Judicial Notice (11.02.25): Oh, SNAP
Judges order the continuation of critical federal food benefits, AUSAs get in trouble for disrespecting January 6, and a sizable group of immigration lawyers leaves Biglaw.
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Our family had a great weekend in Cleveland, where we attended the bar mitzvah of the son of one of my closest friends from law school. We started the drive on Thursday, staying overnight in Pennsylvania, and on Friday we visited Fallingwater, to indulge Harlan’s growing interest in architecture. While in Cleveland, we stayed and spent time with my cousin and her family, which was also a lot of fun. The drive back, which we did as a straight shot along I-80, was not so fun—but we survived (no small feat with two young boys, ages 8 and 2).
On Wednesday, before we left for our road trip, I had the pleasure of participating in a great Bloomberg Law event, “Business Development Strategies for Today’s Rainmakers.” I moderated a panel featuring three all-star trial lawyers: Jeffrey Kessler of Winston & Strawn, Shawn Rabin of Susman Godfrey, and Beth Wilkinson of Wilkinson Stekloff (whom I previously hosted on my podcast).
As the year draws to a close, it’s time for financial housekeeping. Have you maxed out your 401(k)? Have you contributed to your child’s 529? Are there capital gains or losses you want to realize before the year’s end? If you end up with extra cash and need to park it somewhere risk-free (or at least FDIC-insured), sign up for Wealthfront using my referral code, which will give us both a rate of 4.50 percent for the next three months. Several of you took me up on this last year, for mutual benefit—but my boosted rate is about to expire, so I thought I’d mention again.
Now, on to the news—but before that, please accept my apologies for the tardiness of this newsletter, whose timing was affected by our weekend travel. It was ready late last night, but I decided it would be better to send this morning. Please note that it reflects news only through Sunday, November 2; anything unintentionally omitted will be covered in next weekend’s Judicial Notice.
Actually, while we’re on the subject of timing, here’s a quick poll:
Lawyers of the Week: Carlos Valdivia and Samuel White.
How would you describe what transpired at the U.S. Capitol on January 6, 2021, and how would you refer to participants in that event? “Riot” and “rioters” don’t seem particularly controversial—certainly less loaded than “attack,” “siege,” or “insurrection,” which convey something more coordinated and intentional. But if you’re a federal prosecutor in Washington, D.C., referring to the folks who entered the Capitol on January 6 as “a mob of rioters”—as opposed to a Trump-approved locution like “patriots” attending a “day of love”—you could get yourself in trouble.
Two assistant U.S. attorneys, Carlos Valdivia and Samuel White, prosecuted Taylor Taranto—a January 6 rioter attendee who, after getting pardoned for January 6, got arrested near Barack Obama’s D.C. home for illegally possessing two guns and hundreds of rounds of ammunition. These AUSAs got him convicted, at a bench trial, then filed a sentencing memorandum that discussed January 6 as follows:
On January 6, 2021, thousands of people comprising a mob of rioters attacked the U.S. Capitol while a joint session of Congress met to certify the results of the 2020 presidential election. Taranto was accused of participating in the riot in Washington, D.C., by entering the U.S. Capitol Building. After the riot, Taranto returned to his home in the State of Washington, where he promoted conspiracy theories about the events of January 6, 2021.
Last Wednesday, hours after filing the memo, Valdivia and White were told they would be placed on leave (as first reported by ABC News). They were replaced on the Taranto case by two new prosecutors—including Jonathan Hornok, chief of the criminal division of the D.C. U.S. Attorney’s Office.
Claiming that the original sentencing memo was filed “in error,” the Department of Justice (DOJ) substituted in its place a memo that recommended the same sentence (27 months), but (1) made no mention of January 6, (2) removed a statement that Taranto’s crime should be “viewed with the backdrop of political violence in mind,” and (3) took out a reference to how Taranto showed up near Obama’s home after Trump published Obama’s address on Truth Social.
The sentencing took place on Thursday before Judge Carl Nichols (D.D.C.)—and Valdivia and White attended, sitting in the gallery. So they were present when Judge Nichols, a Trump appointee, praised them for upholding “the highest standards of professionalism” in their handling of the case. “In my view,” said Judge Nichols, “both Mr. Valdivia and Mr. White did a truly excellent job in this case.”
Other lawyers in the news:
Another lawyer sidelined by the Trump DOJ, former acting U.S. attorney Michele Beckwith (E.D. Cal.)—who was fired not just as acting U.S. attorney but from federal employment, after reminding a Border Patrol official to comply with the law—joined the administration of California Governor Gavin Newsom.
Speaking of former acting U.S. attorneys, Judge J. Michael Seabright (D. Haw.) ruled that Bill Essayli cannot continue to serve as acting U.S. attorney (C.D. Cal.), since his 120-day term ran out. That might seem like a loss for the Trump administration, but as a practical matter, it’s more of a win: Judge Seabright also ruled that Essayli can’t be stopped from serving as first assistant U.S. attorney—and overseeing the work of his office in that capacity.
The University of Arkansas at Little Rock terminated the employment of Felicia Branch, a clinical law professor, based on Facebook posts comparing mourners of Charlie Kirk to members of the Ku Klux Klan.
In happier news, congratulations to Benchmark Litigation’s Top 100 Trial Lawyers—especially the seven who have been guests on my podcast (namely, Karen Dunn, David Elsberg, Roberta “Robbie” Kaplan, Steven Molo, Orin Snyder, Alex Spiro, and Beth Wilkinson).
