Judicial Notice (09.02.24): Second Chances

Justice Jackson’s big interview, a fun Biglaw departure memo, a major ruling on Section 230, and a new trial for Sarah Palin.

Special Counsel Jack Smith is not going away—and good luck finding a photo of him with a smile on his face (photo by Drew Angerer 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 here.

I hope you’ve been enjoying the Labor Day weekend. It’s hard to believe that summer is over—and I have mixed feelings about it.

On the one hand, I have a case of the “September Scaries,” that feeling of anxiety and dread that hits many of us in late August—as we realize that once Labor Day is behind us, we have no excuse for not being extremely productive. On the other hand, like many working parents, I’m looking forward to the start of the school year and the return of routines. August—after most summer camps are over, but before most schools have reopened—can be challenging, in terms of juggling childcare with work.

So I spent a lot of time last week hanging out with our six-year-old son, Harlan, ahead of his starting second grade tomorrow. But I did find time to join David Schultz for Bloomberg Law’s On The Merits podcast, where we discussed the hot topic of non-equity partnership.

With the new school year getting underway, I’m going with a law student for the latest Original Jurisdiction testimonial: “Coming from a non-lawyer family, I’ve found navigating the ‘black box’ nature of the legal field challenging. Original Jurisdiction’s balanced and enjoyable reporting has proven invaluable in informing me about the legal world and provided me the confidence to engage in discussions with lawyers and fellow students. I highly recommend OJ to any current or prospective law student looking to deepen their knowledge of the legal landscape!” Thanks to Jarin Jensen for this generous praise—and good luck to him in his 1L year at Yale Law School.

Now, on to the news.

Lawyer of the Week: Jack Smith and the Office of Special Counsel lawyers.

I was toying with the idea of skipping Judicial Notice for the holiday weekend, but Special Counsel Jack Smith foiled my plans. As Sarah Isgur quipped on Advisory Opinions, instead of taking it easy in August, Smith “appears to have been locked in a closet with only an electrical outlet, some MREs, and a typewriter.”

First, on Monday, Smith appealed the dismissal of the classified-documents case, filing his opening brief in the Eleventh Circuit. On Serious Trouble, Ken White described the brief as “very strong” and “completely brutal”—although, interestingly enough, it does not seek removal of Judge Aileen Cannon (S.D. Fla.) from the case.

I adhere to my prior prediction that the Eleventh Circuit will reverse Judge Cannon. But I remain uncertain about how the Supreme Court would rule if they decide to hear the case, given the strong feelings that some conservative justices have about the separation of powers and executive authority—reflected in, of course, their ruling in Trump v. United States (aka the immunity case).

Second, on Tuesday, Smith filed a superseding indictment in the election-interference case before Judge Tanya Chutkan (D.D.C.). In a written statement accompanying the indictment, Smith explained that the new document “reflects the Government’s efforts to respect and implement the Supreme Court’s holdings and remand instructions” in the immunity case.

The updated indictment is nine pages shorter than the original, 36 pages versus 45 pages, thanks to the removal of various allegations discussing possibly official acts by Trump as president that might be subject to immunity—e.g., his speaking with U.S. Department of Justice (DOJ) officials about investigating the 2020 election. And the latest indictment was issued “by a new grand jury that had not previously heard evidence in this case,” to avoid any claim by Trump that it was “tainted” by allegations related to conduct protected by immunity.

But in Smith’s second bite of the apple, the bottom line remains unchanged. Trump still faces the same four counts: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. This led former Trump DOJ official James Burnham to tell The Wall Street Journal (gift link), “Rather than try to really reshape the case in a way that complies with what the Supreme Court said, they tried to make basically cosmetic changes.”

What happens next? On Friday night, the prosecution and the defense filed a ten-page joint status report, setting forth their positions on how Judge Chutkan should proceed. Acknowledging the reality that this case isn’t going to trial before Election Day, Smith declined to propose a new timetable, stating instead that “[t]he Court’s decisions on how to manage its docket are firmly within its discretion.” Trump’s lawyers, John Lauro and Todd Blanche, did propose a specific schedule—and a pretty leisurely one at that, with briefing and argument on pretrial motions extending into January 2025. As noted by Politico, “Neither prosecutors nor the defense addressed another way the case might swiftly come to an end: If Trump wins the presidency again in November, he will be in a position to simply call it off.”

Other lawyers in the news:

• Tom Girardi—the former star trial lawyer and soon-to-be-former husband of “Real Housewife” Erika Jayne—was convicted of four counts of wire fraud, after a 12-day trial before Judge Josephine Staton (C.D. Cal.).

• Hampton Dellinger, who leads that other Office of Special Counsel—namely, the one concerned with aiding and protecting whistleblowers within the federal government—proposed a new policy for informing the public about the allegations that his office is investigating.

• Please note the update added to last week’s Judicial Notice, regarding the lawyers who prevailed against the Federal Trade Commission in the battle over noncompetes. Credit for that victory should go not just to Gibson Dunn but to attorneys from Sullivan & Cromwell, the Fillmore Law Firm, the U.S. Chamber Litigation Center, and the Business Roundtable (who are named in the update).

In memoriam:

• Betty Jean Hall—who fought successfully to open the coal industry to women, then fought for their workplace equality and safety—passed away at 78.

• Traci Zeller—a white-collar litigator at Paul Hastings and also a well-known interior designer—passed away at 50 of an embolism.

May they rest in peace.

Judge of the Week: Justice Ketanji Brown Jackson.

Congratulations to Justice Neil Gorsuch and his co-author and former clerk, Janie Nitze. Their book, Over Ruled: The Human Toll of Too Much Law, is now in its third week on the New York Times bestseller list.

Might he soon be joined on the list by his newest colleague, Justice Ketanji Brown Jackson? Her memoir, Lovely One—for which she received an advance of almost $900,000—will be published on Tuesday. And just as Justice Gorsuch did, she’s speaking with media outlets as part of her book promotion (including The Late Show with Stephen Colbert on Tuesday). [UPDATE (9/6/2024, 9:39 p.m.): Actually, it appears that Justice Jackson’s advance was around $3 million, with $900,000 or so paid to her last year.]

Justice Jackson kicked things off by speaking with Norah O'Donnell of CBS News—the justice’s first broadcast interview since joining the Court two years ago. Here are some highlights, as well as my own observations: