Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.
Defending some of the Trump administration’s most controversial policies in court, before frequently skeptical judges, can be difficult. But Abhishek “Abhi” Kambli, who recently stepped down as deputy associate attorney general, took on this challenge—repeatedly. During 15 months at the U.S. Department of Justice, he personally argued more than 20 consequential cases, involving subjects including the Biglaw executive orders, the Alien Enemies Act, and military service by transgender individuals.
Earlier this month, Kambli joined Holtzman Vogel—a boutique known for its political-law practice, state attorneys general work, and government and congressional investigations expertise, as well as its high-level connections in Republican and conservative circles. Having completed his government service, Abhi is freer than before to speak his mind—and agreed to sit down with me to talk about his time in the administration.
Thanks to Abhi for a thoughtful conversation, which included fielding difficult questions, and congrats to him on his latest move.
Show Notes:
Abhishek Kambli bio, Holtzman Vogel
Abhi Kambli, X (fka Twitter)
Ex-DOJ Lawyer Who Defended Trump’s Big Law Attacks Lands at Firm, by Tatyana Monnay for Bloomberg Law
DOJ’s Kambli Entrusted to Pull Off Win in Trump-Big Law Fight, by Justin Henry for Bloomberg Law
Sponsored by:
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Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any transcription errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “view entire message” in your email app.
David Lat: Thanks so much for joining me, Abhi.
Abhishek Kambli: Thanks for having me. I’m looking forward to this chat.
DL: Tell us about your background and upbringing. Where did you grow up?
AK: I grew up in Norwalk, Connecticut, but was originally born in Mumbai, India. I didn’t come from very much. Going back in my family history, my grandmother on my father’s side raised nine kids on her own—my dad was one of them—and she was illiterate on top of that. My dad moved to America right when I was one year old, and I was with my mom in India until I was three. Then I came over and grew up in Norwalk, Connecticut. My dad worked at a gas station; my mom worked in administration at a bank. I went to college at the University of the Arts and then did a stint in the entertainment industry for three years, but didn't like it. So I took my dad’s advice and went to law school: I went to Notre Dame, graduated, and started my legal career right after that.
DL: I want to double back a little bit, because I was actually intrigued by the arts and entertainment stuff in your background. You mentioned that you worked in the entertainment industry before going to law school. What was the nature of that? Were you working at a production company? Were you working at an agency?
AK: It’s a long story, but I got an internship with the Academy of Television Arts and Sciences, which gives out the Emmy Awards, so that was what initially got me out there. And then I worked at a talent literary agency for a while—and all the stuff that you hear about the nightmares about working in the entertainment industry, it’s all true. So I ended up not liking it and thinking, “Maybe I should do something else with my life.”
DL: You mentioned you followed your father’s advice and went to law school. When you went to Notre Dame Law, what kind of career did you envision for yourself?
AK: I knew immediately that I wanted to serve in the military. I knew that going into the JAG Corps was something that I wanted to do. At that time, I didn’t know about clerking and all that, and I definitely didn’t know that 10 years later people would still care about whether you clerked or not, since that’s just the way the legal industry works. But I ended up not even thinking about all that and just went straight into the military after law school. It was one of the best experiences of my life. It was an opportunity to serve both as a military officer and as a lawyer. I did that for about six years, and I’ve liked it enough that I still do it part-time in the reserves.
DL: Thank you for your service. Which branch were you with?
AK: The Air Force.
DL: Oh, cool. You did both prosecution and defense side work, correct?
AK: Yeah. The way the military works for everybody, including lawyers, is that they rotate assignments every two to three years. They prefer people be generalists and focus on seeing different things within the military. So I did assignments as both a prosecution and a defense attorney.
DL: Did you have a preference in terms of one side or the other?
AK: They’re both different, and each has its pros and cons. But in the military, the types of defendants are not the same as people on the outside. They’re typically people who made the decision to serve, and they’re very respectful compared to what I’ve heard of criminal defendants on the outside.
