February 5, 2009

The Honorable Patrick Leahy
Chairman, Judiciary Committee
433 Russell Senate Office Building
Washington, DC 20510

The Honorable Arlen Specter
Ranking Member, Judiciary Committee
711 Hart Senate Office Building
Washington, DC 20510

Members of the Committee
Senate Judiciary Committee
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Leahy, Ranking Member Specter, and Members of the Committee,

Press reports indicate that Mayer Brown lobbyist Mark Gitenstein is President Obama’s top choice to head the Justice Department’s Office of Legal Policy (OLP).  If Mr. Gitenstein is nominated, I urge you to scrutinize his record carefully and consider whether his service would comply with both the letter and the spirit of President Obama’s executive branch ethics policy.  From the information that is publicly available, I strongly believe it would not.

As evidenced by the attached Los Angeles Times article, Gitenstein has a long record of lobbying on behalf of the U.S. Chamber of Commerce on a number of measures that limit ordinary Americans’ access to the justice system and shield corporations from accountability.  These issues, which the Chamber euphemistically terms “legal reform issues,” are an important part of the Justice Department’s legal policy domain.  Indeed, just last summer the Justice Department took a position before the Congress on binding mandatory arbitration—a “legal reform” issue on which Gitenstein appears to have lobbied for AT&T.  It is doubtful that Mr. Gitenstein’s recusal from working on these matters would provide a sufficient solution.  The American people deserve leadership from the Justice Department on critical issues such as access to justice and corporate accountability—not a head of OLP who must recuse himself from working on their behalf.

Gitenstein is also an inappropriate candidate to head OLP due to the office’s role in selecting judges.  The Chamber of Commerce has spent the past thirty years campaigning in support of activist judges who wish to enact its vision of “legal reform.”  A lobbyist for the Chamber on those very issues should not be put in a position to influence the selection of judges.  The appointment would create the appearance, if not the reality, that judicial nominees will tend to favor the powerful at the expense of ordinary Americans.

Enclosed are a short report reviewing what we know about Mr. Gitenstein’s prior lobbying activity from public disclosures, a press release, a letter to President Obama urging him to reconsider this potential nomination, and the Los Angeles Times article mentioned above.

With the economy reeling from corporate misconduct and the absence of corporate transparency and accountability, the American people deserve better than to have an opponent of their legal interests placed in a key Justice Department policy position.  I would like to meet with you or your staff to discuss our concerns as soon as possible.  Thank you for your time and consideration.

David Arkush
Director of Congress Watch
Public Citizen

Return to our Gitenstein letters and publications page.