Judicial Notice (03.05.22): Russian For The Exits

Bill Barr is back, Cravath one-ups Davis Polk, and other legal news from the week that was.

Red Square: Moscow actually looks nice in this picture, doesn’t it? (Photo by Max Ryazanov via Getty Images.)

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can subscribe by clicking on the button below.

I’m happy to report that I have a full mouth of teeth again. I have the world’s worst teeth; you could buy a luxury car with all the money I’ve spent on dental work over the years (and yes, I have insurance). This week, my dentist put in the crown for the second of two dental implants I needed. It’s nice to be able to smile again without feeling self-conscious.

Also on the self-care front, I’m making a concerted effort to eat healthier, exercise more, and lose weight. If you’d like to follow my progress, you can do so on Facebook, where I’ll announce my weight and body fat each Monday. My hope is that accountability will help me clean up my act.

On the work front, in addition to writing about letters of marque and antitrust law, I recorded a new episode of Movers, Shakers, and Rainmakers. My co-host Zach Sandberg and I interviewed Amy Savage, head of the Government Transitions Group at Lateral Link, about the job market for government lawyers interested in moving to the private sector.

Now, on to the news—and boy was there a lot of it. I try to mention all significant news developments in these roundups, but that wasn’t possible this week, given how much happened. Despite leaving out a lot, this post wound up on the long side, for which I apologize. But I’m sure you’ll be fine; most of you are lawyers and law students, which means you skim and speed-read all day, plus I’ve put names in boldface type to make skimming even easier.

Lawyer of the Week: William Barr.

The Trump Administration is the presidency that launched a thousand memoirs. The latest is Bill Barr’s One Damn Thing After Another: Memoirs of an Attorney General, and it has garnered copious coverage—in the New York Times, the Washington Post, and the Wall Street Journal, among other publications.

Here’s the CliffsNotes version of Barr’s book. He has soured on Donald Trump, whose “self-indulgence and lack of self-control” cost him the 2020 election, and who is “responsible in the broad sense” for the January 6 attack on the Capitol. Barr wants the Republican Party to move on from Trump, turning instead to the “impressive array of younger candidates” who share Trump’s agenda but not his “erratic personal behavior.”

At the same time, Barr has even bigger problems with the American left, which he attacks far more than Trump. And the Trump Administration wasn’t all bad, according to Barr. To the contrary, as Jeffrey Toobin writes in his Times review, Barr’s theory of the Trump presidency is that “[e]verything was great until Election Day, 2020”—which is when “this great president experienced a sudden personality transplant,” as Toobin colorfully puts it.

In light of Barr’s criticism of both Trump and his foes, which could alienate both MAGA types and members of the Resistance, I wondered whether his book would find an audience. But as of this writing, it’s #11 on the Amazon bestseller list—not far from my former colleague Elie Mystal’s new book, Allow Me to Retort: A Black Guy’s Guide to the Constitution (now at #33, although it was in the top ten yesterday after Elie’s controversial appearance on The View).

Runners-up for Lawyer of the Week:

• Greg Jacob. Speaking of January 6, the former chief counsel to former VP Mike Pence has an impressive ability to type out lengthy and typo-free email messages, from his iPhone, while holed up in the besieged Capitol.

• Jonathan Waldrop, Darcy Jones, and ThucMinh Nguyen. The three Kasowitz Benson lawyers got called out by the Federal Circuit for violating its Covid-19 protocols for in-person oral arguments. But on the bright side, the court declined to impose sanctions, citing their remorse and the novelty of the situation.

• Andrew Adams. The veteran S.D.N.Y. prosecutor is heading up Task Force KleptoCapture, the DOJ task force responsible for enforcing sanctions against Russian oligarchs.

• Gordon Caplan. The former Willkie Farr co-chair, who served a month in prison after getting convicted in the “Varsity Blues” college admissions scandal, spoke with Law360 about how he’s restarting his legal career, having just been reinstated to practice.

Judge of the Week: Judge William Kayatta Jr.

I feel more lawyers should know about Judge Bill Kayatta. Before his 2013 appointment to the First Circuit by President Barack Obama, the Maine lawyer was one of New England’s leading litigators, arguing dozens of cases in the federal and state appellate courts—and even two before the U.S. Supreme Court. As a sign of the high esteem in which he was held as an attorney, SCOTUS appointed him to serve as special master in a water-rights case, Kansas v. Nebraska and Colorado (and ultimately the Court adopted his recommendations in full).

Judge Kayatta raised his profile this week with two interesting opinions. First, in In re Petition For Order Directing Release Of Records (aka Lepore v. United States), he ruled against Professor Jill Lepore, the Harvard historian suing for access to certain grand jury records related to the Pentagon Papers. As noted by Short Circuit, this deepens a circuit split, so stay tuned.

Second, in United States v. Joseph, Judge Kayatta ruled against Judge Shelley Joseph, a Massachusetts state-court judge who allegedly snuck an undocumented immigrant out her courthouse’s back door, while an ICE agent waited out front. Judge Kayatta turned away her appeal, holding it to be premature (since Judge Joseph has not yet been convicted, or even tried).

If law were simply “politics by other means,” one might have expected a judge appointed by a Democratic president to rule in favor of Lepore and Joseph. But in his two thoughtful, careful opinions, from which there were no dissents, Judge Kayatta explained why the law required these rulings—even if some on the left might not like the results.¹