Judicial Notice (09.08.24): Undecided

The Biglaw partner leading Kamala Harris’s debate prep, the largest law-firm merger of 2024, and a new AI-related opinion from Judge Kevin Newsom.

It’s no accident that Karen Dunn is leading Kamala Harris’s debate prep (photo by Slaven Vlasic via Getty Images).

This post is sponsored by

ShareFile helps legal professionals like you deliver modern client experiences with secure, digital workflow technology that is easy to use and made to fit your firm’s unique needs. Designed to simplify workflows and improve collaboration, ShareFile works with your existing technologies and provides added visibility, speed, and efficiency, without sacrificing security. Learn more about ShareFile.

---

Last week was an exciting one for our family. Our six-year-old son, Harlan, completed his first week of second grade—which he gave an 8 out of 10. A score of 10 goes to the Disney cruise he went on last year, and a score of 1 goes to… summer camp. When I suggested that giving camp a 1 was overly harsh, asking him what score he’d give prison, he said, “Prison is 0.5, and jail is 0.25.” (Yes, Harlan knows the difference between prison and jail—and yes, conditions in jails are often worse than those in prisons, which include minimum-security facilities for some white-collar offenders.)

Meanwhile, our one-year-old son, Chase, took his first steps. If this video doesn’t make you smile, then you truly are a heartless lawyer—congratulations?

The latest testimonial for Original Jurisdiction comes from a law student at a top 20 school: “OJ is really helpful in informing me on what is going on across the legal universe, much of which I would not be aware otherwise. I appreciate the evenhanded, concise presentation as well.” (By the way, I could use some new testimonials; if you can help, please complete this form or simply email me.)

Now, on to the news.

Lawyer of the Week: Karen Dunn.

The 2024 election will probably be decided by the undecided: the (increasingly small) sliver of voters who (somehow) don’t have strong feelings about Kamala Harris and Donald Trump. And depending on what transpires, the presidential debate this coming Tuesday, September 10, could play a significant role in affecting their votes.

It’s unusual for a story starring a lawyer to become a most-read article on the website of The New York Times. But Karen Dunn, co-chair of litigation at Paul Weiss, is no ordinary attorney: she’s leading the vice president’s debate preparation, as chronicled in this behind-the-scenes look by Reid Epstein.

It’s not surprising that Harris tapped Dunn for this role. They worked together in 2020, when Dunn prepped Harris for her VP debate with Mike Pence, and Dunn is a debate-prep veteran, having worked on debates in four previous election cycles. For more about Dunn’s work preparing Barack Obama and Hillary Clinton for their debates, including how she first got involved in debate prep, check out our podcast interview.

Dunn also happens to be one of the nation’s top trial lawyers—and on Monday, a day before the debate, she’ll appear in the Eastern District of Virginia to give Google’s opening argument in the federal government’s second big antitrust case against the search-engine giant. This fact led to claims that Dunn has a “conflict of interest.” But coaching Harris for a debate—in Dunn’s personal capacity and on a volunteer basis, working with Harris in her capacity as a presidential candidate, not sitting VP—has nothing to do with Dunn’s in-court representation of Google against the U.S. Department of Justice.

As Professor Steven Lubet, a legal-ethics expert, told The Times, “Lawyers in private practice volunteer on political campaigns all the time. There’s no conflict between coaching debate prep and representing a client in a case opposed to the government.” Or as former Arnold & Porter managing partner Jim Jones said to The American Lawyer, responding to the “appearance of impropriety” argument, the appearance issue “doesn’t have anything to do with the rules of representation. It’s a question of whether the lawyer’s independent professional judgment would likely be compromised.” And so “to anyone who understands ethical rules, this idea that there’s somehow a conflict here is really kind of head-scratching and laughable.”

In memoriam:

• Professor Frederick Schauer of UVA Law School—a renowned scholar of constitutional law, especially regarding free speech and the First Amendment—passed away at 78, after a long illness.

• San Diego litigator John Alessio—who was just beginning his third term as managing partner of Procopio Cory, an Am Law 200 firm—passed away at 55, after a five-year battle with cancer.

• Linda Deutsch—not a lawyer but a leading chronicler of them, as a reporter covering high-profile trials for the Associate Press for almost 50 years—passed away at 80 of pancreatic cancer.

May they rest in peace.

Judges of the Week: Judge Tanya Chutkan and Justice Juan Merchan.

Should Donald Trump’s status as a presidential candidate, including his busy campaign schedule, affect how judges handle the legal cases against him? I’m guessing most people have strong opinions—but I’m actually undecided.

On the one hand, as a theoretical matter, the election shouldn’t matter—which is the view of Judge Tanya Chutkan (D.D.C.), overseeing the federal election-interference case against Trump. After a hearing on Thursday, Judge Chutkan set a schedule for next steps in the case that calls for additional briefing and argument this month and next—i.e., before the election.

One of Trump’s lawyers, John Lauro, protested that her schedule could cause the government to release new (negative) information about Trump around a “sensitive time,” i.e., the 2024 election. Judge Chutkan responded that the election is “not relevant” to scheduling events in the case before her, adding, “I am definitely not getting drawn into an election dispute.”

Lauro said he plans to file a motion asking Judge Chutkan to dismiss the case based on the argument that Special Counsel Jack Smith was not properly appointed—which led to this amusing exchange, reported by The New York Times:

Mr. Lauro sought to defend his plans to challenge Mr. Smith’s appointment by arguing that Justice Clarence Thomas had questioned how Mr. Smith had gotten his job in a concurrence to the Supreme Court’s immunity ruling.

