Larry Tribe Caught Up in Post-Employment Restrictions in AEP Case

Lawrence Hurley at Greenwire (now up on the NY Times website) is reporting that the Justice Department asked that Professor Larry Tribe’s name be stricken from the brief he filed in American Electric Power v. Connecticut, 10-174, now pending before the Supreme Court, citing post-employment restrictions for former employees. In December, Tribe left DOJ after a (fairly brief) stint as senior counselor to the Attorney General for access to justice issues.

According to the article, Justice Department spokesperson Tracy Schmaler said Tribe is bound by a law that bans former senior officials from seeking to influence their former employer “in connection with any matter on which such persons seeks official action by any officer or employee of such department.” According to the article, Tribe’s co-counsel stated that “Tribe ‘had been led to believe’ that he could be listed as counsel of record after discussing the issue with ethics experts in the department.” He said that the intent of the brief is to influence the court, not the Justice Department (which represents respondent the Tennessee Valley Authority).

Cocounsel, who in Tribe’s absence has been elevated to “counsel of record,” reports that her client is upset because they “hired Tribe because of his ‘sterling reputation’ as the ‘best constitutional scholar in the country.'” (Don’t worry–in the age of the Internet, everyone at the Court will know whose brief it is.)  Tribe is still working behind the scenes and the brief is substantively identical; his name just isn’t on it.

It looks to me like the post-employment restriction in question is 18 U.S.C. § 207(c), which prohibits former senior officials of the Executive Branch, within a year of their departure, from “knowingly mak[ing], with the intent to influence, any communication to or appearance before any officer or employee of [his former] department or agency . . . , on behalf of any other person . . . in connection with any matter on which such person seeks official action by any officer or employee of such department or agency.” (For purposes of the statute, DOJ is considered several agencies, so people from the various divisions like ENRD and Crim and Civil frequently can file briefs involving other divisions.  But folks like Tribe who were in the Big Cheese “Senior Management Offices” are all from the same “agency,” along with the Office of the Solicitor General.)

Tribe has a point: his main purpose is no doubt to influence the Court, not the government, and by the time Tribe’s client filed its brief, the government had filed its opening brief already–favoring the same side his client did.  But the government (since it is supporting the petitioner) will get a reply brief, and will probably get argument time, and so the brief might be seen as influencing the position the government takes with respect to those.    

Because of concerns like these, former government lawyers (including me) routinely leave their names off briefs in which the government is participating during their first year of separation.  It would be a tough criminal case to make given the “intent to influence” and “on which such person seeks official action” language.  But section 207(c) is, it bears repeating, a criminal prohibition, and having your name on yet another brief is not worth even the tiny risk of prosecution.  For that reason, every ethics lawyer I know of in DOJ advises former employees to steer well clear of anything that might be seen as such a communication with the Agency.   They may acknowledge the counter-arguments if pressed, and that may be what Tribe did.  But they’re a cautious lot, and generally won’t give you the thumbs up unless everything is glatt.

The most interesting fact to me is that the government apparently acted to have his name striken from the brief.  Clearly, by that point, DOJ knew of the the brief and his role in it, so it would seem that any violation would have occurred.   Taking his name off the brief at that point wouldn’t seem to make it any more or less of a violation, unless the person who spotted it wasn’t in the Senior Management Offices and thus wasn’t in the same “agency.”  I wonder if someone at DOJ got wind of the filing and urged Tribe to file a substitute brief promptly before it was distributed at OSG.   In any event, very interesting.

Here are the briefs.  As they say in Philly, wit  and wit-out.

UPDATE (2/14/11, 11:58 am): DOJ has issued a statement about this kerfuffle, which doesn’t actually add much.  It’s reproduced in full after the jump.

Quoth Justice Department spokesperson Tracy Schmaler:

When the Justice Department was contacted regarding Professor Tribe’s participation in this case, he was advised that the post-employment statute barred him from being included as counsel of record in this matter, one in which the Department represents a party. This statutory restriction does not bar behind the scenes advice to a client. 18 U.S.C. 207(c)(1), which imposes a one-year prohibition on communications by former senior Executive Branch officials to their former department when those communications are knowingly made with the intent to influence the department ‘in connection with any matter on which such persons seeks official action by any officer or employee of such department.'”

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