|

Take Heart, Rosenstein. History Is on Your Side

As of press time on Sunday night (and by “press time,” I mean me going to bed), Deputy Attorney General Rod Rosenstein still had a job.

But if or when he gets the axe, Public Citizen says it's already got more than 320,000 people committed to participate in same-day, flash demonstrations around the country.

“If Rosenstein is fired, we and our allies will activate our emergency response network,” Public Citizen President Robert Weissman said in an email. “Right now, we need you to do two things: First, be on the ready for a notice from us that Rosenstein has been fired and that it's crucial you find a local demonstration near you. Second, make a donation to enable us to continue and ratchet up our work to protect our democracy.”

Take a step back for a moment and consider that. A public interest advocacy group is fundraising over the prospect of the DAG getting fired—and hundreds of thousands of people are ready to take the streets if it happens.

It's like the old Chinese curse: “May you live in interesting times.”

Remember Mark Filip as DAG? Or James Cole? Paul McNulty? Larry Thompson? Lawyers who maybe had a kerfuffle or two with Congress, but otherwise just did the job without controversy or undue attention from the president?

You've got to go back to William Ruckelshaus to find a DAG comparable to Rosenstein. On October 20, 1973, Ruckelshaus and AG Elliot Richardson were fired after refusing to follow an order by President Richard Nixon to fire Special Prosecutor Archibald Cox.

In case you're wondering, things worked out fine for Ruckelshaus. He's 85 now, lives in Washington State and remains active as a strategic director for the Madrona Venture Group, a Seattle-based venture capital firm.

After he was fired, he launched Ruckelshaus, Beveridge, Fairbanks, and Diamond (now Beveridge & Diamond), then left to become senior vice president for law and corporate affairs for the Weyerhaeuser Company. He headed the EPA under President Ronald Reagan, did a stint Perkins Coie, and was chairman and CEO of Browning-Ferris Industries.

In 2015, Ruckelshaus was awarded the Presidential Medal of Freedom—the highest civilian honor there is.

“He spent his life putting country before party or politics,” President Obama said at the ceremony. “He reminds us how noble public service can be.”

So take heart, Mr. Rosenstein. Getting fired by the president for following your conscience can open doors to new opportunities—and almost surely, history will vindicate you.

|

Another One Bites the Dust (Thanks Covington)

In a speech last week, Beth Williams, the head of the U.S. Justice Department's Office of Legal Policy, said something that was absolutely true—just not in the way she meant it.

The former Kirkland & Ellis partner noted that in President Donald Trump's first year in office, courts have issued 20 nationwide injunctions to block his administration's initiatives. “This matches the entire eight-year total of such injunctions issued against President Obama during his two terms,” she said. “This enormous increase should draw alarm.”

Yes, it should. It's deeply alarming.

But don't blame the “Deep State” or liberal, activist judges for the eight-fold increase.

“There is an obvious reason why there have been so many nationwide injunctions in the last year, and it isn't the one Ms. Williams implies in her speech attacking the federal judiciary,” Hogan Lovells partner Neal Katyal, who has led the charge against the travel ban, told me.

As in, the reason so many Trump administration policies have been subject to nationwide injunctions is because so many policies merit enjoining. It's what you get when you combine a disregard for constitutional or statutory constraints with overtly damning presidential tweets. You're going to lose. A lot.

The latest defeat came on April 11 in Los Angeles, when U.S. District Judge Manuel Real (who seems to get more than his share of notable cases) enjoined an attempt by the Justice Department to link funding for community-oriented policing to cooperation with the feds on immigration enforcement.

The city of Los Angeles challenged the new funding conditions, and turned to a pro bono team from Covington & Burling for help.

Working closely with City Attorney Mike Feuer, Covington sued Attorney General Jeff Sessions, arguing that the policy violates the Separation of Powers because Congress did not give DOJ authority to use the COPS Program in this manner. They also argued that it violates the Spending Clause because the funding conditions are not reasonably related to Congress' purpose of promoting community-oriented policing. And they added the old classic: The policy is arbitrary and capricious under the Administrative Procedure Act.

Any one of those grounds would have been enough to win, but the judge sided with them on all three in a powerful opinion.

“Defendants' attempt to use these funds to encourage partnerships between local police and federal immigration authorities encroaches on territory Congress did not contemplate. Congress mandated that CHP grants must be used for community policing, not policing generally,” Real wrote. “Further, Defendants' broad interpretation of their authority carries extraordinary implications. If the Attorney General can favor applicants based on any factors relevant to public safety, he enjoys nearly limitless discretion to select grant awardees in ways not even tangentially related to community policing.”

Covington partner Mitch Kamin, who handled the summary judgment argument, said the plaintiffs were “thrilled he accepted all our arguments.” The team also included Beth Brinkmann, David Zionts, Neema Sahni, Ivano Ventresca, Monica Almadani, and Janine Balekdjian.

As getting a national injunction, Kamin said it was “the only way to correct the uneven playing field.” He noted that it would have done little good to change the policy just for Los Angeles, but leave it untouched for the rest of the country.

This is familiar ground for Covington. The firm has now racked up a total of four nationwide injunctions against the Trump administration, working also on suits challenging the travel ban, transgender service members and DACA, or Deferred Action on Childhood Arrivals.

|

Lateral Watch

The former head of litigation at Cravath, Swaine & Moore has jumped to Kirkland & Ellis along with a litigation associate.

Sandra Goldstein was long viewed as one of Cravath's most powerful partners, my colleague Brian Baxter reports. Her departure, which follows Kirkland's hire of Cravath, Swaine & Moore corporate partner Eric Schiele, may indicate pressure on the lockstep model of compensation, given Kirkland's (select) sky-high salaries.

OMG this case. The wife of legendary plaintiffs lawyer Walter Umphrey, who has won billions in verdicts and settlements but now suffers from Alzheimer's, is suing his mistress, alleging that she “engages in behavior designed to target, seduce, and then defraud, wealthy men” and that Umphrey was “one such target.”

Tobi Young is an Oklahoma-born citizen of the Chickasaw Nation.

More than 80 class actions allege the sites engaged in “insider trading” by allowing their employees to participate in contests using nonpublic information, or they enticed consumers to participate in illegal gambling.

Just in case other monkeys want to assert their IP rights.

The judge found there was nothing that Greenberg Traurig could have done to avoid a trial and, therefore, the firm's alleged malpractice was not the “but for” cause of NextEra's trial and appellate expense.

Prosecutors rebutted allegations that the documents seized in raids included thousands of privileged materials

Assuming he still has a job.