Judicial Notice (06.02.24): From The White House To The Big House?

Trump’s possible sentence and arguments on appeal, a former feeder judge’s attack on SCOTUS, a lawsuit against Foley, and Cooley’s high-profile hire.

Left to right: Joshua Steinglass, Susan Hoffinger, and Alvin Bragg (photo by Michael M. Santiago via Getty Images).

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I spent much of last week on two of my favorite activities: writing and exercise. While I enjoy traveling, speaking, and attending conferences—like the litigation-finance-focused LITFINCON, coming up in September (discount code for Original Jurisdiction readers: LAT2024)—sometimes it’s nice to just stay home.

Speaking of home (or homes), I’d like to revive a feature from Above the Law: Lawyerly Lairs, a peek inside the fabulous homes of lawyers, judges, and other members of the legal profession. If you’d be willing to share your beautiful residence with OJ readers, perhaps because you completed a gorgeous renovation, please email me, subject line “Lawyerly Lairs.” You can remain anonymous if you like—e.g., “a Biglaw partner in Dallas”—but you must be willing to provide photos I can use without copyright concerns (because Lawyerly Lairs is pointless without pictures).

This week’s testimonial for OJ comes from Margaret Benson, Executive Director of Chicago Volunteer Legal Services (CVLS): “Although most of CVLS’s work happens in the Circuit Court of Cook County, we work with partners and associates in many of the large firms you cover. I love your writing—substantive, engaging, and informative, with enough attitude to keep me wanting more. It often provides insight into the world of Biglaw and some of what my board members, volunteers, and supporters face daily.” My thanks to Meg Benson—not just for her generous praise, but for the important work performed by CVLS and its thousands of volunteer lawyers.

Now, on to the news.

Lawyers of the Week: Alvin Bragg and the Trump trial team.

The big legal story of last week—and the biggest legal story in quite some time—was the conviction of Donald Trump in the hush-money case brought by Manhattan District Attorney Alvin Bragg. After a six-week trial and 10 hours of deliberation over two days, a jury of 12 New Yorkers convicted the ex-president of 34 felony counts of falsifying business records. So Bragg is the obvious pick for Lawyer of the Week, along with the team of trial lawyers that secured the convictions—including Joshua Steinglass, Christopher Conroy, Susan Hoffinger, Matthew Colangelo, Rebecca Mangold, and Katherine Ellis.

Bragg traveled a long road to reach this destination. Before he brought the hush-money case, he was attacked by critics on the left—including one of his own former colleagues, Mark Pomerantz—for not indicting Trump. Then after filing charges in the hush-money case, the DA was criticized by commentators on both the right and left, “who dismissed Bragg’s legal case against Trump as flimsy and tangled,” in the words of Colbert King of The Washington Post.

But now, according to King, Bragg has been vindicated. After noting Bragg’s two Harvard degrees and extensive experience prosecuting white-collar crime, King praised Bragg for having “the bona fides, wisdom, and top staff support to fashion a legal strategy and reasoning that could win the first prosecution of a former U.S. president in our nation’s history. An impartial jury affirmed. Will the commentariat?”

Not necessarily. Just because the trial team succeeded in securing convictions, demonstrating that the case could have been brought, does not mean that the case should have been brought, as a prudential matter. As former federal prosecutor Elie Honig wrote in Cafe, a win might be “the great deodorant, but a guilty verdict doesn’t make it all pure and right. Plenty of prosecutors have won plenty of convictions in cases that shouldn’t have been brought in the first place.” Honig identified the following problematic features of the case:

• The presiding judge, New York Supreme Court Justice Juan Merchan, “donated money—a tiny amount, $35, but in plain violation of a rule prohibiting New York judges from making political donations of any kind—to a pro-Biden, anti-Trump political operation, including funds that the Judge earmarked for ‘resisting the Republican Party and Donald Trump’s radical right-wing legacy.’”

• Bragg “ran for office in an overwhelmingly Democratic county by touting his Trump-hunting prowess,” and his “charges against Trump push the outer boundaries of the law and due process…. [T]he charges against Trump are obscure, and nearly entirely unprecedented. In fact, no state prosecutor—in New York, or Wyoming, or anywhere—has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever. Even putting aside the specifics of election law, the Manhattan DA itself almost never brings any case in which falsification of business records is the only charge.”

• “[T]o inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E)—and to electroshock them back to life within the longer felony statute of limitations—the DA alleged that the falsification of business records was committed ‘with intent to commit another crime.’ Here, according to prosecutors, the ‘another crime’ is a New York state election law violation, which in turn incorporates three separate ‘unlawful means’ (federal campaign law tax crimes, and falsification of still more documents). Inexcusably, the DA refused to specify what those unlawful means actually were—and the judge declined to force them to pony up—until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the charges against him in advance of trial.”

You might not agree—and I know, from your 230-plus comments on the Trump news, that many of you disagree. But Honig makes points that merit consideration, and his entire piece is well worth reading.

Alvin Bragg wasn’t the only high-profile Harvard Law alum in the news this week. How did the judge rule on that motion for sanctions against Alex Spiro of Quinn Emanuel?

