|February 5, 2009
The White House
1600 Pennsylvania Ave.
Washington, D.C. 20500
Dear Mr. President:
Recent news reports indicate that you are considering nominating Mark Gitenstein to head the Office of Legal Policy at the Department of Justice. At the same time, these reports have raised questions about whether his nomination would be consistent with your administration's ethics policies. The questions that have been raised are without foundation. Should you decide to appoint Mark, your Administration and the country as a whole will be extremely well served by an individual who shares your high ethical standards, who is committed to the same values as you, and who is extremely well qualified for this position.
Throughout his distinguished career, Mark has worked tirelessly to advance progressive values and the rights of all Americans. While in college, he fought for civil rights, working for the U.S. Civil Rights Division in Mobile, Alabama, to help dismantle its segregated busing system, and then for the McGovern Commission on Party Reform to increase access by women and African Americans in delegate selection. He worked for thirteen years on the Senate Judiciary Committee for then-Senator Biden, and as its chief counsel for eight of those years. As chiefcounsel he scrutinized judicial nominees of Presidents Reagan and Bush, seeking to ensure that those who were not committed to protecting the civil rights and individual liberties of allAmericans were not confirmed. In that same position, he worked to protect the Civil Rights Commission and extend the Voting Rights Act. Earlier, as counsel to the Senate Intelligence Committee, Mark played a leadership role in the oversight investigation of FBI abuses in theillegal surveillance and intimidation of Dr. Martin Luther King, Jr. and of other civil rights and anti-war activists.
Since leaving the United States Senate, Mark continued to advise then-Senator Biden and other Democrats on Supreme Court nominations and on key legislative initiatives such as the PatriotAct and revisions to the Foreign Intelligence Surveillance Act. He has written in support ofincreased due process rights for detainees at Guantanamo Bay, and has worked with Human Rights Watch on a pro bono basis.
Mark has been a partner at the law firm of Mayer, Brown for the past eighteen years. During that time he has represented a number of corporate clients on specific matters. None of this representation has ever involved lobbying or advocating on behalf of clients for any judicial nominee. With respect to the nominations of John Roberts and Samuel Alito, which are specifically mentioned in a negative report by Public Citizen, Mark did not support either of these nominations.
As to matters on which Mark has represented clients, of course he will comply with yourAdministration's Ethics Commitments, as set forth in Executive Order 13490, which he can dowithout a waiver from any of them. As you know, Section 1, Paragraphs 2 and 3 of that Order require all appointees to recuse themselves "from participating in any particular matter involving specific parties that is directly and substantially related to ... former clients," and from any particular matter on which Mark "lobbied," as well as from the "specific issue area in which thatparticular matter falls" for two years from the date he is appointed. In light of Mark'srepresentations, the issue areas from which he will need to recuse himself will include theFederal Arbitration Act, private securities litigation, asbestos liability, regulation of the accounting profession, and matters related to the US-German Tax Treaty. Should a matter arisein the areas of recusal during the course of his tenure in office, or that is directly andsubstantially related to a former client and that involves specific parties, his principal deputy can supervise the Office's handling of the matter without any disruption in or impairment of the smooth functioning of the Office. This approach complies fully with the provisions that you have set forth in your Executive Order. Of course, a major responsibility of the Office is to assist you in the evaluation of potential judicial nominees. None of Mark's prior representations will restrict him in any way from directing that important work, something for which his priorexperience and his background make him eminently qualified.
Mark's record of service, his intelligence and his background well qualify him for the leadership position at the Office of Legal Policy. As individuals who have known Mark personally and professionally for over twenty years, we can attest to his qualifications and his commitment to the highest standards of integrity. Should you elect to nominate him, you can be confident that you will have chosen well.
O'Melveny and Myers
Douglas B. Maggs Professor Emeritus
United States Circuit Judge (retired)
Christopher H. Schroeder*
Charles S. Murphy Professor of Law
and Professor of Public Policy Studies
919 613 7096
Laurence H. Tribe*
Carl M. Loeb University Professor
Harvard Law School
* Affiliations listed for identification purposes only.