It’s a much different system altogether. The military court-martial system was a lot of fun. There are some serious offenses, but not everything is necessarily going to be a murder case or something like that. It’s oftentimes someone who made a bad decision, did something they shouldn’t have done, and you’re trying to get the best result for them under the circumstances and finding creative ways to do that. So if I had to choose, the defense side was probably a little bit more fun.
DL: And then after your service, you became a prosecutor?
AK: I got offers to be both an assistant federal defender as well as an assistant U.S. attorney. I talked to a lot of people who did each when making a decision, and becoming an AUSA just seemed like the path that left the most things open. Given how the legal industry works, and the fact that AUSAs are known and people understand that path, it just made more sense as a tiebreaker to go that route.
DL: And you served as an AUSA in Indiana?
AK: Yep, for five years.
DL: Which district or city were you based out of?
AK: It was the Southern District of Indiana, and I was at the Indianapolis office.
DL: And you handled a mix of cases there, correct?
AK: I was primarily doing drug and violent crimes. So the Supreme Court case that came out today, about whether someone who uses marijuana recreationally can be prosecuted for owning a firearm—I wasn’t prosecuting a lot of those cases, but I did a couple of them, so it was interesting to see where the winds have blown on that particular issue.
DL: Yes, that’s right: we are recording this shortly after the Supreme Court issued its decision in United States v. Hemani, involving gun possession by a user of marijuana—but I believe they have left open questions regarding, for example, someone who is a true addict. We’ll see. There’s a lot of Second Amendment litigation out there.
AK: There used to be a time when everyone just assumed, “Yeah, that gun regulation makes sense.” But to get to the point where it’s 9-0 on the Supreme Court the other way is definitely a sign of how times have changed.
DL: Speaking of constitutional litigation, I believe in your next job, you actually did touch more upon constitutional concerns.
AK: Yeah. So going into five years as an assistant U.S. attorney, it was a lot of the same types of cases over and over, and I wanted to do more cause-type litigation, things that I felt moved the ball forward for the stuff that I believed in. And there just happened to be an opening to lead the special litigation division at the Kansas Attorney General’s Office. So I applied for that, interviewed with Kansas AG Kris Kobach and his staff, and everything was a perfect fit. So we packed our bags and moved from Indiana to Kansas.
DL: Where in Kansas were you?
AK: The capital is Topeka, so that’s where the office was, and we lived in Lawrence, where the campus of the University of Kansas is located.
DL: The issue of state AGs suing federal presidential administrations is something we’ve seen on both sides. I recently had on the podcast California Attorney General Rob Bonta, whose office has sued the new Trump administration something like 70 times. When you worked for Kris Kobach, you also were involved in a number of prominent—and successful—lawsuits against the Biden administration. But let me ask you what I asked Rob: is AG litigation of this nature a positive thing? Aren’t some of these issues better hashed out through the political process?
AK: It’s a good question. When I was litigating these cases, one of the biggest issues was state standing. And now that I have some distance from that world, I do think that the Supreme Court is getting very skeptical of state standing and what that looks like, especially when the state’s not the directly injured party. In some cases it may make sense, like in student-loan forgiveness, where there are going to be direct pocketbook injuries to states; those cases are always going to have standing. But when it’s states acting as substitutes for private citizens who can otherwise bring lawsuits, I think that, especially in a post-Trump v. CASA world, the Court will look at that very skeptically.
DL: It sounds to me that if a state can show it has standing, you’re okay with that litigation, whether it’s a red state or a blue state.
AK: Yeah—if someone has standing and they can make the arguments on the merits for why something’s illegal, they should obviously be able to bring that to court and exhaust whatever legal processes they have. We definitely did that in Kansas, and it was for some very consequential things that would’ve harmed the state. So it’s a good thing to have that as an option, since state AGs have a special authority: they can bring a lawsuit on behalf of the state, so they’re a unique litigant that not everyone else can be.
DL: You and Rob Bonta basically come down on the same side on the general question, even if I’m sure you might have differences as to particular cases. What were some of the most significant cases you worked on in the Kansas AG’s Office?
