Bob Martinez's Next Project

By John R. Byrne

Before he retired, my dad was a longtime lawyer here in Miami who worked downtown. One day, while making his morning pilgrimage north on US-1, his car unexpectedly broke down. As he stood stranded on the sidewalk, wearing a full suit in sweltering heat, another car pulled over. The driver rolled down the window, and said, "Hey, Bob, looks like you're in a bit of bind. Can I give you a lift?"

The driver was Bob Martinez. My dad and Bob weren't longtime friends. In fact, they'd only met once or twice before (I think my dad was surprised that Bob remembered his name). But that tells you a lot about the kind of guy Bob is. Yes, he's one of our living legal legends. US Attorney under President George H.W. Bush. A distinguished career in private practice at one of our country’s best Plaintiff’s firms, Colson Hicks Eidson, where he most recently helped secure a victory at the United States Supreme Court. But, at his core, he's a person who wants to help people. And, now, he is focusing on an issue where his help is needed: the security of our federal judges. 

Threats against our judges are at an all-time high. And it’s an equal opportunity danger. Judges appointed by Republicans have been threatened. Judges appointed by Democrats have been threatened. And it seems like every day it gets worse. It’s unclear what we can do about it. But that’s not stopping Bob. Aided by Judges Bloom and Seitz, Bob has recruited a team of lawyers to tackle this issue. The idea is for the lawyers to come together and brainstorm different approaches to addressing this alarming trend. My own idea is sort of a “scared straight” approach. A series of short, social media-friendly ads that, in stark terms, informs the public of the serious criminal consequences that flow from threatening a judge. I'd like to think that targeted social media advertising could get that message to some of the people who most need to hear it.

Check out Bob's recent op-ed on this topic in the Miami Herald. And if you have ideas about how to help, please contact Bob at bob@colson.com.

Judicial Conference Members Call for Investigation of Judge Williams (UPDATED)

By Jordi C. Martínez-Cid

We live in an increasingly politicized world. Last week, on October 22, House Judiciary Committee Chairman Jim Jordan and Subcommittee Chairman Darrell Issa wrote to the Judicial Conference of the United States asking it to review Judge Kathleen M. Williams’s order in the Trump v. IRS lawsuit. The Judge found that the President’s $10 billion suit against the IRS and Treasury Department, both of which President Trump ostensibly runs, was collusive and imposed sanctions on his lawyers. The chairmen want a report from the Judicial Conference on November 5, and their letter can be found here.

Putting aside the politics of it, whatever happens should be interesting from a legal and procedural perspective. The letter invokes Canons 2, 3, and 5 of the Code of Conduct for United States Judges. It asks the Conference to consider referring the matter to the Judicial Council of the Eleventh Circuit. Presuming the Conference ultimately files a complaint, it will go before Chief Judge William Pryor of the Eleventh Circuit. This would be, by my count, the third high-profile misconduct complaint to go before him this year: the one involving the judge accused of having sex in chambers, this recent one, and potentially this one.

As you likely know, Judge Williams’ order holds that the parties were never adverse, finds that the suit was brought “to gain the imprimatur of judicial legitimacy for a ‘settlement’ that had no viable basis in law or fact,” and imposes sanctions under Rule 11 and the court’s inherent authority. Those negatively effected appealed, and requests for stay were denied by both Judge Williams and an Eleventh Circuit panel. The appeal remains pending.

It will be interesting to see whether Chief Judge Pryor will discuss the underlying arguments of the letter (or whatever might ultimately be put in the complaint) or whether he will dismiss that complaint for being “directly related to the merits of a decision or procedural ruling.” 28 U.S.C. § 352(b)(1)(A)(ii). Last year, regarding the misconduct complaint against Chief Judge James Boasberg of the District of Columbia, the Chief Judge of the Sixth Circuit did the latter, and dismissed the complaint for lack of jurisdiction finding that the allegations were related to the merits. Whatever Chief Judge Pryor does, it will make news and--like seemingly everything else--it will be politicized. Hopefully, like Judge Middlebrook's million-dollar-sanction order against Trump, this too will blow over. I should note, however, that there is a pending petition for certiorari to the Supreme Court on the Middlebrooks order.

