The legal landscape of the 2019 Wire Act opinion continues to develop. This time, the DOJ takes a little step back from its updated Wire Act stance published earlier this year.

Because the DoJ is starting to show its cards in defense of the lawsuit, to my law inept eyes, the Department’s hand looks weak. Yet, that doesn’t mean that hand won’t win.

Summary

To review, the DoJ’s Office of Legal Counsel (OLC) published a new opinion on the Wire Act in January (opinion was officially issued in November), saying that the Wire Act makes all interstate online gambling illegal. This reverses an OLC opinion from late 2011, which only banned internet sports betting.

Reports are – and this should come as absolutely no surprise to anyone – that Sheldon Adelson had a pull in the DoJ. Thus, he was a major catalyst for the OLC to review the Wire Act again.

The NHLC, rightfully worried that the new opinion could hurt its ability to sell lottery tickets online. This could also possibly even scuttle multi-state lotteries like Powerball and Mega Millions. In February, the NHLC filed a lawsuit against the DoJ and Attorney General William Barr. Saying, among other things, that the opinion “is not faithful to the text, structure, purpose, or legislative history of the Wire Act.”

The new interpretation “Would also render the statute unconstitutionally vague, as well as unconstitutional under the First Amendment.” And “also intrudes upon the sovereign interests of the State of New Hampshire without unmistakably clear language demonstrating that Congress intended such a result.”

In March, the DoJ filed a motion to dismiss. However now has filed yet another document. This one includes a memo from Deputy Attorney General Rod Rosenstein dated April 8th, 2019. In the memo, Rosenstein says that the DoJ did not make any judgment about state lotteries. This could be an obvious attempt to try and get the NHLC off its back.