Original Jurisdiction
Original Jurisdiction
Anti-Trump Lawsuits Are 'Greatly Mistaken': An Interview With David Boies

Anti-Trump Lawsuits Are 'Greatly Mistaken': An Interview With David Boies

Al Gore's lawyer from Bush v. Gore opposes efforts to disqualify Donald Trump.

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. Thanks!

I’ve come full circle. A little more than three years ago, I launched Original Jurisdiction with an interview of superstar litigator David Boies, 82, one of the most famous living American lawyers. Now I’m speaking with him again, this time for a special two-part podcast interview.

In today’s interview, part one of two, David discusses current events. Most notably, given his representation of Al Gore in Bush v. Gore, he’s critical of attempts to keep Donald Trump off the ballot based on Section Three of the Fourteenth Amendment, from both consequentialist and constitutional perspectives. He’s also not a fan of most of the criminal and civil cases targeting the former president.

This is just part one; in part two, David and I will focus on his life and career. And fear not, dear listeners: I will “go there” and ask about Harvey Weinstein, Elizabeth Holmes, the near-implosion of Boies Schiller Flexner, and other sensitive subjects.

In the meantime, enjoy part one of my conversation with David Boies. Whether or not you agree with him, he always has interesting things to say.

Show Notes:

Sponsored by:

NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com.

David Boies, in the Manhattan office of Boies Schiller Flexner (photo by David Lat).

Prefer reading to listening? A transcript of the entire episode appears below.

Transcripts are usually reserved for paid subscribers, which is the case with my archived podcasts, but I’m making this transcript available to all since I expect David’s comments to generate keen interest. Of course, I’m very grateful for paid subscriptions, which help cover the costs of both my sound engineer and transcription service.

Three quick notes. First, this transcript 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: Welcome to the Original Jurisdiction podcast. I’m your host David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to the thirty-seventh episode of this podcast, recorded on Tuesday, January 16.

Thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.

My latest guest—who left Biglaw to start his own firm, and is glad he did—is David Boies. One of the nation’s leading litigators, he left Cravath in 1997 to launch the firm now known as Boies Schiller Flexner or BSF, which he has led as chair since its founding.

As one of the most famous lawyers in the country as well as the world, David needs little introduction. I’ll mention just three of his most famous matters: United States v. Microsoft, in which he led the federal government’s successful antitrust case against the software giant; Bush v. Gore, the litigation over the disputed 2000 election, in which he represented Al Gore in the Supreme Court; and Hollingsworth v. Perry, where he teamed up with his adversary from Bush v. Gore, Ted Olson, to bring marriage equality to the state of California.

David was actually my first-ever interviewee for Original Jurisdiction. My first story for this newsletter, published on December 3, 2020, was an interview with David at the end of one of the most difficult years for BSF. The firm had lost more than 50 partners by that point in the year, and I even asked David: “Will your firm still be around 12 months from now?”

David said it would, and he was right. Three years later, the firm is smaller—around 150 lawyers, maybe half its size at its peak—and thriving. In 2023, it secured approval of class-action settlements that will bring in more than $3 billion for its clients—and hundreds of millions in fees for the firm. And this isn’t even counting all of the work the firm does outside of the class-action context on behalf of companies and individuals.

This episode is the first of two parts. Part one is focused on current events, in both the world and the career of David Boies. The highlight is our discussion of Trump v. Anderson, the case concerning whether Donald Trump is disqualified from the presidency based on Section Three of the Fourteenth Amendment, which the Supreme Court will hear next month. The case is often compared to Bush v. Gore—but perhaps surprisingly, given that he’s a leading Democratic lawyer and strongly opposed to Donald Trump, David does not support the effort to remove Trump from the ballot. Nor does he support most of the criminal and civil cases against Trump. These opinions will not endear David to many folks on the left.

In part two, which I plan to air two weeks from now, we’ll conduct a broader retrospective of David’s life and career. We’ll cover his many successes, but we won’t shy away from controversies. If you’re looking for David to address topics like his widely criticized representations of Harvey Weinstein and Elizabeth Holmes, be sure to tune in for that. Without further ado, here’s part one of my conversation with David Boies.

David, thank you so much for joining me.

