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.

11th Circuit opinion makes David Lat's "Ruling of the week."

If you aren't a subscriber to David Lat's newsletter, you should be.  It is excellent.  Here is his ruling of the week: 

Ruling of the Week: Martin v. United States.

Many of you may recall Martin v. United States, a Supreme Court decision from June 2025. The case arose out of egregious facts, as explained by the Institute for Justice (the libertarian-leaning, public-interest law firm that represents the Martin family):

In 2017, masked federal agents broke down the innocent family’s front door, detonated a flashbang grenade in their living room, and held them at gunpoint before realizing they had the wrong house. The agents—who were attempting to execute a search warrant for a different house on a different street—did not even bother to check the family’s address before barging in.

The Eleventh Circuit affirmed the dismissal of the Martin family’s case, which was brought under the Federal Tort Claims Act. But the Supreme Court revived the suit, vacated the Eleventh Circuit’s judgment, and told that court to try again—in light of guidance provided by SCOTUS in a unanimous opinion by Justice Neil Gorsuch.

On remand, the Eleventh Circuit once again ruled in favor of the feds, as reported by ABC News and The Atlanta Journal-Constitution. In a per curiam opinion of 38 pages, the unanimous panel affirmed the dismissal of the Martin family’s claims against the government, based on sovereign immunity (although the panel did reverse the district court’s grant of qualified immunity to the FBI agent responsible for the epic screw-up).

But this time, there was a twist. I’ll again cite IJ’s statement (which provides an excellent, plain-English explanation of the complex doctrines at issue in this case):

In today’s decision, a three-judge panel of 11th Circuit judges reluctantly concludes that the circuit precedent required them to dismiss the Martins’ FTCA claims. However, in a concurring decision, the same three judges describe that precedent as a “mess,” lay out a new legal path that could allow suits over wrong-house raids to proceed to trial, and urge the full 11th Circuit court to revisit its flawed precedent immunizing the government through the FTCA’s “discretionary function exception.” IJ will file a motion to ask the full court to do so.

Would such a motion by IJ carry the day? Judge Adalberto Jordan’s 12-page concurrence was joined by Judges Jill Pryor and Embry Kidd. Although all three are Democratic appointees, and Republican appointees hold a 7–5 majority among active judges on the Eleventh Circuit, the libertarian flavor of the case—brought by IJ and previously addressed by Justice Gorsuch, widely regarded as one of the most libertarian justices—could be sufficient to garner a majority for rehearing en banc. So this long-running litigation might still have a happy ending for the Martins. (Given the bad facts and negative publicity, I wonder why the government hasn’t settled.)

 

Lots of tea being spilled on the SDFLA "Grand Conspiracy" case(s)

The NY Times has the latest here:

Still, the pressure has not relented. The dozen prosecutors still pursuing the inquiry are fast-tracking narrower cases against some chief targets that could be brought quickly, according to people briefed on their work. Leadership of the effort has defaulted back to Washington, and is now being directly overseen by one of Mr. Blanche’s top deputies, Aakash Singh, those people said.

A Justice Department official said leaders in Washington had “full confidence” in the prosecutors now working on the case and would act to uphold the law should “evidence of misconduct present itself.”

Even if charges are never filed, Mr. Trump has already instilled fear in — and imposed steep financial costs on — potential targets, in his view giving them a taste of what he experienced when he was under investigation.

Two targets have borne a particular brunt: James B. Comey, the former F.B.I. director fired by Mr. Trump in the early stages of the Russia inquiry, and John O. Brennan, the former C.I.A. director who played a role in instigating that investigation.

nside the Justice Department, another price is being paid.

The investigation has upended the U.S. attorney’s office for the Southern District of Florida, one of the most important in the country, which has been plagued by staff departures and low morale under its Trump-appointed leader, Jason A. Reding Quiñones, according to current and former prosecutors. The problems with the grand conspiracy case have exacerbated what officials in Washington have described as a growing lack of confidence in Mr. Reding Quiñones by his superiors.

The office once had more than 200 lawyers. It is now slightly more than half that size, after a spate of firings and resignations.

Prosecutors have watched the case play out with embarrassment and horror. Many have been so unwilling to join the investigation that Mr. Reding Quiñones, an Army reservist, was forced to bring in military lawyers to backfill the ranks.

The chief of the office’s criminal division has been sidelined. The office’s health care fraud unit has been decimated. Many prosecutors say the office feels leaderless, and are worried that a place once known for big drug and white-collar cases has pivoted to politics.

Even furniture has been repurposed to equip the inquiry’s two work spaces, one on the fifth floor of the main Miami office and the other up the coast in Fort Pierce.

***

But the move to Florida did not translate into immediate success.

One big problem, in the view of Mr. Blanche’s aides, was Mr. Reding Quiñones, whom they viewed as a feckless and inexperienced manager not capable of running the day-to-day operations of his office, let alone the grand conspiracy case.

Moreover, they felt that Mr. Reding Quiñones spent too much time in Washington and too little in Florida. To address that concern, Mr. Singh recently removed him from the attorney general’s advisory committee, which meets at department headquarters, to refocus his energies on Miami, according to two people with knowledge of the move.

But he was hardly the only problem.

BREAKING -- Your new magistrate judge is Aaron Weiss

 Congrats to Aaron S. Weiss of Carlton Fields, who is your new Magistrate Judge.