KBJ speaks at ABA conference in Miami

 Here's a post that covers some of it, including "her newfound friendship with Justice Amy Coney Barrett (who threw Justice Jackson a Hamilton-themed welcome party to the Supreme Court)."

On weighty legal issues of the day, Justice Jackson, who sat on the Sentencing Commission, shared that she has long-been a proponent of rebuilding the Sentencing Guidelines from scratch. She also addressed the timely topic of presidential immunity; referencing her recent dissent in Trump v. United States, she shared her concern that “immunity is a principle engendering inequality.”

When asked about the diversity of the judiciary and its impact, Justice Jackson cited an Oliver Wendell Holmes quote that “the life of the law has not been logic, it has been experience.” Justice Jackson believes that it instills confidence in the institution when judges come from different walks of life. Justice Jackson’s life exemplifies brilliance, possibilities, hope, strength, and service. It was no surprise that as the conversation ended, many in the packed conference hall shared that Justice Jackson’s comments had been a true inspiration and flocked to buy her memoir, “The Lovely One,” titled for the translation of her name, Ketanji Onyika.

 

 

Get ready for immigration cases

 New Deputy AG Todd Blanche has issued this memo to all U.S. Attorneys:

 

ABA white collar conference

 It's here for the next 3 days, folks. Lots of big firm "litigators" descending on Miami to discuss the latest white collar trends. Usually there are a bunch of DOJ officials that attend. Not this year. From Bloomberg:

Several senior Justice Department officials are last-minute scratches at a white-collar crime conference that leaders have regularly used to engage with the defense bar and reveal new policy initiatives.

The gathering, organized each year by the American Bar Association, begins March 5 in Miami and features a various panel discussions on trends in US enforcement. But most of the senior DOJ lawyers planning to appear are no longer on the schedule.

They include Glenn Leon, chief of the criminal division’s fraud section; Molly Moeser, head of a money laundering and asset forfeiture unit; David Fuhr, chief of the criminal division’s Foreign Corrupt Practices Act unit; and Michael Granston, a deputy assistant attorney general in the civil division’s commercial litigation branch.

$3,000 an hour

 That's what Alex Spiro is charging at Quinn Emanuel.  Per Reuters:

Quinn Emanuel's $3,000 top rate marks a milestone for leading U.S. law firms as lawyers' hourly fees continue to soar.
Law firms routinely raise their rates each year, and top rates at some of the largest U.S. firms have pushed past $2,500 an hour or higher in recent years, court records show.
Quinn Emanuel said in its court filings that its partners now bill between $1,860 and $3,000 an hour. It said it will charge between $1,775 and $2,725 an hour for “of counsel” attorneys at the firm, and between $1,035 and $1,665 for associates.
Billing rate increases helped drive growing revenue and profits for U.S. law firms in 2024, Wells Fargo's Legal Specialty Group said in a recent report.
Clients have been willing to accept “dramatic increases” in rates, according to a report last month by the Thomson Reuters Institute and the Georgetown Law Center on Ethics and the Legal Profession. The institute and Reuters share the same parent company, Thomson Reuters.

While you think of that, you may need a moment of zen.  So I give you Billy Joel:

Friday before trial

What do you do on the weekend before trial?  Are you cramming?  Do you try to relax a bit?  Do you spend time with the client?

An old colleague of mine at the PD's, Vince Farina, used to say -- if you don't know it by now, you don't know it.  He would go get a massage and a haircut.

Congratulations to Judge Lett!

By John R. Byrne

Congratulations to Judge Enjoliqué Lett on her investiture last Friday.  Attendees say it was a heartfelt event, with several speakers remembering Judge Marcia G. Cooke, for whom Judge Lett clerked.  

 

In addition to family and colleagues, Judge Seitz, Judge Williams, and Stephanie Casey spoke, with Judge Gayles administering the oath of office.

Trial inspiration?

 I'm about to start a trial where I really believe in my client.  I like to watch trial movies and scenes to get fired up before the trial gets going.  Of course there are the classics like A Few Good Men, My Cousin Vinny, 12 Angry Men, A Time to Kill, and others.  

What are your favorite trial movies and scenes?

 

 And for those of you who don't know, Star Trek has some really great trial scenes: 

 

Kash Patel, former Miami APD and AFPD, confirmed as FBI director

1. From NPR:

The Republican-led Senate voted Thursday to confirm Kash Patel as the new FBI director despite questions about whether he has the qualifications and the temperament to lead the nation's most powerful law enforcement agency.

