Judicial Notice (02.23.25): How Appalling

Impeachment articles against Judge Paul Engelmayer, Paul Clement’s latest project, a notable hire by Hecker Fink, and more DOJ departures.

Paul Clement, the man of the hour (photo by Chip Somodevilla via Getty Images).

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Here in the northeast, is our long, snowy winter finally over? We moved from Manhattan to the New Jersey suburbs in July 2021, and we’ve done more shoveling this winter than we have in the past three winters combined. But looking at the 10-day forecast, I see several days where temperatures should get into the 40s and even 50s. I can’t wait.

I’ve received an influx of free subscribers recently (welcome!), so I wanted to explain what you’re now reading. This is Judicial Notice (JN), my handy, time-saving summary of the past week in legal news. JN allows paid subscribers to read a single post—sometimes a long post, admittedly—and get caught up on the law and legal profession. It’s “one-stop shopping”: I read everything, so you don’t have to. To see what a full installment of JN looks like, check out last week’s, which I’ve moved in front of the paywall.

I consider JN, as well as most of what I write for Original Jurisdiction (OJ), to be “news analysis.” Yes, I do some original reporting on OJ—e.g., on SCOTUS clerk hiring—but I’m more into explaining the meaning and significance of news developments to readers. If you want “hot takes” from the right or left, you’ve come to the wrong place.

That said, some readers—including Judge Vince Chhabria (N.D. Cal.), my latest podcast guest—have encouraged me to provide more normative analysis and personal views in my writing. For example, some progressive readers feel that I should be more outspoken in my criticism of Donald Trump and his administration (and some conservative readers have complained about my Trump commentary—go figure).

If you think I haven’t been hard enough on the Trump administration, especially its Department of Justice (DOJ), please listen to my OJ podcast episode with Judge Chhabria and my recent appearance on Advisory Opinions (AO). In discussing the Trump DOJ’s handling of the prosecution of New York City Mayor Eric Adams, I used words like “very troubling,” “appalling,” and “reprehensible.”

So if you want “Spicy Lat,” who has lots of opinions about lots of things, listen to me on podcasts. But if you prefer “Chin-Stroking Lat,” who’s sober, restrained, judicious—and less hard on Trump, for my conservative readers—skip the podcasts. (For some reason, I feel more uninhibited when I’m in front of a microphone as opposed to a keyboard.)

Now, on to the news.

Lawyer of the Week: Paul Clement.

I’ve been writing extensively about the turmoil at the Justice Department arising out of the Trump administration’s effort to dismiss the Eric Adams case. The DOJ filed a motion to dismiss the Adams prosecution under Federal Rule of Criminal Procedure 48, which provides that “[t]he government may, with leave of court, dismiss an indictment, information, or complaint.” On Wednesday afternoon, Judge Dale Ho (S.D.N.Y.), who’s presiding over the Adams case, held a hearing on the motion.

Judge Ho was appointed to the bench in 2023 by President Biden, after working for a decade at the American Civil Liberties Union. Given his background as a progressive public-interest lawyer, you might have expected him to aggressively interrogate—and maybe even benchslap—the DOJ lawyer who argued the motion to dismiss, Acting Deputy Attorney General Emil Bove (which, by the way, is pronounced “A-mill BOH-vee”—as I learned from a Bove family member who asked to remain anonymous).

But Judge Ho, during the “surprisingly tame,” 90-minute hearing, was “even-keeled” and “meticulous,” according to The New York Times. He didn’t rule from the bench, instead issuing an order in which he appointed Paul Clement “as amicus curiae to present arguments on the Government’s Motion to Dismiss.” As Judge Ho explained, in most cases “courts are aided in their decision-making through our system of adversarial testing, which can be particularly helpful in cases presenting unusual fact patterns or in cases of great public importance.” But here, because the DOJ and Adams are in agreement, “there has been no adversarial testing of the Government’s position generally or the form of its requested relief specifically.” Enter Clement.

Judge Ho asked the lawyers to the parties and Clement to address such issues as “the legal standard for leave to dismiss an indictment under Rule 48(a),” whether any such dismissal “should be with or without prejudice,” and “[i]f leave were denied under Rule 48(a), what practical consequences would follow.” The briefs are due on March 7, and oral argument will take place on March 14. (Judge Ho vacated the April 21 trial date—which makes sense, since a trial is highly unlikely at this point.)

