A special prosecutor announced yesterday that although Former Attorney General Alberto Gonzales made “inaccurate and misleading” statements regarding the firing of nine U.S. attorneys during his tenure, he will not face criminal charges.

Nora Dannehy, the special prosecutor charged with the investigation into the alleged politically-motivated firings of the federal prosecutors, ended her probe by recommending that Gonzales and his former chief of staff Kyle Sampson not by charged criminally.

“Based on a consideration of all the evidence and the legal standards, Ms. Dannehy concluded that there was insufficient evidence to establish that persons knowingly made material false statements to [the Office of the Inspector General, the Office of Professional Responsibility] or Congress or corruptly endeavored to obstruct justice,” according to a letter sent by the Justice Department to Congress yesterday [care of the BLT Blog].

That is not to say that all was fine at Main Justice during that time, the letter stated. The Department pointed out that Dannehy was only tasked to find out whether there was criminal wrongdoing, not just ethical violations.

“The Attorney General remains deeply dismayed by the OIG/OPR findings related to politicization of the Department’s actions, and has taken steps to ensure those mistakes will not be repeated,” the letter states.

CNN is reporting that Obama administration sources have confirmed that the Justice Department will fill a lawsuit today over Arizona’s controversial immigration law.

The suit will allege that the law is preempted by federal immigration law.

The Washington Post reports that some legal experts believe that the argument of preemption - a doctrine that has been well-established and upheld by the Supreme Court - should very well persuade the federal district court judge that the state law, which allows police to question anyone if they have a “reasonable suspicion” that the person is an illegal immigrant, is a violation of the Constitution’s supremacy clause. The law is scheduled to go into effect later this month.

Secretary of State Hillary Rodham Clinton first indicated last month that a lawsuit would be forthcoming, prompting Gov. Jan Brewer, who signed the measure into law in April, to chide federal officials for telling the news media about its plans to sue before telling Arizona state officials.

Elena Kagan is no longer acting as the government’s top attorney.

In a letter sent yesterday to U.S. Supreme Court Clerk William Suter, the Supreme Court nominee informed the Court that she has stepped aside as solicitor general during her confirmation process.

Deputy Solicitor General Neal K. Katyal took over as acting solicitor general, Kagan wrote. “I ask that you please address future correspondence from the Court to him, and that the Court’s docket sheets reflect his designation as Counsel of Record,” the letter states, according to the Associated Press.

Katyal assumed the new role May 10 - the day President Barack Obama announced Kagan’s nomination to the Court. He has formerly served as a national security adviser in the Justice Department, was co-counsel for former Vice President Al Gore in the 2000 election case Bush v. Gore, and was previously a clerk for Justice Stephen Breyer. He has argued numerous cases before the court.

With all the hubbub over the nomination of Elena Kagan to the Supreme Court, most people forgot that - if confirmed - Kagan’s new job will leave the Obama administration with yet another vacancy: solicitor general.

So who will get that nod?

Folks at the White House say they haven’t even thought about that yet. But according to an Atlantic piece (via the WSJ’s Law Blog), there are already clues that Don Verrilli, an associate White House counsel, could get that nod.

The former associate deputy attorney general recent moved from Main Justice to the White House to take his current position.

In any other universe that would be a demotion for someone with Verrilli’s resume, the Atlantic’s Marc Ambinder notes. But here, it seems like the wheels were being put in motion to prep a successor to the SG:

Verrilli knew he was paying a transient occupancy tax: the White House needed a better relationship with the Justice Department, and Verrillii, a low-key, get-along guy, was just the ticket. Verrilli spent years at Jenner and Block in Washington, representing a diverse array of clients. Copyright law is one of his specialities; he’s known as the “guy who killed Grokster” on behalf of Viacom. Verrillii has argued frequently before the Supreme Court.

The White House wants the names of prisoners who unsuccessfully sought a pardon from President Bush to be kept under wraps.

In a brief filed in Washington federal appellate court Friday, the administration urged the court to deny an attempt by a Washington Post reporter to obtain the names of those denied clemency by Bush.

The move, Politico reports, is likely designed to prevent the names of those seeking clemency from Obama from being disclosed as well. So far, Obama has not granted any requests for pardons or clemency.