AK: The one that gets the most attention was part two of student-loan forgiveness. We led one of the lawsuits on the $475 billion SAVE plan. That was a fun case because we won a district-court injunction in the District of Kansas, while Missouri was litigating a separate case. The Tenth Circuit stayed our injunction, and we went up to the Supreme Court. At that time, Missouri got a partial injunction, and then got a full one with the Eighth Circuit, and they were up at the Supreme Court at the same time. And that all happened in less than two weeks, from district-court decision all the way to the Supreme Court. So it was my first exposure to the Supreme Court’s emergency docket—and especially for a case that consequential, it was probably my favorite of the cases we did out there.
DL: In a way, that was sort of a foreshadowing of the much heavier use of the emergency docket that we’ve seen in the past year, and the velocity with which that docket moves is really striking.
AK: When you look at it in context, the administration has been sued at least 600 times on big-picture priorities—that was when I was still at DOJ, so the number could easily be at 700 by now. So when you look at how many times the administration has actually gone to the Supreme Court’s emergency docket, that ratio isn’t as large as it looks. When I was at DOJ, the Solicitor General’s Office was very intentional and judicious about which cases they were actually taking up on emergency.
DL: That’s an important point, because when people say, “Oh, the Supreme Court is so favorable to the Trump administration,” there’s a selection bias, in the sense that the administration, as you mentioned, is very strategic about what it brings to the Court. And the SG, John Sauer, is very smart and strategic; he’s not going to bring dogs to the Supreme Court. So there’s a bit of a skew, isn’t there?
AK: Not quite. The cases that are brought up there are the ones where there is true irreparable harm—where, if we don’t get emergency relief, something can’t be undone. Those are the cases that go up there—because it doesn’t make sense to go all the way up there unless you really need it. So that’s where the SG’s office has been really judicious about how they use the Supreme Court’s time.
DL: But the SG’s office also looks to likelihood of success on the merits, which is another factor, and they pick cases where they feel that they have a good case on the merits.
AK: And sometimes the appellate courts fix the problem, or it could be a case where there’s another avenue to do the same thing. So it’s reserved for cases where it’s a necessity to do that particular case on the emergency docket.
DL: Just to close out the portion about your career: after the Kansas AG’s office, where did you go?
AK: I joined the new Trump administration pretty early on, as a deputy associate attorney general at DOJ.
DL: Tell us how that came about. I’m curious about both (a) what led you to join the administration in February 2025 or so, and (b) just logistically, how did that happen? Did somebody reach out to you? Did you already have ties to the campaign?
AK: It’s an organic and relational process when any administration is staffing up, because with political appointees it’s not just about qualifications but also alignment and things of that sort. This Department of Justice, especially under Chad Mizelle when he was DOJ chief of staff, was looking outside the Beltway for people who have not just been part of the political scene but also have done the type of litigation that DOJ would be expected to do. There were people I knew who passed my name along, and I was ultimately interviewed and given the opportunity to come on and serve.
I loved my job in Kansas, but big picture, when you look at the types of cases we were doing, it just wasn’t going to be the same with a Republican state AG and a Republican presidential administration. We definitely weren’t going to have any more $475 billion student-loan-forgiveness cases. So the place where there was going to be the most consequential action, for lack of a better term, was going to be in the administration—and DOJ was going to be at the forefront of all of that, so that’s the big thing that drew me over there.
DL: In terms of people who have served in legal roles in both Trump administrations, we’ve seen a range in terms of their personal politics. On a scale of 1 to 10, how personally MAGA would you say you are?
AK: I don’t know if I would put it on a 1-to-10 scale, but I’ve definitely supported Trump personally since 2016—and even before that, when there was skepticism among others within the Republican Party—and I’ve maintained that ever since. I actually voted for him in the 2016 primary, so it goes way back.
DL: So tell us in general terms about the scope of your role at the Trump DOJ.
AK: DOJ has one of the weirdest org charts, and this org chart has stayed roughly the same across both Democratic and Republican administrations. There’s the attorney general, whom everyone knows. There’s the deputy attorney general. And typically the number-three official is the associate attorney general—and that’s who I worked for. And traditionally, the associate attorney general oversaw everything that was civil and involved litigation within DOJ—so divisions like the Civil Division, the Antitrust Division, and the Environmental and Natural Resources Division.
