Month: November 2022

Since I live in a land where everyone, or almost everyone, gets an award for something, no matter how trivial, I am creating an award for the stupid, thoughtless things that lawyers and judges do. With an acknowledgement to the season, I am calling my award the “Headless Turkey” or should it be the “Heedless Turkey”? Whatever. I bestow this award (and no one is going to get a pardon like the White House turkey) on just a few of many deserving peeps. Selecting awardees is like shopping at Costco; the choices are many.

Do you think that lawyers and judges in hindsight ask themselves why they did the stupid, license-lifting, judge-admonishing, reputation-trashing things? What were they thinking?  They weren’t. They acted just like chickens — or in this case, turkeys — with their heads cut off.

Might as well start with a former Ninth Circuit judge who had the

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Donald Trump was either the dumbest CEO in America, or he participated in a whole lot of crimes. His company’s lawyers are hoping to convince a jury of the first in the criminal prosecution of the Trump Organization underway in Manhattan.

The goal here is to present former CFO Allen Weisselberg, who pleaded guilty to charges that he participated in a decades-long scheme to use pre-tax dollars to pay for his apartment, cars, and various other perks, as the lone criminal mastermind seeking to defraud the company. To that end, Weisselberg’s longtime right hand man, comptroller Jeff McConney, spent three days on the witness stand purporting to have thought it was very cool and very legal to keep a second set of secret books documenting the declining balance of top executives’ salaries.

The problem with this strategy, as Daily Beast reporter Jose Pagliery, who

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In July of 2021, Donald Trump held a press conference at his Bedminster, New Jersey, golf club to announce that he was suing Twitter, Facebook, YouTube, and their CEOs for tortiously deplatforming him in violation of his free speech. His theory was that @Jack, Zuck, and Susan Wojcicki were so afraid of the possibility that mean Democrats might cancel Section 230 of the Communications Decency Act that they effectively became state actors. Thus they suppressed Trump and his pals’ First Amendment rights by deleting their accounts.

There are one or two tiny problems with this line of reasoning. First, conservative such as Senators Josh Hawley and Ted Cruz have loudly called to repeal Section 230, which immunizes websites for user-generated content. Second, Trump himself actually vetoed the $740 million National Defense Authorization Act in 2020 because Congress refused to include Section 230 repeal in it.

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Last night, US District Judge Carl J. Nichols did former Trump chief of staff Mark Meadows a solid and punted on his lawsuit to block the January 6 Select Committee subpoenaing his phone records and making him testify. Instead of reaching the pertinent issues, the court instead dismissed the case for lack of subject-matter jurisdiction, holding that the entire claim is barred by the Speech or Debate Clause.

It’s an odd position for the court, since neither of the parties raised legislative immunity. And yet Judge Nichols asserted it sua sponte, tut-tutting at the Congressional defendants’ failure to assert their rights, hinting that they were attempting to have their cake and eat it, too, keeping Speech or Debate defenses in their back pocket to assert on appeal in case of an adverse holding by the District judge.

“The Congressional Defendants surely hope for a

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Today’s oral arguments in the affirmative action challenges against UNC and Harvard packed in a lot over the course of five hours. Unfortunately, very little of that content involved any legal or factual analysis. But what it lacked in judicial content, it more than made up in robed policy making and casual racism.

From distorting Justice O’Connor’s dicta that she hoped for a country that wouldn’t need affirmative action by 2028 into a sunset clause to musing that affluent Black people don’t face discrimination, the Court delivered the biggest hits in the anti-diversity catalog one after another without a miss.

It was truly the Midnights of white grievance.

The moment when I completed my personal BINGO card arrived when “viewpoint diversity” entered the conversation. At one juncture, Consovoy McCarthy partner Cam Norris pointed out that “Harvard is not diverse at all,” because only 9 percent