David Boies: Absolutely.

DL: So let’s dive right in. There is a lot in the news, and I would love to hear your expert perspective on some of the biggest stories. Trump v. Anderson, the case the Supreme Court is going to hear next month about disqualifying Donald Trump under Section Three of the Fourteenth Amendment, has frequently been compared to Bush v. Gore, which resolved the 2000 election—and which you of course famously argued before the Court. How are the cases the same, and how are the cases different?

DB: There are some superficial similarities. For example, a conservative majority on the Supreme Court, appointed by Republican presidents, is being asked to help a Republican nominee for the presidency. That’s superficial.

The differences are much more important. For example, in Bush v. Gore, what was at issue was whether or not the votes of Florida voters would be counted pursuant to the procedures that the Florida state courts had established. And historically, the states have always been the primary determinants of how votes are counted.

There was no claim of invidious discrimination. There was no claim that Republicans were being singled out or that any racial or other protected minority was being singled out. There were none of the traditional bases by which the conservative majority that ruled in favor of Governor Bush, President Bush, ultimately decided the case. So that was a case in which the Republicans were trying to prevent votes from being counted.

In this case, the Trump case, the Republicans are trying to get the state to permit people to vote. So there’s a sense in which this is almost the reverse side of Bush v. Gore, in the sense that in Bush v. Gore, what you had was the Republicans trying to stop the vote count, and the Democrats trying to enable that vote count to go forward. Whereas in the Colorado case, the Democrats are trying to keep the Colorado voters from being able to vote for Donald Trump for president, and what the Republicans are trying to do is trying to enable the Colorado voters to cast their votes.

DL: So do you agree with criticisms of the Colorado case that it is anti-democratic in the way that the outcome in Bush v. Gore was arguably anti-democratic, by not counting votes? Or do you believe, as defenders of the Colorado Supreme Court say, this is actually pro-democratic because we have certain constitutional rules as part of our democracy, and Trump under those rules is not eligible?

DB: The Colorado decision is anti-democratic in the sense that it is preventing the voters from deciding who will be elected president. Whether something is democratic or anti-democratic is not the same as to whether it’s constitutional or unconstitutional.

We have many provisions of our Constitution that are anti-democratic. The Electoral College is anti-democratic. The fact that small states and large states get the same number of senators is anti-democratic. We have established a number of constitutional rules that are designed to limit democracy. The Bill of Rights is anti-democratic because what the Bill of Rights says is that no majority, however large, can, for example, take away somebody’s right to be secure in their property, or can discriminate against somebody based on race or gender or other protected classifications.

We have constitutional provisions that are anti-democratic for a purpose. So to say that the Colorado decision is anti-democratic—and I think it is—is not to answer the question as to whether it is a good decision or a bad decision.

DL: And what’s your view on that, the normative point? Or have you formed a view? Scholars and judges disagree on the correctness of this decision.

DB: I think that there are two questions and that they’re related, but they’re not the same. The first is whether this is desirable, whether it’s good policy or not. And second, whether or not this is constitutionally required.

I don’t think it’s good policy. I said many months ago that I thought that certain of the lawsuits against Donald Trump were greatly mistaken. I thought that they would only strengthen his hold on his base, would only further divide the country, and would set... I don’t know if precedent is the right word, because this is kind of a unique situation, but would set a standard that could certainly be misused in the future.

The prospect of criminally indicting a former president is something that is better left to other countries. The prospect of having prosecutors of one party going after presidential candidates of the opposite party during an election cycle is undesirable. That is something that could take us down a path that’s bad for the country, bad for our democracy. If you had a bipartisan recognition that this was unacceptable conduct, that might be different. Even in the case of President Nixon, where you had a bipartisan consensus that the conduct was unacceptable and indeed criminal, there was a decision that it was simply undesirable, from the standpoint of the country, to prosecute him.

Legal action to inhibit a presidential candidate is something that needs to have an extraordinarily compelling basis. Of course there is conduct that would mandate some kind of prosecutorial action. But if you take, for example, the cases against him in New York—which I think a lot of legal experts say are justifiable cases—you have to ask yourself: would these cases have been brought against him if his name were Donald Smith? And I’m afraid that a very large number of people in this country believe they would not have. And I frankly have some doubts myself. I don’t know the cases, and I don’t want to criticize people whom I know to be very dedicated public servants who have brought these cases. But just from the outside, I really wonder whether these cases would’ve been brought if his name weren’t Donald Trump.