Historically, especially in the first Trump administration, the role of the associate attorney general had been more management and supervisory. This particular DOJ, in the second Trump administration, saw that as a little redundant, because the Deputy Attorney General’s Office also oversees the same divisions. So it was an intentional decision to have the associate’s office—especially since there were people in the office with litigation backgrounds like me—become more involved in the litigation, particularly some of the affirmative litigation. So that’s been a different way that they’ve been doing it.
So I had both a management and supervisory role, overseeing the day-to-day work of the divisions and attending to whatever needs and issues arise, as well as a litigation role. As you probably know, I litigated over 20 cases personally. And that’s just the ones I argued; there were also cases where we were involved in a supervisory capacity, without personally arguing. So litigation was a heavy part of the job for me.
DL: That’s very striking to me—how hands-on you were, for being a political appointee at a fairly high level. You argued more than 20 cases and were in the administration for less than a year and a half, so 20 cases, in federal courts across the country, is a lot. And you scored a number of very significant victories. Is there a case or matter of which you are most proud or that stands out to you in some way?
AK: There are about three cases that stand out. Contrary to what people think, the administration does win at the district court sometimes too, and those district-court victories are probably some of the more significant ones.
There were three different cases: one involving putting a school system on restricted status for their Title IX policies, in the Eastern District of Virginia; another that involved grant cancellation, in the District of New Mexico; and then another involving the Equal Employment Opportunity Commission’s decision to close out disparate-impact investigations, in the D.D.C. All three of those were fast-paced preliminary-injunction cases, but we got dismissals out of the preliminary-injunction hearings in all of them. So we got to a point where we were rushing into court on a preliminary injunction and then having the entire case dismissed.
In particular, Cross v. EEOC stands out the most because a lot of attention has been paid to the new OLC opinion on disparate impact and its viability. When those parties were suing in Cross v. EEOC, it was to require the EEOC to continue investigating disparate-impact claims in a certain way, even if the EEOC believed they were unconstitutional. Judge Trevor McFadden (D.D.C.) was the judge, and he ruled, based on United States v. Texas (2023), that an outside party not subject to our enforcement can’t direct us on how to use our enforcement or put together our enforcement priorities. So we got a dismissal based on that. But that was important because if that went a different way, then even if this OLC opinion was out, a court would’ve still been ordering the EEOC to investigate these cases. Cross was argued in November of last year, and the OLC opinion came out earlier this month—so sometimes you don’t see the full impact of a ruling until more than six months later.
DL: And then in terms of cases where you didn’t prevail, do you have a particular one that you would say was your toughest loss or biggest disappointment?
AK: No, I wouldn’t say there was any. I didn’t take these cases personally, especially when we were litigating such a high volume. I take the approach of understanding that I’m fallible and not going to make every argument perfectly—but as long as I made the best argument I possibly could and did it professionally and zealously, then as soon as the argument’s done, I move on to the next case. And if there is a loss, then we just examine what our appellate options are or whether there’s a different way to do the same thing. But I didn’t take an in-court loss personally at all; if I did, I would never get any sleep, given the volume of cases that we handled.
DL: What you alluded to raises a very interesting question. Over the past year or so, a number of DOJ lawyers have resigned, been reassigned, or been fired over disagreements with the merits of the positions of the administration in various cases. You talked about how you didn’t take these losses or wins personally; you were there as a lawyer on behalf of the United States government. But did you ever have a situation where you thought your legal position was weak, but you pushed forward because you did have some colorable argument, and that’s the nature of the job—sometimes you have to advance cases that maybe you’re not personally thrilled with?
AK: No, I never had that situation. The main reason is that sometimes, when you dig deeper into these cases, there’s a lot more there than meets the eye. And what tends to happen, especially when these cases are fast-moving, is that there’s a media framing of them that is a little bit too high-level. And what I noticed ends up happening in a lot of media articles is that they’re not quoting people like me, who understand what the issues are and how to frame them in a way people can understand. They’re mostly quoting people who are opponents—and that creates a groupthink around some of these cases, and that makes the administration’s positions seem a lot less meritorious in the media sphere than they actually are.
