Judicial Notice (10.20.24): Blast Off

A justice under indictment, Elon Musk’s latest lawsuit, a MAGA legal warrior, and a Biglaw firm’s aggressive response to a discrimination lawsuit.

A SpaceX launch in June 2024 (photo by Miguel J. Rodriguez Carrillo / AFP via Getty Images).

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Apologies for the belated nature of the edition of Judicial Notice (although lawyers used to midnight e-filing deadlines should note that I just made it). I do have a good excuse: this weekend was my 25th law school reunion. I had a great time, and if you’re on the fence about attending your next reunion, I’d urge you to just do it. I wasn’t the most popular kid in law school—something of a gunner, probably unbearable—but at reunions, everyone is exceedingly nice and happy to be there.

Funnily enough, I have many classmates that I became much better friends with after graduation. This might be because when I was in law school, I was stressed out, fixated on my studies, and not very social. As a result, I missed out somewhat on one of the best parts of law school: my classmates. This is why, when I speak at law schools, I always urge students not to neglect the social aspects of the experience.

Now, on to the news.

Lawyer of the Week: Mike Davis.

According to polls, the presidential race between Kamala Harris and Donald Trump is a dead heat. But prediction markets, which allow people to bet on the outcome of real-world events, favor Trump. As of this writing, Kalshi, PredictIt, and Polymarket all give Trump between a 56 and 60 percent chance of victory (although Polymarket might be skewed by $30 million in bets from just four accounts).

If you think Trump is probably our next president and want to know how he might handle legal issues like judicial nominations and U.S. Department of Justice (DOJ) appointments, then you should get to know Mike Davis. And there’s plenty for you to read: last month, he was profiled by Adam Wren for Politico, and just last week, he was profiled by Beth Reinhard and Marianne LeVine for The Washington Post (gift link). He also featured prominently in this Wall Street Journal article (gift link) by Jess Bravin and Ryan Barber, which quoted Davis saying that future Trump judicial nominees must be “even more bold and more conservative and more fearless” than those of the first Trump administration. And his pronouncements carry weight: as noted by the WSJ, Trump has praised Davis as “tough as hell” and said that “we want him in a very high capacity” in a second Trump administration.

After graduating from the University of Iowa College of Law in 2004, Davis parlayed a volunteer role on the 2004 reelection campaign of George W. Bush into a political-affairs role in the White House. Davis subsequently served at the DOJ, clerked for then-Judge Neil Gorsuch on the Tenth Circuit, helped Judge Gorsuch get confirmed to the Supreme Court, clerked for Justice Gorsuch, and worked for Senator Chuck Grassley (R-Iowa) as chief counsel for nominations on the Senate Judiciary Committee. These are excellent “Establishment” credentials.

But then Davis, 47, evolved. In the words of Trump adviser Steve Bannon, “Mike Davis was a standard-stock Republican, Federalist Society lawyer” who transformed himself into “a full f**king MAGA warrior.” Today Davis runs the Article III Project (A3P), the conservative, judiciary-focused advocacy group he founded in 2019, and he enjoys trolling and triggering the left online. In short, his trajectory mirrors that of the Republican Party—for better or worse, depending on your point of view.

Other lawyers in the news:

• Leading trial lawyer Alex Spiro of Quinn Emanuel—currently defending New York City Mayor Eric Adams in his federal corruption case and charging only $1,000 an hour, a big discount from his usual $3,000 an hour—was profiled in The Wall Street Journal (gift link) by Erin Mulvaney and Corinne Ramey. Their piece concludes by quoting what Spiro said to me during our September 2022 podcast interview: “I’m a big believer that you’ve got to take risks in life and in court, and if you don’t, you’re just using the same playbook as everybody else.”

• One risk I have never understood: committing massive tax evasion, in the millions of dollars, on the off chance that you’ll get away with it. Over the years, lots of lawyers have taken this risk—and gotten caught. Joining Hunter Biden in this club are former Rodney King lawyer Milton Grimes of Los Angeles, who pleaded guilty to willful tax evasion after being accused of owing the IRS more than $1.7 million, and former Biglaw partner Eric Lenzen of Milwaukee, who was sentenced to 16 months for failing to pay $2.46 million in taxes. (I can understand small-scale evasion, like taking cash under the table or fudging deductions, but I really don’t understand trying to evade seven figures of tax liability, especially on Biglaw income that’s reported to the IRS on Form K-1; if you can enlighten me, perhaps because you represent tax evaders, I’d love to hear from you.)

In memoriam:

• Robert Bernstein, a longtime tax lawyer at the DOJ who became a prominent gay-rights activist after his daughter came out to him, passed away at 98.

• Lilly Ledbetter—whose loss before the U.S. Supreme Court in the sex-discrimination case of Ledbetter v. Goodyear Tire & Rubber Co. triggered a fierce dissent from the late Justice Ruth Bader Ginsburg, followed by Congress’s passage of the Lilly Ledbetter Fair Pay Act of 2009—passed away at 86.

May they rest in peace.

Judge of the Week: Judge Frederic Block.

Last month, I wrote about Judge Frederic Block (E.D.N.Y.) and his new book, A Second Chance: A Federal Judge Decides Who Deserves It. It tells the stories of six defendants who applied to Judge Block for sentence reductions under the First Step Act, the 2018 law that allows a judge to reconsider a previously imposed sentence and reduce it—even if it was (and remains) lawful, and even if it was a life sentence.

