Judicial Notice (03.09.24): ‘It Could Have Been Worse’
More musings on Trump v. Anderson, free-speech rulings in the circuit courts, notable hires by Sidley and Simpson, and other legal news from the week that was.
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Move over, Oprah! This week, I was the Queen of All (Legal) Media:
I donned a massive amount of make-up to join Alex Wagner on MSNBC on Friday night to discuss the latest developments in the Mar-A-Lago classified documents case against Donald Trump.
Earlier in the week, I appeared on one of my favorite podcasts, Stay Tuned With Preet, where Preet Bharara and I reviewed the Supreme Court’s decision in the Colorado disqualification case, Trump v. Anderson, as well as legal news in Trumpworld more generally.
And my husband Zach Shemtob and I joined Professor Rodger Citron on the Touro Law Review Podcast to talk about an article we wrote last year for The Atlantic, Judicial Ethics in a Populist Age, as well as how concerns over the justices’ ethics relate to the current Supreme Court Term.
The latest testimonial for this newsletter comes from Ben Feuer, chairman of the Complex Appellate Litigation Group (CALG): “Original Jurisdiction is the Substack of record for the legal industry. If it happened, and it was important, it’s there. One of the few newsletters I read top to bottom each week.” Thanks to Ben for his generous praise, and congrats to him and his colleagues on the success of CALG—described by Chambers as “a distinguished appellate boutique which acts for an impressive client base in complex appeals.”
Now, on to the news.
Lawyers of the Week: Jonathan Bach, Scott Edelman, and Stacey Richman.
You don’t often see criminal charges get dismissed in the middle of trial. But this is no ordinary case, as explained by Daniel Wu of the Washington Post:
A criminal case against a trio of collectors and auctioneers that drew widespread attention for the bounty they were accused of conspiring to sell—pages of handwritten lyrics penned by the 1970s rock band the Eagles, including the words to their legendary single “Hotel California”—ended suddenly on Wednesday when New York prosecutors dropped all charges against the defendants in an unexpected collapse.
The Manhattan district attorney’s office in 2022 accused rock auctioneer Edward Kosinski, rare-book dealer Glenn Horowitz, and former Rock & Roll Hall of Fame curator Craig Inciardi of acquiring pages of the Eagles’ manuscripts after they were stolen in the 1970s. Prosecutors accused Kosinski, Horowitz, and Inciardi of conspiring to auction off the manuscripts, valued at more than $1 million, in 2016.
But the trial was upended over the weekend when attorneys for Eagles frontman Don Henley released about 6,000 of pages of documents mid-trial that defense attorneys said established perjury by several witnesses they had already cross-examined and tore a hole in the state’s prosecution. On Wednesday, prosecutors conceded that the defense had not been given time to review the vast disclosure of new evidence and moved to dismiss the case.
The dismissal was the consequence of the prosecution’s failure to adequately investigate the case before bringing it, according to the lead defense lawyers: Jonathan Bach of Shapiro Arato Bach, Stacey Richman of Richman Hill, and Scott Edelman of Milbank (who took time away from his day job of raising associate salaries to try a case). The defense contended that had the prosecutors done their due diligence, they would have learned that the manuscripts… weren’t stolen. Oops.
In memoriam: Alan Stephenson, a longtime M&A partner at Cravath Swaine & Moore, passed away last month at 79. May he rest in peace.
Judge of the Week: Chief Justice John Roberts.
In our December podcast episode, 2023 Year In Review And 2024 Predictions, Sarah Isgur of Advisory Opinions said that this year would be a big one for Chief Justice John Roberts. She described him as “created in a Petri dish” to try to shepherd the Supreme Court through high-stakes, controversial cases like Trump v. Anderson, in which SCOTUS ruled unanimously in favor of keeping Trump on the Republican primary ballot in Colorado (discussed below as Ruling of the Week).
I reached out to ask Isgur: what letter grade would she give the Chief on Trump v. Anderson, where the justices were united on outcome but divided on reasoning? Here’s what she had to say:
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