One example I’ll give—and I can talk somewhat about this, given that it’s still under litigation—is the Alien Enemies Act contempt litigation. I did the initial argument in front of Chief Judge James Boasberg (D.D.C.) on that, and I got a lot of hate mail from people I didn’t know, saying, “It’s so frivolous that you made these arguments, and you should be disbarred,” and whatnot. But when you look six to 12 months later, a lot of the same arguments that I made, we won on twice, at the D.C. Circuit’s emergency docket. And when you have sophisticated judges like Judge Gregory Katsas or Judge Neomi Rao, who don’t always rule for us, agreeing with some of these arguments, then you’re way past the point where you can call it a weak position that you’d still have to argue anyway.
I knew all of that when I was arguing it at the time. So the way I approach it is to drown out all the noise, especially when you have fast-moving cases with complex issues, and just dig into the legal issues. Once you do that, it’s a much different case than anyone really sees, especially when you include both the merits as well as the jurisdictional and threshold issues. When you combine all of them, then a lot of these cases end up looking a lot different by the time you ultimately get to the endpoint than what it’s portrayed like at first.
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You mentioned you got angry messages and hate mail. I hope this is not the case, but did you ever get any death threats?
AK: No, I didn’t get anything like that, thankfully. But people do feel very strongly about these cases. I know former colleagues of mine who got some really weird messages—even messages to their spouses on social media. So that part you definitely see, but I never had anything like that.
DL: How would you respond to somebody who said, “Abhi, how do you look yourself in the mirror in the morning?” or “how do you sleep at night?” Or to people who sent you angry mail, saying your position was so frivolous? What would be your response?
AK: I would say, “Wait six to 12 months and see what the case looks like after that.” Because sometimes when these issues are fleshed out, you’ll see a much different perspective.
DL: Let’s turn now to a case that is of very keen interest to my readership and listenership: the litigation over the Biglaw executive orders, issued against five law firms. One firm settled—Paul Weiss—and the other four litigated.
I know it’s still pending; we’re waiting for a decision from the D.C. Circuit, so you may be somewhat limited in what you can say. I think you can answer this next question without referring to anything privileged or anything that’s not in the public record. What is the strongest version of the government’s position? Because, I’ll be honest, I think there was a certain amount of groupthink on this case; the vast majority of public opinion was against you on this case. So give me the strongest argument in favor of the government’s position, in terms of the executive’s ability to target private law firms in this way.
AK: Sure. There are 10 different issues on the merits in that case, and there were four different law firms, but I’ll point to a couple of key issues.
First, security clearances. D.C. Circuit precedent has been very clear: there has never been a circuit that restored someone’s security-clearance access after the president has taken it away, and every court has dealt with it as a non-justiciable political question. But the district courts in this case not only enjoined the executive order, but required the administration to restore everyone’s security clearance that was taken away or suspended, and prohibited even individualized review of them. So when you’re getting that far out from what the precedent is, that’s going to be an issue.
Second, on First Amendment retaliation, the standard is a really tough one to meet. It’s not enough to say that action was taken against you for protected conduct; there has to be but-for causation. So if there’s both protected and unprotected conduct at issue, you have to show that the government action would not have been taken on the unprotected grounds alone. I don’t want to get too deep into this, since there was a back-and-forth between me and the judges on it, but there is a difference when you’re viewing commercial entities like a law firm, especially in freedom-of-association claims, because there is D.C. Circuit precedent that says freedom-of-association claims that are based on commercial associations are foreclosed. So those kinds of things did not get a lot of attention, but those arguments are there, and they’re in our briefs.
DL: That’s totally fair. And it’s interesting, on the security clearances: correct me if I’m wrong, but when some of the law firms sought initial injunctive relief, or temporary restraining orders, I think a lot of them did not challenge the security-clearances issue, perhaps because they realized that that would be a tough row to hoe.
