Don Verrilli

Litigator Career

Over his long career at Jenner & Block, Verrilli worked mostly on telecommunications, copyright, and speech and media-related law, though he also frequently took pro-bono cases, with a particular interest in death-row cases. He has extensive experience in appellate work, and has argued before the U.S. Supreme Court ten times."Donald B. Verrilli, Jr." The Oyez Project.

At the time he was tapped to join the Justice Department in 2009, he was a partner at the prestigious D.C. firm, chair of the firm's telecommunications practice, and co-chair of its appellate and Supreme Court practice. Verrilli also had an academic career on the side. He served as an adjunct professor of constitutional law at the Georgetown University Law Center, where he taught First Amendment law for 14 years."Donald B. Verrilli, Jr." The Oyez Project.

Verrilli was recognized twice for his pro-bono work: in 2004, Verrilli received The Arthur von Briesen Award from the National Legal Aid and Defender Association; and in 2006, the Southern Center for Human Rights honored him with The Equal Justice Award."Donald B. Verrilli, Jr." The Oyez Project.

Political Appointments

Verrilli received his first political appointment in 1994, when he served as special counsel to President Bill Clinton, assisting in the confirmation fight for U.S. Supreme Court Justice Stephen Breyer.Donald B. Verrilli, Jr. biography, Advisory Committee to the Congressional Internet Caucus, Aug. 19, 2005.

In 2009, he joined the Obama administration's DOJ as associate deputy attorney general. He sat through Senate confirmation hearings alongside Elena Kagan. At the time, some in the legal community thought Verrilli was overqualified for the associate slot, but the idea was that he would make an excellent solicitor general should Kagan be nominated for the Supreme Court.Palazzolo, Joe, “Yeah, But Who Would Succeed Kagan as Solicitor General?” Main Justice, May 10, 2010. 

One of his major contributions during Verrilli's year at Justice was to develop new restrictions on the use of the state secrets privilege in lawsuits against the federal government, a flashpoint issue during the George W. Bush administration.

In February 2010, Verrilli left Justice to become associate White House counsel instead, reportedly in an effort to improve relations between the White House and the Justice Department.Ambinder, Marc, “The Next Solicitor General?” The Atlantic Politics, May 10 2010.

Copyright Law

Verrilli's pre-Obama administration work is perhaps best known for several high-profile cases involving intellectual- property rights. He represented content producers in the entertainment industry suing individuals and tech companies for copyright infringement, which earned him a negative reputation in tech circles.Diaz, Jesus, “RIAA and BSA's Favorite Lawyers Taking Top Department of Justice Posts” Gizmodo, Feb. 5, 2009. Masnick, Mike, “Justice Department Increasingly Looking Like The RIAA/MPAA's Legal Team” Tech Dirt, Feb 5, 2009. Supporters of file-sharing have objected to the prevalence of anti-sharing litigators in the Obama administration, particularly since Obama's Justice Department supported the Recording Industry Association of America (RIAA) in amicus briefs on a recent federal case.Kravets, David, “Obama administration sides with RIAA, supports $150,000 fine per music track” Wired News, March 23, 2009.

Verrilli famously brought down file-sharing service Grokster, winning a landmark Supreme Court victory for copyright holders. In 2005, the court ruled unanimously in MGM Studios v. Grokster that if distributors of file-sharing services promote the device's "use to infringe copyright," they are "liable for the resulting acts of infringement by third parties," and can be sued by content providers. Verrilli said the decision followed "common sense." "It can't be written under this nation's laws that you can build a business on the basis of taking somebody else's property," he said.Crawford, Krysten, “Hollywood wins Internet piracy battle,” CNN Money, June 27, 2005.

In the 2007 case Capitol v. Thomas, Verrilli helped represent the RIAA against Minnesota woman Jammie Thomas who was accused of illicit file sharing via the peer-to-peer network Kazaa.Sandoval, Greg, “RIAA wins key victory; accused file sharer must pay $220,000” CNET News, Oct. 4, 2007. (Thomas lost, but she and her lawyers are still appealing the case, which is pending in federal court.)Sandoval, Greg, “Jammie Thomas rejects RIAA's $25,000 settlement offer” CNET News, Jan. 27, 2010.

Verrilli also represented Viacom in a 2007 suit filed against Google and its YouTube subsidiary for alleged piracy of Comedy Central, MTV and other Viacom content. He argued that YouTube garners additional ad revenue from popular copyrighted clips and does nothing to prevent them from being posted.“Viacom, Google Tussle Over YouTube Content,” National Public Radio, Morning Edition, March 23, 2007. Viacom is currently seeking partial summary judgment against YouTube in a New York federal court.Johnson, Ted, “Viacom gains support in copyright suit,” Variety, May 12, 2010.

State Secrets Privilege

Verrilli's main achievement while serving as associate deputy attorney general in the Obama administration was crafting new rules governing the use of the state secrets privilege to block lawsuits against the federal government. The rules went into effect Oct. 1, 2009.

