Judicial Notice (04.27.25): Clash Of The Titans
Harvard v. Trump, SCOTUSblog’s new owner, an S.D.N.Y. snafu, Davis Polk’s Trump transaction, and a leading litigator’s departure from Biglaw.
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Last week brought exciting news in the world of legal media: SCOTUSblog, a leading source of news and analysis about the U.S. Supreme Court for almost a quarter of a century, was acquired by Dispatch Media, Inc., publisher of The Dispatch newsletter and producer of the Advisory Opinions podcast. For details, see Benjamin Mullin’s piece for The New York Times (gift link), as well as announcements by Amy Howe at SCOTUSblog, Steve Hayes at The Dispatch, and Sarah Isgur and David French at Advisory Opinions.
And I’m delighted to share that I have a personal connection to this news: as noted in Steve Hayes’s post, I’m partnering with The Dispatch as it works toward becoming, as Dispatch president Michael Rothman put it, “the definitive source for legal news and analysis in the United States.” So in the weeks and months ahead, expect to hear my voice on Advisory Opinions and read my writing in SCOTUSblog.
When I first entered legal blogging around 20 years ago, launching Underneath Their Robes (2004) and then Above the Law (2006), I drew inspiration from Tom Goldstein and Amy Howe, who founded SCOTUSblog in 2002—so it’s wild for me to think that I’ll now be contributing to SCOTUSblog’s pages. To quote Howard Bashman of How Appealing, another OG of legal blogging and role model for me, “the David Lat/SCOTUSblog partnership that we’ve all been hoping for will soon be a reality.”
I was extremely busy last week with work (e.g., introducing some of Original Jurisdiction’s loyal sponsors to Team Dispatch/SCOTUSblog). But I did make time to see Second Stage Theater’s production of Purpose, the new play by Branden Jacobs-Jenkins—and I’m glad I did. I’ll spare you a full review, since you don’t come to OJ for theater recs, and simply say it’s a must-see. (And there are legal angles: two characters are lawyers, one disbarred, and a federal criminal case figures in the plot.)
Speaking of exciting live events in New York, I’m looking forward to moderating The Future of Adjudication, an exploration of judging and dispute resolution in the age of AI. Taking place this Tuesday at 12 p.m., it’s free and open to the public, and lunch will be provided; you can register here (but don’t delay, since it’s pretty much at capacity).
Now, on to the news.
Lawyer of the Week: Edwin Kneedler.
Congratulations to Deputy Solicitor General Edwin Kneedler, a 45-year veteran of the Office of the Solicitor General (OSG) at the U.S. Department of Justice (DOJ). On Wednesday, Kneedler presented his 160th and final oral argument before the Supreme Court—and here’s what happened when he was done, as reported by Jimmy Hoover for The National Law Journal:
“Mr. Kneedler, if I may ask you to rise for a moment,” Chief Justice John Roberts Jr. said at the conclusion of Wednesday’s argument in the case Diamond Alternative Energy v. EPA, where Kneedler represented the federal agency. “You have just presented your 160th argument before this Court, and I understand it is intended to be your last. That is the record for modern times. You have carried out your responsibilities with extraordinary care and professionalism, conscious of your role not only as an advocate but also as an officer of this Court.”
And here’s a personal account posted on LinkedIn by William “Willy” Jay, a prominent SCOTUS advocate and OSG alum:
I have never seen before, and will surely never see again, a standing ovation in the Supreme Court—with the Justices participating. But the person we were applauding today, the legendary Deputy Solicitor General Ed Kneedler, deserves that honor and more….
Working with Ed was one of the great privileges of my time in OSG…. [T]he most rewarding moments were behind the scenes, when Ed sought to add some unique insight to a brief, or bring competing agencies to the right legal decision, in some case that no journalist would ever notice. And Ed, an unfailingly kind person, more than once lifted my spirits after I felt I’d made a mistake that let the Office down.
There is no one else like Ed Kneedler. But in the appellate bar, to be even a little like Ed Kneedler would be a lifetime achievement.
