Judicial Notice (01.12.25): California On My Mind

The Los Angeles wildfires, Trump DOJ picks, Biglaw and boutique drama, and TikTok at SCOTUS.

A photograph shared with me by a law school classmate, taken by his father as he evacuated (photo by Dr. Walter Fierson).

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 love California. It has its fair share of dysfunction, but it is undoubtedly one of America’s greatest states. I have never lived in California, but part of me wishes I had—which might explain why I set my novel in the Los Angeles area. Over the past five decades, I have spent many happy times in the Golden State; I even rang in the new year there, with my husband Zach’s family near Santa Cruz.

So if you are one of the hundreds of thousands of people suffering through the Southern California wildfires, you are in my thoughts and prayers. My social-media feeds have been filled with heartbreaking photos and videos of shocking devastation.

The legal community has been affected. Lawyers and legal professionals have been among the 180,000 evacuees, with some losing their homes, and courthouses and law firms have closed. Lawyers and law firms have also stepped up to help, raising funds for and taking in the displaced. And the wildfires—whose ultimate damage could end up costing $50 billion, according to JPMorgan—will create plenty of work for lawyers in the years ahead, for better or worse.

Now, on to (mostly happier) news.

Lawyer of the Week: Marc Elias.

When a mean old Biglaw firm does something allegedly anti-worker, you can at least say it’s on-brand. A client might very well think, “If my megafirm can’t screw over its own employees properly, how can it help me do the same?”

The optics are different when the anti-employee action is taken by a boutique. Given their smaller, usually more collegial environments, boutiques tend to be kinder and gentler than Biglaw. But there are exceptions—including one boutique that holds itself out as a paragon of progressive virtue.

In 2021, Democratic super-lawyer Marc Elias left Perkins Coie to launch the Elias Law Group (ELG), which touts itself as representing clients who are “committed to securing a progressive future.” So last month, when ELG tried to force its employees to sign mandatory arbitration agreements—which are widely viewed on the left as unfair efforts by powerful employers to deny aggrieved employees their day in court—the internal reaction was predictably negative.

As reported by Kathryn Rubino of Above the Law, ELG sprung this policy change upon employees right before the holidays, on December 19—and gave them only until December 30 to sign the agreements. After 42 associates and counsel at ELG signed a letter asking the firm to reconsider, the firm refused—and it’s withholding 2025 salary increases from any employees who won’t go along.

What’s behind the move? According to The New York Post, “insiders [are] speculating about whether the firm has something to hide.” Shortly after the announcement, Elias himself “mysteriously purged his once-vociferous X account—stoking further intrigue.” Is a scandal involving ELG and Marc Elias about to break—perhaps the kind of scandal that would cause people to dig through old tweets, in search of ones that aged poorly? Stay tuned.

Other lawyers in the news:

• Alex Spiro of Quinn Emanuel, the lawyer of choice for numerous celebrities, had a busy week. He sued New Mexico prosecutors on behalf of Alec Baldwin, moved to dismiss a lawsuit accusing Jay-Z of rape (and sought sanctions against the plaintiff’s lawyer), and duked it out in the court of public opinion with the federal prosecutors pursuing New York City Mayor Eric Adams.

• A former prosecutor in the Denver District Attorney’s Office, Yujin Choi, was ordered disbarred, after a disciplinary judge in Colorado concluded that she tried to frame a male colleague for sexual harassment.

In memoriam: New Orleans prosecutor Ian Kersting, who focused on sexual-assault cases in the Orleans Parish District Attorney’s Office, died of suicide at 34. If you or someone you know is experiencing thoughts of suicide, contact the National Suicide Prevention Lifeline by calling or texting “988.”

Judge of the Week: Justice Juan Merchan.

Facing sentencing in his Manhattan hush-money case, President-elect Donald Trump asked the U.S. Supreme Court to stay the proceedings, while he pursues his claims of immunity from prosecution on appeal. In a brief order on Thursday, the Court denied his request, observing that “the burden that sentencing will impose on the President-Elect’s responsibilities is relatively insubstantial in light of the trial court’s stated intent to impose a sentence of ‘unconditional discharge’ after a brief virtual hearing.” Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted Trump a stay, i.e., put his sentencing on hold.

So on Friday morning, Trump appeared virtually from his Mar-a-Lago estate in Florida for sentencing before Justice Juan Merchan of New York Supreme Court. Justice Merchan sentenced Trump to an “unconditional discharge,” i.e., nothing—as the judge previously wrote, in a January 3 opinion, he was planning to do.

