Judicial Notice (07.06.25): Diddy Or Didn’t He
Puff Daddy’s day of reckoning, Yale Law’s departing dean, an Am Law 200 firm in trouble, and the biggest case of the next SCOTUS Term (so far).
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I hope that you had a wonderful Fourth of July—and that you’re enjoying every minute of the long holiday weekend, until the very end. Or perhaps you’re reading this news roundup on Monday morning—in which case I say, “Good for you.” To my Texas readers, I hope that you and your loved ones are safe and not affected by the terrible flooding; although I’m far away, my thoughts and prayers are with you.
We’re spending the holiday weekend, plus a few additional days on either end, up at our place in the Berkshires region of western Massachusetts. We now have decent internet up here—which hasn’t always been the case, during the almost 15 years that we’ve been coming to this region—so I’ve been able to get some work done.
For starters, I was able to “nerd out” over the latest Supreme Court Term with smart and knowledgeable friends—which counts as “work” for me, but is so much fun that I feel it shouldn’t. On Monday, I talked SCOTUS with Elie Honig, who was guest-hosting The Michael Smerconish Program on SiriusXM. And I’ll be speaking with Elie again soon on the Original Jurisdiction podcast, interviewing him about his new book, When You Come at the King: Inside DOJ's Pursuit of the President, from Nixon to Trump.
On Wednesday, my husband Zach and I joined Sarah Isgur, David French, and Amy Howe on Advisory Opinions, where we broke down the latest Supreme Court Term. If you’re looking for an overview of October Term 2024—including takes on the most interesting and important oral arguments, opinions, and justices—give it a listen. We cover it all in just an hour—and if you listen at 1.5x speed, as I do for pretty much all podcasts, it will take you only 40 minutes. Or if you prefer reading to listening, read Amy Howe’s Term in Review over at SCOTUSblog.
Now, on to the news.
Lawyers of the Week: Marc Agnifilo, Teny Geragos, Alexandra Shapiro, Jason Driscoll, Anna Estevan, Nicole Westmoreland, Brian Steel, and Xavier Donaldson.
Last Wednesday, a federal jury in the Southern District of New York (S.D.N.Y.) acquitted hip-hop mogul Sean “Diddy” Combs of one count of racketeering conspiracy and two counts of sex trafficking. The jury did convict him of two counts of transportation of individuals to engage in prostitution, in violation of 18 U.S.C. § 2421 (aka the Mann Act).
The racketeering and sex-trafficking counts were by far the most serious charges in the five-count indictment against Combs; had he been convicted of them, he could have faced life in prison. So one can understand why Combs reacted jubilantly to the three “not guilty” announcements, by pumping his fist, dropping to his knees, and holding his hands up in a prayer gesture toward the jurors.
And it’s fair to describe the technically split verdict as an overall win, both for Combs and his sizable team of high-powered defense attorneys: Marc Agnifilo and Teny Geragos of Agnifilo Intrater, Alexandra Shapiro and Jason Driscoll of Shapiro Arato Bach, Anna Estevao of Harris Trzaskoma, Nicole Westmoreland of Westmoreland Law, Brian Steel of The Steel Law Firm, and Xavier Donaldson.
They decided to acknowledge their client’s domestic violence—which couldn’t be denied, given the videotape of his brutal assault on his then-girlfriend, the singer Cassie—while arguing that he didn’t engage in the specific crimes he was on trial for. And their strategy worked, at least as to the racketeering and sex-trafficking charges. As for why Combs couldn’t have been prosecuted for domestic violence or battery, the videotaped attack on Cassie took place in March 2016, but the videotape didn’t become public until May 2024—placing it beyond the statute of limitations.
What’s the larger significance of the Combs verdict? According to some critics of the outcome, it reflected “failures in our legal system,” as Rachel Louise Snyder argued in The New York Times (gift link), and represented “the latest gruesome marker of a post-#MeToo era,” according to Moira Donegan of The Guardian.
But some former federal prosecutors, including Elie Honig of CNN and Ken White of Serious Trouble, suggested that the government might have overcharged the case by making it a racketeering prosecution under the RICO Act. Intended to target complex criminal organizations like Mafia families, RICO stands for “Racketeer Influenced and Corrupt Organizations,” not “Rich Individuals with Copious Operatives” (who are really good at making travel arrangements and stockpiling baby oil).
Looking ahead to sentencing, how much time could Combs end up serving on the Mann Act violations? His sentencing guidelines range is 21 to 27 months, according to the defense, or 51 to 63 months, according to the prosecution. And while the guidelines aren’t binding, Judge Arun Subramanian (S.D.N.Y.) doesn’t seem inclined to go easy on Diddy, who has already spent 10 months behind bars awaiting trial; in denying his lawyers’ post-verdict motion for release on bail, Judge Subramanian cited the defendant’s “disregard for the rule of law” and “propensity for violence.” For a detailed discussion of Combs’s sentencing exposure, see the Substack newsletter of former federal prosecutor Mitch Epner (who overlapped with both me and Marc Agnifilo in the U.S. Attorney’s Office for New Jersey, way back when).