DL: So let me break down something you alluded to earlier. You’ve been talking about policy, but then you also alluded to the constitutional dimension of the Colorado case.

Do you have a view on the constitutional merits of it? Because some people have basically taken the “let the heavens fall” attitude: we have to enforce the Constitution, regardless of the policy or practical considerations. So have you formed a view on the constitutional merits of the Colorado case?

DB: There are two fundamental issues here. One is, was what went on on January 6th an insurrection? And two, how is it decided, whether or not it was an insurrection?

My view is that probably this was not an insurrection in the sense that the drafters of the Fourteenth Amendment intended that term to be understood. This was drafted in the context of the Civil War. There was no doubt that the Civil War was an insurrection by any definition.

If you look at what happened on January 6th, it was outrageous, deplorable, almost every negative description that you can make. It was an assault on the citadel of our democracy. It threatened our elected representatives and the people who were dedicated to protecting them.

But it was much more of a riot than it was an insurrection. Not every riot is an insurrection. And I worry about over-pleading some of these events. If somebody gets on a box with a megaphone following an event and shouts, “no justice, no peace, no justice, no peace,” and people then pick up Molotov cocktails and torch buildings and overturn cars and maybe trample people, does that make that an insurrection? [For more on the “not an insurrection” argument, see the comments of Professor Michael McConnell at the Volokh Conspiracy and the Federalist Society National Lawyers Convention.]

Does it make the person on the soapbox somebody who’s guilty of a crime? If people force their way into the Capitol or the State House and chain themselves to desks to demonstrate, that’s a crime. It probably should be prosecuted, it probably has to be prosecuted. But is it an insurrection? Not every bad thing, not every terrible thing, not everything that threatens our democracy, that threatens our democratic principles, is an insurrection. So I tend to be dubious about whether this is properly described as an insurrection.

Now, there’s an argument that’s been made that in order for somebody to be disqualified for participating in insurrection, they’ve got to be charged with that crime. I don’t think that that is supportable. I don’t think that anybody who drafted that provision of the Constitution thought that in order to exclude people who had taken up arms for the Confederacy, after taking an oath for the United States, needed to be criminally prosecuted before they were going to be barred. And indeed, in those very rare cases where this provision has been invoked previously, it was not a situation where the people had been criminally indicted for the insurrection. So I would disagree with the Republican argument that you have to have a court finding, but I would tend to agree with their argument that this was not an insurrection.

Now, independent of how you define the constitutional provision, you have to figure out who gets to decide things. In our society, ordinarily that’s the courts. And ordinarily, if you wanted to enforce a constitutional provision to keep somebody off a ballot, you might go first to the administrative person in charge, often the secretary of state—but ultimately, that would end up in the courts for a judicial decision. And I think that’s probably the right way to decide it here, although it’s not a hundred percent clear. The Constitution gives the Congress the responsibility to count the votes. And you could make an argument that says that this decision should be made at that stage.

A different situation, not really an analogy, but something that has some parallels: it was a case where somebody elected to the Congress was barred under this provision, actually not from an insurrection, but for allegedly giving aid and comfort to our enemies during the First World War. And that was a decision that was made by the House to which the person had been elected.

Now, that’s a different situation. The Constitution gives each House the ability to determine the qualifications of its members. Whether that’s comparable to the constitutional provision that gives Congress the authority and responsibility for counting the votes, I think it’s something that is uncertain. But I think that may give you some insight and maybe some argument as to whether maybe this is a situation in which the courts may not be the perfect vehicle to make this decision.

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So it’s interesting: the provision itself does say that the House can, by a two-thirds vote, lift any such disability, so there is an explicit role for them there. But as a practical matter, I think the Supreme Court, once again, as in Bush v. Gore, is going to decide. And I think that the nation will respect that decision—or abide by that decision, whether they like it or not.

So let me ask you a two-part question. One, did you predict the outcome in Bush v. Gore? And two, what do you predict the outcome will be in the Colorado case?

