Judicial Notice (06.16.24): Out Of Control
Hunter Biden gets convicted, Justice Barrett takes charge, a rap star’s trial goes off the rails, and a Boston law firm winds up on the ropes.
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Happy Father’s Day to all the dads out there. The first highlight of my week was fatherhood-related: our son graduated from first grade. The second highlight was joining Sarah Isgur on Advisory Opinions (AO) to discuss the latest controversy involving Justice Samuel Alito, the conviction of Hunter Biden, the Young Thug trial, and six new Supreme Court decisions (which we managed to do in under 90 minutes).
Speaking of fatherhood and podcasting, check out my interview of Michael Williams if you haven’t already. Mike juggles his busy trial practice at Kirkland & Ellis with raising 11 kids, so I take my hat off to him, and he offers lots of great advice for working parents.
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Now, on to the news.
Lawyers of the Week: Leo Wise and Derek Hines.
On Tuesday, a jury in Delaware federal court found Hunter Biden guilty on three felony counts: one count of illegal gun possession—specifically, possessing a firearm while he was “an unlawful user of or addicted to any controlled substance,” in violation of 18 U.S.C. § 922(g)(3)—and two counts of making false statements (on forms related to the gun purchase). While I wasn’t surprised by the verdict, I was surprised by how it came just three hours and five minutes into deliberations.
The Hunter Biden conviction arrived just two weeks after former president Donald Trump was convicted of 34 felony counts at his Manhattan hush-money trial—which led Jimmy Kimmel to quip that Hunter is “now only 31 felonies away from being the Republican nominee for president.” Writing in The New York Times, Charlie Savage opined that “under tremendous political pressure, 12 jurors in both cases appear to have taken their jobs seriously, weighing the evidence and delivering convictions”—i.e., the system worked.
President Joe Biden stated after the verdict that he would not pardon his son or commute his sentence, so Hunter’s fate presumably lies in the hands of Judge Maryellen Noreika (D. Del.). Former Justice Department lawyer Tom Dupree, now at Gibson Dunn, predicted to CBS News that Hunter will get prison time, but not a particularly long sentence—between one to two years. That’s also what former federal prosecutor Ken White calculated Hunter’s federal sentencing-guidelines range to be—but the guidelines are advisory, and White said on Serious Trouble that if he were representing Hunter, “I would be cautiously optimistic that I could get a noncustodial sentence or at least something a lot less than a year or two in federal prison.” (As I said on AO, disagreeing with Sarah Isgur, I’m closer to Dupree than to White: I think Judge Noreika will force Hunter to spend at least some time behind bars, maybe six months or so.)
What about Hunter’s prospects on appeal? He could challenge § 922(g)(3), using the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen to argue that the government can’t take away someone’s Second Amendment rights based merely on the status of being an addict. But that’s probably a long shot, and even if he can get his gun conviction reversed, his two false-statement convictions are likely to be upheld (although he could get a lower sentence if the gun charge falls).
The lead lawyers for the government were Leo Wise, a longtime federal prosecutor who currently works for the DOJ’s public-integrity section, and his colleague Derek Hines. While the evidence against Hunter was extensive, jury trials involving public, politically connected figures can be unpredictable, and Hunter had a formidable defense team from Winston & Strawn, led by veteran defense lawyer Abbe Lowell. So Wise and Hines deserve significant credit for the convictions.
And the two prosecutors could benefit from their victory should they decide to pursue opportunities in private practice, according to legal recruiter Amy Savage of Lateral Link. As she told the National Law Journal, “Depending on the firm’s hiring strategy, they might want a splash hire. And having someone who has been highly visible speaks not only to their expertise, but also to their credibility in the marketplace.”
Judge of the Week: Justice Amy Coney Barrett.
Yes, I have thoughts on the latest controversy swirling around Justice Samuel Alito, based on secret recordings of him and his wife, Martha-Ann, made at a Supreme Court Historical Society gala by a progressive filmmaker named Lauren Windsor (who pretended to be a conservative Catholic when speaking with the Alitos). You can hear my views—including a funny story involving me, Mrs. Alito, and the Alitos’ son Phil—on Advisory Opinions (starting around 57:20).
But enough about Justice Alito; let’s instead focus on Justice Amy Coney Barrett. As one of the three justices in the middle of a 3-3-3 Court, she’s powerful simply by virtue of her vote—reflected in how, after Chief Justice Roberts and Justice Kavanaugh, she’s the third most-likely justice to be in the majority. And she also might hold the future of American constitutional law in her hands.