UPDATE BY DOM — Blog privilege here by updating Jordi’s post with my own thoughts.  The complaint is B.S. and pretty outrageous.  Disagreement with a judge’s decision is not a basis to file a complaint.  I’m sure it will be quickly dismissed.  Judge Williams is being honored tonight with the Judge Hoeveler award.  It’s a wonderful honor and well-deserved.  And yes, I’m biased as Judge Williams was my former boss. 

Comey and the waiverless information

By David Oscar Markus

DOJ charged James Comey again today. Third time. This one is a two-count information in D.C. alleging he leaked national defense information in October 2016. It was filed under seal on October 5, 2026. No grand jury. No waiver. DOJ says the point is to toll the statute of limitations while it keeps investigating.

Here is the information. Here is Comey’s motion to dismiss. And here is the government’s response.

DOJ defends not going to the grand jury as a “widely recognized practice.” 

During COVID, grand juries in our district stopped meeting. Prosecutors filed waiverless informations to beat the clock, and about ten defendants got caught up in it. I argued one of those cases, United States v. B.G.G. (I wrote about it here.)

In B.G.G., the government filed an information against Dr. Bart Gatz three days before the statute ran. It knew he would not waive indictment. It served him at 6:33 p.m. on the last day. Then it waited. Nearly three years later, it got an indictment.

Judge Middlebrooks rightfully didn’t buy it.  An unconsented information does not toll the statute. The government had admitted the information could not start a prosecution. Its only job was to stop the clock. Big props to the Judge. He got it right.  It was such a powerful order that the government did not appeal it, and instead chose to defend judges who went the other way. And in 2025 the Eleventh Circuit sided with the government in United States v. Webster. Even there, a concurring judge warned about prosecutorial manipulation and pointed to Gatz as the example.

In these cases, there was a pandemic. The grand juries were shut down. Comey’s information was filed in October 2026 when grand juries are available.

Comey also has an argument the pandemic cases didn’t. The five-year statute, § 3282, talks about an information being “instituted.” The ten-year espionage statute does not. It requires an indictment. So the five-year clock ran long ago, and the ten-year one demands a grand jury. The Fifth Amendment requires a grand jury for a felony unless the defendant waives. An information that can’t be prosecuted shouldn’t be able to freeze the clock. And if you can’t get a grand jury to indict in ten years, that tells you something.

Court Orders President Trump to Sit for Deposition

 By John R. Byrne

Ever taken the deposition of a sitting president? Me neither. But some lawyer for the BBC may soon get the chance.

We've covered President Trump's $10 billion defamation lawsuit against the BBC before. Yesterday, Magistrate Judge Lett ordered the president to sit for a deposition by December 11 or face sanctions, including potentially the dismissal of his lawsuit.

Off the top of my head, I thought Bill Clinton was the only other sitting president to have given a deposition (quite famously so, although his remark about the definition of "is" actually came during later grand jury testimony). Turns out I was wrong. Presidents Ulysses S. Grant, Gerald Ford, and Jimmy Carter all gave depositions while in office.

We'll see what happens. Article here. 

Should judges be elected or appointed? (UPDATED -- COFFEE NOW PERMITTED IN STATE CIVIL COURTHOUSE!)

 By David Oscar Markus

Since we are in election season in Florida, and we have judges on the ballot, I've been thinking about this question again.  There are, of course, plusses and minuses to both systems.  One plus for elections and something I've noticed a lot recently -- state judges are by and large just nicer than federal judges and treat the lawyers better.  I guess that's no surprise since they have to run for office.  And that's generally true for state judges that end up on the federal bench even though they don't need to run again.  Less robe-itis.  

Speaking of state, gave you all been in the new state civil courthouse?  It's pretty nice!  I wonder if the criminal courthouse will ever get an upgrade.  One not-so-great thing about the new state civil courthouse -- you can't bring in coffee.  The only liquid you can bring in is in a bottle.  (UPDATE -- Thanks to Chief Judge Fajardo Orshan, this critical problem has now been fixed! Coffee is now permitted!  THANK YOU CHIEF!)

Sorry for the rambling stream of consciousness this morning.  

What do you like -- elections or appointments?

Pro Se Law Clerk Opportunities

By Jordi C. Martínez-Cid

Gone are the days when our district would designate a particular magistrate judge who, along with his or her clerks, would handle certain pro se and inmate petitions. Those cases are now distributed among the district court judges, who in turn, have designated pro se law clerks.