Congrats again to Ed Kneedler on his record-breaking career as a SCOTUS advocate. And thanks to him for his many years of service, to both the Court and the country.1
[UPDATE (5/3/2025, 7:26 a.m.): For more on Kneedler, see Adam Liptak’s New York Times piece, “A ‘Citizen Lawyer’ Gets a Standing Ovation at the Supreme Court.”]
Other lawyers in the headlines:
As mentioned last week, star litigator William Burck of Quinn Emanuel represents Harvard University in its legal battle against the Trump administration (discussed below as Litigation of the Week). Per The Times, he took the Harvard case without running it by the Trump Organization, the Trump family real-estate company, which he has been advising on ethics issues. Whether or not this was a technical conflict of interest, it didn’t sit well with Trump himself, who took to Truth Social and bashed Bill Burck: “Harvard is a threat to Democracy, with a lawyer, who represents me, who should therefore be forced to resign, immediately, or be fired. He’s not that good, anyway, and I hope that my very big and beautiful company, now run by my sons, gets rid of him ASAP!” A few hours later, Eric Trump, one of those sons, announced that the Trump Organization would indeed be firing Burck. Some observers might be thinking, “Why did Burck take on the Harvard case, knowing it might tick off Trump?” But Burck’s no fool, and he had to know that this could lead to his firing—which makes me wonder if he wanted to get fired. If so, it wouldn’t be the first time a lawyer started working for Trumpworld and then quickly decided, “Get me the hell outta here.”
Speaking of other lawyers in trouble with Trump or his administration, three assistant U.S. attorneys in the Southern District of New York (S.D.N.Y.)—Dominika Tarczynska, David Farber, and Christine Poscablo—got themselves taken off a case in which they were representing the Department of Transportation (DOT), which is trying to kill NYC’s congestion-pricing program. Their offense? They accidentally filed, on the case’s public docket, a confidential memo in which they criticized the DOT’s legal position, which they characterized as “exceedingly likely” to fail in court. A DOT spokesperson wasn’t so sure the uploading was inadvertent, wondering aloud, “Are S.D.N.Y. lawyers on this case incompetent, or was this their attempt to RESIST?” Shortly thereafter, the Department discharged the S.D.N.Y. team and handed the case over to the DOJ Civil Division. But I’m guessing this actually was an accident, for a few reasons:
First, even though I’m a résumé fetishist who holds AUSAs in the Southern District in the highest regard, I realize they’re not infallible—having written hundreds if not thousands of stories, mainly during my 13 years at Above the Law, that could all be filed under “When Smart Lawyers Do Dumb Things.”
Second, this happened after 9 p.m., outside normal business hours, when mistakes are most likely to happen—because lawyers are tired, sleep-deprived, and eager to get home.
Third, it’s very easy to imagine how this could have occurred: the AUSA probably had a folder for this case full of documents with similar file names, and they simply clicked on the wrong file to upload.
Fourth, the whole episode is more embarrassing to the AUSAs than it is actually damaging to the administration. As noted in a follow-up Times piece, the memo’s analysis isn’t news to either Judge Lewis Liman, who’s presiding over the case, or the lawyers defending congestion pricing (including the formidable Robbie Kaplan and Brandon Trice of Kaplan Martin).
Fifth, the three prosecutors stated that this was an accident in a letter to Judge Liman. While I wouldn’t be surprised to learn that these AUSAs aren’t fans of the Trump administration, I also doubt that they would, as officers of the court, make a misrepresentation to a federal judge.
In other drama out of the S.D.N.Y., three AUSAs who worked on the prosecution of New York City Mayor Eric Adams and were then placed on administrative leave—Celia V. Cohen, Andrew Rohrbach, and Derek Wikstrom—resigned. In their joint resignation letter, they claimed it was communicated to them that if they wanted to return to work, they had to “express regret and admit some wrongdoing by the Office in connection with the refusal to move to dismiss the case. We will not confess wrongdoing when there was none.”
