Outside the Latham & Watkins offices at 505 Montgomery Street in San Francisco (photo by David Lat).

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Our family spent last week on Cape Cod, in Provincetown—which I highly recommend. Zach is not a beach person, but P-town is a beach town that even non-beach people can enjoy. It boasts history, culture, surprisingly good restaurants, and even celebrity sightings: a friend of ours who was also visiting last week spotted Ben Affleck and Tony Kushner (separately—Ben with his mother at a gallery and Tony at Joe Coffee, which makes delicious pastries).

Busy taking our boys to Family Week fun, including whale watching and a scavenger hunt, Zach and I missed the celebrity sightings. But we did meet a law-world celeb, a well-known Harvard Law professor who summers in P-town (no, not Alan Dershowitz—he vacations in Martha’s Vineyard, where he recently suffered the indignity of Pierogi-gate). This was our first visit to Provincetown, but it won’t be our last.

Because we were on vacation, I wasn’t able to record a new episode of the Original Jurisdiction podcast, so there won’t be one for this coming Wednesday. But I hope to record a make-up episode sometime later this month.

Now, on to the news (which I did keep an eye on, despite being at the beach).

Lawyer of the Week: Bill Essayli.

Over the past few weeks, I’ve been writing about the drama surrounding U.S. attorney appointments in the Northern District of New York and the District of New Jersey. In both districts, the Trump administration took two “interim” U.S. attorneys whose terms were about to expire or maybe had expired, John A. Sarcone III (N.D.N.Y.) and Alina Habba (D.N.J.), and turned them into “acting” U.S. attorneys.

Now the controversy and confusion over interim versus acting U.S. attorneys have spread to the West Coast. Last week, the Trump administration used the same interim-to-acting gambit to install Bill Essayli and Sigal Chattah as the acting U.S. attorneys for the Central District of California (Los Angeles) and Nevada, respectively.

What’s behind this unusual maneuvering? The basic issue is that the Senate has to confirm the president’s U.S. attorney picks—and not only that, but the Senate’s so-called “blue slip” custom allows either of a state’s two senators to effectively veto a U.S. attorney pick by withholding their support (previously done by withholding an actual slip of blue paper). In the four states at issue—New York, New Jersey, California, and Nevada—the Democratic senators vociferously object to Trump’s U.S. attorney selections. This has given rise to multiple impasses—which the Trump administration is now trying to get around using its interim-to-acting strategy.

Is the strategy legal, i.e., are these U.S. attorneys “legit”? It’s complicated. Figuring it out involves analyzing the interplay between 28 U.S.C. § 546, a statute governing how to fill U.S. attorney vacancies; the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345 et seq.; and the Appointments Clause, the constitutional provision controlling how certain federal offices are filled. For dueling perspectives, compare Paul Cassell’s Volokh Conspiracy post, defending the Trump administration’s approach, with Aaron Zelinsky’s and David Reiser’s Lawfare post, criticizing the administration’s strategy.

The Trump administration’s choice for U.S. attorney in Los Angeles—Bill Essayli, a former state and federal prosecutor, as well as a California state assemblyman—was in the news last week for reasons other than how he was installed. And the reasons reinforce why California’s two Democratic senators, Alex Padilla and Adam Schiff, view Essayli as “uniquely unqualified to serve.”

First, Essayli’s office moved to dismiss two high-profile criminal cases in Los Angeles. One involved fraud and other criminal charges against Andrew Wiederhorn, the founder of Fatburger—and a Trump donor. The other was an unrelated case against Trevor Kirk, a deputy sherif convicted of abusing his authority in assaulting a woman who recorded his actions on her phone.

Both moves generated extensive criticism of Essayli—as has his strong support of the Trump administration’s aggressive immigration enforcement in southern California. That crackdown was the subject of a Ninth Circuit ruling on Friday, ordering the administration to stop making immigration-related arrests without reasonable suspicion—and if you’re thinking to yourself, “isn’t that already illegal?”, you’re right (as noted by Josh Barro and Ken White of Serious Trouble).

Second, moving from public-facing problems to internal issues, Essayli hasn’t endeared himself to his colleagues during his three-plus months leading the office. According to Ben Penn and Maia Spoto of Bloomberg Law, who spoke with more than 30 current and former employees in the office as part of their reporting, Essayli “has ignored and overruled the recommendations of senior prosecutors, instructed staff to disregard Justice Department policies, and forced lawyers to redo indictment failures before new grand juries.” In addition, Penn and Spoto claim, “Essayli’s pattern of yelling at career attorneys to pursue MAGA-aligned cases despite their warnings of insufficient evidence has contributed to an exodus from the L.A.-based district.”

