NAFUSA member David Kelley, shown left, and his partner Joel Kurtzberg, are representing New York Times reporter James Risen in his effort to have the courts recognize a reporter’s privilege that would allow him to withhold testimony in a trial of a former CIA agent.

The CIA officer, Jeffrey Sterling, is charged with providing Risen with classified information. The U.S. Circuit Court of Appeals ordered Risen to testify at trial but approved Risen’s request that the proceedings be stayed during his appeal to the the United States Supreme Court. Kelley and Kurtzberg filed the petition for review to the Supreme Court, asking the court to take the case to resolve a split among the lower courts on the issue of a reporter’s privilege.

Kelley served as the United States Attorney for the Southern District of New York and is currently a partner at Cahill, Gordon & Reindel in New York. He clerked for the Hon. T.F. Gilroy Daly of the United States District Court for the District of Connecticut. He earned his J.D. from New York Law School. While attending law school, Kelley served as a police officer and fireman in his home township of East Hampton, New York. He has been an adjunct professor at New York Law School, and has taught trial advocacy clinics at Harvard and Hofstra Law Schools.

After SDNY U.S. District Judge Denise Cote found Apple guilty of colluding with five of the six largest publishers in the U..S. in an e-book price-fixing scheme, she appointed NAFUSA life member Michael Bromwich, shown above, to monitor Apple’s antitrust policies and procedures for two years.

But the work hasn’t been easy for Bromwich. In an article in this morning’s New York Times, entitled Secretive Apple Squirms in Gaze of U.S. Monitor, The Times reports,

Most companies are reluctant to open themselves to outside inspection. Yet Apple is even resisting someone who was appointed by a court to do exactly that, leading to an unusual public feud between the world’s biggest technology company and the Justice Department.

Apple is attempting to resist efforts by Bromwich to interview Apple board members and senior executives. They also complain about his hourly rate of $1,100. But at a hearing on Monday, January 13, Judge Cote told Apple and its lawyers “to stop wasting time and start cooperating with the monitor. Apple intends to appeal to the Second Circuit.

“Apple is no position to define the scope of the monitor’s duties,” said Judge Cote, who said she would soon issue a written decision that would amplify on her ruling at the hearing. “I want the monitorship to be a success for Apple.”

 

As to the issue of Bromwich’s fee,

But Judge Cote observed on Monday that “lawyers get paid a lot of money.”

 

She also pointed to a recent article in The National Law Journal that said it was not uncommon for top lawyers at a large law firm to bill clients at a rate of $1,000 an hour. Judge Cote noted that one lawyer at Gibson Dunn, one of the firms representing Apple, billed at a rate of $1,800 an hour.

[Note: on February 10, 2014, the Second Circuit Court of Appeals declined Apple’s motion to stay pending appeal and held Bromwich may continue while Apple purses its broader appeal to remove him. The Court did, however, hold their were some limits on what actions he might pursue as monitor.]

Chester Higgins Jr/The New York Times

On Sunday, December 29, 2013, New York Mayor-elect Bill de Blasio named NAFUSA board member Zachary Carter as corporation counsel for the City of New York. Carter, shown above left, with Mayor-elect de Blasio at Sunday’s press conference.

Carter is a partner at the law firm of Dorsey & Whitney LLP in New York City, and co-chair’s the firm’s white collar crime and civil fraud practice. He served as the United States Attorney for the Eastern District of New York from 1993 to 1999. He is also a former magistrate judge of the United States District Court for the ED of New York and a former judge of the Criminal Court for the City of New York.

In an editorial in today’s New York Times, the paper said:

In selecting Zachary Carter, the former judge and United States attorney, as corporation counsel, the mayor-elect tapped someone with a long history at the top levels of the justice system. Mr. Carter has served as a criminal court judge and as a federal magistrate. But he is best known for his record during the 1990s as the United States attorney for the Eastern District of New York. He successfully prosecuted many high-profile cases, including the one against Jordan Belfort, the stock trader known as the Wolf of Wall Street, and the case against the New York City police officers who brutally assaulted Abner Louima.

The new movie “American Hustle”, the Martin Scorsese comedy loosely based on the 1970s Abscam scandal, evoked memories in NAFUSA member Hickman Ewing, shown above with his wife, Mary, at the NAFUSA conference in Washington. Ewing served on the Attorney General’s leak investigation team in the 1970s, along with NAFUSA Executive Director Rich Rossman. Ewing writes:

Starting in the 1970’s some U.S. Attorney’s Offices made efforts to begin using the federal statutes to combat corruption in state, federal, and local government. WD Tennessee was in the forefront of this.

 

The FBI came along, but in the beginning wanted to concentrate more on “stats” (statistics based on volume of cases) rather than invest lots of time and manpower into undercover investigations which might not result in prosecutions in the end.
By Mike Cody’s time as U.S. Attorney, they were getting the hang of it.  In about 1978, 3 districts (FBI, USAO) were recognized as doing the most in corruption – ED PA (Philadelphia), ND IL (Chicago), and WD TN (Memphis).

 

The ABSCAM investigation did not touch Tennessee per se. It was run out of Washington DC, NY, NJ. At the same time there were two other major federal undercover investigations. One was code named BRILAB (Bribery-Labor), and the other PENDORF (involving Nevada, organized crime, and elected officials).

