First Amendment Clinic Sues DOJ Again for Non-Prosecution Agreements — and the Master List

Librarian Jon Ashley Is Plaintiff in Freedom of Information Act Litigation
Members of the First Amendment Clinic

Members of the First Amendment Clinic stand with their client, librarian Jon Ashley, with glasses. Photo by Julia Davis

November 16, 2021

The First Amendment Clinic at the University of Virginia School of Law has sued the Department of Justice again, asking for non-prosecution agreements that haven’t been delivered under federal Freedom of Information Act requests. And this time, the clinic is also seeking a list of every such deal federal prosecutors have struck with businesses.

The clinic thinks there could be, at the very least, dozens of the agreements, some of which they know about because of press releases from prosecutors’ offices or other public sources, but they don’t know exactly how many. There potentially could be hundreds.

Government documents that are mentioned but not verifiable are often a red flag, clinic members said.

“Any time that happens it piques a First Amendment Clinic’s interest,” said Sarah Guinee, a second-year law student taking the clinic this year.

Students in the clinic work as a team in conducting legal research, meeting with clients and co-counsel, and drafting legal memoranda and briefs. Clinic assignments may involve both appellate-level and trial-level litigation.

As in the past, UVA Law librarian Jon Ashley is serving as the plaintiff as he seeks to add to the Corporate Prosecution Registry he manages, a service of the UVA Law Legal Data Lab that is free and available to the public. Attorneys with the Reporters Committee for Freedom of the Press teach the course and supervise the legal efforts. This case has the collaborative support of attorneys at the government accountability group Public Citizen.

Ian C. Kalish, one of the course’s instructors, said the process for a response to the lawsuit could be protracted, but he thinks the decision on the list should be a relatively simple one to make.

“It will be interesting to see what stance they take regarding the list because it’s not really the type of request that would generate a lot of document review and judgment calls about particular documents to be withheld,” Kalish said.

The request should at least answer the question of whether a list is being maintained, in accordance with a 2009 Government Accountability Office recommendation to the DOJ to do so.

Kalish co-instructs the course with Gabe Rottman and Lin Weeks. They and Ashley recently said in a joint press statement for Reuters and other news outlets that it’s “an open secret that corporations and the DOJ are entering into more of these agreements than are publicly disclosed and this section of our FOIA request is an attempt to find out how often and with whom these agreements are being struck.”

They said the implications, in part, are for providing transparency into the application of justice. Are the terms of these agreements fair, and are they effective in deterring corporate misconduct?

Third-year student Robert Frey said he has already learned a lot this fall not just from the instructors, but through the collaboration with Public Citizen, which helped in the drafting process by “making sure our allegations are as straightforward and factually supportable as possible,” he said.

Gray Moeller, a third-year student who was in last year’s clinic, contributed heavily to the drafting of the complaint. He was supervised by Jennifer Nelson ’11, a senior staff attorney at the Reporters Committee who co-instructed the clinic at the time.

The broader document-gathering effort began about a decade ago when then-UVA Law professor Brandon Garrett, who studies white-collar crime, asked Ashley to look into finding a handful of deferred and non-prosecution agreements. These deals allow corporations to avoid conviction if they follow a plan of financial restitution and corrective action.

The research was the start of Ashley’s first lawsuit for one non-prosecution agreement — a test case. When that document was turned over by the government in 2014, the clinic sued for more. The New York Times profiled the clinic’s work, and the clinic prevailed again in 2015.

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