Theoretically three Republican votes away from becoming the new U.S. Attorney General, Loretta Lynch has been very busy these days. One would-be supporter, Senator Lindsey Graham (R-S.C.), posed an interesting question, asking the AG-nominee if she would consider reversing the 2011 clarification of the Wire Act by the Department of Justice’s Office of Legal Counsel (OLC)—the same clarification gave state’s the right to regulate online poker and casino gambling.
Sen. Graham is no stranger to the US online gambling debate, having been personally responsible for introducing the Restoration of America’s Wire Act (RAWA) in 2014. Ostensibly, the Senator was feeling out Lynch’s opinion towards RAWA and the OLC’s current interpretation of the Wire Act. If her response was one of support towards Graham’s anti-online gambling cause, he would surely toss her one of the three Republican votes she still needs to claim the office. If not, well…
As it turns out, Loretta Lynch, who is currently serving as the US Attorney General for the Eastern District of New York, did not respond in Graham’s favor.
During her Senate confirmation hearing on January 28, Sen. Graham posed several questions regarding the Wire Act, which currently prohibits only betting on sports and contests over the internet. She replied that she was familiar with the current interpretation, but not enough to “really analyze it” at this time. Graham happily offered to provide her office with additional information, as well as some follow up questions for her to respond to.
Lynch submitted a written response to all questions on Feb 9. To Sen. Graham’s first question relating to online gambling, he asked if she agreed with the OLC that the ire Act only relates to “sporting events or contests”, rather than the original opinion that “all forms of gambling” were included.
Lynch Responds to Questioning from Sen. Graham
Lynch responded that, if confirmed as U.S. AG, she would review the topic further, but that’s where the buck stopped for Sen. Graham. “It is my understanding, however, that OLC opinions are rarely reconsidered,” wrote Lynch. “If confirmed, I will read the opinion and 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.”
Sen. Graham’s second question was whether Lynch believes “the law is clear that the Wire Act extends only to sports bets or wagers”?
She reiterated the OLC’s current opinion of the Wire Act, but did not answer the question one way or another. Instead, she said that, “if confirmed I will review the opinion and determine whether I find OLC’s interpretation of the statute to be reasonable.”
In his next question, Sen. Graham looked to be pulling the rug out from under the AG nominee by pointing out what he thought was a fatal flaw in the 2013 case, U.S. v. Two Million Eighty Thousand Dollars et.al. He issued a two-part question in regards to that case.
“In 2013, your office filed a civil forfeiture action which included as a predicate offense, the operation of gambling websites offering “casino games and sports betting” – websites your office claimed violate “multiple federal criminal statutes, including … [the Wire Act]…
“a. 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?
“b. On the other hand, if the law is not clear, was it appropriate for DOJ to overturn the law without consulting Congress, or seeking guidance from the courts?”
Lynch cooled Sen. Graham’s heels with this reply:
“…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.”
Another question from Graham asked whether the U.S. AG nominee thought it “appropriate” for the OLC to reinterpret the Wire Act “without the involvement of Congress, the public, law enforcement, and state and local officials?”
Lynch replied that the duties of the OLC are “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.”
Finally, Sen. Graham concluded his questioning with one last request. “If confirmed, would you suspend or revoke the OLC opinion to give you a chance to review it, and give you and Congress time to work together to clarify the law?”
In what reads like long-winded but decisive ‘no’, Lynch responded that she would review the OLC’s opinion of the Wire Act. However, “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…”
The full script of Loretta Lynch’s Confirmation Q&A can be read here. (Sen. Graham’s “Online Gambling” questions are found on pages 3 & 4.)