In other DOJ news, but down in D.C. at Main Justice, around a dozen senior lawyers in the Civil Rights Division got reassigned—taken off matters like investigating police abuse and violations of voting rights, and instead placed on portfolios like handling public-records requests or adjudicating internal discrimination complaints. Don’t be surprised if resignations follow.
Resignations can be voluntary or not so voluntary—and it appears that George Bogden’s resignation, as executive director of the Office of Trade Relations at Customs and Border Protection, was not so voluntary. Although he was a political appointee of the Trump administration and a staunch proponent of Trump’s tariffs, he was asked to step down after a Facebook photo surfaced that showed him at the 2019 wedding of Trump antagonist Miles Taylor, according to The Washington Post (gift link). Bogden appears to have no hard feelings toward Trump, writing on LinkedIn, “I continue to support President Trump, and I remain fully behind the policies that are delivering real results for the American people,” even though “I regret that I have fallen victim to character assassination.”
There’s a whole lot of resigning going on: across the street from the Office of Trade Relations, three litigation associates at Kirkland & Ellis quit over their firm’s deal with the Trump administration. To read the resignation statements of Kevin Decker, Harold Grigsby III, and Maggie Hagen, look them up on LinkedIn.
If they’re looking for new jobs, maybe they should apply to Clement & Murphy, where they can fight the Trump executive order (EO) targeting WilmerHale alongside former Kirkland partner Paul Clement—the subject of this New Yorker profile by Ruth Marcus (which cites my podcast interview of Clement).
In memoriam: former Fried Frank co-chair Arthur Fleischer Jr., who was both a prominent M&A lawyer and art collector, passed away at 92. May he rest in peace.
Judge of the Week: Judge Hannah Dugan.
On Friday, April 25, FBI agents arrested Judge Hannah Dugan of Milwaukee County Circuit Court. A two-count complaint charged her with (1) obstructing or impeding a proceeding before a department or agency of the United States and (2) concealing an individual to prevent his discovery and arrest.
The complaint alleges that on Friday, April 18, Judge Dugan personally helped Eduardo Flores-Ruiz, a criminal defendant appearing before her on domestic-violence charges, to exit her courtroom through a special “jury door.” This door led to a nonpublic area of the courthouse—allowing Flores-Ruiz to evade federal agents that Dugan knew were waiting to arrest him, in the public hallway outside her courtroom. But agents spotted Flores-Ruiz when he returned to a public portion of the courthouse, and although he managed to exit the courthouse without getting arrested, two agents confronted him outside and, after a foot chase, arrested him.
Judge Dugan, 65, is a former Legal Aid lawyer and well-known figure in Wisconsin progressive circles. She won election in 2016 and was reelected in 2022, with her current term set to expire in 2028. In a statement issued late on Friday, she declared that she “will defend herself vigorously and looks forward to being exonerated.”
In The Washington Post, Aaron Blake described Judge Dugan’s arrest as “a significant escalation” in the Trump administration’s attacks against jurists “it labels as radical activist judges who have ruled against many of its immigration actions.” Senate Minority Leader Chuck Schumer (D-N.Y.) decried the arrest as “an attack on the separation of powers,” pledging to “fight this with everything we have.”
In a Twitter thread, Wisconsin lawyer and former AUSA Dan Lennington offered the administration’s view of Judge Dugan’s arrest. He pointed out that (1) she adjourned the hearing and sent Flores-Ruiz out the side door covertly, without notifying his victims and the prosecutor (who remained in the courtroom, clueless as to what was going on); (2) it’s “very common” to execute arrest warrants inside a courthouse, where officers know the arrestee will be unarmed (since he went through courthouse security); and (3) by sending Flores-Ruiz out the jury door, Judge Dugan “put officers’ safety at risk” and “ignored the due process needs of the VICTIMS of his crimes, who were there in the court because of the alleged domestic battery.”