Patel, a close ally of President Trump and a fierce critic of the FBI, was confirmed by a 51-49 vote, with Republican Sens. Susan Collins and Lisa Murkowski joining all Democrats in opposing him.


It caps a remarkable rise for Patel, who has worked as a public defender, federal prosecutor and congressional aide before serving as a national security official in President Trump's first term. He later emerged as a fixture in MAGA world, a right-wing podcast regular and a Trump loyalist.

Republicans welcomed his confirmation. They argue that the FBI has unfairly targeted conservatives in recent years, and they see Patel as someone who will fix that purported problem.

"Kash is the right man to clean up the FBI to restore Americans' confidence and trust that the FBI is not a political organization, it is a law enforcement organization," Sen. Lindsey Graham, R-S.C., said in a post on X.

2.  In other news, Jay Weaver covers Trump's new pick for U.S. Attorney in the SDFLA, Jason Reding Quinones.  The intro:

On paper, President Donald Trump’s new nominee to head the U.S. Attorney’s Office in South Florida seems to have solid credentials.

He formerly served as a federal prosecutor in the Miami office, was appointed as a Miami-Dade County judge a year ago by Gov. Ron DeSantis, and he’s a lieutenant colonel in the Air Force Reserve.

But there are a couple of things in the background of Jason A. Reding Quiñones that were not highlighted in Trump’s glowing post about him on his media platform, Truth Social, on Sunday, including a name change and that he received poor evaluations as a criminal prosecutor in the same office he has been nominated to head.

You don't see this all that often...

 ...the feds dropped a drug case against a doctor who was previously accused of sex trafficking because of a bad warrant.  Jayne Weintraub was Dr. Jeffrey Kamlet's lawyer.  From the Herald:

Serious mistakes by the Miami-Dade State Attorney’s office led to the dismissal Tuesday of federal narcotics charges against Dr. Jeffrey Kamlet, a Miami addiction doctor accused of sex trafficking a 17-year-old girl found hiding in his closet with another teenager in 2022. In a court filing last week, Kamlet’s attorney, Jayne Weintraub, seized on several errors made in drafting the search warrants, among them, an obvious “cut and paste” job by the investigator for Miami-Dade State Attorney Katherine Fernandez Rundle’s Human Trafficking Task Force. The dismissal of the federal drug charges is another stunning embarrassment for Rundle, whose office has come under scrutiny after years of sloppy prosecutions that have led to similar dismissals, as well as resignations of top lawyers in her office.

Judge Jason Reding Quiñones nominated to be U.S. Attorney in the SDFLA

It is my honor to nominate Judge Jason Reding Quiñones as the next United States Attorney for the Southern District of Florida.

A former Federal prosecutor and Justice Department National Security Official, Judge Reding Quiñones currently serves as a highly respected State Trial…

— Donald J. Trump Posts From His Truth Social (@TrumpDailyPosts) February 16, 2025

He's an FIU grad, class of 2008. Before that he went to U.F. He's been in the Air Force and in JAG. An AUSA. And a judge. Congrats to Mr. Reding Quinones. For those that know him, please let us know your thoughts in the comments.

Thursday afternoon massacre?

It's the buzz of the criminal defense and DOJ world.

Quick background -- Mayor Eric Adams is indicted in SDNY while Biden is president.

Trump's DOJ orders SDNY to dismiss case.

SDNY, DOJ, and Adams' lawyers meet.

SDNY refuses to dismiss.

Acting U.S. Attorney resigns and writes an 8 page letter.

Emil Bove for DOJ responds in his own 8 page letter.

You can read both letters (worth it!) at this link.

Case gets reassigned to the public integrity unit so they can dismiss the case.

The top prosecutors at public integrity resign.

Lots of local line prosecutors have been emailing and texting about this today.  Post your thoughts in the comments, and feel free to do so anonymously.

Justice Sotomayor speaks in Miami

 Jay Weaver covers it here:

 Sonia Sotomayor may be a household name, but her storied legal career stems largely from feeling comfortable in her own skin. “You have to be true to yourself,” Sotomayor, the nation’s first Hispanic justice on the U.S. Supreme Court, told more than 200 people Tuesday evening during a chat with Knight Foundation President and CEO Maribel Pérez Wadsworth at the Miami Dade College campus in Little Havana.

