Judicial Notice (02.17.25): Constitutional Crisis?

Benchslaps for two former solicitors general, Danielle Sassoon v. Emil Bove (continued), Musk’s $97 billion bid for OpenAI, and lots of lateral moves.

The U.S. Attorney’s Office for the Southern District of New York (photo by David Lat).

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Happy Presidents’ Day—which explains why this installment of Judicial Notice is coming to you on Monday rather than Sunday. I prefer to issue these roundups on the Mondays of long weekends, so you have more time to enjoy the break, without the intrusion of the news—and I have more time to read, ruminate, and write. And there was no shortage of news, much of it related to Donald Trump and the plethora of legal issues raised by the actions of his month-old administration. So this Presidents’ Day edition of JN will be heavily focused on the president, fittingly enough. [UPDATE (2/18/2025, 2:37 p.m.): A reader pointed out to me that under 5 U.S.C. § 6103, the technically correct name for the holiday is “George Washington’s Birthday.”]

I don’t have much to report on the personal front. The year is off to a slow start in terms of speaking engagements, so I’ve been something of a homebody—and I actually don’t mind. Since we live in New Jersey, allow me to paraphrase the Jersey Shore mantra of “GTL” or “Gym, Tan, Laundry”: my last few weeks have been “GWK” or “Gym, Write, Kids.” And it’s been nice.

Now, on to the news.

Lawyers of the Week: Danielle Sassoon, John Keller, Kevin Driscoll, Hagan Scotten, and all the other lawyers who resigned over the Eric Adams case.

The early frontrunner for Lawyer of the Week was Vice President JD Vance, who made headlines for tweeting as follows: “If a judge tried to tell a general how to conduct a military operation, that would be illegal. If a judge tried to command the attorney general in how to use her discretion as a prosecutor, that’s also illegal. Judges aren’t allowed to control the executive’s legitimate power.”

Was a sitting vice president urging the Trump administration to defy the (many) adverse judicial rulings that are piling up across the country? Combined with earlier statements by Vance—including a 2021 podcast in which he quoted, with approval, President Andrew Jackson’s (apparently apocryphal) statement, “The chief justice has made his ruling, now let him enforce it”—this tweet led to lots of talk about whether we’re in a “constitutional crisis.” See, e.g., CNN; The New York Times, from the news pages to the editorial board to The Daily podcast; and Advisory Opinions (where Sarah Isgur and David French expressed skepticism over the “crisis”).

Things settled down somewhat as the week went on. Trump himself declared, “I always abide by the courts, and then I’ll have to appeal it.” And Chief Judge John J. McConnell Jr. (D.R.I.), who on Monday claimed that the administration wasn’t following his earlier order unfreezing billions of dollars in federal money, on Wednesday clarified—in response to the Trump administration’s request for clarification—that (1) his original order allows the administration to cut off funds if they identify an independent reason for doing so under “the applicable authorizing statutes, regulations, and [grant] terms,” and (2) this type of freeze doesn’t “require the Defendants to seek ‘preclearance’ from the Court.”

And then came… Thursday. If you’re not familiar with the “Thursday Afternoon Massacre,” I refer you to my story from last week about how Danielle Sassoon resigned as Acting U.S. Attorney for the Southern District of New York (S.D.N.Y.), after she was ordered by Acting Deputy Attorney General Emil Bove to dismiss the S.D.N.Y.’s criminal case against Mayor Eric Adams.

Sassoon’s resignation was quickly followed by at least six others. They included those of John Keller, Acting Chief of the Public Integrity Section at the U.S. Department of Justice (DOJ); Kevin Driscoll, a Deputy Assistant Attorney General in the Criminal Division; Hagan Scotten, another assistant U.S. attorney (AUSA) in the S.D.N.Y.; and at least three other DOJ lawyers. Scotten went viral for his scathing resignation letter, with this as the most quoted language: “I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion [to dismiss the Adams case]. But it was never going to be me.”

In the end, Bove filed the motion himself—which I suggested in my original story as one likely outcome—but was joined by Antoinette “Toni” Bacon, acting head of the Criminal Division, and Edward Sullivan, a longtime lawyer for the Public Integrity Section. Why did Sullivan sign on? In a move straight out of a reality show, Bove held a meeting with the remaining members of the Public Integrity Section and demanded that someone from the unit sign the motion—and implied that if nobody stepped up, they could all be fired. The group considered resigning en masse before Sullivan, who’s nearing retirement, volunteered himself (and per The Times, “many in the group considered Mr. Sullivan’s decision to step forward an honorable act”).