The number of pro se petitions has grown exponentially and the district is in need of more talented law clerks. There are currently three open spots available and, if you are interested, I would encourage you to apply. The position is a good one in its own right (including the pay), but it is also a path to a more traditional law clerk experience. A handful of judges have already hired their pro se clerks to serve as term clerks.

Details for the openings can be found here: https://www.flsd.uscourts.gov/sites/flsd/files/jobs/2026-JDS-21%20Pro%20Se%20Law%20Clerk.pdf.

There are also other openings which may be of interest to the community, including term clerkships, listed here: https://www.flsd.uscourts.gov/job-listings.

Put That in Your Algorithm

By John R. Byrne

I think social media is doing a lot of harm to our kids (and probably us adults as well). Sure, it may be the quickest way for people to get critically important information, like injury updates for players on the Miami Hurricanes football team. But the algorithms have a way of sucking people into a never-ending doom scroll.

Kids seem particularly vulnerable to the ills of this aspect of modern technology, and there are plenty of studies linking social-media use to problems like shortening attention spans and body-image issues. The state of Florida decided to do something about it. The legislature passed HB3, a law that prohibits children under 14 from creating or maintaining accounts on certain social-media platforms and requires parental consent for 14- and 15-year-olds.

You knew it was only a matter of time before that law was challenged. Enter the Computer & Communications Industry Association and NetChoice. Never heard of either organization before, but, for some reason, I'm imagining a bunch of guys in short-sleeved white button-down shirts and pocket protectors. The organizations challenged HB3 on First Amendment grounds, and a federal district court in Florida concluded that they were likely to succeed and preliminarily enjoined Florida from enforcing the law.

The Eleventh Circuit stayed the injunction pending appeal. And, this past Wednesday, the court reversed the injunction as to the plaintiffs' as-applied challenge and vacated it as to their facial challenge. The panel consisted of Judges Newsom, Luck, and Tjoflat. Newsom wrote the opinion and, in a very Newsom-esque move, also wrote a separate concurrence.

The two big takeaways?

1. The court held that the law was content neutral, which, obviously, is a pretty important factor in First Amendment jurisprudence. Specifically, the law applied to platforms based on their technological features rather than the content of the speech appearing on them. For example, the law targeted platforms that use algorithms to select content for users and employ potentially addictive features, like infinite scrolling, push notifications, and autoplay. The law doesn't prohibit those features outright, but their use helps determine whether a platform is subject to the age restrictions.

2. The court held that the law likely survived the applicable level of scrutiny (here, "intermediate"). That's because Florida has an important interest in protecting children from social-media addiction and the statute is sufficiently tailored to that interest (heartily agree).

Newsom's concurrence raised an interesting question: Could the Eleventh Circuit have (at least partially) cut the Gordian knot by refusing to entertain an as-applied challenge in the first place? Newsom noted that, in West Virginia v. B.P.J. ex rel. Jackson, 146 S. Ct. 2356 (2026), the Supreme Court stated in a footnote that "[a]s-applied challenges are not entertained when courts apply intermediate scrutiny or rational basis review."

That sounds pretty categorical. But, as Newsom explained, there were reasons to not blindly apply that language to this case. For one thing, B.P.J. was an equal-protection case, not a First Amendment case. For another, courts have long entertained as-applied First Amendment challenges under intermediate scrutiny. And such a ruling would mean that, in a large class of First Amendment cases, challengers would be left with only facial challenges, which are disfavored in constitutional litigation (and usually losing arguments).

As Newsom observed, that combination could result in "a lot less protection for traditionally safeguarded speech." He wasn't prepared to go that far without a clearer signal from the Supreme Court.

Opinion here. 

All in all, I think the Eleventh Circuit nailed this one (and not just because I have 14-year-old twin daughters). 

AFPD Andy Adler is a cert machine

 He got another grant before the High Court, this time in Berry v. United States.  

The issue: Whether a certificate of appealability under 28 U.S.C. § 2253 (opens in new tab) should be granted where the issue that the petitioner seeks to raise on appeal has been resolved against him by binding circuit precedent but has been resolved in his favor by another circuit.

Here's the 11th Circuit opinion.