“I have never denied my culture or hidden my love for my Spanish roots,” Sotomayor said, highlighting her love for family, salsa and roasted pork. “All of these things are important to me and I take pride in them.”

Judge Tjoflat says it's the Gulf of Mexico

In a footnote from this case:

On January 20, 2025, President Trump issued an executive order directing that “[t]he area formerly known as the Gulf of Mexico” be renamed as the “Gulf of America.” Exec. Order No. 14172, 90 Fed. Reg. 8629 (Jan. 20, 2025). Because the statutory schemes pertinent to this appeal explicitly refer to this geographic area as the “Gulf of Mexico,” we continue to use that name.

"US Attorneys Said to Be Told to Justify Keeping Newest Prosecutors"

 That's the headline from this explosive article from Bloomberg's Ben Penn.  I'm told there are at least 20 local probationary prosecutors who may be fired.  From the article:

Justice Department headquarters has given all 93 US attorneys two business days to explain why prosecutors they’ve hired in the past two years who aren’t focused on Trump priorities such as immigration and public safety should be retained, said five people briefed on the situation.

Although the nation’s chief prosecutors haven’t been told exactly how the department will use this information, some are treating it as a weekend assignment to save the jobs of numerous line attorneys and support staff on probationary status who aren’t pursuing cases aligned with the president’s agenda.

US attorneys must provide by Feb. 10 justifications for keeping anyone with less than two years of service who doesn’t work on immigration enforcement, national security, or public safety, said the individuals, who spoke on condition of anonymity to describe private conversations. The request came from a senior career official who is herself being kept in the dark about the purpose of the mandate.

Recent hires who don’t fall into those three specified categories would potentially include prosecutors specializing in white collar, civil fraud, and civil rights investigations.

The directive is the latest signal about how the Trump DOJ intends to shrink the size of its workforce. Prior guidance from the federal government’s HR office required agencies to assemble lists of new hires for possible termination and Attorney General Pam Bondi’s day one memos warned employees could face termination over their politicization or disobedience.

In a memo Thursday from the Executive Office for US Attorneys and in a followup call Friday, US attorneys were instructed to identify the probationary status of anyone hired in the past two years and then provide details about their work if they deserve to stay.

Determining when each assistant US attorney surpasses their probationary term—making them tougher to fire—is a complicated exercise. It generally lasts two years into the job, but that can be shorter or longer depending on prior government service, security clearances, and other factors.

Adding to the frustration for the US attorneys is that the senior official tasked with delivering the orders—an EOUSA director appointed by then-Attorney General Merrick Garland in October—didn’t know answers to their questions about what would come of the identified employees.

The directive to the field comes a week after Bloomberg Law reported that senior DOJ political appointee Emil Bove asked US attorneys to recruit line prosecutors for assignments to border districts.

On Feb. 5, Bondi, hours after being sworn into office, issued memos to diminish white collar enforcement by redirecting foreign corruption, money laundering, and overseas lobbying transparency prosecutors to focus more narrowly on cartels and transnational crime.

The US attorneys, a mix of holdover Biden appointees, acting career officials, and interim leaders installed by Trump, will now have the next few days to make their case to Justice Department headquarters about retaining prosecutors involved in corporate crime and other fields that weren’t singled out as priorities.

News & Notes

1. Last night was the Federal Bar prom. It was very well attended with federal judges and lawyers, all mingling on an outdoor deck on a beautiful Miami night.

2. Former U.S. Attorneys Bob Martinez and Marcos Jimenez come to the defense of FBI agents in this op-ed in the Miami Herald. From the piece:

Today’s FBI agents, like their fallen colleagues, live and work among us, mostly maintaining a low profile. They send their children to our local schools, raise their families in our communities, and maintain a modest and law-abiding lifestyle. They live like average Americans. Yet, on a daily basis, their jobs are not average. They are the ones that Americans have assigned the responsibility to shield us from terrorism and espionage, from predators targeting children, to ferret out public corruption, to protect us from fraud, from kidnappers, from violent predators. To guard our civil rights. They are located in cities and towns across our country and throughout the world. Their work is essential to a safe and free society. Many Americans are trying to make sense of the current effort to purge potentially thousands of hard-working, dedicated agents from the FBI. What would be the impact of the removal of so many federal law enforcement officers on the safety and security of our nation? Who will want to join the FBI if their employment can be terminated, and their identities exposed to retribution by the very criminals they investigated, whenever a new politician takes over?

