Loretta Lynch Unlikely To Overturn Wire Act Opinion

AG Nom Lynch: Unless I Find OLC Opinion “Unreasonable,” DoJ Wire Act Position Will Stand

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Towards the end of her Senate confirmation hearing, U.S. Attorney General nominee Loretta Lynch fielded several questions from South Carolina Senator Lindsey Graham in regards to a 2011 OLC opinion that clarified the application of the Wire Act to online gambling.

Graham introduced the Restoration of America’s Wire Act (RAWA) in 2014. RAWA seeks to ban most forms of online gambling at the federal level by rewriting the Wire Act to expand its scope.

When asked by Graham, Lynch said she was aware of the opinion, but was not familiar enough with it to “really analyze it.”

Graham then indicated he would send Lynch some information on the topic along with some follow up questions.

Lynch submitted her written responses last week.

Lynch offers Graham little hope for OLC reversal

Lynch stated that upon her confirmation she would review the opinion, written by then US Assistant Attorney General and Head of the OLC Virginia Seitz.

However, It’s a pretty safe bet that Senator Graham will not be pleased with the rest of the responses he received, as it appears Lynch would be unlikely to reverse the 2011 opinion.

Lynch told Graham that “[i]t is my understanding… that OLC opinions are rarely reconsidered.”

Lynch did seem to extend an olive branch to the senator, as she went on to say she would, if asked, work with him on crafting legislation “if it articulates a reasonable interpretation of the law, I would welcome the opportunity to work with you and other Members of Congress to address concerns about online gambling through legislation.”

Graham also asked Lynch if she would consider suspending the 2011 opinion during her review.

Lynch’s response was as concrete a “no” as you’ll get from an appointee addressing someone who will be voting on whether or not they get the job.

“Unless in the course of my review I conclude that OLC’s interpretation of the Wire Act is unreasonable, I do not intend to take any action to suspend or revoke the opinion,” Lynch stated.

Review Lynch’s full written responses here.

The 2011 OLC opinion wasn’t a covert op

Lynch also refuted one of the most shopworn arguments of RAWA advocates: that the Wire Act opinion was nefariously executed outside the normal channels of government – in the “bowels of the Department of Justice,” as Lindsey Graham has put it in the past.

Graham: “Do you think it was appropriate for OLC to effectively open the door for states to offer Internet gaming without the involvement of Congress, the public, law enforcement, and state and local officials?”

Lynch: “[…] it is my understanding that the Office strives to provide an objective assessment of the law using traditional tools of statutory interpretation. These tools would not include seeking the views of Congress, the public, law enforcement, or state and local officials on a question of statutory interpretation.”

Graham’s “gotcha” question backfires

Another interesting line of questioning was Graham’s assertion that Lynch’s office, the US Attorney for the Eastern District of New York, used the Wire Act to seize money in a 2013 case, citing “casino games and sports betting.”

Graham, perhaps thinking he had caught Lynch in a trap, asked, “If the law is clear that the Wire Act extends only to sports betting, why did your office not limit it to sports betting in its complaint, as quoted above?”

Based on Lynch’s response (below), it appears Senator Graham might have read the case more thoroughly:

The criminal enterprise used bookmakers located in the United States to solicit and accept sports wagers for the placement of bets on off-shore Internet gambling websites. The proceeds seized in connection with the civil forfeiture action were exclusively the proceeds of sports gambling. The reference in the civil forfeiture complaint to “‘real money’ casino games and sports betting” was taken from one of the website’s own description of the activities that it facilitated and was not a description of the predicate offense that the government asserted as the basis for the forfeiture.

Full text of the follow up Q&A here.

Image credit: lev radin / Shutterstock.com.

- Steve covers nearly every angle of online poker in his job as a full-time freelance poker writer. His primary focus for OPR is the developing legal and legislative picture for regulated US online poker and gambling.
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