AK: Yeah. The only one that did was WilmerHale, and Judge Richard Leon (D.D.C.) initially denied the preliminary injunction on that part—and then later, on summary judgment, sided with them.
DL: In the executive-orders case, you’re before the D.C. Circuit, arguably the second-most-important court in the country, and at the other counsel table is Paul Clement, a former solicitor general, regarded by many as perhaps one of the greatest Supreme Court and appellate advocates of all time. And also in the room, perhaps at counsel table, were two other former SGs: Elizabeth Prelogar from the Biden administration, who’s now at Cooley, and Don Verrilli from the Obama administration, who’s at Munger. Were you nervous for that argument?
AK: No, not any more than I would be for any other. But it’s one of those moments where I wished photography was allowed in the courtroom, because I wanted to capture that with a photo—it’s definitely a story that I’ll be telling my kids and grandkids about. It’s one of those once-in-a-lifetime experiences that will never be replicated in my career, so I’m glad I had the chance to do it.
DL: How do you prepare for an argument in general—say, a court of appeals argument like that one? Do you do moots?
AK: I did multiple moots for that one, and typically I try to. Sometimes, especially for district-court TROs that move at such a fast pace, there’s not enough time to do a moot—because the court says you have to turn in your response and come to a hearing three days later, and preparing for and conducting a moot is obviously going to eat up a lot of time.
And the big thing I try to do is dig in as much as possible and use as much precision as possible. That’s probably the greatest weapon any oral advocate has: being as precise as possible and leaving little room for confusion in what you’re trying to say and how you’re trying to say it. That’s typically what goes over best, even with judges who might not agree with your position.
DL: So let me ask you this—and again, you can answer based on what’s in the public record. You talked about some of the strongest points of the government, including the security-clearances issue and the tough standard for First Amendment retaliation. What do you think was the weakest part of the government’s case? And to the extent you can discuss this—without going into anything that might be privileged or attorney work product—how did you think about weaknesses as a matter of strategy?
AK: I’d want to be a little careful, especially talking about strengths and weaknesses, given that there’s still an appellate court waiting to decide the case. But what I can say is that whenever we lose at the district court and we’re on appeal, the way I always view it is that it’s our turn to be on offense. Typically, in a defensive case in district court, the plaintiffs have been the ones framing the issues, and we’ve effectively just been responding to what they have to say. But the appeal is a chance to reframe all the issues and start with the things we want to highlight the most—a chance to turn defense into offense and tell the story the way we want to tell it. That’s what I try to capture whenever I do an appeal, and this case was obviously one of them.
DL: So let me give you a compliment and then a criticism. The compliment is about your brief. Full disclosure: I’m not a fan of the executive orders, and I’ve been quite critical of them in my writing. But I read your brief and was quite impressed, because I thought you reframed it very artfully and showcased the government’s strongest arguments, and you made this seem like less of a slam dunk in favor of the law firms than everyone thought.
But here’s the criticism. Part of me read your brief, and it made me think, “Are we talking about the same thing? Are we talking about the same orders?” This term gets overused a lot, but I don’t know if anyone accused you of “gaslighting”—that is, if anyone said to you, “Oh, you’re defending something different, something that’s not as bad as what was actually done to these law firms.”
AK: Well, that goes back to my point: this is the first time people are really hearing our framing of the issues. And that’s why I always say—going back to that message—wait six to 12 months after even a district-court decision, just to see exactly what the arguments are.
And for anyone who dislikes the executive orders, vehemently disagrees with them, and wants us to ultimately lose, you would still want an advocate on the other side to make the best possible argument for it. If a court rules for you, for instance, you want it to have the appropriate limitations on whatever it holds. Sometimes when I read a case I say, “Wait, this court opinion goes really far, and it’s definitely not right,” especially as applied to this case. And when you look back at the briefs, it’s because the arguments weren’t the crispest, and some arguments were waived because they weren’t made. So if you are a fan of getting the law right, you would still want an advocate on the other side making the best possible case for it, so that if you do truly win, you win on the best possible arguments—and the court can be aware of the limitations of whatever it’s saying.
