Judicial Notice (07.02.22): Might Makes Right?
SCOTUS lurches right, Biglaw goes west, and other legal news from the week that was.
The 2021-2022 Term of the Supreme Court of the United States is over—and not a moment too soon, for critics of its rulings and exhausted observers of the Court. This has been one of the most momentous SCOTUS Terms in decades, for good or ill. And we had lots of non-SCOTUS news this week too. So let’s get right to it.
Lawyer of the Week: Representative Liz Cheney.
One of the biggest news events of this week was the powerful testimony of Cassidy Hutchinson, a former aide to Trump White House Chief of Staff Mark Meadows, before the January 6 Committee. And much of the credit for this riveting drama belongs to Rep. Liz Cheney (R-Wyo.), the committee vice-chair who had a starring role as Hutchinson’s questioner. Although Cheney, an alum of the University of Chicago Law School and White & Case, never worked as a prosecutor, her effective examination of Hutchinson might make you think otherwise.
The January 6 hearings are a political rather than legal event, but they are not without legal significance. Specifically, legal experts across the ideological spectrum, from Elie Honig on the left to David French on the right, believe that Hutchinson’s testimony has significantly increased the odds of a prosecution of Donald Trump.
There’s no shortage of praise for Cassidy Hutchinson and Liz “Showtime” Cheney on the left; I find the praise on the right to be more meaningful, given how politically charged the January 6 hearings have become. I commend to you David French’s essay for The Dispatch, “The Case for Prosecuting Donald Trump Just Got Much Stronger,” and Andrew McCarthy’s write-up for the National Review, “Cassidy Hutchinson’s Testimony Against Trump Is Devastating.”
McCarthy’s appraisal comes with several post-scripts relating to what might be dubbed “the steering-wheel incident,” which allegedly happened right after Trump’s speech at the January 6 rally at the Ellipse and before the riot at the Capitol. Here’s the key portion of Hutchinson’s testimony:
[Former White House Deputy Chief of Staff Tony Ornato] described [President Trump] as being irate. The president said something to the effect of I’m the f’ing president, take me up to the Capitol now, to which [Secret Service Agent Robert “Bobby” Engel] responded, sir, we have to go back to the West Wing. The president reached up towards the front of the vehicle to grab at the steering wheel. Mr. Engel grabbed his arm, said, sir, you need to take your hand off the steering wheel. We're going back to the West Wing. We're not going to the Capitol. Mr. Trump then used his free hand to lunge towards Bobby Engel. And Mr.—when Mr. Ornato had recounted this story to me, he had motioned towards his clavicles.
This testimony has become a flashpoint because Secret Service sources claim that Bobby Engel and the presidential SUV driver deny this incident took place, and a source close to Ornato told Fox News that he denies telling any such story to Hutchinson. These denials are being used to undermine Hutchinson’s credibility and to question the accuracy of her overall testimony. But I agree with McCarthy’s take:
The significance is not whether Trump skirmished with the agents in the SUV. It is that Trump was furious that the agents would not take him to the Capitol, where he was planning to join in the protest by what—according to Hutchinson—the former president knew was an armed mob, one he had just implored to “fight” for him (his lip-service caveats about “peaceful” protest notwithstanding).
We’ll learn more about the steering-wheel incident. But no matter how it turns out, Cheney is Lawyer of the Week for driving the national conversation about January 6.
Runners-up for Lawyer of the Week:
Former White House counsel Pat Cipollone, who featured prominently in Cassidy Hutchinson’s testimony, has been subpoenaed by the January 6 Committee, after negotiations to get him to testify voluntarily failed.
Gene Levoff, former senior director of corporate law at Apple, pleaded guilty to insider trading—ironically enough, since one of his duties was enforcing Apple’s insider-trading policies. Instead of trading through others, he allegedly sold $10 million in Apple stock from his personal brokerage account, just four days before a bad earnings call. Not the brightest apple in the bushel.
Martin D. “Art ” Walsh, a leading land-use lawyer who helped transform the landscape of Northern Virginia, passed away at 78.
Greg Tenhoff, a longtime litigation partner at Cooley, passed away at 60.
May they rest in peace.
Judges of the Week: Chief Justice John Roberts and Justice Brett Kavanaugh.
That was quite the SCOTUS Term we just had. As Adam Liptak wrote in the New York Times, citing Professor Lee Epstein and other experts, “the term that ended on Thursday was the most conservative since 1931.” It was the first full Term featuring a six-justice conservative majority, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg, and that majority didn’t hesitate to flex its muscle in areas ranging from abortion to gun rights to religion in public life.
How far will the Court move to the right? That’s largely up to Chief Justice John Roberts and Justice Brett Kavanaugh.
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