DB: I certainly didn’t predict the outcome in Bush v. Gore. I don't think anybody did until the Court stopped the vote counting on that Saturday before they’d even heard argument. Once they decided that they didn’t even need to hear argument or have a hearing before stopping the vote count, the result became reasonably predictable.

But before that, both conservative and liberal scholars believed that it was not only bad policy, but bad constitutional law for the United States Supreme Court to intervene and pick the president. And that decision was widely seen as highly partisan. To go back to something you said a moment ago, I do think that the country will abide by the Supreme Court decision. Whether the country will respect it or not, I’m not so sure.

DL: That was the difference in Bush v. Gore: they abided by it, but….

DB: Exactly. And the country’s much more divided now than it was at that time. The graciousness of Vice President Gore’s concession, I think, is something that we haven’t seen recently in our political theater.

DL: And in the Colorado case, do you have a prediction or care to venture a prediction about what this Supreme Court will do?

DB: It’s hard to make that determination purely on legal grounds. There is unfortunately a presumption that turns out to be accurate—whether it’s correlation or causation, let’s leave that aside for the moment—there tends to be a correlation between the political origins of the justices and their decisions on certain highly charged issues. If you simply approached it from the standpoint of how many of the justices were appointed by Republican presidents, how many were appointed by Democratic presidents—which I think if we’ve come to that, it’s a terrible step in our jurisprudence and in our democracy—but a lot of people will look at it that way. And if you simply counted it that way, you’d have to say that you would predict that Trump would win.

And it’s really tragic that we’ve come to a situation where that’s the way so many people are going to think about this decision. Because as I say, just from a legal standpoint, I think the case that this is an insurrection is, at best, a thin one. And I think the Court would have serious grounds for deciding in Trump’s favor. I would frankly hope—and this also may be something that is unrealistic in today’s world—but I’d like to see this unanimous decision. I’d like to see the Court try to reach a genuine consensus on an issue like this.

Historically, the Court tried in a lot of cases, including cases like Brown v. Board of Education, to try to come down with unanimity. That may be too old-fashioned a concept. It may be unrealistic. But it would be nice if that happened.

DL: I agree with you; it would be nice. And even 7-2 or 8-1 would be nice, if it didn’t just break along the lines of, were you appointed by a Republican or were you appointed by a Democrat.

But let me just ask you, big picture: is it fair to say that our society, almost 25 years after Bush v. Gore, is more polarized than ever—even though it seemed plenty polarized in the days and weeks after Bush v. Gore?

DB: Oh, it’s much more polarized today. I don’t think there’s any question. Bush v. Gore was a polarizing decision, but it didn’t polarize the country. The country was still largely united. Vice President Gore, in his concession speech, did a lot to smooth things over. There were strong differences of view about Bush and Gore, and there were strong differences of view between Bush and Gore on policy issues. But people still worked together, or at least worked together a lot more than they do now. People could disagree on issues, but they didn’t look at the people who were on the other side of them on a particular issue as their enemies. We’ve come to a point where not only are we not trying to work together, but where if somebody on the other side has a point of view, your reaction is to oppose that just because it is being advocated by somebody of a different political persuasion.

When I was Ted Kennedy’s chief counsel, we had far more things at odds with Strom Thurmond, Paul Laxalt, and other Republicans, than we did in common. But we worked together with Senator Hatch, a strong conservative Republican, who was somebody who repeatedly worked with Ted Kennedy, and Ted Kennedy worked with him, on issues where they agreed, and there were many issues on which they agreed. Jim Eastland, who was the Chairman of the Judiciary Committee immediately preceding Ted’s chairmanship, could not have been farther apart from Senator Kennedy on issues of civil rights. But they worked together on a number of social issues.

So I think that the ability of people to work together on issues where they have common ground, even though they may be very passionate opponents on other issues, is something that’s been a hallmark of our democracy. And I think that when we not only strongly disagree on particular issues, but we divide into opposing camps in which we attack, on a personal level, people who are on the other side, where we are unable to see the good in our opponents and unable to find the common ground that we have with them, that is what makes this period of differences, this period of division, different and worse than the other periods that I’ve seen in a relatively long life.