In other news about U.S. attorneys:

In New Jersey, the situation involving acting U.S. attorney Alina Habba remains unresolved: criminal cases have been put on hold, per The Times (gift link), and things might remain unsettled for a while. Chief Judge Matthew Brann (M.D. Pa.)—who’s handling one case in which the defendant is challenging Habba’s authority, after the Third Circuit transferred it from the District of New Jersey to his courtroom—declined to rule on the issue for now. Instead, he ordered full briefing, with oral argument scheduled for August 15.

You know what could make all these problems go away? Confirming some U.S. attorneys—like Jeanine Pirro, whom the Senate confirmed, 50-45, as U.S. attorney for the District of Columbia. Pirro has her critics, who object to what they view as her “deranged” pronouncements during two decades on Fox News. But at least she has some prosecutorial experience (albeit from almost 20 years ago), having served as an assistant district attorney and later district attorney in Westchester County—giving her infinitely more prosecutorial experience than either Alina Habba or Ed Martin, Trump’s original nominee for D.C. U.S. attorney.

In other news about government lawyers:

Speaking of Senate confirmations, former Ohio solicitor general T. Elliot Gaiser was confirmed, 53-45, to serve as assistant attorney general (AAG) leading the Office of Legal Counsel (OLC) at the Department of Justice (DOJ). It will be interesting to see whether having a Senate-confirmed head will give OLC more clout; early in the Trump administration, it was “largely sidelined,” as Charlie Savage wrote in The Times (gift link). Gaiser will be succeeded as Ohio SG by deputy SG Mathura Sridharan, who argued—and won—Ohio v. EPA.

There’s no Senate-confirmed AAG for the Criminal Division, but at least now there’s a nominee: Andrew Tysen Duva, an assistant U.S. attorney in Jacksonville (N.D. Fla.). He’s an unusual pick; as noted by Bloomberg Law, “[t]he nomination of a line prosecutor breaks with a pattern of recent division leaders having higher-level government experience.”

In terms of departures, two top deputies to Assistant Attorney General Gail Slater at the Antitrust Division, Roger Alford and Bill Rinner, were both fired—reportedly for “insubordination,” per CBS News. The terminations could reflect internal disagreements in the administration over how hawkish to be on antitrust policy, as suggested by Andrew Ross Sorkin and his colleagues at DealBook.

In memoriam:

Michael Cardozo—the longest-serving corporation counsel of New York City, as well as a former partner at Proskauer Rose and former president of the New York City Bar Association—passed away at 84. (Yes, he was related to Justice Benjamin Cardozo, who was a cousin of his paternal great-grandfather.)

Roger Dennis, founding dean of Drexel University’s Thomas R. Kline School of Law, passed away at 75.

Wesley LePatner, a 43-year-old Blackstone executive who was killed in last Monday’s horrific shooting at 345 Park Avenue in Manhattan, was the daughter of two lawyers: Larry Mittman, senior counsel at Haynes Boone, and Ellyn Mittman, who has her own firm. Please keep them in your thoughts and prayers.

Judge of the Week: Judge Henry Wingate.

A second federal trial judge issued an error-riddled ruling. And then he had to withdraw it, after counsel politely filed a motion asking, “Your Honor, WTF?”

Last week, I wrote about Judge Julien Xavier Neals (D.N.J.), who had to withdraw a decision in a securities case after lawyers identified multiple mistakes in his opinion. At the time, it wasn’t clear that the problems were caused by misuse of artificial intelligence (as opposed to, say, garden-variety incompetence by a clerk). But according to a subsequent report by Mike Scarcella of Reuters, it was in fact an AI snafu: a temporary assistant in Judge Neals’s chambers put together AI-generated research, which was included in a draft decision that was accidentally placed on the public docket before it was properly reviewed.

More recently, we learned about a similar situation involving Judge Henry Wingate (S.D. Miss.), who issued a temporary restraining order (TRO) enjoining enforcement of a Mississippi state law prohibiting certain DEI programs in public educational institutions. As reported by Mississippi Today, the original TRO listed non-parties as plaintiffs, misquoted both the complaint and the challenged legislation, and cited a non-existent case. After lawyers from the Mississippi Attorney General’s Office filed a motion to clarify or correct the order, Judge Wingate replaced it. As of now, we don’t have confirmation that these were AI-induced problems—but they sure look like ones.

