Lindsey Graham

Attorney General Nominee Responds to Wire Act Questions from Senator Lindsey Graham

At the end of January, the United States Senate Judiciary Committee held a confirmation hearing for presidential nominee for Attorney General, Loretta Lynch. Hearings like these are generally migraine-inducing, with members of the committee peppering the nominee with questions for hours. Some of the questions are legitimate, many are politically motivated. One of the committee members, Senator Lindsey Graham (R – S.C.) clearly had his own politics in mind, using much of his questioning time to ask Lynch about the “threat” of online gambling and the Wire Act. This week, Lynch responded to further written questions from Sen. Graham as part of a 221-page document submitted to the Judiciary Committee. Poker players should be happy to know she did not fall for Graham’s bait.

Attorney General Nominee Loretta Lynch Image credit: justice.gov

Attorney General Nominee Loretta Lynch
Image credit: justice.gov

During the hearing last month, Sen. Graham asked Lynch if she was familiar with the Office of Legal Counsel’s (OLC) December 2011 clarification of the Wire Act which said that the Act only made online sports betting illegal, not all forms of internet gambling. She said she had some familiarity with it, but hadn’t read it in full. As she continued her response, Graham cut her off, asking if she agreed that terrorist organizations could make money through online gambling. She did not say yes, but rather simply said that “they will use any means to finance those organizations.”

Senator Graham asked these questions not because he has always been keenly interesting in online gambling, but rather because he wants access to the deep pockets of his sugar daddy, Las Vegas Sands CEO Sheldon Adelson. Adelson is on a crusade against online gambling because he sees it as a threat to his business, so he has stated he will do “whatever it takes” to get it banned in the U.S. “Whatever it takes” essentially means giving money to politicians (Republicans, primarily) to do his bidding in Washington, D.C. Senator Graham is one of Adelson’s lead henchmen, introducing the Restoration of America’s Wire Act (RAWA) bill last year, which aims to reverse the OLC’s clarification and simultaneously make all online gambling illegal. It is expected that he will re-introduce the same bill soon.

After the hearing, Sen. Graham followed up with written questions for Lynch, six (out of sixteen) of which were about online gambling. Lynch provided reasonable answers, likely to the dismay of Graham, who probably wanted to hear her say, “OMG YES I AGREE WITH YOU ONLINE GAMBLING IS THE WORST.”

His first question asked Lynch if she agreed with the OLC’s clarification of the Wire Act. She essentially answered, “Hell if I know, it’s not my job to know that yet.” More specifically, she said that if she becomes Attorney General, she will review the Wire Act and the OLC’s opinion and see if it all makes sense. She added that OLC opinions are “rarely reconsidered,” and threw Graham a bone, telling him that if she believes that the OLC opinion “articulates a reasonable interpretation of the law,” she would be happy to speak with him and other Members of Congress about “address[ing] concerns about online gambling.”

In the typical politician style of saying the same thing multiple times, Graham basically asked the same question again (which is not only annoying, but weird since the questions were written). Lynch responded the same way, that she’ll review the Wire Act and the OLC opinion once she’s in office.

For his third question, Graham tried a “gotcha” tactic, citing a civil forfeiture action Lynch’s office filed in 2013 “…which included as a predicate offense, the operation of gambling websites offering ‘casino games and sports betting.’” He tried to catch Lynch off guard, asking if her opinion is that the Wire Act only applies to sports betting (of course, she didn’t say so either way, just that she’d review it), then why did her office not limit it to sports betting in that specific case? He followed that up by asking that if the law isn’t clear, then how is it appropriate for the Department of Justice to issue its opinion without input from Congress?

As to the first part, Lynch wrote, in part, “The proceeds seized in connection with the civil forfeiture action were exclusively the proceeds of sports gambling. The reference in the civil forfeiture complaint to ‘‘real money’ casino games and sports betting’ was taken from one of the website’s own description of the activities that it facilitated and was not a description of the predicate offense that the government asserted as the basis for the forfeiture.”

She did not answer the second part of the question, but just you wait, that’s coming, and it’s good.

Question four tried to diminish the strength of the OLC’s opinion, asking Lynch if the opinion “carries the force of law.” She responded by saying that it does not, but at the same time, it is treated “as authoritative by executive agencies.”

Senator Graham’s fifth question again went after the OLC, asking Lynch, “Do you think it was appropriate for OLC to effectively open the door for states to offer Internet gaming without the involvement of Congress, the public, law enforcement, and state and local officials?”

Loretta Lynch’s response was sensational. If only this could have been in person at the hearing, as it might have shut Graham up (emphasis mine):

Pursuant to delegation, OLC exercises the Attorney General’s authority to provide the President and executive agencies with advice on questions of law. Because OLC helps the President fulfill his constitutional obligation to take care that the law be faithfully executed, it is my understanding that the Office strives to provide an objective assessment of the law using traditional tools of statutory interpretation. These tools would not include seeking the views of Congress, the public, law enforcement, or state and local officials on a question of statutory interpretation.

Everything about that is so great, particularly the bolded, but also the part about the OLC striving to be objective. “I know you’re trying to advance your own (or Sheldon Adelson’s) politics, Senator Graham, but that shit won’t fly here.”

Graham’s sixth and final written question addressed the possibility of online gambling being used to finance terrorists, even trying to put words in Lynch’s mouth, saying she “agreed” with that during the hearing. She again said she will review the opinion if she becomes Attorney General and then lowered the boom on Graham: “Unless in the course of my review I conclude that OLC’s interpretation of the Wire Act is unreasonable, I do not intend to take any action to suspend or revoke the opinion.”

I am not much of a political animal. Politics and politicians nauseate me, so I tend to stay away, so I am no expert (or even an intermediate). I don’t know much of anything about Loretta Lynch, but if she handles things the way she handled Senator Graham, let’s get her confirmed post haste.

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