DL: Yes, I sadly agree with you—and I think you have modeled behavior in terms of working together with people who have strong disagreements with you. You and Ted Olson, who were opposite each other in Bush v. Gore, worked together to bring marriage equality to California. And then your opponent in the California case, Chuck Cooper, you’ve worked with him on the Blue Cross Blue Shield case. It’s almost like you love working with your former adversaries.

But I feel in this day and age, at least as to political issues—maybe legal is different, or slightly better—but your political enemy is like your “enemy enemy.” You wouldn’t break bread with them. You certainly wouldn’t work on a case with them. You think they're a Bad Person, capital B, capital P. So I share your pessimistic assessment of our current state.

DB: Years ago, when I was chief counsel on the Senate Judiciary Committee, the Republican Senators and the Democratic senators socialized together. They were social friends. When they were single, they sometimes shared apartments.

DL: Yes.

DB: They had many things in common. That didn’t mean they didn’t fight. They often fought on some serious grounds. But they also got together and passed legislation where they had things in common. A lot of things were passed, if not unanimously, largely unanimously, and these were not easy pieces of legislation. The Voting Rights Act, when it was renewed in its latest version, the version that the Supreme Court a few years ago struck down in large part, it was passed something like 98-2 in the Senate. I’ve probably got the numbers wrong, but it was almost unanimous. [Actually, it was unanimous; the Voting Rights Act was reauthorized in 2006 by a vote of 98-0.]

So people have been able to come together even on difficult issues in the past, but compromise has become—for some people in this country, too many people in the Congress—compromise has become a bad word, not a good word. The “rule or ruin” approach of some members of Congress today, I think, does not have a lot of parallels fortunately in our history, and it begins to take us down a path that makes our society dysfunctional.

DL: I totally agree with a lot of your thoughts here, but here’s a bit of a transition. I do want to talk about some of maybe your cases from 2023, but here’s something I think that will transition us from politics and polarization to the nuts and bolts of being a successful lawyer.

In December, three university presidents testified at this congressional hearing about antisemitism on campus. Their testimony went poorly, and two of them are now out of jobs, and reflecting the adversarial nature of our politics, Representative Elise Stefanik, who was one of the principal questioners, celebrated the downfall of these presidents.

But let me ask you this, just as a lawyer who deals with clients going through high-stakes situations, and crisis management—and you’ve certainly also had to manage some crises of your own—how would you have prepared these presidents for that testimony?

DB: First, I would’ve prepared them like I prepare any witness, which is when you’re asked a question by the judge—juries don’t usually get to ask questions—but when you're asked a question by the judge, and in this case the members of Congress were the judges, the first thing you have to do is be responsive. Evading an answer is almost never a good tactic because if you’re trying to persuade somebody, if you’re trying to get them to understand your position, you need to respond to what they are asking you. You need to adapt to them.

Sticking to your message points may be a great way to debate. It may be a great way to give a political speech. It may be a good way to approach a presidential debate, for example. But it’s not a good way to deal with a judge or deal with a panel of senators or congresspeople because there what you’re trying to do is you’re trying to persuade the questioner.

If you get an annoying question from the press, maybe you ignore it, maybe you evade it, because you don’t care so much what the reporter thinks. You care about what the public thinks about it. Maybe you think there’s a better way to communicate with the public. I’m not so sure that’s true, but I think a lot of people can take that point of view.

But when you’re trying to persuade the questioner, whether it’s a judge or a senator or a congressperson, evasion is a bad idea. And these people were clearly evasive, and they each had their set way of evading the question.

DL: But they weren’t going to persuade Elise Stefanik though, right? I don’t think that they were going to persuade her. She came there trying to make them look bad.

DB: No question about it. But for example, when you’re arguing in an appellate court and maybe sometimes, particularly, the Supreme Court, there are often judges who are asking you questions to make you look bad because they have a different point of view. But you still want to be persuasive because you’ve got other people on the panel, and particularly when you’re doing this in a public forum, your evasiveness is apparent, and you risk not only giving fodder to the people who start out against you, but you risk undercutting the people who might otherwise support you.

Another thing that I would say is don’t get yourself caught in an untenable position. It is simply untenable to say that calling for genocide of Jews depends on the context, whether that violates your school policy depends on the context, is absurd. These are all intelligent people. They know better than that.

