Judicial Notice (05.20.23): Fair Is Foul, And Foul Is Fair

A U.S. Attorney resigns amid scandal, two liberal justices trade benchslaps, a Biglaw firm faces the malpractice music, and other legal news from the week that was.

Justices Sonia Sotomayor and Elena Kagan, in happier times—with President Barack Obama at the 2013 State of the Union (photo by Melina Mara/The Washington Post via Getty Images).

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I’m feeling much better, thank you very much—not 100 percent, but definitely better than last week (yay antibiotics). I was able to exercise, complete many errands, and most importantly, serve as a guest host for the Advisory Opinions podcast on Tuesday and Thursday. As a longtime fan of AO, I was delighted to join Sarah Isgur to fill in for David French for the week; I felt like an amateur guitarist being invited onstage to jam with my favorite band.

Now, on to the news.

Lawyer of the Week: Rachael Rollins.

So-called “progressive prosecutors” are having a rough time of it. Chesa Boudin got booted in San Francisco. Larry Krasner got impeached (but not removed from office) in Philadelphia. And now Rachael Rollins has resigned as U.S. Attorney for Massachusetts under a cloud of scandal, after the issuance of scathing reports about her from the U.S. Department of Justice’s Office of the Inspector General (OIG) and the independent U.S. Office of Special Counsel (OSC).

The most serious allegation from Inspector General Michael Horowitz’s 161-page report is that Rollins “knowingly and willfully made a false statement of material fact during her OIG interview, in violation of 18 U.S.C. § 1001.” Specifically, when asked if she was the anonymous federal law enforcement source for a Boston Herald article that contained damaging information about the political rival of an ally of hers, Rollins denied it emphatically, under oath: “No, no, no.” But nine days later, after OIG investigators obtained text messages showing that she was the source, she fessed up. Given how bald-faced her lying was, Horowitz referred the false-statement allegation to the Justice Department for possible criminal prosecution—but luckily for Rollins, the DOJ declined to do so.

Lying under oath, while the most serious accusation leveled against Rollins, was not the only one. As noted by Law360, she also allegedly attended a Democratic National Committee fundraiser, which she was not allowed to do under the Hatch Act; leaked other confidential DOJ letters, in addition to the ones she lied about; accepted free Boston Celtics tickets for herself and a subordinate; spoke on live radio about a case she had been recused from; and accepted donations to her Suffolk District Attorney campaign account after she was sworn in as U.S. Attorney. Rollins didn’t become U.S. Attorney until January 2022, so it’s actually impressive that she managed to rack up this much alleged misconduct in such a short time. She should consider herself lucky to have escaped indictment.

Other lawyers in the news this week:

• In my opinion, the false-statement allegation against Rachael Rollins was more serious than some of the offenses charged by special counsel John Durham, who released his 306-page report about the origins of the Justice Department’s investigation into alleged ties between the Trump campaign and Russia. Reactions to the report varied greatly depending on one’s political priors, so I’ll just link to the report, and you can reach your own conclusions.

• Congratulations to the lawyers from Boies Schiller Flexner and Edwards Pottinger who obtained a $75 million settlement from Deutsche Bank, resolving a lawsuit alleging that the bank enabled sex trafficking by the late Jeffrey Epstein. Said David Boies, Epstein’s abuses “could not have happened without the collaboration and support of many powerful individuals and institutions,” and “we appreciate Deutsche Bank’s willingness to take responsibility for its role.”

• We learned that one of the key sources for the New York Times reporting that took down former CBS chief Les Moonves in a #MeToo scandal was a lawyer: Allison Diercks, a former document-review lawyer for Covington & Burling (who wound up losing her law license after Covington filed a bar complaint).

Judges of the Week: Justices Sonia Sotomayor and Elena Kagan.

Call it the footnote heard around the world—or at least #appellatetwitter. From Justice Elena Kagan’s vigorous dissent in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith (on behalf of herself and Chief Justice John Roberts):

One preliminary note before beginning in earnest. As readers are by now aware, the majority opinion is trained on this dissent in a way majority opinions seldom are. Maybe that makes the majority opinion self-refuting? After all, a dissent with “no theory” and “[n]o reason” is not one usually thought to merit pages of commentary and fistfuls of comeback footnotes. Ante, at 36. In any event, I’ll not attempt to rebut point for point the majority’s varied accusations; instead, I’ll mainly rest on my original submission. I’ll just make two suggestions about reading what follows. First, when you see that my description of a precedent differs from the majority’s, go take a look at the decision. Second, when you come across an argument that you recall the majority took issue with, go back to its response and ask yourself about the ratio of reasoning to ipse dixit. With those two recommendations, I’ll take my chances on readers’ good judgment.

Ouch! And who was on the receiving end of Justice Kagan’s benchslap? One of her familiar antagonists, like Justices Samuel Alito or Brett Kavanaugh?

Interestingly enough, no. It was actually her fellow liberal, Justice Sonia Sotomayor—who gave almost as good as she got. From footnote 10 of Justice Sotomayor’s opinion for seven justices (cleaned up):