There isn’t much to say about this that isn’t obvious. First, as my in-laws might say, “oy vey”—or to invoke my own Filipino heritage, “susmariosep.” Second, to quote the title of a Bloomberg Law piece by Professor Gary Marchant, “Judges Who Benefit From AI Technology Must Avoid Its Hazards”—although you don’t need to be a law professor or an AI expert like Marchant to appreciate this.

To be charitable—which I try to be in these pages, in an atonement of sorts for the snark of my youth—I’d say this: taken together, these two incidents show that AI mistakes can happen to anyone. Judge Neals, based in New Jersey, is a relatively new judge (appointed in 2021) and a Democratic appointee (Biden); Judge Wingate, based in Mississippi, is a veteran judge (appointed in 1985) and a Republican appointee. So AI errors can be committed by judges in different parts of the country, of varying levels of experience, and of presumably different jurisprudential or ideological bents. (If I ever make an AI-induced mistake in my future writing, please quote this paragraph and go easy on me; there but for the grace of Claude go I.)

In other news about judges and the judiciary:

What heavy-metal band is each Supreme Court justice? There’s a SCOTUSblog post for that—written by my husband, Zach Shemtob (whose penchant for metal gives me and Harlan headaches on long car rides, but Zach invokes “driver’s prerogative”). I don’t know anything about metal, so much of the post eluded me—but Sarah Isgur and David French had fun with it on Advisory Opinions.

According to Zach, Justice Clarence Thomas is Bolt Thrower, Justice Sonia Sotomayor is Rage Against the Machine, and Justice Brett Kavanaugh is… not very metal at all, which is probably why I’m an admirer of his jurisprudence. I also appreciated Justice Kavanaugh’s thoughtful comments at the Eighth Circuit Judicial Conference, where he discussed everything from the emergency docket to judicial independence to his media-consumption habits. (By the way, I’ve previously spoken at six federal judicial conferences—and I’m pretty much always happy to do it, if you’d like to invite me.)

In his Eighth Circuit remarks, Justice Kavanaugh expressed “great respect” for district judges, especially given “how difficult that job is” nowadays. He didn’t go into detail, but the attendees surely knew what he was referring to—perhaps the 400 threatening voicemails and six credible death threats received by Chief Judge John McConnell (D.R.I.). Or the swatting directed at Judge John Coughenour (W.D. Wash.), who had police show up at his house, weapons drawn, after they received a false report that he had killed his wife.

The Federal Circuit’s “Special Committee” recommended keeping Judge Pauline Newman suspended for a third year—even though Judge Newman still has a valid presidential commission and hasn’t been impeached, last time I checked. I’m with Chris Williams of Above the Law: “Just let her work already.” I’d urge Chief Judge Kimberly Moore, who has proven her point—okay, we get it, you’re the Queen of the Federal Circuit—to let Judge Newman back on the bench. (It could even be in a probationary status with a reduced caseload, if Chief Judge Moore is worried about Judge Newman falling behind with her work.)

In nominations news, Emil Bove is now the Honorable Emil Joseph Bove III (or will be soon, if he hasn’t been sworn in yet). On Tuesday, the Senate confirmed him to serve on the Third Circuit, 50-49—with all Democrats and Senators Lisa Murkowski (R-Alaska) and Susan Collins (R-Me.) opposed. This came despite three whistleblowers claiming to have negative information about Bove from his time at the DOJ. I’ve written plenty above Bove, not all of it positive; all I’ll say now is that I hope he proves his critics wrong as a judge. (And on the “bright” side, his critics should probably be glad that he’s a circuit rather than district judge; a circuit judge needs another judge’s vote if he wants to do anything crazy, and the Third Circuit is not a crazy court.)

In other nominations news, two other Trump circuit picks, Pierce Atwood partner Joshua Dunlap (1st Cir.) and Jones Day partner Eric Tung (9th Cir.), appear to be cruising toward confirmation; they faced some pushback from Democratic senators, but didn’t say anything that should cause Republican defections. Dunlap fielded questions about his past support for a Maine bill that would have required minors to obtain consent of a parent or guardian before having an abortion, while Tung took flak over his collegiate scribblings for The Yale Daily News. When it comes to interrogating judicial nominees over their undergraduate writing, I stand by the views I expressed in a 2018 opinion piece for The Wall Street Journal (gift link): enough already.

In memoriam: Judge T.S. Ellis III (E.D. Va.), who handled multiple headline-making matters during more than 35 years on the federal bench, passed away at 85. For personal remembrances from a former Ellis clerk, check out Professor Joel Johnson’s tribute to his former boss on Substack (via Howard Bashman’s How Appealing).

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