3. Congress has tasked the Sentencing Commission with describing extraordinary and compelling reasons that may warrant a sentence reduction. The Commission issued a Policy Statement in 2023 that allows defendants to move for a sentence reduction if they can show that their original sentence is “unusually long.” In issuing that Policy Statement (section 1B1.13(b)(6)) the Commission wanted to clarify that defendants may present—and district courts may consider—nonretroactive changes in law as the basis for concluding that a sentence is “unusually long.”

Judge Ruiz has concluded, in this 40 page order, that district courts cannot apply section 1B1.13(b)(6) of the United States Sentencing Commission’s Policy Statement as a matter of law, because the Commission exceeded their statutory authority in allowing district courts to consider nonretroactive changes in law. The Eleventh Circuit will be weighing in on this issue soon, I'm sure, as district judges on our Court are coming out on different sides of the issue.

Judge McAliley defends Michael Thakur and other DOJ lawyers

 One of best all-time magistrate judges wrote an op-ed in the Miami Herald, DOJ firing of Miami federal prosecutor is a ‘gut punch’ to the rule of law.  Some snippets:

Until my recent retirement, I worked for nearly 19 years as a U.S. magistrate judge on our Miami federal trial court in the Southern District of Florida, where I had the honor to preside over a wide variety of criminal and civil lawsuits. Last week I read with despair – for our country – that acting U.S. Attorney General James McHenry fired one of Miami’s finest federal prosecutors, Michael Thakur. Did Thakur not do his job? No. Quite the opposite. Thakur, a Harvard College and Harvard Law School graduate and a 15-year veteran of the U.S. Attorney’s Office, was one of the best to appear before me and my colleagues on the bench. Intelligent, ethical, hardworking, with excellent judgment.

Assistant U.S. attorneys, who are career prosecutors, may only be fired for cause — not for a political reason. They are career civil servants who must fairly apply the law, “without fear or favor.” They serve under both Democratic and Republican administrations, as Thakur did. They do not “implement a president’s agenda,” but rather follow where the facts and the law lead them. During my years on the bench, I watched Thakur represent the U.S. in the courtroom and behind the scenes. Magistrate judges review countless sealed applications submitted by prosecutors investigating crimes, asking for government access to possible evidence. Thakur’s search warrant and similar applications were top notch, carefully prepared and supported by evidence and law. He displayed the same sound judgment in the courtroom as he prosecuted terrorists, foreign spies, narcotics traffickers, fraudsters and violent criminals.

***

Our justice system is designed to protect against mistaken, incompetent or even corrupt prosecutors. The DOJ imposes high internal standards on its lawyers, which is another backstop against error. The standards are higher yet for investigations of political figures as the department imposes layers of review of those cases. The dismissal of brilliant, hardworking, conscientious career public servants like Michael Thakur is a gut punch. Thakur is ushered out the door, and the morale of his colleagues tanks. If such unjustifiable dismissals in the DOJ continue, we will no longer have the best among us, proud to serve and protect us. It will take generations for this country, and our institutions, to recover.

The new administration hasn't figured out how to cancel this, yet.

Looks like a very interesting presentation.

Suggested changes for the new U.S. Attorney

 Hayden O'Byrne takes over an office that has the lowest morale that I have seen since I started working down here.  And monster problems permeate the entire culture of 99 building.  Some suggestions for the office below.  Please add others to the comments:

1.    Stop bringing the low level drug and gun state cases.  Leave those to the state system.  Focus on the large scale cases that the feds were traditionally known for.

2.    Give your line prosecutors more discretion to do the right thing.  Let them work out deals to pretrial diversion, minor role, lower loss, etc., without having to get 8 levels of approval.  

3.    See #2 when it comes to variances.  Give line prosecutors the ability to agree to variances.

4.    Make yourself and your senior staff available to defense counsel to discuss cases.

5.    Open file discovery.

6.    Early Jencks.

7.    Stop filing motions in limine to preclude the defense from defending their clients.

8.    Stop filing motions to reconsider when you lose a motion. 

9.    Stop assigning prosecutors who clerked for the judge to that judge's courtroom.

10.    Zero tolerance for prosecutors who engage in misconduct.

11.      What else?

Stranger in a strange land

Judge Ruiz just issued his formal order in United States v. Agresti, after last month certifying his intention to grant a new trial in the case of a doctor who was convicted of Medicare charges arising from his drug testing of sober home residents to prevent and detect relapse.  The Order offers a scathing rebuke of the government's star witness, sober home owner Kenneth Bailynson, who lied on the stand.  Judge Ruiz found that "[g]iven the crucial role Bailynson's testimony played during Agresti's trial, a new trial is warranted."  

Richard Klugh, with Jenny Wilson and Greg Rosenfeld, handled the case.  

The Order is a really entertaining read.  It starts off:

"The famed science-fiction writer Robert A. Heinlein once wrote that the 'slickest way in the world to lie is to tell the right amount of truth at the right time--and then shut up.'  The star witness in this case, Kenneth Bailynson, might have been wise to follow Heinlein's advice---instead, he forgot to shut up."  

The order details how Bailynson "weaved lies with truths" in "crafting a narrative that pitted his word against Agresti's," and went further to "ensure[ ] that the only person who could pull a thread out of the intricately woven tapestry was dead."  Even the government at one point admitted that without Bailynson, there was no chance of a conviction. 

As Judge Ruiz writes, "Agresti was put on the defensive--having to rebut a story for which there was no proof beyond Bailynson's testimony."  Bailynson's perjury led to Agresti's conviction. After the conviction, Bailynson admitted he lied--but then he shifted gears again and said he lied about lying.  At one point he admitted that he preferred to be seen "in the public eye as a liar and a perjurer" rather than a "rat, snitch and government informant."  

In granting the new trial motion, Judge Ruiz rejected the government's arguments that Bailynson's post-trial statements were "merely impeaching because the Defendant would have been convicted even had the jury heard them at trial and discounted Bailynson's testimony," and that the lies did not amount to perjury because Bailynson "retract[ed] his recantation" of his testimony.  "[T]he Government's attempt to create separation between a motion for new trial when based on a retracted recantation as compared to perjury is misleading--at best," Judge Ruiz wrote, finding that the lies were perjury and that the evidence of perjury was material and more than merely impeaching or cumulative.   As Judge Ruiz pointed out: "it is one thing to call someone a liar and quite another to know someone is a liar."  

Kudos to Judge Ruiz for doing the right thing and doing so in such a thorough and fun order.

Interim? (UPDATED)

Apparently there is some controversy over at the U.S. Attorney's Office.  Hayden O'Byrne has been appointed as "interim" U.S. Attorney.  That title should stick for 120 days pending approval by the district court.  And it's possible that eventually he will be the U.S. Attorney, but there is some jockeying for that position by a number of folks.

But according to multiple sources, he has instructed the office to remove the word "interim" from pleadings.   In fact, you can see his signature block on this notice dropping the prosecution against Trump co-defendants in the documents case: 

 

JUST IN: The Justice Department is moving to drop special counsel Jack Smith's case against Trump allies Walt Nauta and Carlos DeOliveira, the last vestiges of Smith's Trump cases. pic.twitter.com/4IKJoJ6KuU

— Kyle Cheney (@kyledcheney) January 29, 2025

Jay Weaver has more details about that dismissal here.

UPDATED -- in response to this post, a number of sources tell me that O'Byrne is in fact the U.S. Attorney and that he is not "acting" or "interim."  

DOJ fires prosecutors who investigated Trump, including local AUSA Mike Thakur (UPDATED -- & AUSA Anne McNamara too)

The media has covered DOJ's firing of prosecutors and officials involved in the Trump investigations.  For example, here's a CNN article:

More than a dozen officials who worked on the criminal investigations into Donald Trump have been fired, according to sources familiar with the matter.

A letter from acting Attorney General James McHenry to the officials said they cannot be “trusted” to “faithfully” implement Trump’s agenda.

“You played a significant role in prosecuting President Trump. The proper functioning of government critically depends on the trust superior officials place in their subordinates,” McHenry wrote. “Given your significant role in prosecuting the President, I do not believe that the leadership of the Department can trust you to assist in implementing the President’s agenda faithfully.”

The firings come as the the Trump administration is taking concrete steps to investigate prosecutors who oversaw the criminal cases against January 6 defendants after Trump vowed to seek retribution as a key pledge of his campaign, according to multiple sources who have seen an internal memo on the matter.

