John Brennan asks Chief Judge Altonaga to prevent forum shopping

Former CIA Director John Brennan is asking Chief Judge Altonaga to keep the government from "judge shopping" its case to Judge Cannon. The letter urges that any future litigation flow through the court’s normal, neutral processes, rather than what Brennan’s counsel colorfully describes as prosecutors trying to engineer judicial home-field advantage. Here's the AP article about it.  And here's the 16-page letter, which starts like this:

We write this letter to Your Honor in your capacity as Chief Judge of the United States District
Court for the Southern District of Florida (SDFL) on behalf of our client John Brennan, the former
Director of the Central Intelligence Agency. We have been formally advised by prosecutors of the
Office of the United States Attorney for the Southern District of Florida that Director Brennan is
a target of grand jury investigation NS 1840-020 in the Miami Division (24-06), which is
examining the circumstances surrounding the production of the 2017 Intelligence Community
Assessment about Russian efforts to interfere in the 2016 presidential election in the United States.
As explained below, it has become clear that irregular activity is taking place in connection with
that grand jury investigation, which is affecting our client's rights to fair and impartial treatment
by the criminal justice system. One example is the violation of grand jury secrecy rules, by which
information about the investigation is being leaked to the media (see below at pages 15-16).
Another example of irregular activity – which is even more troubling and potentially harmful to
our client's rights - relates to the government's apparent effort to manipulate grand jury and case
assignment procedures to ensure that this investigation and any resulting prosecution will be
overseen by a particular District Judge of its preference.

Given the corrosive effect of judge-shopping on the perceived fairness and impartiality of the
criminal justice system – particularly when conducted by a federal prosecutor – we wish to alert
the Court to the evidence underlying our concern. And, as counsel to the identified target of this
investigation who has legal standing to challenge questionable prosecutorial conduct in the
handling of the investigation¹ – we request that Your Honor carefully consider this evidence and the clear inference of prosecutorial judge-shopping as you exercise your supervisory authority over
the prosecution's handling of this grand jury investigation.² In short, we are seeking assurance
that any litigation arising out of this grand jury proceeding will be heard by a judge who is selected
by the court's neutral and impartial processes, not by the prosecution's self-interested maneuvering
contrary to the interests of justice.

This letter will proceed through the following lines of discussion: (I) an introduction describing
the current environment in which certain federal prosecutors are increasingly overreaching as a
result of overt political pressure, and in which federal courts are, therefore, more closely
scrutinizing prosecutorial conduct and decision making; (II) an overview of the historical
background ofthe ongoing grand jury investigation; (III) a description ofthe Justice Department's
repeated efforts to forum-shop this investigation among different federal districts, including the
Eastern District of Pennsylvania and the Eastern District of Virginia, before assigning it to
prosecutors in this District; (IV) a description ofthe circumstances demonstrating that the United
States Attorney in your district is also judge- shopping the matter by steering it toward a favored
judge - the onlyjudge – in the Fort Pierce Division; (V) a discussion ofthe case law that prohibits
and condemns such judge-shopping, especially when conducted by the prosecution in a criminal
matter; and (VI) our request that the Court scrutinize the government's conduct in the current grand
jury investigation to detect and head off any prosecutorial judge-shopping that may threaten both
the perceived legitimacy of this Court and the judicial system and the due process rights of our
client.

RIP Mel Black

 Another one of the greats passed away today -- Mel Black.  He was a great guy and a wonderful criminal defense lawyer (for almost 60 years!)  That's him below with his client after a big NG.  He always had time to talk to you about a case or a problem.  And I loved that he recently took a year on a ship around the world.  I'll miss him.

CTA is A-OK

By John R. Byrne

Louis D. Brandeis once wrote that "sunlight is said to be the best of disinfectants."And the 11th Circuit just gave that sentiment a constitutional seal of approval, ruling that the Corporate Transparency Act doesn't violate the constitution. The act, passed in 2020, requires companies to disclose their "beneficial owners" to the Treasury Department (beneficial owners being people who exercise substantial control over an entity or who control at least twenty-five percentage of its ownership interests). The idea was to combat corporate shell games that allow bad guys to launder money, etc.

The panel (Judge Brasher writing) said (1) Congress could pass the law under the Commerce Clause and (2) the law doesn't facially violate the Fourth Amendment (Brasher noted that the Supreme Court had rejected Fourth Amendment challenges to similar uniform reporting requirements, including one that requires banks to report domestic currency transactions above a certain amount). 

Feels like a fact pattern you might get on your Con law exam. And because it's a Commerce Clause case, you know that had to cite to that old standby, Wickard v. Filburn. You know, the one about the farmer and his intrastate wheat.

Opinion here.

Another Trump defamation suit in the SDFLA

This one is against the BBC.  From the NY Times:

President Trump sued the BBC for $10 billion on Monday evening over the editing in a documentary that the British broadcaster said had left the “mistaken impression” that he called for violent action before the storming of the U.S. Capitol.

In a 46-page lawsuit filed in federal court in Miami, Mr. Trump accused the BBC of defaming him and violating Florida’s Deceptive and Unfair Trade Practices Act. He demanded $5 billion for each offense.

