Judicial Notice (07.09.22): A Most Taxing Situation

A Real Housewife's real mess, Sidley's time in the limelight, and other legal news from the week that was.

Andrew McCabe, left, and James Comey. (Photos by Jahi Chikwendiu and Matt McClain for the Washington Post, 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 email me at davidlat@substack.com, and you can subscribe by clicking on the button below.

Greetings from our place in the Berkshires, where I wrote most of this edition of Judicial Notice while looking out on a lake. Summer is my favorite season because people take it easy—or take it off entirely, like the Supreme Court—and I get to work from lovely locales like lakes and beaches.

Summer is also a good time to start fun new projects—in my case, a long-delayed sequel to Supreme Ambitions, my novel set at the Ninth Circuit. I’m taking characters from that book and following them up to the Supreme Court, where some of them are now serving as justices and clerks. I’ve been meaning to write a SCOTUS-set sequel for years, and the crazy Term that just ended has inspired me—and given me many headlines to rip from for plot purposes.¹

It was a good week to focus on fiction, since it was relatively slow in terms of real-world legal news—to which I’ll now turn.

Lawyers of the Week: James Comey, Andrew McCabe, and Charles Rettig.

Donald Trump left office a year and a half ago, but he and his scandals still dominate the headlines. Notable news this week included seven Trump allies getting subpoenaed in the election-interference investigation in Georgia and former White House counsel Pat Cipollone testifying yesterday before the January 6 Committee for about eight hours.

The three newest Lawyers of the Week also found themselves in the news because of possible misconduct by Trump. Former FBI director James Comey and former acting FBI director Andrew McCabe were both accused of disloyalty by then-president Trump and fired. This week, the New York Times reported that both were also subjected to incredibly intense tax audits for tax returns filed during the Trump Administration—mere coincidence, or the result of political meddling by the Donald? [UPDATE (7/10/2022, 6:42 p.m.): The preceding sentence was corrected to note that the audits applied to tax returns filed during the Trump Administration. As noted by the Washington Post, McCabe’s audit began in 2021, a few months into the Biden Administration, even though it focused on his 2019 tax return.]

The Internal Revenue Service (“IRS”) has safeguards to prevent the audit process from being weaponized for political purposes. But the Comey and McCabe audits have certainly raised suspicions, and Charles Rettig, the Trump-appointed IRS commissioner, has called upon the agency’s inspector general to investigate. Some critics of Rettig want more; as Rep. Bill Pascrell Jr. (D-N.J.) declared, “If Mr. Rettig cared at all about this agency, he would hand in his resignation today.”

In memoriam: Clifford L. Alexander Jr., the Yale Law School graduate who was the first Black secretary of the Army and first Black partner at Arnold & Porter, passed away on Sunday at 88. May he rest in peace.

Judge of the Week: Justice Barry Albin.

With the latest Term of the U.S. Supreme Court in the rearview mirror, we can all take a breather. We can review statistics to figure out the most talkative justices at oral argument, and we can read various SCOTUS retrospectives. They tend to focus on the abortion and Second Amendment decisions, but for the many readers of Original Jurisdiction who serve corporate clients, I recommend MoloLamken’s invaluable Supreme Court Business Briefing, which breaks down the Court’s most consequential commercial opinions (which this Term focused on arbitration).