Practice Before the Office of the Solicitor General: Few Secret Meetings
on Jan 17, 2010 at 9:08 pm
The always great How Appealing notes two articles relating to discussions between the Office of the Solicitor General and tobacco companies. The Associated Press ran the first story, which recounts a meeting attended by Elena Kagan on behalf of the United States and Michael Carvin and Miguel Estrada for the tobacco companies. Greg Stohr of Bloomberg had a subsequent piece as well.
The most striking feature of the stories is the A.P.’s lead: “Tobacco industry lawyers met secretly with Solicitor General Elena Kagan in an effort to avoid the government’s last-ditch attempt to extract billions from companies that illegally concealed the dangers of cigarette smoking, The Associated Press has learned.â€Â That language – a “secret†meeting to discuss “last-ditch†efforts to “extract billions†of dollars, about which the AP has “learned†– certainly grabs your attention. Bloomberg has a much more reserved take: “The solicitor general often meets with litigants to hear their arguments before the government takes a position at the Supreme Court. Kagan also met with lawyers for anti-tobacco activists who are involved in the case, according to a private lawyer familiar with those discussions.â€
So who has the correct characterization of the meeting? In this case, Bloomberg. But to be fair, reading between the lines, it looks like Bloomberg may have had the unusual advantage of going second. The AP story notes that the reporter could not get a comment from a Justice Department spokesman. After the AP story moved, Greg Stohr may have been in touch with someone seeking to provide clarification; or it may be the result of Greg’s considerable experience in the area.
Here is the reality. This is a case in which the United States and tobacco companies both won and lost part of a massive dispute in the court of appeals. Both can seek Supreme Court review. For the United States, that decision is made by the Solicitor General.
Private parties have discussions all the time about whether to settle cases. So does the federal government when it is involved in litigation.
At this stage of a case that the federal government has lost, the Solicitor General in deciding whether to seek Supreme Court review has an additional issue to consider beyond just the federal government’s interests. That Office traditionally applies high standards in seeking certiorari.
In the meeting discussed in the articles, the tobacco companies tried to persuade the Solicitor General not to seek review. I wasn’t there, but it sounds from the articles like someone broached the idea of essentially a settlement in which neither side would seek Supreme Court review.
Very likely, the meeting was attended by the Solicitor General, one of her deputies, an assistant to the solicitor general assigned to the case, and various other government lawyers involved in the litigation. That’s all entirely normal.
For my purposes, the precise details don’t matter. The important practice pointer is that these sorts of meetings happen all the time, and aren’t what we ordinarily regard as “secret.â€Â The meetings are not publicly noted, but only because there really isn’t a mechanism to do so. This meeting seemingly was no more secret than any other between the government and another party to a lawsuit.
The Office of the Solicitor General has thus always had – for as long as I’ve been in practice – a wonderful and almost inviolate rule that it will meet at the request of a party in a case in which that Office is involved. Almost always, the government will also meet with any other party that has a significant interest in the case. The meetings frequently happen back to back, with one side making its case and then the other. So, as the Bloomberg story notes, in this case the Solicitor General’s Office met not only with the tobacco companies, but also with the public health intervenors who presumably urged the government to press forward and seek Supreme Court review.