In a statement, the president’s legal team said that the lawsuit was designed to hold the British network accountable for what it described as wrongdoing.

 

11th Circuit Weighs the Fate of the False Claims Act

The future of the False Claims Act (FCA) hangs in the balance after a pivotal oral argument (before Judges Luck, Branch, Moreno) in the Eleventh Circuit Court of Appeals this past Friday.

In United States ex. rel. Zafirov v. Florida Medical Associates LLC, a three-judge panel grappled with a challenge that strikes at the very heart of the statute: Do the FCA’s qui tam provisions, which allow private whistleblowers to sue on behalf of the government, violate the U.S. Constitution?

The oral argument offered a fascinating glimpse into the judicial tug-of-war between centuries of legal tradition and evolving theories on executive power. Here are the key takeaways from the arguments.

The appeal stems from a first-of-its-kind ruling by U.S. District Judge Kathryn Kimball Mizelle, who declared the qui tam system unconstitutional earlier this year. Her reasoning—echoing concerns raised recently by Supreme Court Justice Clarence Thomas—was that private relators exercise significant executive power without being properly appointed as officers of the United States, a violation of the Appointments Clause.

On Friday, the Eleventh Circuit panel appeared torn between two competing narratives: the text of the Constitution versus the long history of the American legal system.

Judge Robert J. Luck’s questioning suggested a hesitation to overturn a system that has existed since the nation’s founding. He repeatedly pressed defense counsel to explain why qui tam actions should be deemed unconstitutional now, given that they have been present in the U.S. for roughly 250 years.

Judge Luck noted that historical records imply President George Washington and other founders did not view qui tam litigation as conflicting with executive powers. "It looks like some of this was sort of contemplated by some of our founders, was it not?" he asked, searching for any Supreme Court precedent that strictly requires executive appointment for non-government relators.

Judge Elizabeth L. Branch pushed back against the DOJ’s reliance on past circuit court consensus. When the government argued that courts have routinely upheld the FCA for decades, Judge Branch interjected, noting that those decisions are dated.

"It's been about 25 years, and we have some recent statements from the U.S. Supreme Court," she said, alluding to the 2023 opinion in Polansky where Justices Thomas, Kavanaugh, and Barrett signaled interest in revisiting the constitutionality of the whistleblower system.

The oral argument highlighted the stark difference in how each side views the role of a whistleblower:

• The Defense (Challenging the FCA): Kannon K. Shanmugam, representing the defendants, argued that the modern FCA (strengthened in 1986) is a different beast from early American statutes. He contended that today's relators hold the power of an "unaccountable office," forcing the government to expend resources and seeking massive penalties without executive oversight.

• The Relator/DOJ (Defending the FCA): Counsel for the whistleblower and the DOJ argued that relators are simply private litigants, not government officers. Tejinder Singh, representing the whistleblower, emphasized that relators lack true state power: "No one's handing them a windbreaker and a gun... They're litigating in the same way that a private fraud litigant would litigate."

If the Eleventh Circuit affirms Judge Mizelle’s ruling, it would create a circuit split and almost certainly fast-track the issue to the Supreme Court. 

Jason Reding Quiñones sworn in

By Jordi C. Martínez-Cid

United States Attorney for the Southern District of Florida, Jason Reding Quiñones, had his swearing-in ceremony at the Wilkie D. Ferguson Courthouse on Friday. Apart from his duties as U.S. Attorney, he continues to serve as a Lietuenant Colonel in the military reserves. Major General David P. Garfield, the Honorable Christine Hernandez of the Eleventh Judicial Circuit of Florida, and Florida Attorney General James Uthmeier all spoke. Pictured below is the U.S. Attorney and some guy.

Judge Atkins

By John R. Byrne

Ever heard someone mention the "Atkins Building" or "Atkins Courthouse"? It's located across from the Wilkie D. and it's where many of our magistrate judges currently sit. The courthouse is named after Judge C. Clyde Atkins. A tribute from UF law school described him as a "champion of civil rights and a defender of those who were less fortunate." Among his important rulings were his orders desegregating Miami-Dade County Public schools (Pate v. Dade County School Board, 315 F. Supp. 1161 (S.D. Fla. 1969).

FBA write-up below.

Judge C. Clyde Atkins was nominated by President Lyndon B. Johnson and served on the district court from 1966-1999. In Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), Judge Atkins found that the City of Miami violated the constitutional rights of unhoused individuals through a policy of arresting them for unavoidable, life-sustaining acts in public and by seizing and destroying their property, warranting injunctive relief under the Eighth and Fourteenth Amendments. The façade and entrance of the courthouse that bears Judge Atkins’s name recently received an impressive renovation.

Judge Smith Orders Release of Epstein Grand Jury Transcripts

By Jordi C. Martínez-Cid

Judge Rodney Smith has granted a motion to unseal the grand jury transcripts from the federal investigation into Jeffrey Epstein in the mid-2000s. Though a previous motion was denied, Judge Smith held that the newly enacted Epstein Files Transparency Act trumps Federal Rule of Criminal Procedure 6's prohibition on disclosure. The Department of Justice has until December 19 to comply. Full order is here.