Former DoJ Official: Wire Act Opinion “Legally Bankrupt”
As the gaming and legal worlds have had time to absorb the new opinion on the Wire Act issued by the Justice Department’s Office of Legal Counsel (OLC), the harsh criticisms of said opinion have started to fly. One of the latest comes from Peter J. Ferrara, former associate deputy attorney general in the George H.W. Bush administration, in the form of an op-ed in the USA Today. The OLC’s reversal of the previous Wire Act opinion, Ferrara says, is the most “corrupt, unethical and legally bankrupt” decision he has ever seen the United States Justice Department make.
From the moment the OLC, then a part of the Obama Justice Department, issued its opinion on the Wire Act in 2011 in which it said that it only made interstate sports betting illegal, Las Vegas Sands CEO and Republican kingmaker Sheldon Adelson spring into action, making it his mission to end online gambling in the United States. He has claimed it is to protect children and vulnerable gamblers, but everyone knows it’s because he sees online gambling as a threat to his brick-and-mortar gambling empire.
He had has legal team draw up the Restoration of America’s Wire Act (RAWA), a bill that would codify the pre-2011 Wire Act interpretation that deemed all online gaming illegal. Though it was introduced in both the House and Senate and even got a couple hearings in the House, it never went anywhere.
Adelson didn’t quit, though, and recently, The Wall Street Journal reported that it was Adelson’s camp that set the wheels in motion for the new OLC opinion:
In April 2017, one of the lobbyists sent a memo to top officials in the Justice Department, arguing that a 2011 opinion that benefited online gambling was wrong.
Officials in the department’s Criminal Division, in turn, forwarded it to the Office of Legal Counsel, which had issued the opinion, and asked attorneys there to re-examine their stance that a law on the books for decades didn’t prohibit online gambling, according to documents and interviews with people familiar with the matter.
And that’s why Ferrara calls the opinion “legally bankrupt.”
He recounts the WSJ’s report as briefly as I just did, adding that the opinion was issued in November 2018 (though not made public until January 2019), five days before then-Attorney General Jeff Sessions, who had previously recused himself from online gambling matters, left his post.
“The kicker,” Ferrara writes, “is that the department’s final analysis looked eerily similar to the memo it received from Adelson’s lobbyists, using some of the same case law examples and adopting many of the same interpretations on word meanings, according to The Wall Street Journal. The department’s ethics officers should get involved.”
As an alumnus of the Justice Department, I cannot stress how unprecedentedly appalling this decision is. The Department of Justice’s Office of Legal Counsel is supposed to be an independent entity that creates binding opinions with the highest degree of rectitude. In most circumstances, it abides by the judgments made by past OLC attorneys, even when in disagreement with their rulings, to respect the integrity of the office.
Yet in this case, the DOJ reversed its opinion on internet gaming almost immediately after receiving pressure from a casino owner who has a lot of power and influence in Republican circles, less than one decade after releasing its initial ruling. Never before have I seen law enforcement officials bend so easily seemingly to please one influencer.
Ferrara concludes with a paragraph far funnier than anything I have ever written:
President Donald Trump has received tens of millions in political donations from the Adelson family. If he wants to fend off the media’s allegations of crony capitalism and make good on his commitment to draining the swamp, he will stand up immediately for federalism and criticize this OLC decision that reeks of influence-peddling. Doing anything less will jeopardize the well-being of federalism and the sanctity of the American legal system as we know it.
Oh my. That’s fucking hilarious. I know Ferrara is only being semi-serious (or less serious than even that), but “Make good on his commitment to draining the swamp?” Dagobah is drier than Trump’s administration.
“Criticize something that reeks of influence-peddling?” Guy has influence-peddling coming out of his pores, along with spray tan and special sauce.
Odds are, Donald Trump knows very little about the Wire Act or this OLC opinion. People like to think that he would be pro-gambling because he owned casinos, but he has shown repeatedly that he has virtually no knowledge of anything having to do with governing or government in general. He may have heard of it at some point, but the extent was probably no more than Adelson asking him for a favor and then Trump telling somebody else to do what Adelson wants. Trump is all about whatever is best for him, so if Daddy Adelson wants a direct line to the Department of Justice, Daddy gets it. To think that Trump would see this new OLC opinion and say, “Hey, this is cronyism and that’s bad. There is no place in my administration for this type of corruption,” is the most wishful of wishful thinking.