Guest Commentary

Anthony J. Franze and R. Stanton Jones, Arnold & Porter LLP*

In United States v. Rubashkin, a high-profile white collar appeal pending in the U.S. Court of Appeals for the Eighth Circuit, the Washington Legal Foundation and other prominent organizations—joined by leading law professors and former federal officials—submitted amicus curiae briefs supporting the defendant’s challenge to his bank fraud conviction and 27-year prison sentence.  The amicus briefs highlighted, among other issues, allegations of misconduct by the prosecuting U.S. Attorney’s Office.

On January 19, 2011, after refusing to consent to the amicus briefs, the same U.S. Attorney’s Office took the unusual step of filing a “resistance,” arguing that the amicus briefs “should not be filed.”  In the process, the United States urged the adoption of a restrictive standard for the Eighth Circuit’s acceptance of amicus briefs—one that, according to the government, Mr. Rubashkin’s amici failed to meet.  The government further argued that the amicus briefs were simply “an attempt to inject interest group politics into this case” and criticized what the government viewed as improper coordination between amicus counsel and Rubashkin’s lawyers.

On February 22, 2011, we published an article in Bloomberg Law Reports criticizing the government’s rare resistance to amicus briefs.  We explained that the standard advocated by the government has been criticized as “too narrow and grudging” and has been adopted by only one court of appeals.  We argued that the standard is contrary to the United States’ own longstanding amicus practice and could foster “the perception of viewpoint discrimination” and send “an unfortunate message about the openness of the court.”  And we pointed out that the type of amicus coordination the government considered unseemly is both proper and commonplace

Someone at the Department of Justice apparently took notice of the situation.  Three days ago, on March 7, 2011, the United States filed a one-page “Withdrawal of Objection to Filing of Amicus Curiae Briefs.”  Though the government did not cede to any of the concerns we raised in the article, the timing of its withdrawal suggests that the government recognized the troubling implications of its misguided support for a restrictive amicus standard in the courts of appeals.

While the government’s withdrawal sidesteps an inconsistent and imprudent approach to amicus practice in this particular case, the episode in Rubashkin highlights a broader systemic issue.  We learned of the government’s amicus resistance only by happenstance, and there is no telling how often similar issues may fly under the radar, particularly given that many of the 93 U.S. Attorneys and thousands of Assistant U.S. Attorneys and lawyers in various divisions of the Department of Justice handle appeals on behalf of the United States each year.

In our view, the Rubashkin situation illustrates the need for the Department of Justice to adopt a consistent policy on nongovernmental amicus briefs.  The Department’s U.S. Attorney’s Manual already specifies some guidelines with respect to appellate matters, including that “[a]ll appeals to the lower appellate courts in cases handled by divisions of the Department and United States Attorneys . . . must be authorized by the Solicitor General.”  Indeed, the Manual requires the Solicitor General’s authorization for “the filing of any amicus brief in all appellate courts,” but does not address policies concerning nongovernmental amicus.

The Justice Department should update the Manual to provide that the United States should grant consent for timely amicus briefs absent exceptional circumstances or an abuse of the amicus process.  The Manual further should require divisions of the Department and U.S. Attorneys to obtain the Solicitor General’s authorization to refuse consent or oppose the filing of such briefs.  This policy would help ensure consistency, comport with longstanding government amicus practice, and avoid the perception of “viewpoint discrimination” by the United States.

These changes also would improve advocacy and promote judicial efficiency.  After all, objecting to amicus briefs only draws more attention to them, as shown by the government’s experience in Rubashkin.  Such objections also waste the courts’ and parties’ time.  As then-Judge Alito observed, “the time required for skeptical scrutiny of proposed amicus briefs may equal, if not exceed, the time that would have been needed to study the briefs at the merits stage if leave had been granted.”  Most of all, the changes would foster participation by amici curiae that historically have proven helpful—even indispensible—to the development of federal law.

* Anthony Franze and Stanton Jones are members of Arnold & Porter LLP’s Appellate and Supreme Court practice.  Their recent article on federal amicus curiae practice, With Friends Like These, has been the subject of previous commentary by the Legal Pulse here and here. The authors have represented numerous amici before the U.S. Supreme Court, including the National Association of Criminal Defense Lawyers.  The views expressed herein are those of the authors alone and not of Arnold & Porter LLP or any of the firm’s clients.  While at another law firm, a current partner at Arnold & Porter LLP represented Mr. Rubashkin early in the case; that lawyer had no involvement with this commentary.