The first thing is, don’t get yourself caught in an untenable position. And the next thing is, if you find that you said something really stupid, say, “That was really stupid. I didn’t mean it that way. It came out exactly wrong.” Correct yourself right then. Don’t try to defend the indefensible. [David’s advice is consistent with that of Reg Brown of Kirkland, another crisis-management expert, who told me that witnesses need to listen carefully, pay attention to the dynamic in the room, and adjust accordingly.]

I think that they were not prepared the way I would’ve prepared them. But there’s more going on here than simply poor preparation. These were people who approached the issue from a perspective that I find incomprehensible. Long before they testified in front of Congress, there was a failure of leadership on these campuses to condemn what I think any reasonable person, any civilized person, any person who believes remotely in what we think of as American principles, would have condemned.

I mean, the calling for genocide… and calling for genocide against Jews is not just rhetoric. This is something that has characterized centuries of conduct, and to do that in the face of what had just happened on October 7th, which was a desire and an implementation of genocide on a small scale, people calling back excitedly, telling their parents, “I just killed Jews with my own hands”—it doesn’t take a high school education, let alone a Ph.D., to understand that that’s wrong and needs to be called out, and needs to be called out even if there are people in your constituency that are going to be critical of you for doing that.

There was a failure of leadership in these universities in my view, long before the testimony in Congress. The testimony in Congress revealed it, but that was not the core of what was wrong.

DL: Mmm-hmm.

So shifting gears a bit maybe to more positive things, although maybe not, turning to your own work as a lawyer, how would you say 2023 was for you? It was a very busy year.

DB: I would describe it as busy!

DL: How would you say it compares to other years of yours in terms of, I don't know, courtroom wins, revenue for the firm, hours billed, or whatever metric you like to use for your career?

DB: A really very busy two years. The last two, two and a half years, have probably been the busiest of my career.

DL: Wow. Do you know how many hours you billed roughly?

DB: No, but I think I worked more hours the last two years than I did in any other two years in my career, including when I was a young associate at Cravath. And it was a product, as you know—you take on cases, and you can’t predict when they’re going to become really active. And it just happened that I had several cases, all of which became intensely active at the same time. Ten years ago, I had a year in which everything I was going to do sort of settled just before the year started. I probably billed less than a thousand hours that year, and it was just a consequence of what stage the cases I was dealing with were at. These last two years, everything became active.

In terms of recoveries, I think this has been right up there. We won the appeal of the Blue Cross Blue Shield settlement. We won final approval of our case for securities fraud against Grupo Televisa. We won final approval of our sex-trafficking cases against Deutsche Bank and JPMorgan. And we reached a very good resolution of our injunctive case against Google in connection with their “incognito” practices.

DL: That just happened, right? I feel that happened over the break or something.

DB: It actually happened December 22nd.

DL: So right around Christmas.

DB: Yeah, it got publicized I think right after the first of the year, but it happened just before Christmas.

DL: What are you at liberty to say about the terms of that settlement, or is it public?

DB: That’s not public. We’re going to be filing our motion for preliminary approval very shortly. But just in general, I can say that the settlement involved injunctive relief that requires Google to accurately describe its privacy practices, and it requires Google to destroy the data that it collected and not to use the data that it collected during the period where the disclosures were not appropriate.

DL: So you mentioned you had a whole bunch of matters in 2023 that all exploded at the same time. I wonder if now maybe you’re going to get a break, because I feel like a lot of your matters may be resolving.

Is Blue Cross Blue Shield finally going to resolve, and you guys are getting maybe a nine-figure fee? Is that finally going to be paid in 2024? I thought it was going to happen last year, but then it didn’t, even though the Eleventh Circuit ruled last year. But is it still tied up in something or other?

DB: Well, the objectors have moved for rehearing en banc….

DL: Good luck with that.

DB: And so I hope it’s largely done.

DL: They might seek cert after that, not that I think it's going to be granted, but….

DB: One of the problems is that in class actions, objecting has become a cottage industry, where people throw in these objections and they don’t have to have any merit, but it can hold up a case, literally for two or three years ,while all of the appellate remedies are exercised.