What happens next? According to Lennington, the (nonbinding) sentencing guidelines range is 8 to 14 months if Judge Dugan cooperates, but it’s “likely she will cooperate and get 12 months probation/no incarceration.” If she gets convicted at trial, he estimates that she could be looking at around 27 months. But if the case goes to trial, I think the chances of a hung jury are much higher than average: I could easily see a juror or jurors refusing to vote guilty because they believe Dugan did the right thing, or they think the case should never have been brought.
If the facts of this case sound familiar, it’s because a similar thing happened in the first Trump term. In 2018, Massachusetts District Court Judge Shelley Joseph and a court security officer were indicted on obstruction and other federal charges, after allegedly helping an undocumented immigrant evade federal agents under similar circumstances. Judge Joseph filed a motion to dismiss the prosecution, asserting judicial immunity and other defenses; the district court denied that motion, and the First Circuit declined to review that denial before a trial. By that point, it was already 2022, i.e., the Biden administration. The federal prosecutor handling the case dismissed the charges, as part of an agreement requiring Joseph to refer herself to the Massachusetts Commission on Judicial Conduct—and it appears that those judicial-discipline proceedings are still pending.
Other judges in the news:
Last week’s Judge of the Week, Fourth Circuit Judge J. Harvie Wilkinson, won plenty of plaudits for his opinion in Abrego Garcia v. Noem. But reactions to his opinion in a run-of-the-mill insurance dispute, Owners Insurance Company v. Walsh—specifically, the existential, metaphysical musings on the last page—are more mixed. Noted appellate litigator John Elwood commended it as “an unusually introspective conclusion” from a “superb judge,” but the Legal Style Blog castigated it as “atrociously bad judicial writing.” (I fall somewhere in between; I’m a longtime admirer of Judge Wilkinson, but I think this particular patch of prose would be more appropriate for his next romantic novel, as opposed to the pages of the Federal Reporter.)
Judge Pauline Newman, who will turn 98 in June, continues to fight her suspension from the Federal Circuit—but the odds of her returning to the bench are looking long. Her lawyer, Greg Dolin of the New Civil Liberties Alliance, received a skeptical reception from a D.C. Circuit panel at oral argument.
Ahead of a Wednesday hearing in Perkins Coie’s challenge to the EO leveled against it by the Trump administration, Donald Trump attacked Judge Beryl Howell (D.D.C.) as “an unmitigated train wreck.” But if he was attempting to intimidate Judge Howell, it didn’t work; she asked tough questions of DOJ lawyer Richard Lawson, as reported by The Washington Post (gift link), and he seemed short on answers. For example, Lawson couldn’t answer a question that many of us have been wondering: have Trump’s deals with the nine settling law firms been memorialized in detailed, written agreements, i.e., something more elaborate than Trump’s posts on Truth Social? My guess is that the Trump/Biglaw deals have not been “papered up,” with each side thinking it was better off without a more formalized deal (but if I’m wrong, please let me know).
On Tuesday, in a retrial—the first trial ended with a hung jury—a California state-court jury found Orange County Superior Court Judge Jeffrey Ferguson guilty of second-degree murder, for shooting and killing his wife in August 2023.
California judges are defendants, and California judges are plaintiffs: Judge Dean Pregerson (C.D. Cal.) and retired Magistrate Judge Jay Gandhi (C.D. Cal.) sued the City of Los Angeles, after losing their homes in the Palisades Fire. They allege that their losses were caused by the negligence of the Los Angeles Department of Water and Power, which failed to properly maintain critical water reservoirs.
During a private meeting of the Judicial Conference, Judge Richard Sullivan (2d Cir.) posed a provocative question: what if Trump ordered the U.S. Marshals Service—which oversees security for the judicial branch, but is itself part of the executive branch—to stop protecting certain judges? It’s “a scenario that weeks before would have sounded like dystopian fiction,” as Mattathias Schwartz and Emily Bazelon wrote in The Times—but you could perhaps say the same of many things that have happened over the past three months.
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