Judicial Notice (09.01.25): (Not) Indicting A Ham Sandwich
A Trump appointee benchslaps the Trump administration, the Federal Circuit tosses Trump’s tariffs (mostly), and Davis Polk and Cooley make big hires.
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If we must bid farewell to summer, we might as well have fun doing it. Zach and I spent Labor Day weekend with our boys at Mohonk Mountain House, a wonderful old resort in upstate New York that I hadn’t visited since I was a boy. We had a great time hiking, rock climbing, swimming, and eating way too much (because I aspire to return to healthful habits after Labor Day).
Now, on to the news.
Lawyer of the Week: Abbe Lowell.
As Daniel Barnes wrote in Politico, “Injured in an accident? Call the guy on the billboard. Targeted by the Trump administration? Call Abbe Lowell.” The prominent and polarizing defense lawyer has become, in the words of Erin Mulvaney and Ryan Barber of The Wall Street Journal (gift link), “the go-to lawyer for Trump’s targets.”
Lowell’s latest clients include Federal Reserve Governor Lisa Cook, who filed a lawsuit to block Trump’s attempt to fire her from the Fed (discussed below as Litigation of the Week), and Susan Monarez, who similarly disputes the legality of her firing as director of the Centers for Disease Control and Prevention (but hasn’t sued—yet). Per Reuters, Cook and Monarez join a client list that includes New York Attorney General Letitia “Tish” James, whistleblower lawyer Mark Zaid, ex-prosecutors who worked on January 6-related cases, and former Homeland Security official Miles Taylor (who wrote a tell-all book about his time in the first Trump administration).
And Lowell’s roster of high-profile clients who are adverse to Trump is almost certain to grow. Having left Winston & Strawn to start his own boutique, Lowell & Associates, he enjoys greater freedom to represent controversial clients and causes—representations that Biglaw firms might shy away from, fearful of antagonizing the administration.
As Lowell previously told me, “I’ve challenged federal and agency overreach under every administration since President Reagan. But what sets this administration apart is the sheer scale and scope of its intrusion into nearly every aspect of American life. That’s why Lowell & Associates is here—to defend against that overreach when it matters most.”
Other lawyers in the news:
Abbe Lowell isn’t the only lawyer going toe to toe with the Trump administration. Former U.S. solicitor general Paul Clement took a win in United States v. Russell and a loss in United States v. Dugan—both discussed below under Judge of the Week, since judges are defendants (and Clement’s clients) in both cases. Clement is also coming to the aid of Tesla: along with Ted Boutrous and Miguel Estrada of Gibson Dunn, Clement is trying to overturn a $243 million jury verdict in a lawsuit involving the electric-vehicle maker’s self-driving feature, blamed for a 2019 crash that killed one person and seriously injured another.
Emil Bove continued to work at the U.S. Department of Justice (DOJ) after being confirmed to serve as a judge on the Third Circuit, according to reporting by Devlin Barrett of The New York Times (gift link). To what extent should Bove recuse from Trump-related cases heard by the Third Circuit? For conflicting takes, both written for Bloomberg Law, compare Erwin Chemerinsky and Miles Mogulescu with Mike Davis and Will Chamberlain.
The controversy surrounding Alina Habba’s ability to serve as acting U.S. attorney in New Jersey is now before the Third Circuit—but in the meantime, criminal proceedings in the district have ground to a halt, per The Times (gift link). And similar problems could soon be coming to Los Angeles and Las Vegas, where federal public defenders have moved to disqualify acting U.S. attorneys Bill Essayli (C.D. Cal.) and Sigal Chattah (D. Nev.).
Professor Amy Wax lost her lawsuit against Penn Law, in which she alleged that the school discriminated against her based on her status as a white Jewish woman. Judge Timothy Savage (E.D. Pa.) dismissed her case, concluding that she “has failed to allege facts that show that her race was a factor” in the adverse employment actions taken against her (which included suspending her from teaching for one year, with reduced pay, based on public statements Wax made that the Penn administration claimed were racist).
