Judicial Notice (09.16.23): Crazy And Deranged
Donald Trump v. Jack Smith, an ill-advised summer-associate outing, $20 million partner pay packages, and other legal news from the week that was.
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Shana tova! To everyone celebrating Rosh Hashanah, I wish you a happy new year.
My week was all about podcasting. In addition to guest-hosting Advisory Opinions (AO) with David French on Tuesday and Thursday, filling in for Sarah Isgur while she’s on parental leave, I recorded a new episode of Movers, Shakers & Rainmakers. For our 50th episode, my co-host Zach Sandberg and I interviewed Jordana Confino, a Yale Law School graduate and former federal law clerk turned coach and consultant, about well-being in the legal profession.
Now, on to the news.
Lawyer of the Week: Jack Smith and his team from the Office of the Special Counsel.
Special Counsel Jack Smith: sexy, or deranged? Former president Donald Trump has repeatedly lambasted his principal prosecutor as “deranged,” while in a recent conversation with my (non-lawyer) friend Richard, the first word Richard used to describe Smith was “hot.” I respectfully dissented, saying that Smith has too much of a Rasputin vibe for my taste. But maybe that just proved Richard’s point? The so-called “Mad Monk” was said to be irresistible, so maybe “sexy” and “deranged” aren’t mutually exclusive.
Less enamored of Smith is ex-president Trump, who on Friday lashed out again at the career prosecutor and his team of 40-plus lawyers, whom Trump called “thugs.” Trump’s broadside came after Judge Tanya Chutkan (D.D.C.) made public a redacted version of the special counsel’s motion asking her to issue a so-called “gag order” that would prevent Trump from continuing to make “disparaging and inflammatory” public statements about people involved with the case—witnesses, prosecutors, and Judge Chutkan herself—that threaten to undermine the integrity of the proceedings. Smith’s team also asked Judge Chutkan to order that if the parties want to conduct a jury study that would involve contacting the citizens of D.C., they must notify her in advance and get her approval for the study.
The jury-study order seems fine, but the gag order presents a tough call. On the one hand, some of Trump’s extrajudicial statements are improper; on the other hand, some of his statements are core political speech. All I’ll say is that I hope Judge Chutkan has a plan for what she’ll do if she issues the gag order and Trump violates it, as we all know he will. I welcome reader thoughts in the comments, since I haven’t made up my mind on this issue (which I expect to discuss with David French on the next episode of Advisory Opinions).
Smith and his team were very busy—and made lots of news—even before the gag-order motion became public on Friday. They filed a vigorous response to Trump’s motion seeking Judge Chutkan’s recusal, and I found their response persuasive in terms of establishing why recusal isn’t required under the law as it currently stands. My prediction is that Judge Chutkan will deny the motion and, if that denial goes up on appeal, get affirmed. As I said on AO, though, there’s an argument in favor of discretionary recusal, in an effort to ensure that the integrity of this incredibly important prosecution is utterly beyond reproach—although note that several other D.D.C. judges, both Republican and Democratic appointees, have made statements that Trump would likely complain about as well.
In the Mar-a-Lago documents case, Team Smith scored a victory when Judge Aileen Cannon (S.D. Fla.) granted the government’s motion for a protective order governing the classified materials in that case. Judge Cannon’s order requires Trump to review such materials in a Sensitive Compartmented Information Facility or “SCIF” (pronounced “skiff”), just like any other defendant—and apparently not a SCIF at Mar-a-Lago, since Judge Cannon did not address the defense’s request that Trump be allowed to re-establish the SCIF that once existed at his home.
Finally, the Office of the Special Counsel obtained a partial win from the D.C. Circuit, which had to decide whether the Speech or Debate Clause privilege protected messages on the cellphone of Representative Scott Perry (R-Pa.), a supporter of Trump’s efforts to overturn the 2020 election. In an opinion by Judge Neomi Rao, the court rejected Perry’s broad claim of privilege. But the court also rejected the opposite extreme, holding that the district court must conduct a fact-specific, communication-by-communication analysis.
In memoriam: legendary D.C. defense lawyer Robert “Bob” Bennett—who represented senators, Cabinet secretaries, and most famously, former president Bill Clinton—passed away at 84. May he rest in peace.
Judge of the Week: Justice Ketanji Brown Jackson.
In an increasingly illiberal age, freedom of speech and thought need all the defenders they can get. So I’m pleased to welcome to their ranks none other than… Justice Ketanji Brown Jackson.
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