The privilege allows the federal government to dismiss lawsuits that might jeapordize national security; invoking it to squash suits regarding unwarranted wiretapping and torture became a common practice in the George W. Bush administration, sparking outrage from civil libertarians who saw it as another example of secrecy and abuse of executive power.Savage, Charlie, “Justice Dept. to Limit Use of State Secrets Privilege,” New York Times, Sept. 22, 2009.

Under the new guidelines engineered by Verrilli, Attorney General Eric Holder and other high-level Justice Department officials must approve any requests by military or intelligence agencies to invoke the state secrets privilege to withhold classified evidence or to request the dismissal of a case. The agency in question has to present evidence to a review committee of senior Justice officials. The policy instructs Justice officials to avoid dismissing entire cases, and mandates the rejection of requests where the motivation is to “conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment.”Savage, Charlie, “Justice Dept. to Limit Use of State Secrets Privilege,” New York Times, Sept. 22, 2009.

In February 2009, an eight-person DOJ task force - which Verrilli was a part of - began reviewing a dozen pending cases in which state secrets arguments were made. He said invoking the privilege can hurt public confidence, and erode the value of the justice system if cases are not allowed to procede. “Those costs are real and they’re serious and we acknowledge that they exist here, and the question for us is what can we do to address that set of problems,” he said.Reilly, Ryan J. “DOJ Official: Many Factors To Weigh In State Secrets Policy,” Main Justice, Nov. 18, 2009. 

Defendants' Rights

Verrilli argued two important pro-bono cases before the U.S. Supreme Court involving the rights of defendants.

In Wiggins v. Smith (2003), he represented Kevin Wiggins, a man convicted of murder and sentenced to death, claiming that Wiggins received ineffective counsel because his attorney failed to tell jurors about his troubled childhood, resulting in a harsher sentence. The court ruled 7-2 in Wiggins' favor, agreeing that the performance of Wiggins' attorneys and their failure to bring up biographical information violated his Sixth Amendment right to effective counsel. The decision established an expanded definition of "effective counsel."Wiggins v. Smith, The Oyez Project.

In 2009, Verrilli defended convicted murderer Jesse Jay Montejo who claimed that police interrogated him without his lawyer after an attorney had been appointed to him, pressuring him to write a letter of apology to the victim's wife that was used as evidence.

Verrilli argued that Montejo's Sixth Amendment right to counsel had been violated, that a defendant should not have to take steps to "accept" counsel as the Louisiana Supreme Court argued.Biskupic, Joan, “Supreme Court hears death row appeal involving right to lawyer” USA Today, Jan. 13, 2009. In a narrow 5-4 majority opinion that went well outside the scope of the case, the court ruled against Montejo and decided that the appointment of counsel alone could not prevent police from continuing questioning, expressly overturning Michigan v. Jackson (1986) that established this rule. The court argued that standards established by other cases were sufficient to protect a defendant's Sixth Amendment rights.Montejo v. Louisiana, The Oyez Project.

Telecommunications

Verrilli argued several landmark telecommunications cases, including Verizon Communications v. FCC (2002), the most important case arising out of the Telecommunications Act of 1996. The Federal Communucations Commission, represented by Verrilli, won on a 6-2 decision (one justice abstained), which cemented the ability of the FCC to determine certain regulations under the act.Verizon Communications v. FCC, The Oyez Project.

In FCC v. Next Wave Personal Communications, on the other hand, Verrilli successfully argued against the federal agency. The court ruled that the FCC must return to NextWave billions of dollars worth of wireless phone-spectrum licenses that the FCC had sought to repossess while the company was in bankruptcy. He was also counsel in Reno v. American Civil Liberties Union, the Supreme Court case establishing the First Amendment rights of Internet speakers."Donald B. Verrilli, Jr." The Oyez Project.

The Death Penalty

Verrilli reportedly spent about 10 percent of his time as a practicing attorney working pro-bono cases, mainly for inmates sitting on death row such as Wiggins and Montejo. He said he took on these cases "because of a very strong belief that people facing execution should have the best possible representation and that very often—too often—they get shortchanged in the representation they get."Morris, Regan, “Law Job Star: Donald B. Verrilli, Partner, Jenner & Block, Washington, DC” Law Crossing.

In a 2008 Supreme Court case, Verrilli challenged the constitutionality of a four-drug lethal injection process to carry out death sentences in Kentucky.

Representing two death row inmates, Verrilli argued that there was a significant risk of the procedure being administered incorrectly, which would cause extreme suffering and violate the accused's 8th Amendment rights.

Though the court ruled 7-2 against the inmates and declared the procedure constitutional, Baze and Bowling v. Rees halted executions nationwide for several months as states waited for the court to hand down a decision. It was one of the most closely watched cases that year.Baze and Bowling v. Rees, The Oyez Project.Stout, David, “Justices Hear Arguments in Lethal Injection Case,” New York Times, Jan. 7, 2008.