How about… five life sentences? That’s the punishment that Judge Block imposed back in 1997 on Walter Johnson of Brooklyn, after he was convicted of robbery, cocaine possession, and witness tampering. And it’s the punishment the judge just reduced, as explained in his opinion in United States v. Johnson:

As of this October 24, Johnson will have been in jail for 28 years because of the sentences I imposed in 1997. He is now 61 years old. I sentenced him to three mandatory terms of life in prison under the “Three Strikes” provision of the Violent Crime Control and Law Enforcement Act, which had recently been enacted by Congress. I also exercised my discretion to sentence him to two additional life terms for two cocaine-based convictions because I considered acquitted conduct. I said at the time, “Mr. Johnson, you are a classic example of a person [who] has to be incapacitated so society is protected against you. You have a violent history. You’ve spent a lot of time in jail, And, when you’ve been out of jail, you have visited all sorts of harm to the community.”

Now, I am ordering his release.

The rest of the 26-page opinion explains the “extraordinary and compelling reasons” that led Judge Block to grant so-called “compassionate release” to Johnson. They included the harshness of his original sentence under the Three Strikes Law, his impressive rehabilitation while in prison, and a victim-impact statement from Crystal Winslow, who urged Judge Block to release Johnson. (Although Johnson was acquitted of raping Winslow, Judge Block took it into account at sentencing as so-called “acquitted conduct.”)

The opinion is very focused on Walter Johnson, in terms of his own unique circumstances—but it’s also about Judge Block, including his evolution as a jurist. As he wrote in the opinion’s penultimate paragraph, “Just like prisoners who have evolved into better human beings during their lengthy periods of incarceration, judges also evolve with the passage of years on the bench. When I sentenced Johnson in 1997, I had been a judge for only two years. But judges gain insights that with the passage of time only can come with experience on the bench and their judicial maturation. Now, having been on the bench for almost thirty years, the First Step Act has given me a second chance to reconsider the sentences I imposed on Johnson 27 years ago.”

For more about this very interesting case and opinion, see Corey Kilgannon’s article for The New York Times (gift link), including photos of Johnson and his wife after his release, and Andrew Denney’s article for The New York Law Journal.

Other judges in the news (hint: there’s a whole lotta benchslappin’ goin’ on):

• Justice Anna Barbara Hantz Marconi of the New Hampshire Supreme Court was indicted for two felonies and five misdemeanors, premised on allegations that she attempted to interfere with a criminal investigation into her husband Geno Marconi, director of the New Hampshire Division of Ports and Harbors. Despite coverage by numerous media outlets (helpfully collected by Howard Bashman over at How Appealing), details are pretty scarce as of now.

• Every week seems to bring new revelations in the scandal involving former bankruptcy judge David R. Jones (S.D. Tex.) and his paramour, bankruptcy lawyer Elizabeth Freeman, who worked on cases before him. In one newly disclosed text message, Freeman allegedly told a colleague at her former firm of Jackson Walker, in relation to the massive JCPenney Chapter 11 case they were about to file in Jones’s court, “Talked to Jones. He’s got us.”

• The Fifth Circuit, in an opinion by Judge Edith Jones, removed Judge Janis Jack (S.D. Tex.) from long-running litigation over the Texas foster-care system—after going on for almost 20 pages about Judge Jack’s inappropriate conduct on the bench (see pp. 18-36 of the opinion).

• Judge Stephanos Bibas, sitting by designation in the District of Delaware, benchslapped the plaintiffs’ lawyers in a proposed privacy class action against Amazon Web Services for “lazy lawyering.” He also ordered them ”to show cause about their possible breach of their duty of candor,” reflected in their making an apparently frivolous argument.

• Judge Indira Talwani (D. Mass.) laced into Biglaw attorneys for overlitigating a case, complaining about what struck her as a “possible effort to try to gum up the works”—and implying that the lawyers might just be running up the tab.

• I don’t normally mention birthdays in Judicial Notice, but I’ll make an exception for centenaries: happy 100th birthday to civil-rights lawyer and retired judge L. Clifford Davis, who hit this milestone on October 12.

In memoriam: Judge Joyce Hens Green—the third woman to serve on the U.S. District Court for the District of Columbia, presiding over major cases involving the BCCI bank-fraud scandal and the rights of Guantánamo Bay detainees—passed away at 95. May she rest in peace.

Ruling of the Week: Knowlton v. City of Wauwatosa.

I hope and pray that next month’s elections go smoothly, without any violence or unrest. But if problems do arise and authorities need to take action, they might be interested in the Seventh Circuit’s opinion in Knowlton v. City of Wauwatosa.

In fall 2020, the Milwaukee district attorney’s office decided not to criminally charge Joseph Mensah, a police officer in Wauwatosa, Wisconsin, in connection with the shooting death of Alvin Cole, a Black teen. Anticipating possible violence, the mayor instituted a limited curfew order that took effect after the DA’s announcement of the decision. The plaintiffs, who attended protests in Wauwatosa or were otherwise affected by the curfew, challenged its validity on constitutional and state-law grounds—most notably, the First Amendment.

In an opinion by Judge Amy St. Eve—one of the most prolific and influential circuit judges in the country, according to a new study—the Seventh Circuit upheld the validity of the curfew. The unanimous panel concluded that the limited, nighttime curfew was content-neutral, served a significant government interest (preserving public safety), was narrowly tailored (a nighttime curfew over five days), and left open ample alternative channels of communication (such as protesting during the daytime or after the expiration of the five-day curfew). Holding the curfew to be a permissible time, place, and manner restriction under the First Amendment, the panel affirmed.