Judicial Notice (01.26.25): #Resist?

Justice Jackson’s jewelry, Justice Alito’s surprising vote, Kirkland’s raid on Skadden, Gibson Dunn’s latest wins—and more Trump news than you can shake a stick at.

Justice Jackson’s cowrie-shell accessories: an innocent bit of flair, or warding off Trump’s bad juju? (Photo by Chip Somodevilla via Getty Images.)

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Last week wasn’t fun for me. I spent far too much time shoveling snow, dealing with water in our basement, and stewing about a nastygram that honestly wasn’t worth a fraction—or maybe any—of the brain cells I devoted to it. I failed to follow the advice that I regularly give to others: the best response is often no response.

On top of all that, as I’ve mentioned before, I experience occasional lower-back pain (and I appreciate the helpful advice that a number of you have shared). I finally went to an orthopedic surgeon, who ordered x-rays, and it turns out I have a stress fracture that caused spondylolisthesis—which, despite its long and unpronounceable name, is just an out-of-place vertebra (or back bone). Surgery is not indicated (phew), but I need to do physical therapy to strengthen my core. If you’ve been similarly ignoring a chronic or recurring medical issue, I urge you to get it checked out.

Given that the first week of Donald Trump’s second term was so hectic, I have two caveats to offer about this edition of Judicial Notice. First, I try to stay in my lane, which is law and the legal profession—not politics, public policy, or sports (although out of spousal solidarity with Zach, #GoBills). Second, to keep this roundup to a manageable length, I’ve focused on issues that have already spawned litigation, not ones that might give rise to litigation in the future.

Now, on to the news.

Lawyers of the Week: the attorneys at the helm of America First Legal.

I incorporate by reference my prior post, 5 Trump Moves That Matter For Lawyers, and now want to move on to a different topic: who are the legal architects of the Trump administration? Who deserves the credit (or blame) for the blizzard of executive orders, personnel moves, and other presidential actions affecting attorneys?

In many ways, it’s Stephen Miller, the longtime Trump adviser who currently serves as White House deputy chief of staff for policy and U.S. homeland security advisor. The Financial Times calls him “Trump’s implementer-in-chief,” a “fiery anti-immigrant ideologue [who] has made himself indispensable to the president.” As Politico put it, “It’s Stephen Miller’s moment,” with his fingerprints all over Trump’s “‘betrayal’ inaugural address and the flood of executive orders that followed.”

Miller, who holds a bachelor’s degree in political science from Duke but no law degree, isn’t eligible to be Lawyer of the Week. But if you look at the rest of the leadership of America First Legal (AFL)—the influential, law-focused nonprofit that Miller co-founded in 2021—you’ll see three lawyers: co-founder Gene Hamilton, who served as AFL’s vice president and general counsel before joining Miller in the White House; senior vice president Reed Rubinstein, who served as deputy associate attorney general in the first Trump administration; and vice president Dan Epstein, an assistant professor of law at St. Thomas University in Miami.

Hamilton is especially noteworthy. He wrote the DOJ chapter of Project 2025, the controversial blueprint for a second Trump term that was developed by The Heritage Foundation. Although Trump distanced himself from Project 2025 while on the campaign trial, multiple moves from last week mirror proposals from Project 2025—and that’s especially true when it comes to the DOJ.

Here are a few of the proposals from Gene Hamilton’s chapter that appear to have inspired some of Trump’s early executive actions:

• “Prohibit the FBI from engaging, in general, in activities related to combating the spread of so-called misinformation and disinformation….” → Executive Order, Restoring Freedom of Speech and Ending Federal Censorship (“Under the guise of combatting ‘misinformation,’ ‘disinformation,’ and ‘malinformation,’ the Federal Government infringed on the constitutionally protected speech rights of American citizens.”)

• “[I]nitiate legal action against local officials—including District Attorneys—who deny American citizens the ‘equal protection of the laws’ by refusing to prosecute criminal offenses in their jurisdictions.” → Executive Order, Protecting the American People Against Invasion (withholding federal funding from, and ordering other legal action against, “so-called ‘sanctuary’ jurisdictions”)

• “Enforce the death penalty where appropriate and applicable.” → Executive Order, Restoring the Death Penalty and Protecting Public Safety

• “Secure the border, which is the key entry point for many criminal organizations and their supplies, products, and employees.” → Multiple executive orders and other actions directed at curbing illegal immigration

• “Conduct a thorough review of all publicly available policies, investigations, and cases…. Seek to terminate any unnecessary or outdated consent decree to which the United States is a party.” → A litigation freeze at the Civil Rights Division, including a freeze on consent decrees

• “Ensure that the DOJ spearheads an initiative demonstrating the federal government’s commitment to nondiscrimination.” → Multiple executive orders targeting affirmative action and diversity, equity, and inclusion (DEI) policies

• “Ensure the assignment of sufficient political appointees throughout the department.” → Multiple personnel actions, at both Main Justice and U.S. Attorney’s Offices, that swiftly replaced career lawyers with political appointees

These are just some examples of how Stephen Miller, Gene Hamilton, and AFL are turning abstract proposals into actual policy in the second Trump administration. And more are surely on the way.

Judge of the Week: Judge John Coughenour.

“A cornerstone of President Donald Trump’s bid to reshape the U.S. immigration system has run into an early roadblock: an octogenarian federal judge in Seattle.”

That’s the opening of Anna Edgerton’s Bloomberg News profile of Judge John Coughenour (COO-now-er), a 1981 Reagan appointee to the Western District of Washington. On Thursday, Judge Coughenour issued a 14-day restraining order that blocked Trump’s executive order on birthright citizenship, which would limit automatic citizenship for babies born in the United States to those with at least one parent who’s a U.S. citizen or permanent resident aka green-card holder. (Fun fact: because my parents, who today are naturalized U.S. citizens, were immigrants from the Philippines on work visas when I was born, I would not have been a citizen if an order like Trump’s had been in effect back then.)

The lawyers in the case will return to Judge Coughenour’s court on February 6 for another hearing, which could result in a longer-lasting injunction against the order—and probably will, based on Judge Coughenour’s acerbic assessment: “I’ve been on the bench for four decades. This is a blatantly unconstitutional order.” He added, “Where were the lawyers when this decision was being made?”

Yes, that’s a benchslap. But I agree with commentators across the ideological spectrum, from the progressive Mark Joseph Stern of Slate to the conservative editorial board of The Wall Street Journal, that this order is, as Trump himself might say, “a loser.” (My theory: the Trump administration knows full well that this order is going down, but it’s willing to take some lumps to expand the Overton window.)

Judge Coughenour, 83—who used to tool around town on a Harley-Davidson motorcycle, before stopping a few years ago at his wife’s urging—doesn’t suffer fools gladly. According to Seattle lawyer Sam Chapin, who externed with the judge and later taught a class with him at the University of Washington School of Law, Coughenour is “very tough…. In my 30-year career, I don’t think there’s another judge on the state or federal bench that has ever made lawyers as nervous to go into court.”