We argued at the time of the objectors’ appeal that they ought to be required to post a bond to compensate the class members for the delay. The court denied that, but there’s got to be some reform that imposes on unsuccessful objectors the costs, because right now they have a free lottery ticket. They are appealing something that they’ve had no role in.

DL: So speaking of favorable settlements, you alluded to the very positive settlements you obtained for victims of Jeffrey Epstein, who sued banks that facilitated his criminal activity—$75 million from Deutsche Bank, $290 million from JPMorgan Chase. So you’ve successfully obtained hundreds of millions of dollars in settlements from various parties—including, I guess, Prince Andrew.

Epstein has been dead five years this coming August. Ghislaine Maxwell is serving a 20-year prison sentence. Is this the end of the road finally for Epstein litigation?

DB: Well, we’re nearing the end of the road, not because the road really ends but because we’re facing a variety of roadblocks, including statutes of limitations—and what I think has been an unfortunate failure of prosecutorial agencies really to go after a lot of people and institutions that were essential to Jeffrey Epstein’s sex trafficking.

Jeffrey Epstein’s sex trafficking could never have existed on the scope and scale that it did for as long as it did without the support, cooperation, participation of many very rich and powerful people. And the failure of prosecutors here and in the United Kingdom to go after people for what they did and hold them accountable and responsible has been unfortunate. But we have done about as much as we can do, on a civil basis, to hold people accountable. A lot of what we’ve done is really to act in context and at times when that should not have been the responsibility of private attorneys, but the prosecutorial agency should have been doing this.

And remember, we sued Maxwell and Epstein years before the prosecutors went after them. And there’s a limit to how much our plaintiffs can do because we face certain statutes of limitations and other obstacles that prosecutors don’t face. So given the lack of greater prosecutorial focus on this, we’re probably getting close to the end.

I wouldn't say we’re at the end. We’ve got some people that we are talking to at the present time which, if we do not reach a successful resolution, I think will result in some litigation. But we’re getting close to the end.

DL: So in 2022, you won a unanimous Supreme Court victory on behalf of the Cassirer family, which is fighting to recover a Pissarro painting worth tens of millions of dollars that was stolen from them by the Nazis. Very recently, in the past few weeks, on remand, the Ninth Circuit—now applying California law, as the Supreme Court told them to do—ruled against the family once again. Is this the end of the road for them?

DB: We’re seeking rehearing and ultimately cert, and those are hard remedies to achieve. And as the Los Angeles Times wrote recently in a lead editorial, the conduct of the government of Spain and of the Spanish state museum has been irresponsible, outrageous, deplorable—again, almost any negative thing you can assert.

They continue to rely on legal technicalities to try to hold on to art looted by the Nazis—which everyone agrees, even Spain agrees, was looted by the Nazis. But they say that because they’ve held it for six years, under their special law, that gives them a right to hold it forever. And I think the hypocrisy that’s involved—Spain has signed on to all sorts of international agreements and conventions about returning looted art—the hypocrisy of them holding on to this painting under these circumstances is very unfortunate.

DL: It’s interesting—Judge Consuelo Callahan, in her concurrence, drew a distinction between law and morality, and she said the museum should’ve voluntarily relinquished the painting. And obviously this is a lot of bad publicity for them. So why haven’t they relinquished the painting?

DB: I don’t know. The donor, the founder of this particular museum’s collection, came from family that was very much associated with the Nazis and with Nazi-looted art and Nazi-looted assets. There may be a reluctance to face that.

Probably more likely, this is the result of bureaucrats holding on to what they have, and nobody in the Spanish government standing up and saying, “This is wrong. This is not the values of our country. This is not the values of our society.”

I also think the California law is not what the Ninth Circuit held it to be. The Attorney General of California put in a brief, in our view a very persuasive brief, explaining to the Ninth Circuit that this was not California law, that California had a very strong policy of returning looted art to its victims, and that, in California law, it would’ve returned it. But unfortunately the Ninth Circuit decided differently.

DL: Well, we’re nearing the end of our time together and I feel we've discussed a lot of downers in this episode. So to end on a brighter note, let's look ahead to 2024—your last full year as Chair of Boies Schiller Flexner, before you hand the reins over to Matthew Schwartz.

