Judicial Notice (02.17.24): Merchant Of Death
Fani’s formidable foe, Trump’s trials and tribulations, the latest law-firm layoffs, and other legal news from the week that was.
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I hope everyone had a lovely Valentine’s Day. Zach and I had a belated V-Day dinner on Saturday; we’ve never found it terribly appealing to go out on the day itself, given the scramble for reservations, limited prix-fixe menus, and jacked-up prices.
I’ve been a busy bee. Joined by the other Zach in my life—Zach Sandberg of Lateral Link, my co-host at Movers, Shakers & Rainmakers—I interviewed Emily Logan Stedman, a partner at Husch Blackwell and leading advocate for lawyer well-being. I also joined David Schultz for Bloomberg Law’s On the Merits podcast, where we discussed Professor Derek Muller’s new paper on the ideological leanings of Biglaw. Also now online is a panel discussion I participated in earlier this month, Justice Suspended: The Case of Judge Pauline Newman (featuring Professor Arthur Hellman of Pitt Law and Judge Jennifer Perkins of the Arizona Court of Appeals).
Today’s testimonial for Original Jurisdiction comes from Jeremy Rosen, managing partner of the San Francisco office of Horvitz & Levy: “As an extremely busy appellate lawyer, I have very little time for extraneous reading. Original Jurisdiction is the only legal publication I read every word of every week. I do so because it is a concise and curated summary of major legal developments that I want to know about. David Lat has an eye for what stories matter.”
My thanks to Jeremy, an acclaimed appellate advocate, for his kind words. Now, on to the news.
Lawyer of the Week: Ashleigh Merchant.
The Georgia election-interference case against Donald Trump is in total disarray right now. Fulton County District Attorney Fani Willis and special prosecutor Nathan Wade are on the defensive, with their romantic relationship thoroughly explored during two days of court hearings. Willis, Wade, and the entire Fulton County DA’s Office could end up getting disqualified from the case, if Judge Scott McAfee concludes that their relationship gave rise to either an actual conflict of interest or the appearance of one.
If Willis and her office get removed, it could take a year or more to find a new prosecutor. And that prosecutor would have broad discretion to continue with the case in its current form, add or remove defendants or changes, or even drop the prosecution completely.
Who deserves the credit—or blame—for this turn of events? The Willis-Wade relationship was unearthed by Ashleigh Merchant, counsel to Republican political operative Mike Roman (an alleged participant in the “fake electors” scheme). It might be surprising that the case could end up getting derailed by the lawyer to Roman, described by the Atlanta Journal-Constitution as “almost an afterthought” of a defendant—but it’s not surprising to those who know Merchant.
Merchant, 46, is a well-regarded defense attorney, currently serving as president of the Georgia Association of Criminal Defense Lawyers. She graduated from the University of Florida Levin College of Law and worked as a public defender in Fulton County before going into private practice.
“I am what I would consider a proactive defense lawyer as opposed to a reactive defense lawyer,” Merchant told the New York Post. “I try to investigate every aspect of a case”—which is how she discovered the Willis-Wade romance, while poring over filings in Nathan Wade’s messy divorce proceedings. So Merchant, who runs marathons in her free time, goes the extra mile for her clients—and she’s ready to go the distance in the Trump case.
[UPDATE (8:15 p.m.): Merchant had some difficulties at the hearings, as I’ve discussed with readers over email, and I know that some observers were fans of Willis’s testimony, as I’ve discussed in the comments. But the bigger point is that this hearing never should have happened—and it was the combination of Willis’s poor judgment and Merchant’s initiative that brought us here. Maybe Willis’s testimony got her out of a pickle, but it was a pickle of her own making. Her personal conduct was a gift to Donald Trump, and even if disqualification is ultimately denied, the prosecution will never be the same. And we have Ashleigh Merchant to credit (or blame) for all of this, which is why she’s Lawyer of the Week—an “award” bestowed based on influence or importance, not a normative judgment that the lawyer is a good person or doing good work.]
[UPDATE (2/20/2024, 4:43 p.m.): For a deeper dive into the hearings themselves—I focused more on the fact that they took place, rather than their content—check out the latest episode of Advisory Opinions. Sarah Isgur and David French correctly point out that most people’s assessments of how the hearings went will be colored by their “priors” on Fani Willis and the underlying case.]
In memoriam: Professor Kevin Jones of Vermont Law, a beloved teacher and mentor, suffered a medical event during class and passed away. May he rest in peace.
Judge of the Week: Justice Arthur Engoron.
Donald J. Trump and New York Supreme Court Justice Arthur F. Engoron share some things in common. Both are brash, colorful, septuagenarians from Queens, who enjoy being the center of attention. And on Friday afternoon, Justice Engoron was in the limelight, after issuing a 92-page opinion in the sprawling, long-running civil-fraud case brought against Trump by New York Attorney General Letitia “Tish” James.
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