And kudos to two more former podcast guests. First, Alexandra Shapiro of Shapiro Arato. Together with two colleagues, Daniel J. O’Neill and Bronwyn Roantree, she persuaded the Second Circuit to vacate the securities-fraud convictions of Neil Cole, founder and former CEO of Iconix Brand Group (and the brother of fashion designer Kenneth Cole).
Second, Neal Katyal of Milbank. After winning a coin flip with Pratik Shah of Akin Gump, Katyal will argue before the Court in the big tariffs case, on behalf of the challengers—but not before Trump, who toyed with the idea of attending but announced on Sunday that he wouldn’t be there. (Join SCOTUSblog on Wednesday morning for a liveblog of the oral argument, followed by a live recording of Advisory Opinions; I’ll be participating in both.)
In memoriam: Joseph Duffy—a class-action litigator and partner at Morgan Lewis, whose Los Angeles office he previously led as managing partner—passed away at 51, from a heart attack. May he rest in peace.
Judges of the Week: Chief Judge John McConnell and Judge Indira Talwani.
The federal government shutdown is now a few days into its second month. And while there are some signs of progress toward a resolution, a return to normal operations is not imminent.
One of the most serious consequences of the shutdown is 42 million Americans losing federal food assistance, which Senator Josh Hawley decried in a New York Times guest essay (gift link). These benefits, which millions of families rely upon in order to feed themselves, were scheduled to end on Saturday.
Why do I write “scheduled to end,” rather than “ended”? Because of decisions from two federal judges, Chief Judge John McConnell (D.R.I.) and Judge Indira Talwani (D. Mass.). While the precise practical implications of their rulings are unclear, they might have given federal food benefits a temporary reprieve. But there are some intricacies and ambiguities here; for more, please see Litigation of the Week, below.
In other news about judges and the judiciary:
In The New York Times, Jodi Kantor has a must-read article (gift link), “The Debate Dividing the Supreme Court’s Liberal Justices.” The subheading nicely captures the core of the piece: “Outnumbered and facing vast stakes, Justices [Elena] Kagan and [Ketanji Brown] Jackson are split over the best approach: investing in diplomacy inside the court or sounding the alarm outside.” It’s full of juicy scoops and nuanced analysis, so just read it for yourself. Then after you’re done, check out Professor Richard Re’s insightful post at Divided Argument (via Howard Bashman’s How Appealing).
Chief Judge James “Jeb” Boasberg (D.D.C.) is receiving criticism from conservatives—e.g., Mike Fragoso on X, Mike Davis in a Fox News piece, and James Lynch in National Review—for reportedly approving (1) subpoenas issued by former special counsel Jack Smith, who sought toll records for the cellphones of several Republican senators in his January 6-related investigation, and (2) non-disclosure orders preventing the cell companies from notifying anyone about the subpoenas. AT&T pushed back on the request, which Smith did not press; Verizon complied, but is now “implementing a rigorous new protocol for subpoenas involving congressional members, requiring escalation to a senior Verizon leader prior to anything being handed over.” According to Fragoso’s tweet, non-disclosure orders in this context could have violated 2 U.S.C. § 6628—which, in a nutshell, prohibits such “gag orders” when senators’ official electronic devices are being targeted.
Turning to the state courts, a liberal member of the Maryland Supreme Court, Justice Peter Killough, is taking flak for a politically charged Halloween display—featuring, for example, a cemetery with gravestones for “the Constitution,” “Freedom of Speech,” “Due Process,” and “Food Aid.” A spokesperson for the Maryland Judiciary told Fox News that “the signs belong to Justice Killough’s wife.” (Justice Killough should form a support group with Justices Clarence Thomas and Samuel Alito: Jurists With Opinionated Spouses.)
And down in the Lone Star State, the Texas State Commission on Judicial Conduct reprimanded a former municipal judge, Jennifer Eggen, for “berat[ing] and demean[ing] juveniles and their parents in her court… regularly yell[ing] at juveniles and their parents so loudly that courthouse staff could clearly hear through the walls of the courtroom.” And what did the staffers get to hear? Remarks like Judge Eggen telling a child she “hoped they put him in jail with a big Black man that would make him his sex toy.” Stay classy, Your Honor.
Turning to nominations news, Ed Whelan of National Review put together a helpful status report on Trump’s appellate picks, as well as a snapshot of the federal appellate courts. He published these analyses shortly before the Senate voted on the Seventh Circuit nomination of assistant U.S. attorney Rebecca Taibleson (E.D. Wis.)—who was confirmed as Whelan predicted, 52-46. The Senate also confirmed three district-court picks: Alabama Solicitor General Edmund “Eddie” LaCour (N.D. Ala.), Alabama Supreme Court Justice William “Bill” Lewis (M.D. Ala.), and Florida Fifth District Court of Appeal Judge Jordan Pratt (M.D. Fla.).
Who else is in the pipeline? James Maxwell and Robert Chamberlin, both Mississippi Supreme Court justices nominated to district-court openings, appear to be stuck in the Senate Judiciary Committee—for reasons that are “unrelated to the candidates themselves,” according to a Committee spokesperson. (I’m guessing that one or both of Mississippi’s senators want something unrelated from the administration, and they’re holding up the judges until they get that something.)
More nominations could be on the way. Senators John Cornyn and Ted Cruz of Texas recommended two district-court picks to the White House: former U.S. attorney Erin Nealy Cox (N.D. Tex.), currently a partner at Kirkland & Ellis, and former Cruz counsel Andrew Davis, currently a partner at Lehotsky Keller Cohn. If the White House concurs, Cox and Davis will be nominated to the Northern District (Dallas) and Western District (Austin) of Texas, respectively.
Job of the Week: an opportunity for junior and midlevel litigation associates in New York or Miami.
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