Judge Ho’s selection of Clement, 58, is a testament to the high esteem in which he’s held. As noted in this Times profile (via Howard Bashman of How Appealing), Clement is one of the nation’s leading Supreme Court and appellate advocates, having argued more than 100 cases before the high court—many of them as U.S. solicitor general, the federal government’s top SCOTUS advocate. And as you’d expect from someone who served as SG during the George W. Bush administration, Clement is a conservative who has argued in favor of Second Amendment rights and against the constitutionality of the Affordable Care Act.

Conservative commentator Andrew McCarthy, writing at National Review, criticized Judge Ho’s overall approach. He argued that even though there’s precedent for appointing an amicus in a case where the government and defendant both support dismissal—it was done in the case of Michael Flynn, Trump’s first national security adviser—it’s unnecessary, since this will surely end with dismissal (because you can’t force the executive to prosecute a case it doesn’t want to prosecute). But McCarthy did praise Ho’s selection of Clement, “a solid conservative lawyer whose stellar reputation with the Supreme Court (and elsewhere) is deserved”—and concluded that “if you’re going to ask for outside help, you couldn’t ask for anyone better.”

Of course, Judge Ho had to ask Clement if he’d be willing to undertake this mission—and apparently Clement said yes. This is interesting, because I’m guessing his personal views probably favor the government having wide latitude to dismiss cases—for good reasons, bad reasons, or no reasons at all. After all, he’s a staunch conservative, former executive-branch lawyer, and former law clerk to the late Justice Antonin Scalia—a big believer in executive power, reflected in his famous dissent in Morrison v. Olson.

So why did Clement do it? I’m guessing his strong commitment to the adversarial process played an important role. As he and Erin Murphy wrote in a Wall Street Journal op-ed after they were asked to leave Kirkland & Ellis over their Second Amendment work, the Constitution “isn’t self-executing. It depends on lawyers who are willing to take on controversial matters, and on judges who are able to hear the best possible arguments from both sides” (emphasis added). And representing a client or cause you don’t agree with 100 percent can make you a better lawyer. As Clement told me in our podcast interview, after noting that he has represented a diverse range of clients and causes over the years, “you’re a better advocate if you’re willing and able to take cases with differing perspectives.”¹

Clement is most well-known for his work before the Supreme Court, where he has one of the highest win rates among leading SCOTUS lawyers. But he argues frequently before circuit courts as well—and does great before them too. His latest big win came as recently as Tuesday, in United States v. Regeneron Pharmaceuticals, Inc. In a unanimous opinion by Judge William Kayatta, the First Circuit affirmed a trial-court ruling in favor of Clement’s client, adopting his proposed reading of contested language in the federal Anti-Kickback Statute (AKS). The ruling deepens a circuit split on the issue—and if it goes up to the Supreme Court, expect Clement to argue it.

Finally on the subject of Paul Clement, I’d like to return to something I briefly mentioned last week: a recent oral argument at the Federal Circuit, where Chief Judge Kimberly Moore and Judge Todd Hughes chastised Clement for what they viewed as inappropriate “rhetoric” in his brief (here’s the audio—listen to the first two minutes and the last two minutes). Clement didn’t back down—and now that I’ve had the chance to read his opening brief and reply brief, I say, “Good for him.”

While Clement’s briefs are certainly zealous, I don’t think they cross the line—and neither do the half-dozen appellate or IP litigators who read the briefs and gave me their opinions. Legal-writing guru Ross Guberman highlighted some of the most aggressive excerpts from the briefing, then conducted Twitter polls about them—and by margins of 84 to 96 percent, the 300-plus respondents sided with Clement.

In my opinion, the whole episode reflects negatively not on Clement, but on the Federal Circuit. And this isn’t the first time that the court has done something I find problematic: it’s also behind what former federal judge Paul Cassell recently described as “the unconstitutional ‘stealth impeachment’” of Judge Pauline Newman, their very own colleague—an effort spearheaded by none other than Chief Judge Moore. (I don’t have the space here to explain L’Affaire Newman, a long and complicated saga—but if you’d like to go down that rabbit hole, start by listening to my 50-minute podcast interview of Judge Newman.)

Other lawyers in the news:

• Kash Patel was confirmed to serve as director of the FBI, 51-49—a party-line vote, except Republican Senators Susan Collins and Lisa Murkowski opposed him.

• Joe Tacopina won an acquittal for rapper A$AP Rocky on felony assault charges—leading the grateful client and his partner Rihanna to declare that they’ll name their next child “A$AP Joe,” in his honor.

In memoriam: Marina Angel, professor emerita at Temple University’s Beasley School of Law, passed away at 80. May she rest in peace.

Judge of the Week: Judge Paul Engelmayer.