Judicial Notice (10.19.25): Going Rogue
John Bolton’s indictment, George Santos’s commutation, Kirkland’s giant new partner class, and the Third Circuit’s latest additions—Judges Emil Bove and Jenn Mascott.
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I did some traveling last week. On Monday, Zach and I took Harlan (off from school) and Chase to the Please Touch Museum in Philadelphia. A good time was had by all—except for Chase on the carousel.
On Friday, I participated in Syracuse Law’s annual U.S. Supreme Court Preview. After delivering the keynote address, “The Supreme Court Clerkship: Evolution of an Institution,” I joined a panel discussion that covered some of the most notable cases of October Term 2025. Thanks to Syracuse Law for an excellent visit. Go Orange!
I’m working on a column offering advice to incoming associates starting up at law firms this fall (similar to my post from August, 4 Tips For Incoming Judicial Law Clerks). My own stint in Biglaw was relatively short, so I’m going to need some help. If you have a tip or two you can share, please email me at davidlat@substack.com, subject line “Associate Advice,” or post in the comments. My default approach is to keep sources anonymous—I’ll just pass off your insights and wisdom as my own, if that’s okay—so there’s no need to request anonymity.
Now, on to the news.
Lawyer of the Week: John Bolton.
The Trump administration continues to prosecute Donald Trump’s foes. The three latest targets are all lawyers: James Comey, a former FBI director, deputy attorney general, and U.S. attorney (S.D.N.Y.); Letitia James, the current attorney general of New York State; and now John Bolton, who served in the first Trump administration as national security advisor (NSA)—before he fell out of Trump’s favor, as a number of other administration alumni have, and became a prominent Trump critic.
Although the NSA doesn’t have to be a lawyer, Bolton is an attorney with impressive legal credentials. A graduate of Yale Law School (where he was friends with Clarence Thomas), Bolton served as an assistant attorney general at the U.S. Department of Justice (DOJ), in both the Civil Division and Office of Legislative Affairs, and practiced at Covington & Burling and Kirkland & Ellis.
On Thursday, a federal grand jury in Maryland indicted Bolton on charges of mishandling classified information. The 26-page indictment contains 18 counts: eight counts of unlawful transmission of national defense information, in violation of 18 U.S.C. § 793(d), and 10 counts of unlawful retention of national defense information, in violation of 18 U.S.C. § 793(e).
As explained in The New York Times, the gist of the indictment is that Bolton “us[ed] personal email and a messaging app to share more than 1,000 pages of ‘diary’ notes about his day-to-day activities as Mr. Trump’s national security adviser in 2018 and 2019.” According to the indictment, Bolton sometimes used AOL and Google email accounts to send these “notes” to two family members, who were helping him with a book project that later became his memoir, The Room Where It Happened. These relatives, reportedly his wife and daughter, did not have security clearances—and his unsecured email was subsequently hacked by “a cyber actor believed to be associated with the Islamic Republic of Iran.” Not great.
On Friday, Bolton pleaded not guilty to the charges, which he vowed to fight. Like a number of other Trump foes (including Tish James), Bolton retained one of Washington’s most well-known lawyers, Abbe Lowell—a former Winston & Strawn partner who now has his own boutique, Lowell & Associates. Lowell sent me the following statement about the charges against Bolton:
The underlying facts in this case were investigated and resolved years ago. These charges stem from portions of Ambassador Bolton’s personal diaries over his 45-year career—records that are unclassified, shared only with his immediate family, and known to the FBI as far back as 2021. Like many public officials throughout history, Ambassador Bolton kept diaries—that is not a crime. We look forward to proving once again that Ambassador Bolton did not unlawfully share or store any information. [Ed. note: Bolton is referred to as “Ambassador” because he served as U.S. Ambassador to the United Nations from 2005 to 2006, under President George W. Bush.]
Bolton decried his prosecution as part of Trump’s “intensive effort to intimidate his opponents.” But while there are some similarities between Bolton’s prosecution and those of Jim Comey and Tish James, there are some differences as well, as noted by The Washington Post and Reuters—which led Reuters to opine that Bolton “faces a tougher defense than other Trump foes charged with crimes.”
First, the 26-page indictment against Bolton is far more than detailed than the bare-bones documents filed against Comey (two pages) or James (five pages)—and the Bolton indictment is more persuasive, according to legal experts consulted by The Times, The Post, and Reuters. Second, scrutiny of Bolton by prosecutors predated the current administration; he was investigated under Biden as well.
