the tribe accepted and understood the 22-year-old Eid, who is of Egyptian heritage. “They saw my not being white as positive, rather than negative – as had sometimes been the case when I was growing up,” says Eid, whose father emigrated to the United States from Egypt in 1957. “So while I’m not Native American, they made me feel immediately comfortable in Indian country. I’ve felt that way ever since.” 

After joining Greenberg Traurig in 2003, he helped establish a formal American Indian law division within the firm.

 

 

 

Stern Questions Comey’s Press Conference

In yesterday’s Berkshire Eagle, NAFUSA Past President Don Stern questioned the comments made by FBI Director James Comey during his announcement that the FBI was not recommending prosecution of Hillary Clinton . See Donald K. Stern: Comey went beyond FBI’s role.

Stern opines that it is not appropriate for a federal law enforcement to publicly announce its view of the evidence before a prosecution decision is made. And “if a decision is made to not prosecute, not at all.” It is the Department of Justice, Stern points out, that decides whether to prosecute a case in the federal system. Nevertheless, Stern sees “a good reason to vary from the norm” when the Attorney General had announced that she would rely on the recommendation of the FBI in making the ultimate decision.

But Stern takes exception to Comey’s laying out facts in the Clinton investigation. It may be “customary when an arrest is made that the federal authorities detail the facts,” Stern points out, but “laying out some facts, to say nothing of the level of detail in Comey’s statement, is what happens when a person is charged. Not when there are no criminal charges brought.”

Stern saves his strongest criticism for Comey’s comments about Clinton’s conduct.

But, he went well beyond that and ventured into unprecedented and dangerous waters. Comey offered his personal opinion that Clinton’s actions were “extremely careless” and talked about possible intrusions by “hostile actors” even if there was no evidence to that effect.

 

I find his comments well beyond the proper role of the FBI. It is one thing to talk generally about an issue (“We need to make our computers more secure and pay more attention to hacking”), but to do so in the context of a case against an individual not charged is remarkable. The public’s right to know does not extend, under any circumstances, this far.

Stern made clear he holds Comey in high regard; he just has a problem with his comments in this particular press conference. 

David Margolis Dies

Photo by Katherine Frey/The Washington Post

Photo by Katherine Frey/The Washington Post

NAFUSA is sad to report that David Margolis, one of our most beloved members, died shortly after 4 PM today. David has been having serious heart problems for quite some time. He was scheduled to join us in Scottsdale last October to be honored for his 50 years at Justice. He fell just before the conference and was unable to make it. He was honored in absentia nevertheless. He had planned to join us in San Diego this fall to give a talk on his 50, now 51, years as one of the most popular and important career members of DOJ.

David Margolis was an Associate Deputy Attorney General at the U.S. Department of Justice. He served the Department for 51 years under 20 Attorney Generals. He  also served as an acting deputy assistant attorney general, and an acting deputy attorney general by order of the President. From 1982 to 1983, he was on leave of absence at the request of the Attorney General to implement the President’s directive establishing the Organized Crime Drug Enforcement Task Forces, including recommendations for the allocation of investigative and prosecutive resources, and for national policies and priorities.

His many awards include The Henry E. Peterson Memorial Award (the Criminal Division’s highest award), The President’s Rank Award for Distinguished Service (the highest award for senior federal executives) and the Department of Justice Lifetime Service Award. He was a graduate of Harvard Law School.

On July 13, Carrie Johnson spoke on NPR: Remembering A Career Prosecutor Who Leaned Into Controversy – and Took The Heat. Carrie, who moderated a panel at last year’s NAFUSA conference, captures David’s humor and value to the Department. You can also read statements from Attorney General Loretta Lynch and Deputy AG Sally Yates here.

David’s office is now quiet, but his two baseball jerseys still hang outside his door. The one of the right, “Margolis 40”, was a gift on his 40th year at the Department. The one on the left, “Margolis 50”, was presented last year by NAFUSA. The photo at the top is the last known photo of David in his office.