“Pardon and commutation applicants have a substantial privacy interest in nondisclosure of the fact that they have unsuccessfully sought clemency,” the Justice Department’s brief reads. “The substantial privacy interest of the clemency applicants outweighs the negligible public interest in disclosure of their names.”

Making the applicants’ names public would, the brief argued, could delay their rehabilitation and even put them at risk.

“Disclosure of the fact that individual offenders have unsuccessfully sought pardons or commutations unquestionably will re-stigmatize the applicants and draw renewed attention to their offenses, thereby harming their prospects for successful rehabilitation and reintegration into the community, as well as possibly subjecting them to the risk of retaliation,” the brief said.

Yesterday Attorney General Eric Holder told House lawmakers that the decision of where and how to prosecute Khalid Sheik Mohammed, the accused mastermind of the Sept. 11 attacks, is “weeks away.”

Holder’s decision to try Mohammed in a civilian criminal court in New York has faced increased criticism, with Republican lawmakers and some Democrats arguing that terror suspects should not receive the same rights afforded to those tried in civilian courtrooms. Earlier this month White House advisers reportedly recommended to President Barack Obama that Mohammed be tried before a military tribunal.

But Holder defended his decision to push for a civilian court trial yesterday.

“They are tested … they are secure, we have tried these cases in a safe manner,” Holder told a House Appropriations subcommittee according to Reuters. “Our allies around the world support us in bringing these cases in (criminal) courts.”

In answering a lawmaker’s question of whether Osama bin Laden would be Mirandized and tried in a civilian court, Holder said that would never happen because bin Laden would likely be killed. “We would be reading Miranda rights to the corpse of Osama bin Laden,” Holder said.

White House advisers will recommend that the Obama administration prosecute the accused mastermind of the Sept. 11 attacks before a military tribunal, according to the Washington Post.

Such a move would reverse the decision by Attorney General Eric Holder to hold the trial of Khalid Sheik Mohammed and four alleged co-conspirators in federal court. That decision was criticized by members of Congress from both parties who argued that a military tribunal is an appropriate forum for those accused of launching an attack on the country. But supporters of Holder’s decision say holding the trial in a civilian court, which would afford the accused greater constitutional protections, would demonstrate the country’s commitment to the rule of law.

But according to the Post, White House officials felt hamstrung by members of Congress. Advisers feel the reversal is the only way to secure support and funding from Congress to close the detention center at Guantánamo Bay. The administration has already missed its one-year deadline for closing the facility. More here from the Washington Post.

In other legal news:

Gitmo push back: The American Bar Association is pushing back against lawmakers seeking the names of Justice Department attorneys representing Guantánamo Bay detainees. The lawyers have been dubbed “the Al-Qaeda Seven.” (ABA Journal)

License to marry: On Wednesday, the District of Columbia began issuing marriage licenses to same-sex couples, after U.S. Supreme Court Chief Justice John G. Roberts, Jr. refused to stay a new law authorizing them. (Lawyers USA)

Greatly exaggerated: Did you hear about the rumor that Chief Justice John G. Roberts is considering retirement? Yeah, he didn’t either. (AP)

Deal breaker: A dozen House of Representatives Democrats opposed to abortion are willing to kill President Barack Obama’s health care reform plan unless it satisfies their demand for language barring the procedure, Representative Bart Stupak said on Thursday. (Reuters)

The new federal hate crimes law is being challenged by a group of pastors and a conservative organization, who claim the law violates several provisions of the Constitution.

Main Justice reports that lawyers from the Thomas More Law Center filed the lawsuit on behalf of Pastors Levon Yuille, Rene Ouellette and James Combs as well as Gary Glenn, the president of the American Family Association of Michigan.

The complaint alleges that the law, passed to stop bias-motivated crimes against gay, lesbian bisexual and transgendered individuals, violates the First, Fifth and Tenth Amendments, as well as the Commerce Clause. It lists Attorney General Eric Holder as the defendant, and is the first constitutional challenge to the new hate crimes law’s provisions.

