Judicial Notice (09.03.22): Special Masters

A judge's scandal deepens, a litigation boutique lands in hot water, and other legal news from the week that was.

Documents recovered during the August 8 search of Mar-a-Lago (photo via U.S. Department of Justice).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

Do you know what gallstone pain feels like? If not, consider yourself lucky. Intense abdominal pain sent me to the emergency room on Tuesday, where I eventually learned that I had pancreatitis caused by gallstones. This led to removal of my gallbladder (aka a cholecystectomy)—a common and fairly minor, laparoscopic surgery. It went smoothly, and I’m grateful to everyone at Morristown Medical Center for taking such good care of me. I’m now happily recovering at home—and enjoying the excuse to make Zach do all the heavy lifting in our household.

Enough about my health issues (which you can read more about in this Twitter thread if so inclined). Let’s look at this week’s legal news.

Lawyers of the Week: M. Evan Corcoran and Christina G. Bobb.

As a lawyer, you never want to be a witness, and you definitely don’t want to be a target. Alas, two of the lawyers representing Donald Trump in the Mar-a-Lago imbroglio, Evan Corcoran and Christina Bobb, are likely to end up in exactly those unenviable positions.

As reported by Charlie Savage and Maggie Haberman of the New York Times, Corcoran searched through boxes in the Mar-a-Lago basement for files with classified markings in response to an FBI subpoena, then after those documents were turned over to the FBI, Bobb signed a statement claiming that all sensitive materials had been returned. Alas, as the August 8 search of Mar-a-Lago revealed, that was inaccurate—to put it mildly. The situation raises questions about whether the two lawyers misled FBI officials or obstructed a federal investigation, and Corcoran and Bobb are now “potentially witnesses—if not defendants,” as Professor Barbara McQuade (E.D. Mich.), a former U.S. attorney, told the Times.

The potential criminal exposure of Corcoran and Bobb raises questions about whether Corcoran and Bobb can continue to represent Trump, as Brandon Fox, former federal prosecutor turned Jenner & Block partner, told Law360. And it’s yet another object lesson in how bad things happen to lawyers who represent the Donald. Former Florida solicitor general Chris Kise, a (currently) respected lawyer who just joined Team Trump, should consider himself warned.

In memoriam: Stephen Glasser, the lawyer turned legal journalist who founded the D.C.-based Legal Times in 1978, passed away at 79. As one of his daughters, Susan Glasser of the New Yorker, told the Washington Post, “It says something about my dad’s influence on all of us that of his four children, two are writers and two are lawyers.” The lawyer children are Jeffrey Glasser, general counsel at the Los Angeles Times, and Jennifer Glasser, a partner at the law firm White & Case; condolences to them and the entire Glasser family.

Judge of the Week: Judge Aileen Mercedes Cannon.

How legitimate is Donald Trump’s request for appointment of a special master to review the Mar-a-Lago documents and decide whether some might be protected by executive privilege? In light of the fact that the current executive branch wants the documents, I’m not sure that a former executive official can resist the request—even if I wouldn’t go as far as Trump’s former attorney general, Bill Barr, who called the request “a crock of s**t” to the New York Times.

But Barr isn’t the person ruling on Trump’s motion. That would be Judge Aileen Cannon (S.D. Fla.), a former Gibson Dunn associate and federal prosecutor who was appointed by Trump and confirmed by the Senate after the November 2020 election. Last weekend, she informed the parties of her “preliminary intent” to appoint a special master. Then at a Thursday hearing, she told DOJ lawyer Julie Edelstein, who was arguing against applying executive privilege to the documents, “I don’t think it’s as cut and dry as you suggest.”

There is a colorable argument that “a president may invoke and insist upon ‘executive privilege’ even after he has left office, in defiance of his successor,” which Professor Saikrishna Prakash articulated in a Washington Post op-ed last fall (in the context of the January 6 House Committee seeking documents from Trump). There is also a decent argument that this position is wrong, set forth by Kel McClanahan and Mark J. Rozell in Just Security. But even McClanahan and Rozell acknowledge that the specific issue has not been “definitively resolved” by the judiciary, which means that Judge Cannon might very well rule in Trump’s favor and appoint a special master.¹

Ex-judge of the week: Justice Tricia Bigelow, a member of the California Second District Court of Appeal until she retired last year. As reported by the Los Angeles Times (via Howard Bashman/How Appealing), then-Justice Bigelow had an affair with now-disgraced plaintiffs’ lawyer Tom Girardi—yes, that Tom Girardi, married to Erika Girardi of Real Housewives of Beverly Hills. During their affair, Bigelow received a $300,000 gift from Tom Girardi, which she used to help pay for a beachfront condo in Santa Monica. It turns out that the gift came not from Girardi’s personal bank account, but from the client-trust account of his law firm, Girardi Keese—now in bankruptcy, owing untold millions to former clients who suffered terrible tragedies. Justice Bigelow returned various gifts from Girardi, including jewelry, to the Girardi Keese bankruptcy trustee—but what happened to the $300K remains unclear.

In nominations news, President Joe Biden announced his twenty-sixth round of judicial nominees: