Judicial Notice (02.02.25): You’re (All) Fired

The latest Trumpworld legal drama, Kellogg Hansen’s $630 million settlement, Doug Emhoff and Adeel Mangi’s new firms, and a big Fifth Circuit gun ruling.

The Reed Smith offices in New York (photo by David Lat).

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.

A bunch of bugs are making the rounds—and I’ve caught one, unfortunately. On the bright side, I’m recovering quickly: I woke up feeling sick on Wednesday, but by Friday, I was doing much better. And in case you’re wondering, it’s not Covid—which I haven’t gotten a second time since my harrowing experience five years ago.

I try my best in Judicial Notice to flag all major developments in law and the legal profession from the past week, condensing them down to a single read. But once again, a ridiculous amount transpired—so if I’ve missed something important, please mention it in the comments.

Now, on to the news.

Lawyers of the Week: James McHenry, Emil Bove, and Ed Martin.

The Trump administration’s personnel moves over the past two weeks can be summarized in a sentence: everyone got fired.

Some of these terminations could conflict with federal laws—and that might be the point, at least from the perspective of Donald Trump. As Charlie Savage wrote in The New York Times, “getting dragged into court may be exactly what Mr. Trump’s lawyers are hoping for”—because even if some of the firings are deemed illegal, the ones that are upheld could make new law that would expand presidential power.

Trump’s dismissals of at least 17 inspectors general are likely lawful under current Supreme Court precedent, according to Professor Jack Goldsmith at Lawfare (and on Advisory Opinions). But as Professor Jonathan Adler explained at The Volokh Conspiracy, the firing of Gwynne Wilcox as chair of the National Labor Relations Board (NLRB) “would seem to put Humphrey's Executor in the crosshairs.”

In Humphrey’s Executor (1935), the Court held that Congress may prevent the president from removing members of multi-member independent agencies without cause. Because it limits the executive’s power to remove, the ruling is unpopular among supporters of a strong presidency, especially unitary-executive types. More recent SCOTUS decisions, most notably Seila Law (2020), have cabined or chipped away at Humphrey’s Executor—but it remains on the books. If Wilcox follows through on her declaration to challenge her firing through “all legal avenues,” however, Humphrey’s Executor could be teed up for express overruling.

Turning to the Department of Justice (DOJ), there’s a whole lot of firing going on (along with reassignments that seem designed to drive lawyers to quit). On Monday, acting attorney general James McHenry terminated more than a dozen prosecutors who worked on the two criminal cases former special counsel Jack Smith brought against Trump. At least some were “career” rather than “political” employees, so they enjoyed civil-service protections. In firing them, McHenry did not cite poor performance or improper conduct—which can be grounds for terminating career employees—but instead told them that they could not be trusted to “implement[] the president’s agenda faithfully.”

The week started with firings, and it ended with firings: on Friday, acting deputy attorney general Emil Bove and acting U.S. attorney for D.C. Edward R. Martin Jr. terminated approximately 30 prosecutors who had been working on cases arising out of the January 6 Capitol riot. The fired lawyers were on probationary status but got converted to full-time positions after Election Day, under circumstances the Trump administration is investigating. In a memo, Bove described the attorneys’ hiring into permanent jobs as a “subversive” action by the Biden administration that interfered with Martin’s ability to staff his office and to advance Trump’s agenda—implying that the conversions amounted to a kind of “burrowing,” in which temporary, political appointees are installed in long-term, career positions, right before a new administration takes office.

Of the three “grim reapers,” Ed Martin—who never served as a federal prosecutor or worked at Main Justice, unlike James McHenry or Emil Bove—is in some ways the most controversial. A Washington Post column by Colbert King captures the gist of the left’s complaints about Martin, accusing him of being “a longtime political operative” known for a “mixed public service record, anti-abortion activism, and organization of the ‘Stop the Steal’ movement to overturn the 2020 election.”

And in his brief tenure as D.C.’s acting U.S. attorney, Martin engaged in other actions that have raised eyebrows. He ordered two of his top prosecutors to conduct an internal review of the office’s charging of more than 250 Capitol-riot defendants with obstructing an official proceeding of Congress, a crime that SCOTUS held inapplicable to many of the January 6 cases (but that most lower-court judges had upheld). Martin also sent a “letter of inquiry” to Senator Chuck Schumer (D-N.Y.) about the senator’s March 2020 declaration that Justices Neil Gorsuch and Brett Kavanaugh would “pay the price” for voting against abortion rights; Martin’s letter told Schumer, “We take threats against public officials very seriously.”

And Martin complained in office-wide emails about a former AUSA who has publicly criticized him: “Someone named Ashley Akkers has been going on television badmouthing our work (and me!). I have never met her, so I find her comments disconnected from reality.” He said he would be “reaching out to her” to “see if we can help her”—although I suspect Akkers would be perfectly happy not to receive any “help” from Ed Martin.

The personnel moves have been criticized in some quarters as retribution by Trump against his political opponents—and I suspect there’s more to come. If you’re a DOJ lawyer in a professionally difficult situation right now, you might be interested in a new group called Justice Connection. As founder and ex-DOJ lawyer Stacey Young told The Times, “If [DOJ employees are] going to stay, they’re going to need help.”

