Judicial Notice (11.19.22): Another SCOTUS Leak?

Trump gets a special counsel, a top law firm scores a billion-dollar win, and other legal news from the week that was.

Justice Samuel Alito and Mrs. Martha-Ann Alito, viewing the casket of the Rev. Billy Graham in 2018 (photo by Alex Edelman/AFP 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, 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!

It’s nice to be back on the road again. I’m sending out this edition of Judicial Notice slightly late (with apologies) because I spent most of the weekend at my 25th college reunion, from which Zach and I just returned. It was supposed to have taken place last year, but, well, Covid. It was wonderful to see old friends and also to make new ones.

The other big event of the week was less happy: I spilled coffee on my computer, and it couldn’t be saved. Thank you, paid subscribers, for helping me buy a new computer (this time with AppleCare+, to cover the accidental damage to which I am prone).

My Original Jurisdiction story about Yale and Harvard Law pulling out of the U.S. News rankings was adapted for Slate, where it’s now a most-read article—people can’t get enough of rankings, including stories about them. Thanks to Rebecca Onion for the excellent editing that turned the piece into something more appropriate for a broader audience (i.e., less Yale Law “inside baseball,” more big-picture reflections on the future of rankings and legal education).

Now, on to the news.

Lawyer of the Week: Jack Smith.

The man of the hour is Jack Smith—who sounds like a Harrison Ford character, but is actually the special counsel who was appointed by Attorney General Merrick Garland on Friday to oversee two major investigations involving former president Donald Trump, one focused on his involvement in the January 6 attack on the Capitol and one scrutinizing his keeping sensitive government documents at Mar-a-Lago.

Given his background, Smith seems well-suited to the role. He has been a prosecutor for more than 30 years, having served in the Manhattan District Attorney’s Office, the U.S. Attorney’s offices in Brooklyn (E.D.N.Y.) and Nashville (M.D. Tenn.), the Public Integrity Unit at Main Justice, and the International Criminal Court at the Hague, his current post. Former federal prosecutor Colleen Kavanaugh, a colleague of Smith from his E.D.N.Y. days, praised him to Law360 as “an incredible choice for this position.” Andrew Weissmann, a veteran of Robert Mueller’s Russia investigation, said on Twitter, “I was described by Steve Bannon (and, sigh, many others) as a pit bull. Jack Smith makes me look like a golden retriever puppy. So tenacious and fearless. And apolitical and ethical.”

But Smith’s aggressiveness as a prosecutor already has some defenders of Trump crying foul. For example, former Gorsuch clerk Mike Davis, founder of the Article III Project, complained that Smith oversaw prosecutors who secured a corruption conviction against former governor Bob McDonnell (R-Va.)—which the Supreme Court later reversed, 9-0. While Smith led the Public Integrity Unit, its lawyers also went to trial against former senator John Edwards (D-N.C.)—and couldn’t secure a single conviction, with the jury acquitting on one count and hanging on five others.

What happens next? The Department of Justice will continue its investigations of Trump on January 6 and Mar-a-Lago matters, Smith will make recommendations to Garland about whether or not to prosecute, and Garland will decide how to proceed. If I had to guess, Smith will recommend not prosecuting any January 6 crimes but bringing charges related to the Mar-a-Lago documents imbroglio (perhaps against Trump’s lawyers rather than Trump himself).

Other lawyers in the news—and in hot water:

• Ryne Miller, whose leaving Sullivan & Cromwell to become general counsel at FTX was a prior Move of the Week, now has what Law360 describes as the unenviable task of “steering a sinking crypto ship through a legal tsunami.”

• One of the nation’s most prominent progressive prosecutors, Larry Krasner, was impeached on Wednesday by the Pennsylvania House of Representatives, 107-85. The seven articles allege that he improperly fired assistant district attorneys, failed to cooperate with a House investigation, treated defendants too leniently, and violated victims-rights laws, among other things. He’ll now be tried in the Pennsylvania Senate, consisting of 28 Republicans and 22 Democrats; 34 votes are needed to remove him.

• Suspended Pryor Cashman associate Colinford Mattis and public-interest attorney Urooj Rahman, who conspired to damage a police car by throwing a Molotov cocktail into it, are now former attorneys: they were just disbarred by New York’s First Department, having pleaded guilty in June. Rahman was also sentenced by Judge Brian Cogan (E.D.N.Y.) to 15 months in prison, and Mattis will be sentenced on December 16.

In happier news, congratulations and best wishes to presidential granddaughter Naomi Biden and her new husband, Peter Neal. The high-flying legal eagles—she’s a Columbia Law graduate and Arnold & Porter associate, he’s a Penn Law graduate and associate at Georgetown Law’s Center on National Security—got married on Saturday in a private ceremony at the White House.

In memoriam:

• Marla Hudgens, a 40-year-old, Phoenix-based partner at Lewis Roca, was found dead in her home, along with her husband and their three young children. Police are investigating the matter as a murder-suicide committed by Hudgens’s husband.

• Staughton Lynd, historian turned labor lawyer and activist, passed away at 92.

• Michael Pertschuk, former chairman of the Federal Trade Commission in the Carter Administration, passed away at 89.

May they rest in peace.

Judge of the Week: Justice Samuel A. Alito Jr.