What happens next? Judge Dale Ho (S.D.N.Y.) will rule on the motion to dismiss—and as a Biden appointee and former ACLU lawyer, he might not go easy on the Trump DOJ. He might ask the government some tough questions about the dismissal, in open court. He might issue a withering ruling, rebuking the DOJ for its move. But at the end of the day, he can’t force the government to prosecute a case that it doesn’t want to prosecute—and if he tried something wacky, like appointing a special prosecutor, he’d get shot down on appeal (because the current Supreme Court would not allow someone outside the executive branch to perform the quintessentially executive function of prosecution, after the executive branch itself passed).

[UPDATE (2/18/2025, 5:08 p.m.): As noted by former U.S. attorney (and my former boss) Chris Christie, in an essay at The Free Press, as well as many others, Judge Ho could (and should) raise the issue of why the dismissal should be without prejudice, i.e., with the government having the ability to bring back the case if Adams doesn’t do the bidding of the Trump administration. Perhaps Judge Ho could withhold his granting of leave under Rule 48 unless the government agrees to dismiss with prejudice, i.e., giving up the ability to refile the case. (Caveat: I haven’t researched the law here, but I believe this would be more likely to fly than appointing a special prosecutor.)]

Where do I stand? In my original post, I made clear that I was on #TeamSassoon—which is where most commentators landed, from the left-leaning Washington Post editorial board to the right-leaning Wall Street Journal editorial board (gift links). Pundits on the left were united in being appalled; more notable was the criticism of Bove and the Trump DOJ from conservative writers like Ross Douthat, Andrew McCarthy (here and here), and Ed Whelan (here, here, and here).

But as my readers know, I believe in highlighting different perspectives. For commentary defending #TeamBove, criticizing #TeamSassoon, or both, see, e.g., Will Chamberlain of The Article III Project (here), or Professor Josh Blackman of The Volokh Conspiracy (here and here). Or consider this message I received from a reader:

On Danielle Sassoon and Hagan Scotten, I’m about 80 percent sure ambition and envy were the main factors. The dramatic public letters might have been partly about principle, but they were clearly calculated to generate headlines—as well as Biglaw partnerships, Ivy League teaching gigs, or other prizes from a left-leaning legal fraternity.

Both had spent their lifetime collecting perfect conservative credentials—FedSoc, SCOTUS clerkships [Scalia for Sassoon, Roberts for Scotten], top of their classes, S.D.N.Y. prosecutors. They’d obviously been hoping for bigger opportunities in a Republican administration.

Instead, they had to take orders from less-credentialed Trump loyalists like Pam Bondi and Emil Bove. Sassoon especially must’ve fumed that Jay Clayton, a corporate lawyer with zero prosecutorial chops, was replacing her. So while Sassoon made a fair point about the rule of law, Bove was right to call out the insubordination.

In response to this reader, I’ll make a concession: I can see the argument that Sassoon and Scotten shouldn’t have made “noisy withdrawals,” which some might criticize as sanctimonious or self-aggrandizing. Of course they had the right to resign, but one could argue that they should have departed with quiet dignity. I’m not aware of public resignation letters from John Keller, Kevin Driscoll, or the other DOJ lawyers—but their actions spoke louder than their words.

[UPDATE (2/18/2025, 2:39 p.m.): There’s a very good response to this point, made by David French on the latest episode of Advisory Opinions: by writing such a detailed letter, Sassoon “provide[d] a blueprint, a roadmap for others to look at, to examine and determine whether or not they would be willing” to dismiss the case. And even if she couldn’t completely control the narrative around her departure, making her letter public allowed her to at least “influence the narrative.” Had she not released her letter, according to French, “this entire affair would have gone much worse for her.”]

Other attorneys in the news:

• Top trial lawyer Alex Spiro had quite a week. Not only did the government move to dismiss the case against his client Eric Adams—a development that he and his fellow Quinn Emanuel partner, Bill Burck, reportedly played a major role in orchestrating—but an anonymous woman dismissed her sexual-assault lawsuit against another famous client, Shawn “Jay-Z” Carter. And it wasn’t because of a settlement: Jay-Z “never paid one red penny,” said Spiro, but instead “triumphed and cleared his name.”

• Former Supreme Court lawyer and SCOTUSblog founder Tom Goldstein, who was indicted last month on federal tax charges, also had quite a week. On Monday, he was jailed for allegedly violating the conditions of his pretrial release, after prosecutors claimed that he was using secret accounts to move millions of dollars in cryptocurrency. But on Thursday, Goldstein was freed, after his latest lawyers—Jonathan Kravis and Stephany Reaves, of Munger Tolles & Olson—presented evidence suggesting that Goldstein doesn’t own or control the crypto accounts in question.

