Judicial Notice (01.20.25): Ch-Ch-Changes
Transitions between government and private practice, Biglaw bonus shenanigans, SCOTUS on TikTok, and a religious-liberty case worth watching.
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Martin Luther King Jr., the great civil-rights leader, was born on January 15, 1929. At the time of his assassination on April 4, 1968, he was only 39 years old. What he was able to accomplish in his short life was truly remarkable.
Martin Luther King Jr. Day, the federal holiday, is observed on the third Monday of January—which this year falls on January 20, Inauguration Day. The last time the two occasions fell on the same day was on January 20, 1997, the second inauguration of President Bill Clinton.
On a separate note, I hope you are and your families are safe and well. The California wildfires are not completely contained, and the death toll has risen to 27 since I last wrote about them. (I should clarify here that while my recent column focused on federal law, which raises the legal issues that I find most interesting, the fires currently raging in Southern California don’t involve much federal land.)
I’m at my parents’ place for the long weekend with my husband Zach and our two sons, and here in northern New Jersey, we’re dealing with lots of snow and extreme cold. To everyone else in the Northeast, I hope you are staying warm.
Now, on to the news—including a slew of moves into and out of government, appropriately enough for the peaceful transfer of power that is Inauguration Day.
Lawyer of the Week: Tom Goldstein.
The story of prominent Supreme Court lawyer and SCOTUSblog founder Tom Goldstein getting indicted on 22 federal criminal charges, mainly involving alleged tax evasion, continues to draw attention. Here are some additional points to supplement my prior post.
First, and quite obviously, the charges could lead to investigations by any bars to which Tom currently belongs or previously belonged, as several sources told The National Law Journal. Although he retired from appellate practice in 2023, he could still face investigations to the extent that he still has an active membership in any bar—or if at any point questions arise over whether any allegedly misused funds involved client money (but there are no such claims currently).
Second, as of now there’s no evidence that any other lawyer was involved in Goldstein’s alleged transgressions. One of Goldstein’s former law partners, Kevin Russell of Russell & Woofter, told Reuters that his firm has not been accused of wrongdoing and has cooperated with the government, and he stressed that Tom Goldstein “is not, and has never been, an owner or employee of Russell & Woofter.”
Third, on a somewhat lighter note, paragraph 25 of the indictment discusses how Goldstein allegedly deployed the skills that made him a top Supreme Court advocate in the service of his career as a high-stakes poker player:
As part of his preparation for the heads-up match with Foreign Gambler-1, GOLDSTEIN authored and discussed with Professional Gambler-I and Professional Gambler-2 a 24-page memorandum detailing the strategy and tactics he had devised, based on Foreign Gambler-1’s playing patterns, GOLDSTEIN’s past mistakes when playing him, information gathered from other poker players, and computer simulated practice. GOLDSTEIN also updated and revised the memo and created versions of the memo reflecting the changes made, to further improve his chances at winning against Foreign Gambler-1 in future poker matches.
Joe Patrice described this as “the most lawyer s**t ever.” He compared it to the “sushi memo”—the famously detailed memo, including footnotes and exhibits, in which a Paul Weiss paralegal helped a partner pick the best restaurant for her takeout sushi.
Other lawyers in the news:
At her confirmation hearings, former Florida attorney general Pam Bondi declared that “politics will not play a part” in the actions of the U.S. Department of Justice (DOJ) if she’s confirmed to serve as attorney general. She sidestepped questions about who won the 2020 presidential election and whether she’d follow any order by President Trump to investigate former special counsel Jack Smith—but any arguable evasions are not expected to prevent her confirmation.
Speaking of Smith, half of his final report as special counsel—the portion about his prosecution of Trump on election-interference charges—became public. Smith defended his handling of the case, stating that “but for Mr. Trump’s election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”
Speaking of special counsels, David Weiss, who investigated former president Joe Biden’s son Hunter, issued his own final report. Weiss condemned the ex-president’s “baseless accusations” about the inquiry that threatened “the integrity of the justice system as a whole.”
And speaking of Biden, his claim that the Equal Rights Amendment is now the 28th Amendment to the Constitution and “the law of the land” is… not accurate. See, e.g., this analysis by Aaron Blake of The Washington Post (gift link), Sarah Isgur’s takedown on Advisory Opinions (starting around 43:30), and the multiple sources cited by both, including opinions by federal judges and the DOJ’s Office of Legal Counsel. (I don’t have the time or inclination to get into Biden’s various eleventh-hour pardons, which strike me as more political than legal in nature—but feel free to discuss them in the comments if you like.)
Stanford Law professor Mark Lemley, who represents private clients in addition to writing and teaching, has one fewer client: Meta, the social-media giant that owns Facebook and Instagram. As he declared in a LinkedIn post that went viral, “While I think they are on the right side in the generative AI copyright dispute in which I represented them, and I hope they win, I cannot in good conscience serve as their lawyer any longer”—based on “Mark Zuckerberg and Facebook’s descent into toxic masculinity and Neo-Nazi madness.”
In memoriam:
Shirah Neiman, the first woman in decades to be hired into the criminal division of the U.S. Attorney’s Office for the Southern District of New York (S.D.N.Y.), passed away at 81.
Joseph Cassilly, longtime state’s attorney in Harford County, Maryland, passed away at 74.
May they rest in peace.
Judge of the Week: Justice Neil Gorsuch.
Whether you agree or disagree with Justice Neil Gorsuch, you have to give him credit: he always tells us what he thinks. And he produces generally thoughtful and thought-provoking opinions, even if you disagree with him—as many do, on both the right and the left. Consider the developments of last week.
First, Justice Gorsuch had the most detailed views of any justice in TikTok, Inc. v. Garland (discussed in more detail below as Ruling of the Week). He concurred in the judgment of the Court’s per curiam opinion—which upheld the law requiring TikTok’s Chinese owner, ByteDance, to divest the app or watch it get banned—and criticized the federal government’s attempt to defend the law based on an “asserted interest in preventing ‘the covert manipulation of content,’” noting that “[o]ne man’s ‘covert content manipulation’ is another’s ‘editorial discretion.’”
He also expressed displeasure with the government submitting classified evidence in the case, arguing that “[e]fforts to inject secret evidence into judicial proceedings”—evidence that the government and the justices could see, but TikTok’s counsel could not—”present obvious constitutional concerns.” He called upon Congress or the Standing Committee on Rules of Practice and Procedure to explore ways in which such evidence could be introduced in a way consistent with due process.
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