Alabama Senator and Attorney General nominee Jeff Sessions said during his confirmation hearing Tuesday morning that he was “shocked” by a 2011 Justice Department decision to reinterpret the Wire Act and signaled that he would revisit the matter upon being confirmed.
Sessions was asked pointe blank about his views on the 1961 law – and its subsequent re-interpretation that opened the door for intrastate online gambling – by Republican senator Lindsey Graham of South Carolina.
“Apparently there is some justification or argument that can be made to support the Department of Justice’s  position, but I did oppose it when it happened and it seemed to me to be an unusual…,” Sessions said before being cut off by Graham, who proceeded to ask if Sessions intended to revisit the decision.
“I would revisit it and I will make a decision on it based on careful study,” Sessions responded. “I haven’t gone that far to give you an opinion today.”
The re-interpretation of the Wire Act, which had traditionally been the legal justification for the federal prohibition of online gambling, was issued in September 2011 and made public that December. The revised opinion held that the original law only applied to sports gambling and not to intrastate commercial gambling and lottery games operated over the internet.
The decision thus paved the way for individual states to legalize internet gambling and lotteries within their borders without running into trouble with the federal government. New Jersey, Nevada and Delaware are the only three states that have legalized commercial online wagering to date, though numerous others have explored the matter.
Online poker advocates expressed a cautious optimism that any revisitation of the ruling by Sessions would serve to validate the conclusion reached by the DOJ in 2011.
“Any change to the 2011 decision would be a radical departure from the precedent given to the independent and legally-based opinions generated by the Office of Legal Counsel,” said John Pappas of the Poker Players Alliance, which advocates for expanded online poker access.
“AG nominee Sessions says he will give it ‘careful study’ and I have no doubt that careful study of the decision will reaffirm what OLC, the courts and Congress already agree on: the Wire Act is limited to sports betting and states may regulate other form of internet gaming,” he continued.
But Sessions’ overall views toward internet gambling are something of a mixed a big, said David Williams, president of the Taxpayers Protection Alliance – a group that maintains the question of internet gambling should be left to the states and not the federal government.
Williams noted that Sessions supported efforts in the late 1990s to crack down on the internet gambling, but recently has punted at opportunities to get behind RAWA. “There was an opportunity to jump on that bandwagon and he didn’t,” he said.
Others didn’t see any such ambiguity.
“It sounds like his mind is made up,” said Michelle Minton of the Competitive Enterprise Institute. “He says he opposed the original memo, and then he said he needed to study the issue thoroughly before making a decision. But that he already opposed something – he didn’t study it – makes me feel like his mind is already made up.”
During a tense confirmation hearing that touched on numerous high-profile issues such as immigration, waterboarding and criminal justice reform – and was interrupted numerous times by liberal anti-Trump protestors, the fact that the Wire Act came up at all was peculiar.
“I was completely shocked. 100 percent,” said. “It was surprising that this came up considering there are bigger fish to fry at the DOJ.”
Also of note is that the issue was raised by Graham, who has been a an ardent supporter of Restoring America’s Wire Act – legislation that would reverse the Justice Department decision and reinstate the nationwide ban on internet gambling. Graham also has close ties to Sheldon Adelson, the chairman of Las Vegas Sands who has staunchly opposed the DOJ ruling and has fought to overturn the decision through RAWA.
“In his opening statement, Sessions said his Department of Justice would not “cower” to “special interests.” However, if his Department does seek to change the Wire Act interpretation it would be a stark example of how a powerful political donor can influence legal policy in the United States,” said Pappas of the PPA.
The American Gaming Association, which takes a neutral stance on the issue of online gaming, said in a statement that it is monitoring the development.
“The AGA is following this issue and all others that would directly impact the casino gaming industry,” it said.
The group also sent a letter to the Senate Judiciary Committee leadership urging them to bear in mind the important role the Department of Justice plays in combatting illegal gambling operations that prey on consumers, deprive governments of vital revenue and fund large criminal enterprises.