• Speaking of superstar SCOTUS advocates, former U.S. solicitor general Paul Clement received criticism from Judge Todd Hughes and other members of the Federal Circuit, for what the judges called inappropriate “rhetoric” in a brief (but which Clement said he stood by). The judges expressed their disappointment during the recent oral argument in Centripetal Networks v. Palo Alto Networks, and folks in appellate and IP circles have been sending around the audio clip (listen to the first two minutes and the last two minutes). I’ve been too overwhelmed by everything else on my plate to dig into this, so I haven’t read the brief—but if you have, I welcome your thoughts. (Clement isn’t the only ex-SG with a sterling reputation to incur judicial ire lately; see Judge of the Week, infra.) [UPDATE (2/19/2025, 2:04 p.m.): First, in case you’re curious, the other judge who complains about the brief at the start of the argument is none other than Chief Judge Kimberly Moore. Second, in case you’re curious, here are Centripetal’s opening brief (the “blue brief” the judges were complaining about), Palo Alto’s brief, the U.S. Patent and Trademark Office’s brief (as intervenor), and Centripetal’s reply brief. I’m no expert in IP litigation, but I didn’t see anything inappropriate in the Centripetal briefs—and so far, every litigator I’ve discussed this with shares my view. Feel free to read the briefs for yourself and drop me a line with your thoughts—or post them in the comments.]

• Speaking of prominent conservative litigators and former Scalia clerks like Clement, former Texas solicitor general Jonathan Mitchell was written up in The Washington Post (gift link) as part of their “Post Next 50” feature—profiles of 50 individuals “whom we expect to make an impact this year.”

• And speaking of former Trump lawyers, Todd Blanche made his financial disclosures (at least $2.2 million in legal-fee income last year), testified before the Senate Judiciary Committee, and appears to be on track for confirmation as deputy attorney general, the #2 official at the Justice Department.

• In the latest news about that recent “ChatGPT fail” story starring Morgan & Morgan, the plaintiff-side mega-firm, Michael Morgan filed his response to the order to show cause from Judge Kelly Rankin (D. Wyo.)—and arguably threw Morgan partner Rudwin Ayala under the proverbial bus, by revealing that Ayala did all the research and drafting for a motion that turned out to contain numerous hallucinated cases. (In Mike Morgan’s defense, he’d probably say he was simply complying with the order, which required the offending lawyers to disclose their exact roles “in drafting or supervising the motion.”)

In memoriam:

• Jim Guy Tucker—who earned a law degree from the University of Arkansas, practiced at the Rose Law Firm (of Hillary Clinton fame), and served as the Natural State’s attorney general for two terms, before becoming governor—passed away at 81.

• Kevin Colwell—founder of the Colwell Law Group, a family-law firm in upstate New York—passed away at 53, after he was found severely injured on a ski slope.

May they rest in peace.

Judge of the Week: Judge Ana Reyes.

For the fourth week in a row, the Judge of the Week is someone who ruled in a Trump case. But this time around, the judge ruled in favor of the Trump administration—at least for now.

Judge Ana Reyes (D.D.C.) is tough. She clerked for Judge Amalya Kearse (2d Cir.), who’s definitely no pushover, and went on to become a litigation partner at Williams & Connolly, one of the nation’s most formidable firms. She was a Judge of the Week back in November 2023, after benchslapping two Biglaw partners. And to paraphrase Britney Spears, oops, she did it again—to a former solicitor general of the United States, Seth Waxman of WilmerHale.

Judge Reyes is presiding over a case in which eight former inspectors general (IGs) who were fired by Trump are seeking reinstatement. Represented by Waxman, they sought temporary restraining orders (TROs) to restore them to their offices, immediately—which didn’t sit well with Judge Reyes, considering that the IGs had been terminated three weeks ago. She denied the request for immediate reinstatement, but is allowing the case to move forward on a non-emergency timeline (so she might rule in favor of the IGs in the end).

Here are highlights from Judge Reyes’s remarks (via Chris Cameron of The Times):

• “Mr. Waxman, I am really debating right now whether to order a show cause on sanctions. I’m not going to do it, because I’ve got other things to deal with, but this was totally unacceptable.”

• “You are an experienced, experienced individual…. [T]here is no universe in which I would ever be qualified enough to be hired by the solicitor general’s office, much less be the solicitor general.”