DL: I totally agree with you, and I’ve talked and written about this a lot. I’m a big believer in the adversarial system. I do not believe in punishing lawyers for the sins of their clients. But let me ask you this. In terms of just the principles that could come out of the executive-order litigation—if, say, it comes out in the administration’s favor—are you then prepared to say that under an Ocasio-Cortez or Mamdani regime, they could issue similar EOs against Holtzman Vogel, Consovoy McCarthy, Cooper & Kirk, or Jones Day?
AK: It just depends on what the court says and how it says it, because there are going to be limitations on exactly how it frames things. And a lot of that, in our political environment, is frankly going to be baked in. As for a president’s power over security clearances, it’s either reviewable or not reviewable. And there are other processes for addressing things people disagree with, outside the court system. There’s the impeachment process, there are elections, and there’s Congress passing statutes—part of the reason we said security clearances especially are a political question is that Congress hasn’t circumscribed the president’s authority in any way. So there are a lot of options other than going to court, and I’m not too worried about the ramifications if we win in that way.
DL: So during the Biden administration, you criticized President Biden for talking about how, notwithstanding the rulings of the Supreme Court, he’d find some way to get student-loan forgiveness done. And I agree with you; I was not a fan of Biden’s remarks, and I think you could argue there was a kind of disrespect for the courts there. But more recently, the Trump administration has been criticized for the rhetoric that it has employed in discussing the judiciary, including references to the administration being in a “war” with “rogue activist judges.” Hasn’t this administration, in terms of its rhetoric, gone too far at times?
AK: I wouldn’t characterize it that way. No one should ever cross the line into encouraging violence or anything of that sort. But in terms of vigorous critique of the judiciary, there’s no reason the judiciary shouldn’t get the same vigorous criticism that the executive branch or Congress gets. They are ultimately the only branch with lifetime tenure.
What ends up happening a little too much is that judges end up living in a bubble, where people worship them for various reasons. And there is, at least in part, a direct line between that and some of the issues you’ve seen recently, with judges such as Judge Eleanor Ross (N.D. Ga.) or Judge Sarah A.L. Merriam (2d Cir.)—where the judiciary, in its bubble, is often not aware of how people on the outside perceive something that might be clearly wrong. So people exercising their First Amendment rights to vigorously criticize the judiciary is actually a good thing, because to the extent judges pay attention to it, it at least gives them an idea of how normal people view their rulings and their roles.
I can’t speak for every single statement, but I don’t think I’ve seen one that encouraged violence—and anything short of that is fair game. That applies to both sides. You listen to the Supreme Court’s decisions and abide by them, but in terms of critiquing the Supreme Court, and vigorously so, I don’t have an issue with either side doing that.
DL: So after leaving the administration, quite recently, you decided to join Holtzman Vogel. What led you to join the firm?
AK: The plan was always to do one year at the Justice Department and at least see what was out there beyond that, since, as political appointees, all of us are going to have a shelf life in terms of how long we’re allowed to stay in our current jobs. So it’s always good to see what the options are. I loved my time at DOJ and really enjoyed working there. But when I tested the job market, Holtzman Vogel came in very early in the process. I knew a lot of people there—a lot of the partners are my friends—and I saw the platform they had and the things they were focused on, and it truly seemed like the perfect fit. If there was a window of time to do it, now was the time. So what motivated me to come here is that it was a perfect fit, a great platform, with a lot of great attorneys.
DL: I agree; there’s a lot of great talent at the firm, including many people such as yourself who have very valuable high-level government experience. What type of practice are you hoping to build on their platform?
AK: I’ll be involved in their state AG practice. We are a little unique, since we handle both plaintiff-side work—where we serve as outside counsel to state AGs—as well as defense-side work for companies that might be facing an investigation or action by a state AG office. So getting the opportunity to do both is pretty unique, and something I’ll definitely be involved in. We also have a very strong government and congressional investigations practice, as well as one of the strongest election-law practices, so I'll definitely be doing some of that work.