“[T]he Hate Crimes Act .. promotes [an] Orwellian concept: thought crimes,” the complaint states. “[It] criminalizes certain ideas, beliefs, and opinions, and the involvement of such ideas, beliefs, and opinions in a crime will make the crime deserving of federal prosecution. Consequently, government officials, including Defendant, are claiming the power to decide which thoughts are criminal under federal law and which are not. [The] Hate Crimes Act is intended to send a government endorsed message to those persons who oppose the homosexual agenda on the basis of deeply held religious beliefs, such as Plaintiffs, that their religious beliefs are disfavored and the equivalent of racist beliefs.”

A Justice Department spokesman told Main Justice that the government would “defend these vital protections in court.”

HT: ABA Law Journal

The era of discord between the branches of government continues. Last week President Barack Obama took open aim at the U.S. Supreme Court for its campaign finance ruling - and Justice Samuel Alito returned fire with a grimace, a head shake and a “not true.” Now members of the executive and legislative branches spent Sunday morning taking aim at each other.

Members of Senate blasted the Justice Department over decisions the department has made in two high-profile terrorism trials.

Sen. Lamar Alexander

Sen. Lamar Alexander took to the Sunday morning talk show airwaves to call for the resignation of Attorney General Eric Holder for allowing suspected underwear bomber Umar Farouk Abdulmutallab to be given a Miranda warning.

Abdulmutallab after speaking for almost an hour, was sedated to receive medical treatment. When he awoke, he no longer wanted to talk, and was then Mirandized. The Los Angeles Times reports that a number of other agencies - the FBI, State Department and CIA - authorized the Miranda warning.

Alexander said Holder needs to explain himself to lawmakers/

“(Holder’s) doing a better job of interrogating CIA employees than he is of interrogating terrorists, and he’s not making a distinction between enemy combatants and terrorists flying into Detroit trying to blow up planes and American citizens who are committing a crime,” Alexander said on “Fox News Sunday,” reports The Hill. “He needs to go to Congress and say I made that decision, and here’s why. And based on that perhaps he should step down.”

White House advisor Davd Axelrod

Meanwhile, the Justice Department is still facing head from Republicans on the Hill for the decision to hold the Sept. 11 terror attack trial in a lower Manhattan civilian court - and now the Obama administration is considering changing the venue after New York City Mayor Michael Bloomberg expressed concern about the costs and security issues of holding Khalid Sheikh Mohammed’s trial in lower Manhattan. Bloomberg had initially supported the decision.

No decision has been made on where the trial may be held, but White House officials shot back at GOP lawmakers who criticized the administration for not trying the case in a military tribunal. David Axelrod, the senior adviser to President Obama, pointed out on “Meet the Press” that suspects including “shoe bomber” Richard Reid were tried in civilian courts under President George W. Bush.

“Now we have a Democratic president and suddenly we hear these protests,” Axelrod said. “What has changed between now and then that would cause people to reverse positions?”

The Justice Department snapped the ball Friday, but lawmakers are still sounding off over the Obama administration’s decision to bring suspected Sept. 11 terrorists to trial in a New York civilian federal court. While some GOP officials blasted the move, saying it would create logistical nightmares and give terrorists a platform to spew propaganda, Democrats including Senate Judiciary Committee Patrick Leahy defended the move. More from The Washington Post.

President Obama is in Asia, where his busy agenda includes a chat with Chinese officials about defective Chinese drywall, which has led to a host of headaches and lawsuits over claims that the imported product caused damage and noxious fumes in thousands of U.S. homes.

And the U.S. Supreme Court could add some cases to its docket today. Oral arguments resume Nov. 30.

Meanwhile,

Judiciary slow to change: President Obama has nominated far fewer federal judges than President Bush did in his first 10 months in office, making the prospect of swift change in the federal judiciary seem dimmer by the day. (The New York Times)

Ricci firefighters seek promotions:  seek The New Haven firefighters who sued the city for discrimination in a case that went all the way to the Supreme Court filed a draft order in federal court Friday asking for most of them to be promoted. (Yale Daily News)

Porteous files suit: A Louisiana federal judge sued a House impeachment task force Friday, contending the panel is making the case for his ouster by using testimony he gave under a promise of immunity. (AP; More, including complaint and other filings, here from How Appealing)

More snags ahead on health care reform: Immigration looms as sticking point in health-care legislation. (Washington Post)

From Congress to prison: Former Rep. William Jefferson was to 13 years in federal prison for public corruption. (The BLT)