• “Why on Earth did you not have this figured out with the defendants, before coming here and burdening me and burdening my staff on this issue? Are we really here right now on the sixth hearing of this day for me to decide whether to grant a TRO, given the circumstances that you guys could not even bother filing a TRO for 21 days?”

Yes, readers have a weakness for schadenfreude, which is why Judge Reyes’s dressing-down of Seth Waxman got tongues wagging. But I’d like to make a more substantive point.

Judge Reyes is a Biden appointee. She’s the first Latina and first openly LGBT person to serve as a district-court judge in Washington, D.C. Stereotype would cast her as a member of the #Resistance, ready to rule against the Trump administration at the drop of a hat (or gavel). But here, she ruled for the administration, at least on an interim basis—and had no qualms about criticizing a legendary lawyer of the left.

Now consider two other recent Judges of the Week, Judges John Coughenour (W.D. Wash.) and Carl Nichols (D.D.C.). They ruled against the Trump administration, in cases involving birthright citizenship and USAID, even though they were both appointed by Republican presidents—in Coughenour’s case, Ronald Reagan, and in Nichols’s case, Donald J. Trump himself. Judges ruling against what might be called “their” side reflect the finest traditions of the American judiciary.

This is why, if you asked me to rate the federal judiciary’s response to Trump so far, I’d give it a grade of A-minus. Judges are doing the best they can to deal with a deluge of cases, many involving requests for emergency relief. They’re trying to reach decisions that are correct under the law—often on compressed timetables, with spotty factual records, or both. They and their clerks are working extremely hard, even issuing opinions over holiday weekends (see Dellinger v. Bessent, discussed below).

And in a fair number of cases, they have ruled in ways that you wouldn’t have predicted based on the party of their appointing president. I’m reminded of what Chief Justice John Roberts famously wrote, responding to a certain someone’s complaint about “Obama” judges: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

In other news about judges and the judiciary:

• At an appearance last Tuesday at Miami Dade College, Justice Sonia Sotomayor made remarks that one could read a lot into (even though she didn’t name names or mention specific cases). She declared that “our founders were hellbent on ensuring that we didn’t have a monarchy,” “the first way they thought of that was to give Congress the power of the purse,” and “court decisions stand whether one particular person chooses to abide by them or not.”

• The District of Massachusetts announced a new policy requiring random, district-wide assignment of any cases seeking to block a federal law or policy on a nationwide basis—apparently to avoid judge-shopping by filing in either of the district’s two single-judge courthouses, both staffed by Democratic appointees.

• California’s Commission on Judicial Performance admonished Los Angeles Superior Court Judge Daviann Mitchell, after finding that she (1) snuck into the chambers of colleagues, without their permission, to look at their computers and documents, and (2) commented inappropriately on a defendant’s appearance: “You’re a younger man. You’re a handsome man, and you are very well built, and you will be an attraction in state prison.”

• Also in Southern California, Orange County Superior Court Judge Jeffrey Ferguson will go on trial tomorrow for first-degree murder, after allegedly shooting his wife to death.

Ruling of the Week: United States v. Sittenfeld.

If the U.S. Supreme Court would like to continue its campaign to construe white-collar criminal statutes narrowly—a campaign I suspect the Trump administration would totally support—it has a great new vehicle for doing so: United States v. Sittenfeld.

Alexander “P.G.” Sittenfeld is a telegenic, youthful graduate of Princeton and Oxford, which he attended as a Marshall Scholar, who has a lovely family (including a sister who’s a well-known writer). A member of the Cincinnati City Council, he was a rising star in Democratic politics in Ohio. But a federal investigation and prosecution turned Sittenfeld into a convicted felon, unable to hold public office in Ohio—and even sent him to federal prison for a few months, until the Sixth Circuit granted him release pending appeal in May 2024.

John Ross of Short Circuit provided this pithy précis of the 71 pages of opinions (all by Trump appointees, interestingly enough):

When is an otherwise-lawful campaign contribution an illegal bribe? Sixth Circuit [by Judge John Nalbandian]: When a jury says it is. Concurrence [by Judge Eric Murphy]: That seems to be the law, and the Supreme Court should straighten that out. Dissent [by Judge John Bush]: It’s actually our job to police that line, and this ruling is going to criminalize a lot of ordinary politics.

I agree with Eric Petry of the Brennan Center, who told the Cincinnati Enquirer that the judges “teed [the case] up for the Supreme Court.” Each member of the panel suggested that SCOTUS should take a closer look at this messy area of law:

• Nalbandian: “it may be time for the Court to revisit or refine the doctrine” concerning what evidence can prove a quid pro quo.

