Judicial Notice (11.30.25): Dismissed
Dismissals for Trump, Jim Comey, and Tish James; two new SCOTUS opinions; rethinking the Biglaw summer program; and the latest in Latham v. Kirkland.
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I hope everyone had a happy Thanksgiving, as well as a restful and enjoyable long weekend. We spent quality time with both my family and Zach’s family, across three states—Pennsylvania, New Jersey, and New York—and, of course, we ate too much.
Unfortunately—but unsurprisingly, given the time of year—various family members were under the weather at various points in time. They included our two-year-old son, Chase—who started “school” (read: day care) earlier this month, then came down with some bug three days later. Public service announcement (if you share my belief that vaccines are good): get your flu and Covid shots, if you haven’t already.
Now, on to the news.
Lawyer of the Week: Peter Skandalakis.
On Wednesday, Judge Scott McAfee of Fulton County Superior Court dismissed the Georgia state prosecution of Donald Trump, which accused Trump and a slew of co-defendants of election interference and other offenses arising out of the 2020 presidential election. But credit or blame for the dismissal shouldn’t be given to Judge McAfee; he was merely granting the state’s motion to dismiss the case.
Who filed that motion? As I mentioned earlier this month, Peter Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, was responsible for finding a district attorney to take over the Georgia case from the disqualified Fani Willis. After asking (and getting turned down by) several other prosecutors, Skandalakis took on the case himself. And on Wednesday, Pete Skandalakis filed a motion to dismiss the Trump prosecution, which Judge McAfee promptly granted.
Here are some highlights from Skandalakis’s 22-page motion:
“It is not illegal to question or challenge election results. Our nation’s foundational principles of free speech and electoral scrutiny are rooted in this very freedom. The State of Georgia is no stranger to such challenges. In 2018, Ms. Stacy [sic] Abrams questioned the legitimacy of Brian Kemp’s victory in the gubernatorial race. Likewise, in 2020, many Republicans struggled to accept the reality that President Donald J. Trump did not win the popular vote in Georgia or in other key states and therefore lost the presidential race.”
“While the call [in which Trump urged Georgia Secretary of State Brad Raffensperger to ‘find’ enough votes to change the election outcome] is concerning, reasonable minds could differ as to how to interpret the call. One interpretation is that Trump, without explicitly stating it, is instructing the Secretary of State to fictitiously or fraudulently produce enough votes to secure a victory in Georgia. An alternative interpretation is that Trump, genuinely believing fraud had occurred, is asking the Secretary of State to investigate and determine whether sufficient irregularities exist to change the election outcome. When multiple interpretations are equally plausible, the accused is entitled to the benefit of the doubt and should not be presumed to have acted criminally.”
“Given the complexity of the legal issues at hand—ranging from constitutional questions and the Supremacy Clause to immunity, jurisdiction, venue, speedy-trial concerns, and access to federal records—and even assuming each of these issues were resolved in the State’s favor, bringing this case before a jury in 2029, 2030, or even 2031 [i.e., after Trump leaves office] would be nothing short of a remarkable feat.”
Not surprisingly, reactions to the dismissal were all over the map—and strongly tracked people’s political views. Readers, what do you think?
Other lawyers in the news:
FBI Director Kash Patel is facing scrutiny for reportedly using FBI SWAT teams to protect his girlfriend, country singer Alexis Wilkins.
Erez Reuveni—who worked at the U.S. Department of Justice (DOJ) for almost 15 years, before departing amid controversy and then becoming a whistleblower—joined Democracy Forward, the progressive legal advocacy group that’s “working to become the nerve center of the legal opposition to Trump,” in the words of Ankush Khardori of Politico.
One of Biglaw’s longest-tenured leaders, Jami McKeon—who has led Morgan Lewis since 2014—will step down as chair of the firm in September 2026, when her current term expires.
It’s not just Biglaw partners and federal judges: now state prosecutors in California are allegedly filing briefs filled with AI-generated errors, according to defense lawyers who claim to have received briefs with hallucinated citations.
New York City Mayor-elect Zohran Mamdani added several lawyers to his transition team, including Legal Aid Society CEO Twyla Carter (my former podcast guest); Julissa Reynoso, former U.S. ambassador to Spain and current Winston & Strawn partner; and veteran election lawyer Jerry Goldfeder.
Judge of the Week: Judge Cameron Currie.
Judges have rejected the Trump administration’s attempts to install U.S. attorneys in multiple districts, including New Jersey, Nevada, and the Central District of California. But Judge Cameron McGowan Currie went a step further than these judges: in addition to holding that Interim U.S. Attorney Lindsey Halligan (E.D. Va.) was not validly appointed—i.e., “Ms. Halligan’s appointment violated 28 U.S.C. § 546 and the Appointments Clause” of the Constitution—Judge Currie dismissed two criminal cases as a result. And these weren’t run-of-the-mill cases: Judge Currie tossed the high-profile prosecutions of two Trump adversaries, former FBI director James Comey and New York Attorney General Letitia “Tish” James.
