Over the course of my now 30 years as a legal journalist, I have read tens of thousands of briefs.
One of the very best has to be a brief submitted to the U.S. Supreme Court on March 5 by Paul D. Clement, a former U.S. Solicitor General, who was the chief architect of the conservative challenge to Obamacare. Clement penned a 13-page brief for Long Island lawyer Frederick M. Oberlander, who is making a last stand in asking the Supreme Court to review a Second Circuit order that could result in criminal contempt charges. Clement Brief
Clement’s brief is a superb piece of legal writing and well worth taking the 10 minutes or so it takes to read. From the opening paragraph, Clement demonstrates a flair for drama and colorful writing, which draws the reader in and hammers home its points.
To be honest, I was jealous. I have been writing about Oberlander, and his lawyer, Richard E. Lerner’s, clash with two Eastern District judges and a Second Circuit panel, since last August when the two lawyers challenged a series of orders barring them from disclosing the portions of a criminal cooperator’s file which were dropped in Oberlander’s lap.
It is not an easy story to tell. There are many moving pieces, and Clement pulls them together in a smoothly flowing narrative that eluded me as I strived to tell the tale, albeit from a different perspective.
The story began in 1998 when a government cooperator, Felix Sater, pled guilty to a $40 million pump-and-dump stock fraud. As a part of his plea deal, the government agreed to protect his criminal past in return for his cooperation in making other cases. Sater’s file remained out of public view for 12 years.
In 2010, one of Sater’s co-workers at a real estate partnership provided Oberlander with sensitive documents from Sater’s criminal file including his cooperation agreement and pre-sentence report.
That May, Oberlander filed a fraud suit in the Southern District of New York claiming that the court-afforded protection of Sater’s criminal past had enabled him to draw investors into the real estate venture, which had a number of high profile projects including posh condominiums with Donald Trump’s name on them in SoHo and Fort Lauderdale. Asserting that investors in the real estate venture would never have parted with their money had they known of Sater’s criminal past, Oberlander’s lawsuit sought $500 million in damages.
Within four days, Sater’s lawyers, backed by the government, obtained an order sealing the Southern District complaint and barring Oberlander from revealing its contents to anyone. For days later, the Eastern District judge who had taken Sater’s plea in 1998 ordered an inquiry into how Oberlander had received the documents. Eastern District Judge I. Leo Glasser, who had presided over Sater’s criminal case, proceeded to issue a flurry of orders, sealing all aspects of the case and barring the two lawyers from talking about it.
Oberlander appealed to the Second Circuit, but it was it was a losing battle. Describing itself at the end of its “patience” with Oberlander and Lerner’s litigation tactics, a three-judge panel affirmed Glasser’s issuance of permanent injunction against further dissemination of the contents of Sater’s presentence report and found the remainder of his rulings non-appealable “temporary” orders.
The circuit added several new orders of its own. It directed the appointment of a second Eastern District judge to enforce its own, and Glasser’s, orders. That judge, Brian M. Cogan, subsequently ordered that Oberlander and Lerner be investigated for criminal contempt. That on-going investigation is being conducted by the U.S. Attorney’s Office in Syracuse.
The Second Circuit also ordered that any petition for relief from the Supreme Court be filed under seal. Though the Supreme Court relaxed that order, it nonetheless required that no reference be made to any document containing Sater’s name—a measure that made a coherent telling of the story more difficult.
Clement, nonetheless, navigated the intricacies of the case and the pockmarked terrain of its record to write a compelling brief. You have to read the brief to get the true flavor, but here are a few examples of Clement’s artistry.
Telling a story: In the opening paragraph of the brief, Clement wrote, Sater’s 1998 “plea should have signaled the end of [Sater’s] business career and the possibility of restitution for his victims. Not so. His entire criminal case was ‘sealed,’ leaving past victims and third parties unaware of his conviction.”
Sure-footed writing: “The procedural history of this case is complicated but the relevant legal principles are not. This Court has repeatedly held that when a ‘tipper’ provides information to a ‘tippee’ about matters of public importance, the tipper has an unqualified First Amendment right to publish that information, even if the tipper initially acquired the information through unlawful means.”
Clear writing: Clement dismissed much of the case law offered by the Solicitor General as having bearing on First Amendment access cases, not those with prior restraints. That was legal mumbo-jumbo to me until I read this passage in his brief: Oberlander “did not need to use the First Amendment as a sword to get access to [Sater’s pre-sentence report], he already had it.”
Finding the chink in the other side’s armor and exploiting it: The Solicitor General’s office’s brief does its best to make the legal issues raised by Oberlander’s disclosure of Sater’s pre-sentencing report seem both prosaic and unfit for Supreme Court review. Clement, however, found room for open-field running in the government’s claim that Oberlander’s knowing violation of a court order had put him outside the Court’s First Amendment precedents protecting journalists.
That position, Clement wrote, “suggest[s] that a lawyer may face criminal liability for engaging in conduct that would be clearly protected by the First Amendment.” Moving toward the goal line, he wrote, with lawyers facing “unique obligations” to report wrongdoing in many situations, “the bar needs to know whether filing a civil RICO action is zealous advocacy in the finest traditions of the profession or sanctionable, even criminal, misconduct.”
Convincing the Supreme Court to take a case is always a long shot. Through Clement, Oberlander gave it his best shot.