Ben Penn’s Post

Alerting all FARA practitioners - the yearslong wait for DOJ's regulatory overhaul (the proposed version) of foreign agent registration law should soon be over: https://lnkd.in/edn7N8du

Chief Justice Roberts' presidential immunity opinion included a brief aside that blessed a president's conversations with Justice Department officials about potential investigations and prosecutions. The line wasn't the focus of yesterday's landmark decision and was inserted as an example of how a president can exercise his core constitutional powers in office with absolute immunity from prosecution. But it's now sparking debate as to whether the Supreme Court just licensed a potential second-term President Trump to effectuate his campaign trail chatter of leveraging DOJ to exact revenge on political opponents. I spoke with department institutionalists and constitutional scholars about whether there's reason for alarm or if Roberts merely restated a longstanding principle. https://lnkd.in/evxDfdRG

NEW: Environmental trial attorneys are trying to make Justice Department history by organizing a union. Depending on the results of a representation election they say they’re on track to hold by October, it would be DOJ’s first ever union of litigators. The campaign is rooted in concerns over return to office mandates and fears of political intervention. The Environment and Natural Resources Division was led by Jeff Clark under Trump. My latest: https://lnkd.in/eenCyrq6

Throughout the escalating talk of DOJ "weaponization," Trump revenge prosecutions, and overhauling civil service to remove the "deep state," little is heard from the career line attorneys who investigate cases and bring indictments across the country. I spoke with the head of the National Association of Assistant US Attorneys, the trade group for the nation's 6,000 federal prosecutors at 93 US attorney's offices, about how his members are bracing for a possible change in administrations. While line prosecutors wouldn't necessarily be targeted in the "Schedule F" executive order Trump has promised to reinstate -- making it easier to fire federal workers in policy roles -- it speaks to broader fears that career prosecutors will no longer be insulated from political pressure, said NAAUSA President Steven Wasserman. “The current rhetoric about weaponizing DOJ to pursue political adversaries certainly does not give me any confidence that the Schedule F proposal would be implemented responsibly," he said. Read more here: https://lnkd.in/efGEdFaW

The Justice Department's international affairs office has long been considered somewhat of a thankless place to work. They process soaring levels of requests for overseas evidence and extraditions -- both from federal, state, and local prosecutors in the US and their counterparts abroad. The office frustrates prosecutors with its pace, and when it does come through with crucial evidence or fugitives, it's the trial attorneys they support who gain acclaim for securing convictions. But now, the situation appears to be getting worse. Buried inside the DOJ Criminal Division's latest budget narrative to Congress is an explanation of the "workload challenges" facing the Office of International Affairs due to the increasingly global nature of crime. The unsung office is taking on more responsibilities, yet with stagnant staffing, a trend that only further delays the US response to cross-border crime. I interviewed Bruce Swartz, who oversees OIA as the Criminal Division's deputy assistant attorney general, and multiple former department attorneys about the situation. https://lnkd.in/e6jbZRni

How has Williams & Connolly held on to its image all these years as the firm to hire when you want to go scorched earth on the Justice Deparmment? In some cases it's more a brand than reality, but one takeaway from my months of reporting with Justin Wise is that the identity comes from holding onto unique traditions, even as the surrounding legal industry is rapidly evolving. Perhaps the most telling example: the firm almost never hires former federal prosecutors, bucking the DOJ revolving door that's pervasive in Big Law. “The firm sprang out of an earlier era,” said Paul Dueffert, a veteran partner at Williams & Connolly, who left in 2020. “What has changed since then is that the white-collar world is much more professionalized. Every other firm is constantly poaching DOJ lawyers.” Here's our story on how a white collar practice without former DOJ insiders plays out in tough criminal battles (including the notable exceptions), and whether the Williams & Connolly model is sustainable as the current partner most responsible for its hardball reputation is 82. https://lnkd.in/epVMdaNV

“Call us before we call you.” That’s how DOJ’s criminal division chief frames yet another white collar self-reporting initiative that quietly posted online Monday night. Main Justice has borrowed many of the parameters from pilot programs encouraging criminally-exposed individuals to voluntarily self-disclose corporate misconduct that launched earlier this year out of US attorneys offices for the Southern District of New York and Northern District of California. Now the program is available nationwide. It gives individuals more details about how they can reach a non-prosecution agreement in exchange for offering valuable information and cooperating, among other conditions. The criminal division version does have some key distinctions. Nicole Argentieri, the division’s top official, says the national pilot reinforces DOJ’s recent focus on incentivizing corporations to self-report wrongdoing and a separate initiative under development to pay whistleblowers for corporate crime tips. She intends the program to send a message to companies that uncover internal misconduct but are weighing whether to disclose based on the risk of DOJ finding out about the criminal activity on its own. “The department is upping the ante in that calculus,” Argentieri says. My story: https://lnkd.in/e_pHPWbT

There are now three pending False Claims Act lawsuits targeting Regeneron's sales tactics of its prized eye treatment Eylea. The latest, filed by the Justice Department this week, accuses the pharma giant of artificially inflating Medicare reimbursement rates by covering the costs of physician customers' credit card fees. The complaint is a fascinating read, and is already sparking discussion among defense and whistleblower lawyers about a new wave of drug pricing litigation. Here's my latest: https://lnkd.in/eHy5QyiK