And the big area I want to continue building is strategic plaintiff-side litigation—when, for instance, a trade group or someone similarly situated sees a regulatory overreach by a state, thinking through what that looks like strategically in terms of bringing a lawsuit, how to bring it, how to loop in amicus briefs, and things like that. So that’s the big-picture strategy for bringing a plaintiff-side case, which is what I was doing in Kansas and at DOJ too, since we did a lot more plaintiff-side work than Republican DOJs typically do.
I also want to build our amicus practice, since there’s an unlimited number of issues to comment on. Especially at the cert stage of Supreme Court litigation, amicus briefs matter a lot more, because if there are enough of them telling the Supreme Court that something is important, that increases the likelihood that the Court takes the case. So cert-stage amicus is an area of practice I definitely want to build up here.
DL: This is your first full-time stint in private practice, isn’t it?
AK: Yep.
DL: And how are you finding it so far? Is this your first time billing time?
AK: Yes. There’s definitely a lot to learn, and I’m starting to get the hang of it. But at the same time, it allows for a level of entrepreneurship that you can’t really have in government, building a practice and seeing how far I can take it. All of that is great, and the firm is really supportive. Unlike big firms, they won’t say no to taking on a client because they’re too controversial in certain circles. So having that freedom in private practice is definitely something that I welcome.
DL: Smaller firms and boutiques actually have that ability in ways that large firms don’t. A lot of large firms are very scared of taking on controversial clients, sometimes on either side of the aisle, but smaller firms tend to be more courageous.
AK: Yeah. And I think the firm relishes doing those types of cases, especially since those are the types of cases that end up getting attention at the Supreme Court and creating precedent. So long-term, it’s a good investment not to say no to a case just because it’s controversial.
DL: And your having been involved in some of the more controversial Trump administration cases wasn’t a challenge when you were testing the market?
AK: I went to Holtzman Vogel so early in the process, and I knew immediately that it was a good fit, so I never had the chance to see whether it would be challenging or not in a broader search.
DL: Fair enough—and, again, congratulations on your move.
AK: Thank you.
DL: Now let’s turn to the speed round. These are four questions, and they’re the same for all my guests. My first question is, what do you like least about the law? And this can either be the practice of law or law as an abstract system.
AK: Sometimes standing gets stretched to absurd limits. This especially happens with aesthetic standing: it can’t possibly be the case that someone can stop an entire federal project because they don’t like how it looks. I know there are other aspects to aesthetic standing, but at some point the Supreme Court is going to need to take a second look at that.
DL: My second question is, what would you be if you were not a lawyer?
AK: I would probably be involved in government in some way, a little more on the policy side. One of the things I like about what I do right now is that it’s where law and policy mix together. So if I weren’t a lawyer, it would be something on the policy side.
DL: So you’ve put the entertainment world firmly in the rearview mirror?
AK: Yes, for sure.
DL: My third question is—and I know that you, like me, are a working parent—how much sleep do you get each night?
AK: It varies, but I try to get at least six or seven hours if I can. We have three kids, all age five and under—including a six-month-old—so it varies. The six-month-old is just starting to sleep through the night, so we’re getting the hang of it now. But for the first few months it was rough.
DL: Good, good. And here’s my last question: any final words of wisdom, such as career advice or life advice, for my listeners?
AK: This is especially true for law students: be open to where your legal career takes you, rather than insisting on checkboxes you feel you have to meet at every stage. I took a very non-traditional path, transitioning in my career from criminal to civil, and it worked out. Sometimes law students or lawyers early in their careers feel a lot of pressure, like, “If I don’t do this clerkship or if I don’t work at this firm, it’s going to throw off the rest of my career.” There’s a lot the legal profession has to offer, and a wide variety of ways to get there. So just be open, and don’t sweat it if exactly what you hoped for doesn’t turn out.
DL: Well, I think you and I are both examples of that: we’ve had unusual careers, but I think we’re both pretty satisfied with where we ended up. Abhi, thank you so much for joining me.
AK: Thank you for having me. I enjoyed our talk.
DL: Thanks so much to Abhi for joining me, and congratulations to him on his move to Holtzman Vogel.
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The next episode should appear on or about Wednesday, July 8. Until then, may your thinking be original and your jurisdiction free of defects.