Ed Martin, the interim US attorney in Washington, DC, has launched an investigation into prosecutors who brought obstruction charges under US Code 1512(c) against some rioters that were ultimately tossed because of a Supreme Court decision last summer.

Here in SDFLA, home of the documents case, DOJ fired AUSA Michael Thakur who worked on the case. According to multiple sources, Thakur was escorted out of the office without notice by two court security officers.  He was not permitted to clean his office out.  According to one tipster, he was "frog-walked" out of the office.  Apparently this was done before Hayden O'Byrne was named Interim USA.  

UPDATED -- AUSA Anne McNamara was also fired.  

SECOND UPDATE -- Jay Weaver covers the story here.

Breaking-- Trump names acting US Attorney

 Hayden O'Byrne is Acting USA.

He's been an AUSA for a while and is a long time member of the Federalist Society. 

Congrats to Mr. O'Byrne. You have a lot of work to do!

STOP THE PRESSES -- Justice Alito rules for criminal defendant in habeas case

 I've been pretty outspoken that Justice Alito is the least friendly Justice to criminal defendants. (We miss Justice Scalia!)  But last week, Alito ruled for the defense in a habeas case.  The 7-2 majority starts of like this:

An Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death. The State spent significant time at trial introducing evidence about Andrew’s sex life and about her failings as a mother and wife, much of which it later conceded was irrelevant. In a federal habeas petition, Andrew argued that this evidence had been so prejudicial as to violate the Due Process Clause. The Court of Appeals rejected that claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By the time of Andrew’s trial, this Court had made clear that when “evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.

Justice Alito concurred:

I concur in the judgment because our case law establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair. See Payne v. Tennessee, 501 U. S. 808, 825 (1991); Romano v. Oklahoma, 512 U. S. 1, 12 (1994); cf. Rideau v. Louisiana, 373 U. S. 723, 726 (1963). I express no view on whether that very high standard is met here.

 It was a 10th Circuit case, so Gorsuch joined Justice Thomas' dissent.

So you want to be a magistrate judge?

 Applications can be found here and are due February 23.

Here is the committee that will be making recommendations to the district court:

The members of the Federal Magistrate Judge Merit Selection Panel are as follows:  

Chair:  Ryan Ulloa, Esq.    

Members:  Jodi Avila, Esq. Sowmya Bharathi, Esq. Fabiana Cohen, Esq. Melanie Damian, Esq. Samuel Danon, Esq. Matthew Dates, Esq. Hector Dopico, FPD Wifredo Ferrer, Esq. Lindsey Lazopoulos Friedman, AUSA Sofia Gomez (non-attorney)  Francesca Nabors (non-attorney) Jonathan Osborne, Esq. Mark Pinkert, Esq. Evelyn Sheehan, Esq. 

Judge Cannon grants Trump's co-defendants' motion to preclude release of Documents Case Report

 From the introduction of the Order:

THIS CAUSE comes before the Court upon the Emergency Motion to Preclude Release of Volume II of Special Counsel’s Report (“Emergency Motion”), filed by Defendants Nauta and De Oliveira [ECF No. 679], as well as President-Elect Trump’s Motion to Intervene or Alternative Request to Participate as Amicus [ECF No. 681].1  As narrowed by the Court’s prior Order on Volume I, which has since been publicly released [ECF Nos. 697, 702], the Emergency Motion seeks to preclude the Department of Justice (“Department”)—prior to the conclusion of proceedings in this criminal action—from releasing a redacted version of Volume II of Special Counsel Smith’s Report for in camera review by the Chairmen and Ranking Members of the House and Senate Judiciary Committees [ECF No. 712].  Volume II contains voluminous and detailed Rule 16 discovery about the allegations in this criminal case, which remains pending on appeal as to Defendants Nauta and De Oliveira [ECF Nos. 672, 673].  See 11th Cir. Appeal No. 24-12311.2    Following a hearing and review of all relevant filings, including an in camera review of Volume II itself, Defendants’ Emergency Motion is GRANTED as to Volume II [ECF No. 679], and President-Elect Trump’s Motion to Intervene is DENIED WITHOUT PREJUDICE as to Volume II but granted as to the alternative, unopposed request to participate as amicus to challenge release of Volume II [ECF No. 681; ECF No. 710 p. 9; ECF No. 702 (denying motion to intervene as to Volume I)].   