Trump’s harshest critics might be disappointed or even angered by this outcome. But as argued by various commentators, including Jonathan Alter of The New York Times and Ken White of Serious Trouble, it’s hard to see how this could have come out any other way. In fact, if you’re anti-Trump but clear-eyed, you should probably see Justice Merchan’s handling of this case as sensible, even shrewd.

The Supreme Court declining to get involved—by a 5-4 vote, the narrowest margin possible, based in part on Justice Merchan’s stated intent to impose the most lenient sentence possible—could be viewed as vindication of Merchan’s approach. Indeed, if Justice Merchan had not telegraphed his intended (in)action, there’s a decent chance that the Supreme Court would have stepped in to prevent the sentencing from going forward, either before Trump took office or while he was president. And in that case, who knows what would have happened? There’s no guarantee that Trump would have been sentenced on the back end of his second term—or ever.

So even if you’re no Trump fan, half a loaf is better than none. The jury verdict finding him guilty of 34 felonies was not enough to make him a felon; he had to be sentenced, and Justice Merchan had to enter judgment, to make it official. On Friday, the judge did just that, providing a certain amount of closure to the proceedings.

When Donald Trump takes office on Monday, January 20, he will do so as the first convicted felon to become president of the United States. Trump will always have that dubious distinction, unless his conviction is overturned. And although I haven’t studied the applicable law, I’d guess that the Court of Appeals, New York State’s highest court, is more likely to affirm a conviction with no consequences, under a theory of “no harm, no foul”—which might be another virtue of the Merchan ruling, at least from the perspective of someone who wants Trump to go down in history with a footnote next to his name.

In other news from New York State, Justice Arthur Engoron, who presided over Trump’s civil-fraud trial, was removed from the case—then reinstated, hours later. What happened? No explanation was given, but I wonder whether the First Department, the appellate court where Trump’s appeal of his civil-fraud judgment is pending, is about to issue an opinion. Perhaps that decision reverses the judgment and removes Justice Engoron from the case—but because of a clerical or administrative error, the change got processed prematurely. We’ll know soon enough.

[UPDATE (7:02 p.m.): I’ve heard from lawyers working on other cases before Justice Engoron who also received notifications of his being removed from and then reinstated to their matters. So it appears that this was not related to the Trump case, but was instead related to Justice Engoron.]

In other state-court news, changes are coming to the Supreme Court of Texas. At the end of last month, Chief Justice Nathan Hecht, the longest-serving member of “SCOTX,” stepped down, having reached the court’s mandatory retirement age. So congratulations to his successor, Chief Justice Jimmy Blacklock, and to Justice James P. Sullivan, who will take Blacklock’s former seat (“Justice, Place 2,” in SCOTX-speak). And congrats to Chief Justice Hecht on his successful tenure and retirement; perhaps he’ll be able to spend more time with his wife, Judge Priscilla Richman, who last fall concluded her own service as chief judge of the Fifth Circuit.

On the federal side, last week brought another controversy involving Justice Samuel Alito. As first reported by ABC News, the justice took a call from president-elect Trump to discuss William Levi, a former Alito clerk up for a few possible roles in the Trump administration.

(The ABC report mentions Levi is in the running for general counsel of the Department of Defense—but I’m hearing that particular role might go to Ryan Newman, Levi’s co-clerk in the Alito chambers, who’s a West Point graduate, Iraq War veteran, and former deputy general counsel at the Defense Department. I discuss a few other possible Trump DOJ picks below, including assistant attorney general for the Office of Legal Counsel and principal deputy solicitor general.)

[UPDATE (6:45 p.m.): I’ve been advised that some of the potential picks mentioned here are not yet finalized, so stay tuned. The only thing that’s constant in Trumpworld is change—and that extends to the filling of legal positions. For example, recall how Trump announced William McGinley as his White House counsel pick, but quickly replaced him with David Warrington.]

The Trump/Alito call took place on Tuesday—and the next day, Trump sought a stay from the Court to block his sentencing. The case apparently did not come up in their conversation. As Justice Alito told ABC News on Wednesday, “We did not discuss the emergency application filed today, and indeed, I was not even aware at the time of our conversation that such an application would be filed. We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the President-elect.”

Reactions of the commentariat, collected by Howard Bashman at How Appealing, were predictable. The phone call garnered criticism from opponents of Trump and Alito—including Dahlia Lithwick and Mark Joseph Stern of Slate, and Jay Willis of Balls and Strikes—and defenses from pro-Alito writers, such as Mollie Hemingway of The Federalist. As usual, my own views lie somewhere in between.