Other lawyers in the news:
Speaking of the U.S. Attorney for the D.N.J., Donald Trump nominated Alina Habba, one of his former personal lawyers, to serve in the role on a permanent basis (having served on an interim basis since March). But she faces opposition from the Garden State’s two Democratic senators, Cory Booker and Andy Kim, who said in a statement that she “does not meet the standard to serve.”
Speaking of lawyers in leadership at the U.S. Department of Justice (DOJ), here’s a profile of Drew Ensign, deputy assistant attorney general for immigration litigation at the DOJ, by Michael Linhorst of Politico (who quoted me in the piece). The article explores how someone like Ensign, a graduate of NYU Law School and former associate at Latham & Watkins, can stand up in court and defend actions that Trump critics see as indefensible. (Last Monday, Ensign argued before the Fifth Circuit in an Alien Enemies Act (AEA) case, arguing that seven days is enough time for detainees to challenge their AEA removals.)
Speaking of critics of the Trump administration, former Fourth Circuit judge J. Michael Luttig is now on Substack—and has written a most timely piece for this Fourth of July weekend, The Self-Evident Truths of Freedom—and of Tyranny. He doesn’t mention Trump in any of his 27 truths—but you don’t need to be a historian or constitutional scholar to figure out the relevance of Luttig’s insights for the current moment.
One of the nation’s top appellate and Supreme Court lawyers (and a former podcast guest of mine), Paul Clement of Clement & Murphy, entered an appearance on behalf of 15 judges of the U.S. District Court for the District of Maryland who have been sued by the Trump administration (over a standing order protecting habeas petitioners who file in that district).
One of the nation’s top trial lawyers (and another former podcast guest), Alex Spiro of Quinn Emanuel, told Emily Chang of Bloomberg that he’s currently working on a project “outside the law… that I think will be a bigger business than my legal business.” Considering that Spiro, who charges $3,000 an hour, has a book of business that I estimate at north of $100 million, a venture that’s bigger than that could be very big indeed.
In memoriam:
Antitrust litigator Robert “Bob” Cooper, a former partner in the Los Angeles office of Gibson Dunn & Crutcher, passed away at 85.
Civil-rights lawyer Dan Siegel, who served as chief of complex litigation for the San Francisco City Attorney’s Office, passed away at 79.
May they rest in peace.
Judge of the Week: Justice Elena Kagan.
In analyses of October Term 2024, the Supreme Court term that concluded last month, the two junior justices, Justices Amy Coney Barrett and Ketanji Brown Jackson, received a disproportionate amount of attention. See, e.g., ABC News, NBC News, and The Washington Times, discussing ACB, and The New York Times, The Washington Post, and USA Today, discussing KBJ. (I’m quoted in The Washington Times and USA Today pieces.)
But I’d like to take this opportunity to talk about my favorite justice among the Democratic appointees aka “the liberal justices,” Justice Elena Kagan. There’s admittedly a subjectivity to these judgments, but of the trio, Justice Kagan is my favorite writer and my favorite questioner at oral argument.
Alas, the Elena Kagan Fan Club might be shrinking—at least among the hard left. Here’s what she did last week to incite their ire.
Late in the afternoon on Thursday, July 3, the Supreme Court issued an order in Department of Homeland Security v. D.V.D. The D.V.D. saga is complicated, but here’s a rough summary; for more precise discussions, I refer you to the SCOTUS opinions of June 23 and July 3, as well as Amy Howe’s excellent SCOTUSblog post.
Judge Brian Murphy (D. Mass.), in an April 18 preliminary injunction: “Trump administration, you can’t ship migrants off to a so-called ‘third country’—technically, a ‘country not explicitly provided for on the alien’s order of removal,’ but as a practical matter, a deeply troubled country that the migrant has no connection to, like South Sudan or Libya—without giving that migrant a chance to seek relief under the Convention Against Torture, i.e., to object and say, ‘Please don’t send me to what Trump would probably call a s**thole country, where I’m likely to be tortured.’”
SCOTUS, in a June 23 order (with Justices Sotomayor, Kagan, and Jackson dissenting): “The April 18, 2025, preliminary injunction… is stayed.”
Judge Murphy, later in the day on June 23: “Although SCOTUS stayed my April 18 order, I also issued a May 21 order protecting a small group of specific migrants, after finding the administration violated my April 18 order—and that May 21 order remains in effect, notwithstanding what SCOTUS said.”
