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.

 

Dettelbach Joins NAFUSA and Rejoins BakerHostetler

Steve Dattelbach

Steve Dattelbach

BakerHostetler announced that Steven M. Dettelbach, the former United States Attorney for the Northern District of Ohio, rejoined the firm on February 15, in its Cleveland office as a Partner in the Litigation Group and co-leader of the firm’s national White Collar Defense and Corporate Investigations team. Dettelbach is also one of NAFUSA’s newest members. He will be in BakerHostetler’s Cleveland and Washington, D.C. offices, following his years of public service in the capital with the Senate Judiciary Committee and the Department of Justice as a prosecutor and more recently a high-ranking participant from the Northern District in many of the Department’s national initiatives. Dettelbach has served as U.S. Attorney for nearly seven years and is well known for his work in the areas of cyber security, corruption, and the Foreign Corrupt Practices Act (FCPA). Dettelbach had been a partner at BakerHostetler from 2006 until 2009 when he was nominated as U.S. Attorney by President Barack Obama and confirmed by the United States Senate.

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McKay Celebrates Baseball in Seattle

Slade Gorton, center, with Mike McKay, right

Slade Gorton, center, with Mike McKay, right

Last week there was a gathering at Safeco Field in Seattle to celebrate that the Mariners are still in Seattle. NAFUSA Foundation President Mike McKay was in the thick of it. At the luncheon, the Mariners honored former U.S. Senator Slade Gorton, the man who put together the public-private, international coalition that saved the team from leaving town 25 years ago. McKay wrote an Op-Ed about the event, published in the May 11, 2016, The Seattle TimesThe unlikely champion who saved the Seattle Mariners.

McKay is a member of McKay Chadwell, and is chair of the Slade Gorton International Policy Center Advisory Committee and the former U.S. Attorney for the Western District of Washington under President George H.W. Bush. He is also a past president of NAFUSA.

Eileen O’Connor Forms Boutique

Eileen O'Connor

Eileen O’Connor

Effective May 1, 2016, NAFUSA member Eileen O’Connor moved her practice from Pillsbury Winthrop Shaw Pittman LLP, to her own office, Law Office of Eileen J. O’Connor, PLLC. Solely, or in collaboration or consultation with other attorneys,  O’Connor advises on, and represents clients in connection with, civil and criminal federal tax disputes, from administrative investigations through trial and appellate proceedings. She formulates and advises on regulatory and legislative solutions to disputes with government agencies. In addition to designing winning trial strategies and appellate arguments, she has presented oral arguments in the United States Supreme Court and in United States Courts of Appeals, and has testified at numerous committee hearings in United States Senate and House of Representatives on issues relating to tax administration and enforcement.

In addition to her recent move, with co-counsel, she filed amicus briefs supporting challenges to HHS’s imposition of its contraceptive mandate on religious employers.  Those briefs include an amicus brief in support of the petition, and then on the merits, in the case of the Little Sisters of the Poor, and in support of a petition for rehearing en banc in the 11th Circuit in the case of EWTN v. Burwell.  In his response to a question during rebuttal at oral argument in the Little Sisters case, Paul Clement cited her brief.

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