Third, while the Comey and James indictments were brought by Lindsey Halligan—a former personal lawyer to Trump with no prior prosecutorial experience, installed as U.S. attorney after career prosecutors wouldn’t bring the cases Trump sought—multiple veteran prosecutors were involved in the Bolton indictment. They include U.S. Attorney Kelly O. Hayes—initially picked by the Trump administration as interim U.S. attorney, but subsequently appointed by the judges of the district court—and Thomas Sullivan, chief of the national security and cybercrime section of the Maryland U.S. Attorney’s Office, who signed the indictment on Hayes’s behalf.
Bolton definitely has possible defenses. He could and surely will argue selective or vindictive prosecution—and he could cite the Trump administration’s inconsistency in investigating and prosecuting the alleged mishandling of classified information, including the apparent lack of any investigation or prosecution associated with “Signalgate,” the incident in which Defense Secretary Pete Hegseth and other officials discussed a military strike in Yemen over Signal, a commercial messaging app, in a group chat that accidentally included a journalist from The Atlantic. But legally, prevailing on a selective or vindictive prosecution claim is a tough row to hoe (for reasons explained by Professor Rory Little in a thoughtful and thorough SCOTUSblog post).
So if I were in John Bolton’s shoes, I’d be afraid, very afraid. He’s 76 years old, the charges he faces could put him behind bars for the rest of his life, and he seems unlikely to be the recipient of (questionable) presidential clemency—unlike former congressman George Santos, discussed below (under Litigation of the Week).
Other lawyers in the news (links to The Times are gift links—you’re welcome):
Several prosecutors were fired in or resigned from the U.S. Attorney’s Office for the Eastern District of Virginia, in either the lead-up to or the aftermath of the Comey indictment. On Friday, another E.D. Va. prosecutor who opposed the Comey charges, Elizabeth Yusi, was terminated—along with her deputy, Kristin Bird—according to The Times.
The Times also conducted a deep dive into the departure of Todd Gilbert as U.S. attorney for the Western District of Virginia. Gilbert reportedly was forced to resign—and one of his deputies, Zachary Lee, was demoted (before leaving the office)—after Gilbert and Lee didn’t pursue an investigation, sought by the Trump administration, related to the FBI’s examination of Russian interference in the 2016 presidential election.
Caught in the middle of all this is Deputy Attorney General Todd Blanche—who has, per The Times, “more often than not enabled the president’s effort to discard processes and restraints that once preserved the department’s independence.” But on a few occasions, he has “defended the [DOJ] against the most extreme efforts of Mr. Trump and his allies to pursue an intensifying campaign of retribution”—and is viewed with suspicion by some on the right for that reason.
Legal Academic of the Week: Professor Caleb Nelson of UVA Law School. A prominent originalist and former law clerk to Justice Thomas, Nelson wrote an article, “Must Administrative Officers Serve at the President’s Pleasure,” that “has complicated and perhaps upended the conventional wisdom” among conservatives about the “unitary executive” theory,” per Adam Liptak. Another well-known legal scholar, Professor Will Baude, dubbed Nelson’s article a “bombshell” on Bluesky.
Superstar trial lawyer Alex Spiro of Quinn Emanuel charges $3,000 an hour—which is, according to Jack Newsham of Business Insider, almost twice what he charged four years ago ($1,600). I’ve known about Spiro and his talents for years—which is why I picked him, more than three years ago, as my very first podcast guest. So you can think of that 40-minute interview as worth $2,000—making an Original Jurisdiction subscription quite the bargain.
Judges of the Week: Judges Emil Bove and Jennifer Mascott.
Last Wednesday, the Third Circuit held rehearing en banc in Association of New Jersey Rifle & Pistol Clubs Inc. v. Attorney General of New Jersey. It’s an interesting and important case, a Second Amendment challenge to a New Jersey gun law that bans AR-15 rifles (among other things).
It was noteworthy for another reason as well: it was the first appearance on the bench of two new Trump appointees, Judges Emil Bove and Jennifer Mascott. Their arrival is significant, as Jacqueline Thomsen noted for Bloomberg Law, because it gives Republican appointees an 8-6 majority on the Third Circuit (previously 7-7, before Judge Bove replaced Judge Joseph Greenaway Jr., an Obama appointee).
Chief Judge Michael Chagares began the session by welcoming his two new colleagues. You can listen to the proceedings here, including Chief Judge Chagares’s pronunciation of “Bove” consistent with what I previously shared, “BOH-vee.” (As for “Emil,” which Chagares did not have occasion to pronounce, I believe it’s “A-mill,” where “A” rhymes with “day” or “may.”)