 

Early in 1980 the ABSCAM investigation got leaked to the media. The Department of Justice and FBI responded quickly to try and find the leakers. They wanted to take the position before the courts where the congressmen were going to be prosecuted that this was not an intentional orchestrated leak which would require dismissal.
Because it was so widespread, the normal OPR (Office of Professional Responsibility) of both the DOJ and the FBI were not staffed adequately to handle it.
The Attorney General (Benjamin Civiletti) called on the then U.S. Attorney from Connecticut Dick Blumenthal (now a senator from that state) to come to Washington and head up the leak investigation.  Dick had been a Washington Post reporter before his legal career.  He was given an office at DOJ. He worked closely with John Otto, who was the head of the FBI OPR.

 

Two First Assistant United States Attorneys (AUSA’s) were brought in to assist him with the ABSCAM leak investigation:  Rich Rossman from Detroit and Jerry O’Neill from Vermont. An extra FBI supervisor and 10 experienced agents rounded out that leak investigation team.

 

** Now how it touched us – Shortly after the ABSCAM investigation leaked, the BRILAB investigation leaked – it covered many more cities than ABSCAM. Dick Blumenthal called his colleague Mike Cody.  On a break from court, Mike told me [Ewing was Cody’s first assistant at the time] that Dick had asked if I would be interested in being the AUSA to help on the BRILAB leak investigation.  I was told that it would take 4-6 weeks.  I went to Washington DC at the end of Feb 1980.  Dick asked me to look at the materials and recommend to him how much manpower we would need. I recommended that we have another First AUSA, and FBI supervisor, and 10 field agents.  Bill Skretny, the First AUSA from Buffalo NY became my investigating partner.
It took us about seven months to complete our part – as we travelled to Los Angeles, San Diego, Houston, Dallas, San Antonia, Oklahoma City, New Orleans (Carlos Marcello was involved), Mobile, and Washington DC.  We interviewed in excess of 1,000 people, including FBI, AUSA’s, judges, etc.  Among those I remember, all of whom were without fault, were: the U.S. Attorney in Los Angeles Andrea Ordin, and then AUSA Ron Woods in Houston. We did not interview or try to talk with any of the reporters in question. I remember who they were.
[Richard Stephens, First AUSA in Dallas came in later to head the PENDORF leak investigation]

 

Though we did not investigate the ABSCAM matter per se, there were lots of common “subjects” of the leak investigations, especially at the DOJ/FBI Washington DC level. We asked a number of government employees – FBI, DOJ, USAO, etc – to take polygraphs.  We pretty well figured it all out and made reports to the Attorney General. He and the Director of the FBI determined the discipline.

 

Rossman became U.S. Attorney in Michigan at some point, served in the DOJ during the Clinton administration, and is now the director of the National Association of Former U.S. Attorneys (Mike and I just saw him in Washington at the end of Sept. 2013). Bill Skretney became a U.S. District Judge in Buffalo.
You know the rest of our stories.

 

Blessings, and happy new year,
Hickman

On Friday, December 20, 2013, the United States Senate voted 54-41 to confirm NAFUSA member Alejandro Mayorkas as the Deputy Secretary of the Department of Homeland Security, the second-ranking official at DHS. Mayorkas had served as the Director of United States Citizenship and Immigration Services (USCIS) since 2009 until his confirmation as deputy secretary. He was a participant on the NAFUSA panel on immigration at the Atlanta conference in 2012.

He served as the United States Attorney for the Central District of California 1999-2001. At the time of his appointment by President Clinton, Mayorkas became the youngest U.S. Attorney to serve the nation at that time.

Prior to becomming the director of USCIS, Mayorkas was a partner in the law firm of O’Melveny & Myers LLP. He served as a member of firm’s worldwide governing Policy Committee. In 2008, the National Law Journal recognized Mayorkas as one of the “50 Most Influential Minority Lawyers in America.” He was born in Havana, Cuba and is a graduate of Loyola Law School.

In the lead editorial in The New York Times on December 26, 2013, Homeland Security’s New Chief, The Times urges the the newly confirmed DHS Director Jeh Johnson to bring immigration enforcement into balance and gives favorable mention to the Mayorkas appointment:

Mr. Johnson has little experience with immigration. But the homeland security deputy secretary confirmed on Friday, Alejandro Mayorkas, does. Mr. Mayorkas is the director of Citizenship and Immigration Services, the agency within homeland security that handles legal immigration. Under Mr. Mayorkas’s capable leadership, it has done a good job in managing the deferred-action program. Mr. Mayorkas, an immigrant himself, looks to be an excellent partner for Mr. Johnson in beginning the formidable job of bringing the department’s immigration policies and practices into line with its mission.

NAFUSA lifetime member John Ratcliffe filed for the GOP primary this week, moments before the filing deadline. He seeks to represent the 4th Congressional District of Texas, which covers the northeast corner of the state. He will take on Rep. Ralph Hall, the 90 year old GOP incumbent, the oldest member of Congress.

Ratcliffe served as the United States Attorney for the Eastern District of Texas, 2007-2008. He had served as first assistant to NAFUSA President-Elect Matt Orwig, and succeeded Orwig when the latter returned to private practice.

Ratcliffe is currently a partner with the Ashcroft Law Firm in the Dallas office. He earned his Juris Doctor at the Southern Methodist University School of Law. He has served as adjunct professor of law at both SMU and Texas Wesleyan University. He also served as mayor of Heath, Texas for eight years.

For more information on the campaign, visit www.ratcliffeforcongress.com.