DOJ Files Brief in Wire Act Case and Extends Enforcement Date
The United States Department of Justice is going to stand by its interpretation of the Wire Act, even if it means filing its brief to the US Court of Appeals within an hour of the deadline.
It should have been obvious, though, that the DOJ was going to pursue the case. Just last week, US Deputy Attorney General Jeffrey Rosen issued a memo to extend any enforcement of its Wire Act interpretation out to June 30, 2020. The previous enforcement date had been December 31, 2019.
The case that started in November 2018 with the DOJ under the Trump Administration issuing a reinterpretation of the Wire Act will now continue well into 2020. This initial brief in the appeal is the first of several steps leading to a deliberation in the case. And no matter which way it goes, there will likely be an appeal to the US Supreme Court.
There is no end in sight.
https://twitter.com/RikardoRino2/status/1207958680165081088?s=20
A 158-Page Brief
It is a tough one for a person without a legal background to read. The “Opening Brief for Defendants-Appellants” filed by US Attorney General William P. Barr, the DOJ, and the United States is 158 pages in length. The document even has a table of contents, as does the lengthy addendum.
Essentially, the conclusion of the first 63 pages sums up the request of the Court of Appeals:
“The judgment of the district court should be vacated and remanded with instructions to dismiss for lack of jurisdiction. Alternatively, the judgment should be reversed on the merits. At a minimum, the order purporting to set aside the 2018 OLC Opinion should be reversed.”
The #DOJ has filed its initial brief in the #WireAct appeal. A New Hampshire federal district court had vacated the DoJ’s reinterpretation of the Wire Act as covering all forms of gambling, not just sports betting. Case is now before the First Circuit. More briefing to follow. pic.twitter.com/MtmOfYhOr5
— Daniel Wallach (@WALLACHLEGAL) December 23, 2019
Three Points of Appeal
As detailed in the introduction to the DOJ’s brief, the document describes the entire case as a “pre-enforcement challenge to the hypothetical future application of a longstanding criminal statute.”
While the New Hampshire Lottery Commission and its online lottery platform provider NeoPollard did bring the case in anticipation of future application of the new Wire Act interpretation, the longstanding criminal statute – the Wire Act – had already been reinterpreted by the DOJ in 2011.
That ruling on the law limited any application of the Wire Act to sports betting only, not to online lotteries or other types of gambling online. And upon that ruling, numerous states expanded their lottery offerings to include online components. In addition, five states legalized online poker, four of them doing the same for online casino games as well.
The brief went on to dispute the decision by District Court Judge Barbadoro to “set aside” the DOJ’s interpretation of the Wire Act. The document put “set aside” in quotes for an unknown reason. Regardless, the brief stated that the court was wrong for three reasons:
–1. The case presents “no live Article III case or controversy,” and the plaintiffs showed no “credible threat of prosecution” when they filed the case.
–2. Since the phrase “assisting in the placing of bets or wagers on any sporting event or contest” appeared only once in the original statute, the conclusion of offenses applicable only to sports gambling should only apply to that exact prohibition.
–3. The opinion issued by the Office of Legal Counsel was “predecisional advice internal to the Executive Branch” and not reviewable under the Administrative Procedure Act (APA). For that reason, the judge should not be able to set aside any OLC opinion.
#FakeNews or just factually-challenged?
From the DoJ’s #WireAct brief:
“The OLC did not opine about whether, and if so how, the Wire Act would apply to the particular context of lotteries owned and operated by States.”
⬇️⬇️⬇️⬇️ https://t.co/1EAxQEZiLc
— Daniel Wallach (@WALLACHLEGAL) December 23, 2019
Next Steps
As set out by the US Court of Appeals for the First Circuit, the next steps in the briefing schedule for this case are relatively straightforward.
Since the DOJ brief was submitted on December 20, the next brief is due 30 days from that point. That puts it at Sunday, January 19, the deadline for the New Hampshire Lottery Commission and NeoPollard to file their response brief.
From the date of that brief’s submission, the DOJ will have another 21 days to serve a final reply.
Enforcement Pushed Back…Again
With the Office of Legal Counsel decision on hold, the US Deputy Attorney Generals have been consistently pushing the enforcement date for the interpretation out into the future.
The last hold was issued by the current Deputy Attorney General, Jeffrey Rosen. He wrote a memo in June to issue the hold effective until the end of 2019.
Since it is now clear that the case will go on for at least a few months into 2020 – a mighty lean estimate – Rosen issued another extension on that hold. The directive read: “In light of the pending appeal, the forbearance period described in my June 12 memorandum is hereby extended until June 30, 2020.”
The Department of Justice will not prosecute violations of the Wire Act until June 30, 2020, an important grace period for online gaming operators – and one that may not even be applicable by that time.
— Ryan Butler (@ButlerBets) December 19, 2019
If the case moves forward as anticipated, complete with a ruling from the Court of Appeals and then an appeal to the US Supreme Court, that date may need to be extended much further into the future.
