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Freedom of Information Act documents turned over to the state of New Jersey paint more of a picture of what happened leading up to and in the wake of the Department of Justice‘s decision to alter its opinion on the federal Wire Act in 2018.
Online Poker Report has received the results of the request from NJ’s attorney general. AG Gurbir Grewal was looking for information “relating to outside groups’ lobbying efforts” in the FOIA request. In particular, he was trying to find a link between the DOJ opinion and casino magnate Sheldon Adelson, a longtime opponent of online gambling in the United States.
The 2018 Wire Act opinion from the Office of Legal Counsel changed the DOJ’s stance on the Wire Act, saying it applies to all forms of interstate gambling, not just sports betting. That stance threatens the legality of online casinos, online poker and online lotteries in states that have legalized any of those, in addition to other things, including multistate lottery products.
A federal court has already rejected the new DOJ memo; the case is still active in appeals court.
Here’s what we learned from the FOIA documents. While there is no smoking gun linking Adelson or his lobbying group to the DOJ’s change on the Wire Act, it does detail interactions between the department and outside sources.
All documents and emails referenced below are from the FOIA request.
The FOI uncovered that as early as March of 2017, some at the DOJ were already looking at changing the department’s opinion on the Wire Act. According to guidance from the DOJ in 2011, the Wire Act applied only to sports betting and other forms of gambling that might cross state lines.
This correspondence took place more than a year and a half before the new OLC memo (written in 2018 and released in early 2019). It also roughly coincides with outside efforts to effect this change from a law firm (Cooper and Kirk) that works with the Coalition to Stop Internet Gambling. CSIG is believed to be bankrolled by Adelson.
Here’s an email from February of 2017, an introduction of a lawyer for a firm that works with CSIG, that likely led to a memo from Cooper and Kirk on the Wire Act.
That led to email exchanges in 2017 where CSIG lawyers were interacting with the DOJ in March and trying to set up a meeting. The email below is from Acting Chief of Staff and Counselor to the Assistant Attorney General James Mann:
More on the DOJ actively engaging with someone from Steptoe on the issue, which seems to imply that the DOJ was working actively with outside sources regarding the Wire Act opinion:
CSIG, as we already knew before the FOIA findings, submitted its Wire Act memo in April 2017:
The issue continued to have momentum in May:
Graham is Sen. Lindsey Graham, who has long advanced Adelson’s agenda on online gambling and other topics.
The issue made its way to Deputy Attorney General Rod Rosenstein a week later in a memo that was entirely redacted except for a footnote:
While not a smoking gun, it would be quite a coincidence if these lobbying efforts started and then the reaction started soon thereafter. The DOJ’s attempts to distance itself from those lobbying efforts in answering reporters’ questions after the Wire Act opinion was released in 2019:
Interestingly, the CSIG had a press release ready to go soon after the Wire Act opinion was released.
Then acting Attorney General Matthew Whitaker denied any influence in the crafting of the opinion.
Regardless, a lot of the heavy lifting on the early understanding of the Wire Act opinion happened well in advance of the opinion actually dropping, and a lot of people in the DOJ were thinking about it.
This is perhaps not shocking, as the DOJ is part of the executive branch.
Nevertheless, multiple people at the White House (“WH” below) were interested in what was going on around the Wire Act. This could just be standard operating procedure to loop in the White House on a change in the interpretation of the law, but there was a lot of White House interest.
Here is an email chain that came just as Online Poker Report broke the news that a Wire Act opinion was coming (the Twitter post referenced is a link to OPR‘s story in December):
More from a few days later:
More after the opinion’s release:
The FOIA request had hoped to turn up more evidence that Adelson was working with the DOJ and/or the White House to change the Wire Act interpretation. While it didn’t do that, it did demonstrate a lot of White House involvement that could potentially be explained by the normal course of business.
Adelson has been a large donor to President Donald Trump‘s campaign and has demonstrated that he has the president’s ear on other issues.
The FOIA request also turned up lots of correspondence with the DOJ about the 2011 and 2018 Wire Act opinions.
Notable, former US Sen. Ron Paul urged the DOJ to keep the opinion in place way back in June of 2017:
It’s not entirely clear why Paul was writing this at that time, but he had been an opponent of repeated congressional efforts to change the Wire Act to cover online gambling.
Former Nebraska Attorney General Jon Bruning also wrote the DOJ asking for the 2011 opinion to stand, according to the FOIA documents.
The FOIA also includes a number of other letters regarding the status of the opinion before and after it was issued.
A side note to all the documents in the request: Shortly after the US Supreme Court ended the federal ban on sports betting, the NCAA and the NFL had a meeting with the DOJ. This had been previously reported.
It’s not clear if the Wire Act would have come up at this meeting, but it is included in the FOIA documents:
A letter from the NCAA and NFL to the DOJ did mention the Wire Act in passing.