What is David Boies most looking forward to or most excited about in 2024? What cases are you most enthusiastic about litigating, taking to trial, or settling? What does this year have in store for you?

DB: Well, they're similar and they’re quite different. One case is I have a case suing to enjoin the federal government's prohibition of marijuana sales in states where the states have made it legal. As you know, our Constitution provides that only the states can regulate intrastate commerce. And in a 5-4 decision many years ago, the Supreme Court held that Congress could regulate intrastate marijuana because it had an effect on interstate sales.

Since that time, the Supreme Court has largely repudiated that view of interstate commerce authorizations. And in addition, the entire landscape of marijuana regulation has changed, including the institution in states like Massachusetts, where we're bringing the lawsuit, of regulatory schemes that ensure that there’s not going to be an effect on interstate marijuana sales, that track and regulate and make sure that the marijuana that’s grown there is sold there. So I think that there’s a strong argument. I’d also note that the only justice still on the Supreme Court who was on when this earlier case was decided dissented from that decision.

DL: That was Justice Thomas, I think, right? The Raich case?

DB: Justice Thomas, the Raich case. And I think that the Supreme Court’s jurisprudence as to the scope of federal power, including in the majority decision in the Obamacare case….

DL: That's right.

DB: … where you remember the court held that the Commerce Clause was not a constitutional basis for that.

DL: The Chief joined that part. He had his separate point about the tax, but yes, there were five votes for that not complying with the Commerce Clause.

DB: Yes, so that’s a very interesting case. It’s an important case because marijuana, like all substances like that, whether it’s alcohol or what have you, has issues that requires regulation. It also serves a great many important functions, including important medical functions. And the key point here is that it’s up to the states to decide these health and safety questions. Those are not questions that are delegated to the federal government. Those are questions that are delegated to the states. And that’s one case that I think is going to be fascinating.

We’ve got a case in New York, a class action suing Google for antitrust violations. And we have another case, a second case in California, where we’re suing Google for additional privacy violations. And in both of those cases, I think we’ll be very, very active in 2024.

I’m also co-lead counsel in cases suing promoters and people who ran Voyager, Binance, FTX, these various crypto companies that have cost consumers billions of dollars. And those cases are, at the present time, quite active.

I also have an interesting case where I represent a company called Panini, which is one of the largest manufacturers of sports trading cards and stickers in the world, against another company, Fanatics, that has signed 10- and 20-year exclusive dealing arrangements that in effect lock competitors out of competition for the three major sports, football, basketball, and baseball.

So it’s still a full plate. I think the nature of the cases are such that, while it’s going to be a very busy year, it's not going to have quite the same intensity as the last two years. But it’s going to be an active period.

DL: It sounds like an exciting one. And I know you’re super busy, so thank you so much for taking the time to join me. And hopefully we will actually be continuing this conversation.

DB: I look forward to it.

DL: Thanks so much to David for joining me—and I look forward to part two, where we’ll focus on his broader career, including controversies and challenges he’s confronted over the years.

Thanks to NexFirm for sponsoring the Original Jurisdiction podcast. NexFirm has helped many attorneys to leave Biglaw and launch firms of their own. To explore this opportunity, please contact NexFirm at 212-292-1000 or email careerdevelopment@nexfirm.com to learn more.

Thanks to Tommy Harron, my sound engineer here at Original Jurisdiction, and thanks to you, my listeners and readers. To connect with me, please email me at davidlat@substack.com, or find me on Twitter, Facebook, and LinkedIn, at davidlat, and on Instagram at davidbenjaminlat.

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The next episode—which hopefully should be part two of my conversation with David Boies—should appear two weeks from now, on or about Wednesday, February 7. Until then, may your thinking be original and your jurisdiction free of defects.

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Original Jurisdiction
Original Jurisdiction
Original Jurisdiction, a podcast about law and the legal profession, features host David Lat interviewing some of the most interesting, influential, and important people in the world of law. It's the companion podcast to Lat's Substack newsletter of the same name. You can follow David on Twitter (@DavidLat) or email him at davidlat@substack.com, and you can subscribe to his newsletter at davidlat.substack.com.