Since it was mixed in with the mifepristone and bump-stock cases, Vidal v. Elster might have been easy to overlook. It concerns the constitutionality under the First Amendment of the “names clause” of the federal trademark law, the Lanham Act, which prohibits registration of a mark that “[c]onsists of or comprises a name… identifying a particular living individual, except by his written consent.” This topic might seem esoteric, but the case garnered media attention because of a Trump angle: attorney Steve Elster sought to register “Trump too small,” for use on shirts and hats.
With apologies to the trademark-law nerds among you, what’s most interesting about this case is not the Lanham Act issue. Instead—as Sarah Isgur and I discussed on AO (around 25:52), and as Kyle Jahner and Aruni Soni explained for Bloomberg Law—it offers a window into the justices’ differing approaches to constitutional interpretation.
Since the Court’s big Second Amendment decision two years ago in Bruen, the methodology employed by Justice Thomas in that case—aka “text, history, and tradition” (THT), as described by Justice Kavanaugh in his concurrence—seemed destined to become the dominant mode for deciding whether the Constitution recognizes a given right. Many lower-court judges, especially those on the more conservative or originalist end of the spectrum, started deploying THT aggressively in constitutional cases.
But now SCOTUS might be saying, “Not so fast.” And the justice telling everyone to slow their roll is, surprisingly enough, Justice Barrett.
In his Elster opinion, Justice Thomas employed a THT approach. After conducting a detailed analysis of the history of American trademark law, he concluded that the names clause “has deep roots in our legal tradition,” and more specifically, “a tradition of restricting the trademarking of names has coexisted with the First Amendment.”
In her concurrence—which was joined in part by the three liberal justices—Justice Barrett countered that “the Court never explains why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question.” Instead, Justice Barrett argued for “a standard, grounded in both trademark law and First Amendment precedent, that reflects the relationship between content-based trademark registration restrictions and free speech.”
The clash between Justices Thomas and Barrett raises a broader question: what is the proper role of history and tradition in constitutional analysis? Here is Justice Barrett’s view (citations omitted—but note that one of her citations is to Justice Elena Kagan’s concurrence in the recent case about the funding mechanism for the Consumer Financial Protection Bureau, which I predict will become another key opinion in this debate):
To be sure, tradition has a legitimate role to play in constitutional adjudication. For instance, the longstanding practice of the political branches can reinforce our understanding of the Constitution’s original meaning. A course of deliberate practice might liquidate ambiguous constitutional provisions. The views of preceding generations can persuade, and, in the realm of stare decisis, even bind. But tradition is not an end in itself—and I fear that the Court uses it that way here.
In her first two Terms of the Court, Justice Barrett seemed to assume a don’t-rock-the-boat, “I’m just happy to be here” role. But with her brilliant concurrence in Biden v. Nebraska last June—a pellucid analysis of the “major questions” doctrine—and now her concurrence in Elster, her colleagues are on notice: Justice Barrett is an intellectual force to be reckoned with on the Court. And she won’t hesitate to part ways with her senior colleagues if she disagrees with their views.
In nominations news, the Biden Administration announced its fifty-second round of judicial nominees: assistant U.S. attorney Mary Kay Costello (E.D. Pa.), assistant U.S. attorney Laura Margarete Provinzino (D. Minn.), and California Superior Court Judge Noël Wise (N.D. Cal.). All three nominees have the support of their home-state (Democratic) senators—but getting confirmed will get increasingly difficult as we get closer to the November elections.
In memoriam: Judge Harry D. Leinenweber—a member of the Northern District of Illinois bench since 1985, on senior status since 2002—passed away at 87. May he rest in peace.
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Ruling of the Week: Garland v. Cargill.
We’re in the middle of June, so the U.S. Supreme Court is busy cranking out opinions. It handed down opinions on Thursday and Friday, which you can access here and here (via Howard Bashman of How Appealing).
And since the mifepristone case, FDA v. Alliance for Hippocratic Medicine, ended “with a whimper”—in an opinion by Justice Kavanaugh, the Court unanimously ruled that the plaintiffs lacked standing—last week’s biggest decision was Garland v. Cargill. Writing for the six conservatives, Justice Clarence Thomas held that based on the National Firearms Act’s definition of a “machinegun,” the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “exceeded its statutory authority by issuing a Rule that classifies bump stocks as machineguns.” The Court therefore affirmed the Fifth Circuit (which got reversed in the mifepristone case, and will probably end the Term with a less-than-stellar track record before SCOTUS).
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