Possible Justice Department Appointee to Require Lobbyist Waiver


According to the Los Angeles Times, the leading candidate to head the Justice Department’s Office of Legal Policy is Mark Gitenstein, a corporate lobbyist and ex-staffer to Vice President Joe Biden:

The leading candidate to head the Justice Department office that oversees legal policy and judicial nominations recently has been a lobbyist for several business clients, including the U.S. Chamber of Commerce, and would require a waiver from the Obama administration’s recently imposed ethics rules.

“It’s all but a done deal,” said [one] Senate official, who spoke on the condition of anonymity given the sensitivity of pending White House nominations. “He’s already placing people there, which he would not be able to do it if he were not the guy taking over there.”

The Office of Legal Policy is an important, but small office in the Justice Department that coordinates judicial appointments and oversees the development of Departmental policy through important policy analysis.

Gitenstein has lobbied for a variety of corporate clients and on a number of pieces of legislation. Most notably, Gitenstein was the lead for the Chamber of Commerce on its tort reform effort in 2005.

Below is a table of Gitenstein’s clients and the issues that he was paid to lobby on:

Mark Gitenstein’s Lobbying Clients
Ace, Limited No stated issues
Bayer Corporation U.S.-German Tax Treaty
Coalition for Patent Fairness H.R. 2795 (amending patent law)*
Deloitte & Touche USA LLP Sarbanes-Oxley Implementation
Ernst & Young LLP Sarbanes-Oxley Implementation
KPMG LLP Sarbanes-Oxley Implementation
Pricewaterhousecoopers LLP Sarbanes-Oxley Implementation
Sealed Air Corporation S. 852, S. 3274 (resolving claims of victims of asbestos exposure)*, FAIR Act (government reduction/redundancy), Tax legislation advice
U.S. Chamber of Commerce Tort Reform, S.5 (Tort Reform)*, Legal Reform, Regulation of publicly-traded companies and securities markets
AT&T (formerly SBC) Arbitration legislation, EU net neutrality issues, S. 1782 (arbitration fairness), H.R. 3010 (arbitration fairness), Broadband regulation, wireless regulation, universal service issues, H.R. 5353 (net neutrality)**
American Institute of Certified Public Accountants Sarbanes-Oxley Implementation
Merrill Lynch Securities Related Issues, Securities Litigation

*These bills are from the 109th Congress **These bills are from the 110th Congress

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  • Anyone following this story should be sure to check out this endorsement of Gitenstein by Larry Tribe, Abner Mikva, Walter Dellinger, and Chris Schroeder: http://www.openleft.com/showDiary.do?diaryId=11402

    Here’s how their recent letter to President Obama begins:

    Recent news reports indicate that you are considering nominating Mark Gitenstein to head the Office of Legal Policy at the Department of Justice. At the same time, these reports have raised questions about whether his nomination would be consistent with your administration’s ethics policies. The questions that have been raised are without foundation. Should you decide to appoint Mark, your Administration and the country as a whole will be extremely well served by an individual who shares your high ethical standards, who is committed to the same values as you, and who is extremely well qualified for this position.

  • mls

    Note that the Times article was updated to stress that Gitenstein may be appointed to this position without receiving a waiver. Instead, Gitenstein would simply agree to recuse himself from those “specific issues” on which he lobbied.

    What the article doesn’t say is that the issues on which Gitenstein recuses himself may not be the same as the issues identified on his LDA forms. Instead, DOJ may come up with a more narrowly defined set of issues for purposes of his recusal. This is the approach that Treasury is taking with regard to Mark Patterson. I discuss this in my Feb 6 post at point of order.