As previously discussed in these pages, Spiro was accused of acting improperly when he aggressively defended the deposition of his longtime client, Elon Musk, in a defamation lawsuit currently pending in Travis County, Texas. Judge Maria Cantu Hexsel denied the motion for sanctions—but she also denied Musk’s motion to dismiss, so the case will proceed for now.

In memoriam: Jonathan Blake—a noted communications lawyer and former partner at Covington & Burling, where he practiced for almost 50 years (1964-2013) and chaired the management committee—passed away at 85. May he rest in peace.

Judge of the Week: Judge David Tatel.

Former judge David S. Tatel—who served on the D.C. Circuit, where he was an intellectual leader of that court’s left wing, until retiring completely this past January—has a book coming out on June 11. It’s titled Vision: A Memoir of Blindness and Justice—alluding to the blindness that Judge Tatel has contended with since his 30s, caused by retinitis pigmentosa that was first diagnosed when he was 15—and it’s “candid and moving,” per Adam Liptak of The New York Times. Here are some excerpts (via The Times, CNN, and The National Law Journal):

• On SCOTUS: “I’m concerned about the Supreme Court’s apparent disregard for the principles of judicial restraint that distinguish the unelected judiciary from the two elected branches of government—and about what that might mean for our planet and our democracy.”

• On the late Justice Ruth Bader Ginsburg, who was a friend: “During one dinner at our house, she took me aside to express her annoyance at commentators who were calling for her retirement. ‘The timing of a resignation is up to each justice,’ she told me. ‘John Stevens didn’t step down until he was ninety.’”

• On RBG and the overruling of Roe: “I sometimes wonder if the public pressure to retire made Ruth even more stubborn. She was never one to succumb to pressure.…  Even when Trump was elected, I know Ruth still believed she could see his term through.” But “it’s clear as day that Dobbs never would have happened if Justice Ginsburg had lived, or if she had retired during Obama’s presidency and been replaced by a like-minded justice.”

• On law clerk hiring (Judge Tatel was a top SCOTUS feeder judge back in the day): “During my first few years on the bench, I looked for applicants from lower-ranked schools. But given the ever-increasing number of applicants, that quickly became overwhelming, so I tended to focus on the piles from the top schools. I know I missed many excellent applicants. I’d do things differently today.”

• On why he stepped down from the D.C. Circuit: “I didn’t want to take the chance that my seat might be filled by a president who’d campaigned on picking judges who would fulfill his campaign promises,” and “I was also tired of having my work reviewed by a Supreme Court that seemed to hold in such low regard the principles to which I’ve dedicated my life.”

Speaking of SCOTUS, there have been additional developments in Flag-gate, the latest controversy involving Justice Samuel Alito, since my Tuesday story. On Wednesday, Justice Alito sent a letter to Senators Dick Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.), informing them that he won’t recuse himself from cases related to the 2020 presidential election and January 6.

On Thursday, Chief Justice John Roberts sent the two senators his own letter, politely but firmly declining their invitation to meet. He closed the letter by noting that “the format proposed—a meeting with leaders of only one party who have expressed an interest in matters currently pending before the Court—simply underscores that participating in such a meeting would be inadvisable.” The Chief is unfailingly diplomatic, so allow me to translate from Chief-ese to English: “Go f**k yourselves.”

I’ve read lots of commentary on Flag-gate, much of it unilluminating. Most opinions on the right can be summed up by Donald Trump’s reaction: “Alito is a tough guy, and he’s strong and very, very smart, and he put out a great statement today.” Most opinions on the left snarkily noted that Justice Alito is happy to support a woman’s right to choose—in this case, his wife Martha-Ann’s right to choose to fly whatever flags she wants—even though he wrote Dobbs, which stripped women of the constitutional right to choose abortion. If I had to highlight two pieces that are actually worth reading, check out Ian Millhiser of Vox, on the left, and Dan McLaughlin of National Review, on the right.

Where do we go from here? According to Professor Josh Blackman, “Justice Alito will not recuse, so everyone should move on”—at least when it comes to spilling more ink about Flag-gate (and that’s my own personal plan). As suggested by Dahlia Lithwick, critics of Justice Alito and the Court should focus their efforts on this November’s election—because “this isn’t really a Sam Alito problem, or a Clarence Thomas problem, or a John Roberts problem…. this is an ‘us’ problem.”

In nominations news, there were no new nominations or confirmations—and we might see less activity than usual between now and November. Why? Eight Republican senators declared that they will not vote to confirm any political or judicial nominees for the remainder of the current administration.

In memoriam: Judge Larry Hicks (D. Nev.), 80, passed away after being struck by a car near the federal courthouse in Reno, Nevada. It does not appear that the driver, who remained on the scene and cooperated with the police, was impaired. Judge Hicks’s son, Washoe County District Attorney Christopher Hicks, praised his father as “a deeply admired lawyer and judge, a devoted friend, a mentor, and a committed servant to the administration of justice.” May he rest in peace.