Judge King turned 97 last month

 97!

Here's an email that Judge Moreno sent to him last year, which he graciously shared with the blog:

Larry, tomorrow is your 96th birthday . That, in and of itself, is an accomplishment. Your contributions to the law are incredible, not only as the longest serving district judge (appointed by President Nixon in 1970 after your service as a Florida Circuit judge when there were only a few in Dade County) but also as a lawyer when your fought segregation in Southern “Miamuh.” You had one trial after another in the 70’s and 80’s, a record that rivals if not surpasses Judges Marcus, and Scott then and Altonaga, Middlebrooks and Martinez. I remember trying the murder of an agent along with other cases before you and a score of other jury trials. Even when you took senior status soon after my arrival in 1990 you kept a 100 per cent caseload, like Chief Judge Altonaga now does. So when you were replaced by Judge  Lenard, our district got two judges, your replacement and you. We called ourselves the lonely 11 due to the delay in confirmations. You were my first Chief followed by Chief Judges Roettger, Davis, Zloch, Moore and Altonaga. And at the end of your seven year term you kept on working, and finally began traveling with your wonderful wife before her untimely passing. You planned and worked hard to get King and Atkins buildings (subsequently Moore and Altonaga got the Ferguson and the Ft: Lauderdale courthouses). Your son, as a Florida judge, and daughter and son in law as AUSAs, followed in your footsteps serving the community.  Now that you are recovering from your fall, I know you will have time for your children and grandchildren. You certainly deserve a break. You have a building named after you (at Notre Dame only canonized saints or those who fund the $40 million dollar cost get that.) Plus you received the prestigious Devitt Award given by Justice Ruth Ginsburg. So now you can relax, enjoy your golden years and let the active judges handle our present load. I know you converted to Catholicism so you know of many other ways to serve. You are a big Gator so I will work on you becoming a Fighting Irish fan. Thank you and happy birthday. Fred

What's going on over at the USAO

The Brady issues over there have been going on for many many years.  And it hasn't stopped.  

Another example: Judge Altonaga was presiding over a CJA trial involving allegations of smuggling arms to Haiti.  

There was a big fight over Brady material.  Then, after a witness testified, the prosecutors turned over Brady material that contradicted the testimony from the day before.  

Mistrial ordered.

And the following order issued:

 

Thank goodness for Chief Judge Altonaga, who is willing to not only call out prosecutors when they mess up, but do something about it as well. 

 We all know a bunch of judges who would have yelled at the prosecutors but then denied the motion to mistrial and nothing happens. This is what it's supposed to look like. Hopefully it will help deter this conduct in the future. 

WHY NOT JUST HAND EVERYTHING OVER IN ADVANCE?

Judge Cannon allows Volume 1 of Special Counsel report to be released

There's been a crazy flurry of filings before Judge Cannon over the past week. The bottom line is that Volume 1 of Jack Smith's report (the election interference report) has been released over objection.  Here's the 137 page report.  Volume 2 is still under seal and there will be arguments before Judge Cannon on that report on Friday at 2pm. 

From CNN:

Volume one of Smith’s report marks the special counsel’s final official word on his investigation into January 6, 2021, and the actions by Trump and his associates before then to interfere with the peaceful transfer of power.

It contains a factual recitation of Trump’s attempts to overturn the 2020 election, including his “pressure on state officials,” the “fraudulent electors plan,” his “pressure on the Vice President” Mike Pence, and a section on how Trump’s supporters attacked the US Capitol on January 6. In effect, it mirrors the landmark federal election subversion indictment that Smith brought against Trump in 2023, retooled in 2024 after the Supreme Court’s immunity ruling, and ultimately withdrew after Trump’s victory in the November election.

“Until Mr. Trump obstructed it, this democratic process had operated in a peaceful and orderly manner for more than 130 years,” Smith wrote, referring to Congress’ certification of the Electoral College results, under the Electoral Count Act of 1887.

When it came to his duty as special counsel and the work of investigating and prosecuting Trump, Smith wrote that his “office had one north star, to follow the facts and law wherever they led. Nothing more and nothing less.”

Of the failed prosecution of Trump, Smith said that prosecutors “cannot control outcomes” and can only do their jobs “the right way for the right reasons.”

The final decision to prosecute the former president, he said, was his alone. “It is a decision I stand behind fully,” Smith wrote. “To have done otherwise on the facts developed during our work would have been to shirk my duties as a prosecutor and a public servant.”