At one point, Mr. Lauro said that Justice Thomas had “directed” Mr. Trump’s legal team to pursue the motion. But he quickly amended himself, saying only that the justice had raised the issue in his concurrence.

Still, Judge Chutkan interrupted him before he made his correction, asking archly, “He directed you to do that?”

In Lauro’s defense, I can hardly blame him for thinking of the Thomas concurrence as tantamount to such a directive, since… it kinda was.

Lauro also cited the ruling of Judge Aileen Cannon (S.D. Fla.), which dismissed the classified-documents case after concluding that Smith was not properly appointed. But Judge Chutkan countered that she was bound by D.C. Circuit precedent to the contrary, and in any event, she did not find Judge Cannon’s ruling “particularly persuasive” (which is, according to Ken White of Serious Trouble, “federal-judge-speak for ‘that b**ch is crazy’”).

Judge Chutkan’s approach of treating Trump like any other defendant—simply one who has “a day job,” as she put it, of running for president—contrasts with that of our second Judge of the Week: New York Supreme Court Justice Juan Merchan. On Friday, Merchan postponed ruling on Trump’s motion to set aside the verdict in the Manhattan hush-money case on immunity grounds, moving it to November 12, and Trump’s sentencing, moving it to November 26. In a four-page letter to counsel, the judge wrote as follows:

Unfortunately, we are now at a place in time that is fraught with complexities rendering the requirements of a sentencing hearing, should one be necessary, difficult to execute. Thus… the decision on the [motion to set aside the verdict] and the imposition of sentence will be adjourned to avoid any appearance—however unwarranted—that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate….

Adjournments for sentencing are routinely granted, often several times, in any number of other criminal matters pending in this courthouse, particularly when unopposed, for reasons ranging from personal circumstances to the scheduling needs of the parties involved. Given the unique facts and circumstances of this case, there is no reason why this Defendant should be treated any differently than any other.

So it’s interesting: Judge Chutkan argues that treating Trump like any other defendant means ignoring the election, while Justice Merchan argues that treating Trump like any other defendant requires taking the election into account. And I see merit in both positions—as do Jonathan Alter of The Times and Ankush Khardori of Politico. Readers, what do you think? I welcome your views in the comments.

Justice Merchan’s decision to postpone sentencing until after the election makes me more confident in my prediction that Merchan will give Trump a custodial sentence, i.e., some time behind bars (even if just a few weeks or months). I suspect that Merchan wanted to sentence Trump to something other than probation, but correctly realized that doing so now, just a few weeks before the election, could lead to gigantic—and gigantically unpredictable—political consequences (even if the sentence was stayed, as it surely would have been).

A custodial sentence could have helped persuade undecided voters to vote against Trump—or it could have helped Trump galvanize his base with cries of a “witch hunt.” So the safer and more prudent course is to wait until we know whether Trump will be the next president of the United States. My guess is that if he wins the election, Merchan will sentence him to probation, and if he loses the election, Merchan will sentence him to prison—allowing the curtain to then fall on the morality play, with Trump losing the White House and heading for the big house.

To sum up, as a political rather than legal matter, Trump’s strategy of “delay, delay, delay” ultimately worked: he goes into the November election a free man. As former Fourth Circuit judge J. Michael Luttig told The Times, the postponements secured by Trump, taken together, “have furthered the entirely understandable and legitimate impression at this point that the former president is indeed above the law.”

In other news about justices and judges:

• To clarify something I mentioned regarding last week’s Judge of the Week, Justice Ketanji Brown Jackson, the $900,000 she received last year (and revealed in her latest financial disclosure) was only part of the $3 million total advance she’s receiving for her new memoir, Lovely One.

• Joshua Kindred is no longer on the federal bench, having resigned in scandal—but controversies related to his cases continue, with one Alaska defense lawyer seeking a new trial for her client because an assistant U.S. attorney on the matter sent Kindred nude photos as part of their “flirtatious rapport.”

• Former federal judge Nancy Gertner (D. Mass.), ethics scholars Stephen Gillers and James Sample, and Citizens for Responsibility and Ethics in Washington (CREW) filed an Eleventh Circuit amicus brief urging that court to remove Judge Cannon from the classified-documents case on remand. Although I have been highly critical of Judge Cannon’s handling of the case, I think it’s unlikely that the Eleventh Circuit will do this, speaking predictively rather than normatively. As noted by Sarah Isgur and David French on Advisory Opinions, appellate courts rarely grant this relief—and it’s not even being sought by Jack Smith, which is why the amici stepped in.

In memoriam: Judge Daniel Manion of the Seventh Circuit passed away at 82. As one of his former law clerks, Judge Stephen Dillard of the Georgia Court of Appeals, wrote on LinkedIn, Judge Manion “was a devout Catholic, a devoted family man, an incredible boss, an extraordinary mentor, the ultimate role model, an exceptional jurist, and a truly great American.” May he rest in peace.

Ruling of the Week: United States v. Deleon.

In United States v. Deleon, the Eleventh Circuit tackled this issue: “whether the victim was ‘physically restrained’ under the meaning of the [U.S. Sentencing] Guidelines when defendant Joseph Deleon walked into a store, pointed a gun at the cashier while demanding money from the register, received the money, and then left, all within about one minute.”