On whether Halligan was validly appointed, the reasoning of Judge Currie’s decisions in United States v. Comey and United States v. James was unsurprising—consistent with that of the other judges who have tackled this topic. On remedy—i.e., whether the cases could continue without Halligan’s involvement or had to be dismissed—Judge Currie held that they had to be dismissed. As folks familiar with the Supreme Court’s Appointments Clause jurisprudence will recall, the standard remedy in situations where an official hasn’t been validly appointed is to set aside the actions of said official (because they lacked the authority to act in the first place).
In other cases challenging the appointments of Trump U.S. attorneys, additional prosecutors with legitimate appointments were involved in the proceedings, and their involvement was able to protect the prosecutions from dismissal. But in Comey and James, Halligan “appeared alone in front of the grand juries that returned indictments and was the sole prosecutor to have formally signed the charging documents,” per The New York Times—and so this argument was unavailable to the government.
Judge Currie also rejected the administration’s claim that Attorney General Pam Bondi “ratified” Halligan’s actions after the fact. According to Currie, allowing such ratification “would mean the Government could send any private citizen off the street—attorney or not—into the grand jury room to secure an indictment, so long as the Attorney General gives her approval after the fact. That cannot be the law.”
Judge Currie dismissed the Comey and James cases without prejudice, which would allow the government to charge the defendants again. Comey’s lawyers argue that the case can’t be refiled, since the statute of limitations has run on his alleged offenses (he was indicted right before the statute was going to run). But this isn’t entirely clear: a federal statute, 18 U.S.C. § 3288, might give the Trump administration a grace period for refiling (per Sarah Isgur and David French of Advisory Opinions).
What’s next? Attorney General Bondi declared that the DOJ would take “all available legal action, including an immediate appeal”—and I could see this issue eventually making its way to SCOTUS, given that district and circuit courts across the country are currently grappling with messy or questionable prosecutorial appointments.
In addition to attacking the ruling, the Trump administration criticized Judge Currie, with White House Press Secretary Karoline Leavitt condemning Currie as a “partisan” judge who was “clearly trying to shield” Comey and James. But Judge Currie, a 1994 Clinton appointee to the District of South Carolina, doesn’t have a partisan record. Even though she’s been on the bench for more than 30 years, this appears to be the most newsworthy and politically charged matter she’s ever handled.
By the way, why is a South Carolina judge ruling in a case out of the Eastern District of Virginia? Because the issue before the court was the validity of the appointment of the U.S. attorney for the E.D. Va., it was sent to a judge outside that district, to avoid any actual or apparent conflict of interest. According to Judge Currie’s opinion, if Halligan wasn’t validly appointed, the power to appoint an interim U.S. attorney would belong to the judges of the E.D. Va., under 28 U.S.C. § 546 (although the judges of that district haven’t moved since last week’s ruling to appoint anyone).
In other news about judges and the judiciary:
Chief Judge William Pryor (11th Cir.) has had a busy month. On November 14, he delivered the Rice-Hasson Distinguished Lecture at Notre Dame Law School, focusing his remarks on “The Judicial Oath and the Judgment of History.” And this past Wednesday, the noted conservative jurist issued a unanimous ruling against Donald Trump (discussed below under Ruling of the Week)—which he was willing to put his name on, instead of having it issued per curiam (as most circuit courts have done when ruling against Trump personally).
Could Judge Aileen Cannon (S.D. Fla.), who (in)famously handled major civil and criminal cases involving Donald Trump, end up overseeing yet another Trump-centric matter? The Trump administration might be angling for that, with U.S. Attorney Jason Reding Quiñones (S.D. Fla.) using a grand jury at the federal courthouse in Fort Pierce—where Judge Cannon is the only judge—to investigate aspects of the Russia investigation that targeted Trump.
Thanks, but no thanks: Chief Judge James “Jeb” Boasberg (D.D.C.) and Judge Deborah Boardman (D. Md.) declined invitations to appear at a Senate Judiciary subcommittee hearing addressing the topic of impeaching “rogue” judges.
Speaking of jurists offering testimony, Judge Emil Bove (3d Cir.) might have to be a witness in Chief Judge Boasberg’s pending contempt inquiry, examining whether the DOJ defied an order of his in a high-profile immigration case.
Should decisions on the Supreme Court’s interim docket be treated as precedential? In an interesting article for the Harvard Journal of Law & Public Policy, Judge Trevor McFadden (D.D.C.) and Associate Deputy Attorney General Vetan Kapoor argue that these rulings should be treated as binding, if they “grant emergency relief and include a majority opinion explaining the reasons for doing so.” (For discussion of the piece from Sarah Isgur and Adam White, check out Advisory Opinions.)
Judge William Ross Mitchell of Uvalde County, Texas, was suspended without pay, after he was indicted on a misdemeanor charge of “official oppression”—i.e., abuse of his authority as a public official—arising out of a dispute with a UPS driver trying to deliver packages at the courthouse.
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