SCOTUS, in a July 3 order ruling on the Trump administration’s “motion to clarify” the June 23 order (with Justices Sotomayor and Jackson dissenting): “Umm, no. We meant what we said on June 23. Judge Murphy, we award you no points, and may God have mercy on your soul.” (Yes, that’s a paraphrase of Billy Madison; if you prefer All About Eve, try this: “Judge Murphy, have you confused us with that gang of backward children you play tricks on, aka the Trump administration? We are justices of the United States Supreme Court—and we are nobody’s fool, least of all yours.”)
Justice Sotomayor, joined by Justice Jackson, filed a vociferous dissent to the July 3 order. Here’s her final paragraph (citations omitted):
“In a democracy, power implies responsibility. The greater the power that defies law the less tolerant can this Court be of defiance. As the Nation’s ultimate judicial tribunal, this Court, beyond any other organ of society, is the trustee of law and charged with the duty of securing obedience to it.” This Court continues to invert those principles. Today’s order clarifies only one thing: Other litigants must follow the rules, but the administration has the Supreme Court on speed dial. Respectfully, I dissent.
But yes, you read that right: Justice Kagan, who joined Justice Sotomayor’s June 23 dissent, did not join Justice Sotomayor’s July 3 dissent. Instead, Justice Kagan concurred, and here’s her full concurrence (citations omitted):
I voted to deny the Government’s previous stay application in this case, and I continue to believe that this Court should not have stayed the District Court’s April 18 order enjoining the Government from deporting non-citizens to third countries without notice or a meaningful opportunity to be heard. But a majority of this Court saw things differently, and I do not see how a district court can compel compliance with an order that this Court has stayed. Because continued enforcement of the District Court’s May 21, 2025 order would do just that, I vote to grant the Government’s motion for clarification.
So yes, Justice Kagan sided with the conservatives—leading one commenter on Blue Sky, the social-media platform of choice for progressives, to complain: “JFC. Elena Kagan joined the Conservatives on this? That f**king institutionalist dingbat actually still upholds the idea that this is a judicial instrument? What are we doing here?”
Here’s a (somewhat) more charitable Blue Sky take, from my former colleague Joe Patrice of Above the Law:
[Justice Kagan is] doing that thing she always does where she shows respect for precedent she doesn’t agree with in the hope it will shame the conservatives into returning the favor. If you read her opinion, she says she thought the order was wrong, but now that it’s decided, she’s going along. It never works.
And here’s what Professor Steve Vladeck wrote over at One First:
[The Kagan v. Sotomayor/Jackson divide] seems to reflect a broader divide I’m increasingly seeing in various professional circles—about whether, amidst mounting evidence of lawless behavior by the executive branch, the right answer is to focus on the strongest legal objections, or whether it’s to throw the kitchen sink (including legal, political, and moral arguments) at the problem. Put another way, is law the answer? Or is law too often the problem?
Although he raised some concerns about the Kagan approach, Vladeck described it as “remarkably principled”—and I agree. But being principled isn’t a recipe for popularity in 2025, which is why Justice Kagan generates reactions on Blue Sky like “Kagan?! WTF?” and “Kagan is a disappointment. We’ve only really had one proper liberal on the Court in recent memory and that’s Ketanji Brown Jackson; next Democrat needs to pack the Court with 28-year-old labor lawyers.”
For more debate about how well the Supreme Court is responding to current challenges, check out this engaging NYT conversation (gift link) featuring Professor Vladeck and two other leading scholars of the Court, Professors Will Baude and Kate Shaw. It’s a bit of a two-on-one, with Shaw and Vladeck tag-teaming against Baude—so props to Baude for holding his own.
Turning to the lower courts, last week The Times profiled three judges in the news, one veteran and two relative newcomers. The veteran was Judge Frederic Block (E.D.N.Y.), 91, who’s presiding over the murder prosecution of the Mexican drug lord Rafael Caro Quintero. The relative newcomers were the aforementioned Judge Subramanian, 45, who’s presiding over the Sean Combs prosecution, and Judge Amir Ali (D.D.C.), 40, who’s presiding over high-profile litigation against the Trump administration (and whom I profiled back in 2016, after he won a Supreme Court case while still an associate at Jenner & Block).
In nominations news, Donald Trump announced his nominees for vacancies on the Ninth Circuit and First Circuit. For the Ninth Circuit, he’s nominating Eric Tung—a Chicago Law graduate, former Supreme Court clerk (Scalia/Gorsuch), and former federal prosecutor, who’s now a partner in the Los Angeles office of Jones Day. For the First Circuit, he’s nominating Joshua Dunlap, a Notre Dame Law graduate and former Tenth Circuit clerk who’s now a partner at Pierce Atwood in Portland, Maine.
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