• Murphy: “nothing prohibits [Sittenfeld] from asking the Supreme Court to reassess the [Hobbs] Act’s scope in light of three decades’ worth of precedent finding campaign donations entitled to strong First Amendment protection.”

• Bush: “it would be helpful for the Supreme Court to provide guidance” on the difference between a bribe and a lawful campaign contribution.

So the Sixth Circuit has given Sittenfeld plenty of material to put into a certiorari petition. And his lead lawyer, Yaakov Roth of Jones Day, has a strong track record in getting the justices to hear his cases. Roth filed successful cert petitions for two of his clients: Bob McDonnell, the former governor of Virginia, and Joseph Percoco, a former official in the administration of ex-New York governor Andrew Cuomo. And both McDonnell and Percoco went on to win unanimously before the high court, with Roth arguing Percoco v. United States personally. (The McDonnell case was argued by Roth’s Jones Day colleague, future U.S. solicitor general Noel Francisco.)

Speaking of SCOTUS, there was nothing new out of the Court last week, but here are some interesting decisions and dispositions out of the lower courts:

• Allow me to rely again on John Ross of Short Circuit, this time to summarize United States v. Kelly: “Looking to read a super-gross opinion about what a monster convicted sex-offender R. Kelly is? The Second Circuit has you covered.” The panel affirmed Robert Sylvester Kelly’s convictions, in an opinion by Judge Denny Chin; Judge Richard Sullivan dissented in part, but only on the calculation of restitution for one victim.

• If you’re interested in qualified immunity, Section 1983, and related subjects, then check out the en banc opinions of the Seventh Circuit, in Sabo v. Erickson (by Judge Amy St. Eve), and the Eighth Circuit, in S.A.A. v. Geisler (by Judge Raymond Gruender).

• I’m admittedly less interested in qualified immunity (at least until the Supreme Court revisits this area of law) and more interested in the Fourth Amendment, including the warrantless use of pole cameras—cameras mounted on poles that can monitor areas for months on end. In an opinion by Judge Andrew Brasher, the Eleventh Circuit upheld their use—at least when monitoring areas visible to the public—in United States v. Gregory (flagged for me by Professor Orin Kerr, author of a valuable new book, The Digital Fourth Amendment: Privacy and Policing in Our Online World).

• In terms of federal jury verdicts, a jury in the Northern District of Illinois (aka Chicago) decided the fate of former Illinois House speaker Michael Madigan—finding him guilty on 10 counts, including bribery and wire fraud, but acquitting on seven others. And a jury in the Middle District of Georgia hit Ford Motor Co. with a $2.5 billion punitive-damages verdict—but let’s see what happens in post-trial motions and appeals.

• I don’t normally highlight trial-court rulings on summary-judgment motions, preferring to wait until they go up on appeal. But I’ll make an exception for an opinion addressing an important, cutting-edge legal issue—namely, copyright law and the “fair use” defense, as applied to AI—that was written by a well-known and highly regarded jurist, Judge Stephanos Bibas (normally of the Third Circuit, but sitting by designation in the District of Delaware). The ruling received coverage from outlets like Bloomberg Law, Law360, and The American Lawyer (which gave Litigator of the Week honors to Dale Cendali, Joshua Simmons, and Miranda Means of Kirkland & Ellis, counsel to Westlaw owner Thomson Reuters—who convinced Judge Bibas to revisit his 2023 decision that denied summary judgment to TR on most issues).

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Litigation of the Week: Dellinger v. Bessent.

I’m not tracking every jot and tittle of Trump litigation in the trial courts—litigation that includes not just cases in which the Trump administration is the defendant, but matters in which the administration has gone on the offensive (e.g., the DOJ suing officials in New York or Illinois for allegedly not enforcing, or interfering with DOJ enforcement of, federal immigration law). I follow it all in terms of my reading (with thanks to Howard Bashman of How Appealing for much of my diet), but when it comes to my writing, I focus on big-picture themes that emerge from the welter of trial-court battles; actions by appellate courts, who will have the final word on most of these disputes; and other items that I deem worth your time.

One case worth your time is Dellinger v. Bessent. Since March 2024, after he was nominated by President Biden and confirmed by the Senate, Hampton Dellinger has served as the head of the Office of Special Counsel (OSC). This has nothing to do with Jack Smith; as explained in Dellinger’s complaint, the OSC is an independent agency whose “primary mission is to protect federal employees and applicants from prohibited personnel practices, especially reprisal for whistleblowing.”