Smith concluded that while the Justice Department interprets the Constitution as not allowing the prosecution of a sitting president, his office “assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial.”

Trump, for his part, slammed the special counsel’s report as “fake findings” in overnight posts on his Truth Social network. “Jack is a lamebrain prosecutor who was unable to get his case tried before the Election, which I won in a landslide,” the president-elect wrote in part. “THE VOTERS HAVE SPOKEN!!!”

 In other news, the two lawyers who couldn't agree on anything had their lunch:

 

Investiture of David Leibowitz

Congratulations to Judge David Leibowitz on his investiture.  It was a truly lovely event with great speakers, including Ben Greenberg, Ron Dermer, and Judge Michael Farbiarz.  Sen. Marco Rubio (pictured below with Stephanie Casey and Lindsey Lazopoulos Friedman) and his wife Jeanette were also in attendance.  Lots of great stories, including about Judge Leibowitz as the Philadelphia Eagles' mascot!

 

James Earl Carter by Michael Caruso

 Guest Post by Michael Caruso

As you know, today has been designated as a National Day of Mourning for President Carter.

To recognize his passing, I thought I would note the giants he appointed to our district court. Because many of David’s readers  likely did not practice before these judges, I hope those who had will comment about their experiences. Also, I hope current judges who served alongside these judges (or clerked for them) also will share.

In order of appointment:

William Hoeveler

Jose A. Gonzalez, Jr.

Edward B. Davis

James W. Kehoe

James C. Paine

Eugene P.  Spellman and

Alcee Hastings

Among many other accomplishments, we owe President Carter a debt of gratitude for making these appointments.

Trump argues that Jack Smith should not be permitted to release his report

Judge Cannon has temporarily enjoined Jack Smith from doing so.  Her order is here. 

And the 11th Circuit has ordered Smith to respond by 10am tomorrow (!!) on this issue.

Here's Politico on the news:

Cannon’s order, issued at the request of two Trump allies who were co-defendants in the classified documents case, bars the Justice Department from releasing the report or any portion of it until three days after a federal appeals court rules on the issue.

The order bars Garland, the Justice Department, Smith and “all of their officers, agents, and employees, and all persons acting in active concert or participation with such individuals” from “releasing, sharing, or transmitting the Final Report or any drafts of such Report outside the Department of Justice.”

Cannon’s order does not apply to Trump or his co-defendants, even though Smith contends they inappropriately revealed aspects of the report — which they have reviewed in recent days — in a Monday court filing. In that filing, Trump revealed Smith described him as “engaged in an unprecedented criminal effort,” as “the head of the criminal conspiracies” and said he harbored a “criminal design.”

U.S. Attorney Mark Lapointe resigns

 Here is his statement:

For the past two years, I have served as the United States Attorney for the Southern District of Florida. After much reflection, I write to announce my resignation from this position, effective January 17, 2025, at 11:59 p.m.

 

It has been an honor and privilege to serve as United States Attorney. I have strived to meet the responsibilities of this position with vigor, determination, commitment, thoughtfulness, and humility.

 

Those familiar with my personal history may recall that I am a native of Haiti, a country whose government struggles to perform basic functions, and where the rule of law has yet to build reliable traction. When I immigrated to this country in my teens, I lived in Miami’s Liberty City neighborhood, then an urban area with high crime and associated problems. Given where I started, it has been uniquely meaningful to hold a role so central to the Department of Justice’s mission of supporting our collective well-being through the exercise of the rule of law. 

 

Also meaningful has been working alongside the talented lawyers and professional staff of the United States Attorney’s Office, as well as with the agents and employees of our partner federal, state, local, and tribal law enforcement agencies. These honorable public servants meet the challenges of safeguarding our homeland, local communities, and government institutions selflessly and without fanfare, at times at significant personal costs. I have never stopped being inspired by them and always will cherish my time as part of this deeply noble undertaking. To them, I extend my utmost gratitude and admiration.

 

I would not have had this life-changing experience without the support of President Joseph R. Biden, Congresswoman Frederica Wilson, Senator Marco Rubio, Senator Rick Scott, and countless leaders from our community. To all of them, thank you for trusting me to fulfill the duties of United States Attorney for the Southern District of Florida.

 

With gratitude,

 

 

Markenzy Lapointe