Sessions: 2011 OLC Opinion "Unusual," And Would Be Revisited

Lindsey Graham Asked Jeff Sessions About Online Gambling; His Response Wasn’t Good News For The Industry

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At a confirmation hearing in front of the Senate Judiciary Committee on Monday, Attorney General nominee Jeff Sessions was asked a question by Senator Lindsey Graham (R-SC) about the DOJ Office of Legal Counsel‘s 2011 opinion that limited the scope of the 1961 Wire Act to sports betting.

His answer caused an immediate uproar throughout gambling Twitter.

I’m shocked, shocked to find gambling is going on in here!

The 2011 OLC opinion paved the way for states to legalize online poker, casino, and lottery within their borders.

Sessions said he was “shocked” by the DOJ memorandum, and told Graham he would revisit the “unusual” opinion. Sessions stopped just short of saying he would overturn it, although that was the general consensus from those watching the hearing.

“I did oppose [the 2011 DOJ opinion] when it happened, and it seemed to me to be unusual,” Sessions said during the hearing. “I would revisit it or make a decision about it based on careful study. I haven’t gone that far to give you an opinion today.”

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Graham’s standard line of questioning

Since becoming a full-throated supporter of an online gambling ban in 2014, Graham has made the 2011 DOJ OLC opinion a focus of his questioning whenever an Attorney General nominee is placed before him.

Graham peppered current Attorney General Loretta Lynch with similar questions during her confirmation hearing in 2015, going so far as to submit written questions for her to answer on the subject.

In Sessions, Graham found a much more willing dance partner, considering Lynch’s top line takeaway was: “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.”

You can see Lynch’s full responses here.

No need to panic… yet

As much as Sessions answer should cause alarm among online gaming supporters (especially when taken together with his past record), it’s important to put his statement in the broader context of US online gambling.

At this point in time, rolling back the 2011 opinion is akin to the old adage of putting the toothpaste back in the tube.

Furthermore, daily fantasy sports has been legalized in nine states:

  1. Colorado
  2. Kansas
  3. Missouri
  4. Mississippi
  5. Tennessee
  6. Indiana
  7. New York
  8. Massachusetts
  9. Virginia

If Sessions (assuming he is confirmed as the next Attorney General) decides to revisit and rollback the 2011 OLC opinion, a slew of exemptions would have to be made, otherwise a number of the above mentioned states would likely seek legal injunctions.

In two cases to date (In re Mastercard International Inc., 2002, United States Court of Appeals, 5th Circuit; U.S. v. Lyons, 2014, United States Court of Appeals, 1st Circuit), the courts have come down on the side of the current interpretation of the Wire Act.

More problematic would be the implementation of the Restoration of America’s Wire Act (RAWA), which legal experts see as far more difficult to overcome in courts:

Image credit: Gage Skidmore

- 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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