Former FBI director Robert Mueller, who served as the special counsel investigating possible ties between the 2016 Trump campaign and Russia, was diagnosed with Parkinson’s disease four years ago, according to a statement his family released on Sunday. In light of this, a congressional committee investigating the Jeffrey Epstein case dropped its request for his testimony about the FBI’s handling of the Epstein investigation during his tenure.
In memoriam: James E. Ferguson II, a prominent civil-rights litigator who won landmark school-desegregation cases, passed away at 82. May he rest in peace.
Judge of the Week: Judge Thomas Cullen.
As I noted last month, Judge Thomas Cullen (W.D. Va.) is a two-time Trump appointee: during Trump’s first term, he appointed Cullen as a U.S. attorney, then nominated him to the federal bench. But don’t expect Cullen to get a third Trump appointment (e.g., to the Fourth Circuit)—at least not after his recent ruling against the administration in United States v. Russell.
The “Russell” in United States v. Russell is Chief Judge George L. Russell III. The Trump administration sued Chief Judge Russell and all of his colleagues on the U.S. District Court for the District of Maryland, challenging that court’s standing order blocking the immediate deportation of habeas petitioners. The order automatically blocks, for two business days, the deportation of any migrant who files a habeas lawsuit challenging their detention—to prevent a situation where a migrant is deported before their habeas case can be adjudicated.
Judge Cullen dismissed the lawsuit attacking the order, criticizing the administration’s “novel and potentially calamitous litigation”—and issued what Alan Feuer of The Times described as a “scathing,” 39-page opinion. Here’s Judge Cullen’s pithy summary of why he dismissed the case:
The court finds that (A) the Executive lacks standing to bring its claim for injunctive relief, but even disregarding that critical flaw, its entire complaint is subject to dismissal because (B) Defendants are immune from suit and, (C) alternatively, the Executive fails to identify a legitimate cause of action that allows it to bring this lawsuit. Because these irreconcilable defects mandate dismissal of the entire suit, the court does not reach the merits question of whether the standing orders are a proper exercise of judicial power.
But Judge Cullen didn’t stop there. In a footnote, he defended the judiciary against attacks by unnamed officials of the executive branch:
[O]ver the past several months, principal officers of the Executive (and their spokespersons) have described federal district judges across the country as “left-wing,” “liberal,” “activists,” “radical,” “politically minded,” “rogue,” “unhinged,” “outrageous, overzealous, [and] unconstitutional,” “[c]rooked,” and worse. Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.
This language got picked up by many media outlets—and it’s not hard to understand why. Judge Cullen, who recently published a novel for young adults, prides himself on accessible writing—and his Russell opinion is definitely that. You don’t need a law degree to recognize that ruling for what it was: a stinging benchslap.
In other news about judges and the judiciary:
Judge Lynn Adelman (E.D. Wis.) denied Milwaukee County Circuit Court Judge Hanah Dugan’s motion to dismiss the federal criminal case against her based on a claim of judicial immunity. Judge Dugan stands accused of concealing a person from arrest and obstruction of proceedings, based on allegations that she tried to help an undocumented immigrant evade federal agents by ushering him out a side door. Although he did make it past the agents waiting right outside Judge Dugan’s courtroom, he was apprehended by other agents outside the courthouse.
As many of us expected (and feared), the Federal Circuit extended the suspension of Judge Pauline Newman for another year.
In nominations news, Donald Trump declared that his administration will file a lawsuit challenging the Senate’s “blue slip” tradition, which allows senators to block district-court and U.S.-attorney nominees from their home states. Such litigation is unlikely to succeed, but it would escalate Trump’s battle with the Senate over stalled nominations (such as his U.S. attorney picks for various blue states).
In memoriam: West Virginia Supreme Court Justice Tim Armstead passed away at 60, after battling cancer. May he rest in peace.
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