A view from the hall

A view from the hall

A memorial service in the Great Hall at the Department of Justice is expected later this summer. 

David Margolis

 

David Margolis

Brownlee Served as Gov. McDonnell’s Trial Counsel in Conviction Overturned By Supreme Court

John Brownlee

John Brownlee

On June 27, 2016, former governor of Virginia Bob McDonnell  won a decisive victory in the U.S. Supreme Court. The justices, in a unanimous decision, rejected the government’s allegations that Gov. McDonnell violated federal bribery laws and vacated all of his convictions for alleged public corruption. The case has been remanded to the U.S. Court of Appeals for the Fourth Circuit. NAFUSA member John Brownlee led the Holland & Knight Team and served as his counsel for over 3 years, working closely with co-counsel, Jones Day.

Beginning in July 2014, Brownlee served as trial counsel as Holland & Knight defended Gov. McDonnell in a nearly two-month jury trial in federal district court in Richmond, Va.  At trial, Holland & Knight successfully defended Gov. McDonnell against charges of bank fraud and crafted the trial record that ultimately allowed for reversal. At the trial’s conclusion, Holland & Knight also argued that the district court’s proposed instruction to the jury on the definition of “official acts”—a definition that encompassed virtually any activity by a public official concerning any subject—was too broad; instead, Holland & Knight argued the court should instruct the jury that “merely arranging a meeting, attending an event, hosting a reception, or making a speech are not, standing alone, ‘official acts.'” The District Court declined to give Holland & Knight’s requested in­struction, and the jury convicted on the public corruption counts.

The Fourth Circuit affirmed the convictions based on that same definition of “official acts.” Gov. McDonnell then requested the U.S. Supreme Court to allow him to remain free on bail pending review of his case. The Supreme Court granted that request—the first of its kind in over 20 years—and on January 15, 2016, granted Gov. McDonnell’s petition for certiorari, indicating that the Court would review the definition of “official acts” as used in the federal corruption laws.

Before the Supreme Court, attorneys for Gov. McDonnell successfully argued that the government’s definition of  “official acts” was too broad. The justices unanimously rejected the government’s definition and adopted a narrowed interpretation of the term “official acts.”  Importantly, the Supreme Court specifically held that “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more— does not fit th[e] definition of an official act,” which is precisely what Holland & Knight had argued earlier. The Supreme Court vacated all of Gov. McDonnell’s convictions and remanded the case to the Fourth Circuit for further review.

The unanimous decision by the Supreme Court—and its rejection of the government’s understanding of the law and theory of prosecution—will have a tremendous impact on prosecutors and public officials for years to come.

McDonnell v. United States, No. 15-474 slip op. (June 27, 2016). Read the U.S. Supreme Court opinion.

 

Georgetown Announces the Janet Reno Endowment

Janet Reno

On June 20, 2016, Georgetown University announced a new endowment focusing on disadvantaged children, and youth and families involved in the juvenile justice, child welfare and related care systems to honor “Janet Reno’s legacy as America’s first female Attorney General and her advocacy for justice and equality”.

“Janet Reno is a passionate, lifelong advocate for children and families,” said McCourt School of Public Policy Dean Edward Montgomery at Georgetown. “Georgetown and the McCourt School are honored to support and sustain her legacy through the establishment of this endowment.”

The Distinguished Advisory Committee includes former AG Eric Holder, former DHS Secretary Janet Napolitano, former Governor Deval Patrick, former Associate AG Tom Perrelli, and  former AAG Laurie Robinson.

NAFUSA is a Founding Donor of the Endowment, having made a $10,000 contribution.

Click here for more information and to view the 11 minute video of her career.