During the argument, Judge Mascott was an active questioner, as you’d expect from a former law professor. And she showed keen interest in how to conduct the history-and-tradition analysis required under Brahimi, as you’d expect from a former law clerk to Justice Thomas. I predict that she’ll be a force to be reckoned with on the bench, whether or not you agree with her views. And I predict that Judge Mascott, who clerked for then-Judge Brett Kavanaugh as well as Justice Thomas, will become a Supreme Court feeder judge as well.
As for Judge Bove on the bench, he was like the pre-pandemic Justice Thomas: silent. But we did get a hint about what Bove might be like as a judge from a concurrence he wrote in Thomas Taysson Batista Ramos v. Attorney General United States of America, an immigrant’s habeas petition challenging the removal (deportation) proceedings brought against him.
The panel majority in this immigration case, consisting of Judges Cheryl Ann Krause and Richard Nygaard, issued an administrative stay on October 8, to freeze the proceedings—and prevent the petitioner’s deportation—while it considered the merits. On Friday, the majority denied the petitioner’s motion for an emergency stay; transferred the case to the Fifth Circuit, after concluding that it should have been brought in the Fifth Circuit in the first place; and lifted the administrative stay.
Judge Bove wrote a concurrence to explain why he dissented from the October 8 administrative stay, but concurred in the denial of an emergency stay and transfer order. In an opinion urging judicial deference to the executive branch on deportations, he argued that (1) the petitioner’s motion for a stay “should not have interfered with [Department of Homeland Security] operations for an instant,” and (2) “the harms of a stay to the Executive Branch outweighed the risk of unwarranted consequences to Petitioner.” Quoting prominent conservative jurists from other circuits—including Judges Patrick Bumatay (9th Cir.), Andrew Oldham (5th Cir.), and Lawrence VanDyke (9th Cir.)—Judge Bove also wrote critically about stays, especially administrative stays, and especially in the immigration context.
Based on this concurrence, I predict that Judge Bove will be, as most would have predicted, very conservative—and very deferential to the executive branch (at least as long as Donald Trump, Bove’s former client in private practice, is president). But his tone, interestingly enough, was restrained; instead of sharply criticizing his colleagues, à la Judge VanDyke, Judge Bove wrote that “there is no question in my mind that we all approached that task [of judicial review] in good faith.” So based on both his silence on the bench and non-barn-burning concurrence, Judge Bove might be less in-your-face as a jurist than we might have expected (at least based on allegations that as a Justice Department official, he told colleagues that the DOJ might have to tell courts, “f**k you”).
In other news about judges and the judiciary:
On Monday, the federal courts will start feeling the effects of the government shutdown, as reported by The Times and The National Law Journal. But it’s not clear what those effects will be—and they could vary from court to court. According to a statement from the Administrative Office of the U.S. Courts, “[e]ach appellate, district, and bankruptcy court will make operational decisions regarding how its cases and probation and pretrial supervision will be conducted during the funding lapse,” as will each federal defender’s office (because federal public defenders are funded by the judicial and not executive branch). Judges will continue to get paid—as required by the Constitution—but court staff, including law clerks, might get furloughed or asked to work without pay (but hopefully made whole when the shutdown ends, whenever that might be).
How will the shutdown affect SCOTUS? According to the Public Information Office, the building at One First Street “will be closed to the public until further notice,” but the Court “will continue to conduct essential work such as hearing oral arguments, issuing orders and opinions, [and] processing case filings.”
Speaking of the Court and its members, Justice Anthony Kennedy’s memoir, Life, Law & Liberty, was officially published on Tuesday. For highlights, check out my husband Zach’s SCOTUSblog post.
Who’s overseeing the John Bolton prosecution? That would be Judge Theodore Chuang, a former federal prosecutor and counsel at WilmerHale, who was appointed to the District of Maryland by President Obama in 2014 (as noted in this National Law Journal profile).
Job of the Week: an opportunity for a midlevel to senior M&A associate in Dallas.
Lateral Link is working with a Chambers-ranked, leading Am Law firm in its search for a midlevel to senior M&A associate (4–7 years of experience) for its rapidly growing corporate practice in Dallas. This is a fantastic opportunity to join a close-knit, high-performing group, led by the firm-wide corporate chair, which works on sophisticated, high-profile transactions. The successful candidate will have the opportunity to take the lead on deals and work directly with top-tier clients on a broad range of transactions, including ones that will help develop the skills and experience needed for long-term career success. This firm also stands out for its strong partnership potential. To learn more, please reach out to Wendy Boone Jaikaran at wendyboone@laterallink.com.
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