In memoriam: as I previously reported, two Wilkinson Stekloff associates, Sarah Lee Best and Elizabeth Keys, lost their lives in Wednesday night’s D.C. plane crash—along with at least one other lawyer, Kiah Duggins, 30, an attorney with Civil Rights Corps (as noted in the update added to my original story). May they rest in peace.

Judge of the Week: Chief Judge John McConnell.

Another week, another federal judge standing athwart the Trump White House yelling “Stop!” In week one of the administration, it was Judge John Coughenour (W.D. Wash.), who issued a temporary restraining order (TRO) blocking Trump’s birthright-citizenship executive order. In week two, it was Chief Judge John J. McConnell Jr. (D.R.I.), who issued a TRO against an order from the Office of Management and Budget (OMB) that would have frozen as much as $3 trillion in federal grants and loans—all money previously appropriated by Congress. (In a separate lawsuit brought by the nonprofit Democracy Forward, Judge Loren AliKhan (D.D.C.) also blocked the order, but issued only an “administrative stay”—basically a judicial-housekeeping order, not relying on the merits.)

In his 13-page order, Chief Judge McConnell did address the merits—because likelihood of success on the merits is part of the TRO analysis—and concluded that the plaintiffs, 22 states and the District of Columbia, “are likely to succeed on the merits of some, if not all, their claims.” He cited constitutional provisions, including the Appropriations Clause and the Take Care Clause, as well as the Impoundment Control Act of 1974 (ICA), which sets forth a procedure the president can use to ask Congress to rescind appropriated funds—a procedure Trump didn’t follow here before attempting to withhold aka “impound” the money.

Chief Judge McConnell also considered—and rejected—the Trump administration’s claim that because OMB “rescinded” the freeze order on Wednesday, the case before him was now moot. He pointed out, for example, how White House Press Secretary Karoline Leavitt declared that the rescission of the OMB order “is not a rescission of the federal funding freeze,” and Trump’s orders on federal funding—such as ones prohibiting the funding of all things “woke”—”remain in full force and effect.” This and other evidence led McConnell to conclude “that the alleged rescission of the OMB Directive was in name only and may have been issued simply to defeat the jurisdiction of the courts. The substantive effect of the directive carries on.”

Considering the vast amount of money that Congress appropriates on a vast number of things, it’s only a matter of time before Trump finds some appropriation he doesn’t like and refuses to spend the money—quite possibly for the very purpose of “attempt[ing] to restore impoundment authority by challenging the ICA’s constitutionality in court,” as suggested by a slide deck of unclear provenance now making the rounds at OMB. So if the case makes it to the Supreme Court—which it most likely would, in light of the juicy constitutional-law issues and major practical consequences—what then?

Given the current Court’s robust view of executive power, you might think a majority of justices would side with Trump—but I’m not so sure. The most intriguing (and shrewd) citation in Chief Judge McConnell’s opinion was to a 2013 opinion by then-Judge Brett Kavanaugh of the D.C. Circuit, who wrote that even if “a President sometimes has policy reasons (as distinct from constitutional reasons) for wanting to spend less than the full amount appropriated by Congress for a particular project or program,” he “does not have unilateral authority to refuse to spend the funds. Instead, the President must propose the rescission of funds, and Congress then may decide whether to approve a rescission bill.”

And over the decades, other future justices, including strong believers in executive authority, reached similarly negative conclusions about impoundment. As noted by Ian Millhiser of Vox, the Kavanaugh opinion cites a 1969 Office of Legal Counsel memo written by a pre-robescent William Rehnquist. And another jurist in their orbit—Chief Justice John Roberts, who clerked for Rehnquist and succeeded him as Chief, and who is jurisprudentially aligned with Justice Kavanaugh—similarly threw cold water on impoundment in a 1985 White House Counsel’s Office memo.

As a doctrinal matter, there isn’t much support for what Professor Jack Goldsmith called “the much-telegraphed and almost-certainly-unconstitutional Trumpian Article II impoundment theory” (in an excellent explainer of presidential power over at his new Substack, Executive Functions). So a case challenging the constitutionality of impoundment would actually provide a useful data point about the current Court: is it merely conservative—causing it to side with Trump a fair amount of time, but not reflexively so—or is it actually “pro-Trump”?

In judicial nominations news, we haven’t gotten any yet from the Trump administration. The focus remains on winning the confirmations of executive-branch picks—like Kash Patel, who will likely be narrowly confirmed as FBI director (after hearings that were contentious but generally predictable).

When the president does turn to the judiciary, I identified some possible picks for four open circuit seats he has to fill—choices who would, in less polarized times, win confirmation by large margins. So it will be interesting to see how cooperative Senate Democrats are in filling these and other judgeships. Some say they’re willing to work with the White House, but they face pressure from progressive groups to resist.

Ruling of the Week: Reese v. Bureau of Alcohol, Tobacco, Firearms and Explosives.

As my longtime readers know, I’m not a fan of guns (unlike my husband, who owns several—so don’t try and rob us). But since I’ve been dodging Second Amendment cases lately in these roundups, I feel it’s time for me to give one some love.