Ken Sukhia is Running for Congress

Ken Sukhia

NAFUSA member Ken Sukhia is running for Congress in Florida’s 2nd Congressional District. In a letter signed by NAFUSA members Mike McKay, Jack Selden, Guy Lewis, John Smietanka, Joe Whitley, Mike Norton and Greg Miller, they write:

As an AUSA and as United States Attorney for Northern Florida, Ken had a reputation as a firm but fair prosecutor who ran a mature and highly productive office.  In the private sector, he fought in both state and federal court to successfully defend Florida’s school voucher program, Florida’s Parental Notification of Abortion Act and Florida’s law regulating payments to and from lobbyists.  He has represented two of Florida’s Governors and served as President George W. Bush’s federal trial counsel in the 2000 recount battle.  Ken was also an advisor to the Florida legal team in the first case challenging the Affordable Care Act.

 

We all know Ken for his humor and his winsome personality, but he also has a heart to do right by our country and to stand up for the principles that made our country great. We know Ken will go to Washington to fight every day for the principles we all hold dear.

Sukhia’s campaign received a boost with the “wholehearted endorsement” of Alabama Senator Jeff Sessions, who said, “Ken and I fought shoulder-to-shoulder as fellow U.S. Attorneys in South Alabama and North Florida enforcing our immigration laws and prosecuting violent criminals and narco-terrorists.”

Learn more at Ken’s website.

 

Whitley Urges Georgia Gov to Veto “Religious Freedom Bill”

Joe Whitley

Joe Whitley

When the Georgia House and Senate passed the “Religious Freedom Bill” in April, NAFUSA member Joe Whitely wrote a letter to Gov. Nathan Deal urging a veto, stating that the bill would allow “a broad range of discrimination that will likely meet with many costly legal challenges.”  He told the governor that the bill “does nothing of substance to protect religious liberty and expression that is not already protected by the U.S. Constitution.”

Whitely had performed an analysis of the bill on behalf of Georgia Equality, a group that supports lesbian, gay, bisexual and transgender rights. Whitely told the governor that the bill “seems intended to send a message to LGBT  Georgians, among others, that they are second-class citizens.”

The First Amendment already protects all Americans’ rights to speech, to worship freely, and to be free from a state-established creed, and the United States already has a robust tradition and body of law protecting free expression,” he said. “It is difficult for me to imagine any form of religious expression that is not already protected by the First Amendment or federal statutory law.

A veto, Whitley said, “is the right and courageous thing to do.” A short time later, Gov. Deal did veto the bill.

Click here to read Whitley letter to Gov. Deal. Whitley also sent a similar letter to the Speaker of the Georgia House.

Vega Supports Judge Criticized By Trump

Greg Vega

Greg Vega

NAFUSA President Greg Vega has known United States District Judge Gonzalo P. Curiel since the ninth grade and was the best man at Judge Curiel’s wedding. So when The New York Times researched the judges life, Vega was a natural interview.

Judge Curiel is the presiding judge in the lawsuit filed by former students of Trump University. Trump, upset with some of the court’s rulings, has made public comments critical of the judge, saying the judge “happens to be, we believe, Mexican” and suggesting the judge is biased because of Trump’s calls to build a wall to keep illegal immigrants from coming into the U.S. through Mexico.

Judge Curiel was born in Indiana, to parents who immigrated from Mexico. Vega, who father also was Mexican, is also from Indiana. They worked together when Judge Curiel served as an assistant U.S. attorney in the Southern District of California where Vega became the U.S. Attorney. Judge Curiel had a reputation as a “hard-charging prosecutor” in fighting Mexican drug lords. When a plot was exposed in which the Mexican drug cartel planned to assassinate Curiel, he spent much of a year in hiding under the protection of U.S. marshals. When Vega was asked by The Times how the judge is handling the “unfriendly glare of the Trump case, Vega replied, “He’s cool. I don’t think he’s giving it a second thought.”

Judge Gonzalo P. Curiel

Judge Gonzalo P. Curiel

Click here to read the NYT article “Judge Faulted by Trump Has Faced a Lot Worse”

Vega was also interviewed on NPR by Nina Totenberg. Listen here.