How should we handle attorney-client privilege?

Alan Dershowitz has this proposal:

There is a better and safer way to deal with this issue than the current approach of using prosecutors and FBI agents to do the sifting. A law should be enacted under which anytime the government is seeking to search an office or home that may contain confidential and privileged information, the search team must be accompanied by a judicial officer – a judge, a magistrate or someone appointed to fulfill that function.
That judicial officer should be the only one ever to read material that is eventually deemed to be confidential. A judge can be trusted not to leak far better than FBI agents or prosecutors. And if a judge were to leak, it would be easy to identify the source of the unlawful disclosure, since the single judge would be the only one to have access to the confidential material.

And Trump's lawyers have filed papers this weekend asking to do an initial review before the government gets a chance.  Here's the WSJ coverage:

Lawyers for President Donald Trump say they should be allowed to review the material seized by the Federal Bureau of Investigation last week from Mr. Trump’s longtime lawyer Michael Cohen before government investigators begin their ​own, according to a court filing late Sunday.
The filing asks​ a Manhattan federal judge to stop the government from using a “taint team” of prosecutors to review the evidence for documents protected by attorney-client privilege and to issue an order allowing Mr. Cohen, Mr. Trump and their legal teams to comb through it first for “materials over which the President asserts privilege.”
After Mr. Trump identifies which communications he believes are privileged, the government taint team can make objections, the filing said, and the court can make the final determination about which materials investigators are allowed to see.

 Trump won't be at the hearing today.  He's in Miami.  Here's how to avoid the traffic.

SDFLA Judges appoint Ben Greenberg as U.S. Attorney

Attorney General Sessions appointed Ben Greenberg as U.S. Attorney, but that appointment expires on April 28.  The President still has not nominated a U.S. Attorney for this District.  So under 28 U.S.C. 546(d), the judges appointed Greenberg "until further Order of th[e] Court."

Two federal judges nominated in Florida, but not the SDFLA

But we did get a Marshal:

 If confirmed, Gadyaces S. Serralta of Florida will serve as the United States Marshal for the Southern District of Florida.  Gadyaces Serralta is currently a Major with the Miami-Dade Police Department, a position he has held since 2015.  In this capacity, he also serves as the Commander of the Palmetto Bay Policing Unit. Mr. Serralta began his law enforcement career with the Miami-Dade Police Department in 1990.  He served as a patrol officer and sergeant, working primarily with the Criminal Street Gangs Unit and Organized Crime Section, and then served as lieutenant in charge of the Robbery Intervention and Narcotics Detail before assuming his current position as Major. Mr. Serralta earned a B.S. in Criminal Justice Studies from Florida International University and a M.S. in Leadership from Nova Southeastern University.

Here are the two judicial nominees from the Middle and Northern Districts:

If confirmed, Wendy Williams Berger of Florida will serve as a District Judge on the U.S. District Court for the Middle District of Florida.  Wendy Berger serves as a District Judge on the Fifth District Court of Appeal, where she has served since her appointment by the Governor in 2012. Prior to her elevation to the Court of Appeal, Judge Berger served for seven years as a Circuit Court Judge on the Seventh Judicial Circuit, where she handled the full range of civil, criminal, and death penalty cases. Before ascending to the bench, Judge Berger served for four years as Assistant General Counsel in the Executive Office of the Governor. Prior to joining the Governor's Office, Judge Berger spent seven years prosecuting criminal cases as an Assistant State Attorney. Judge Berger earned her B.S., cum laude, from Florida State University and her J.D. from the Florida State University College of Law, where she was a member of the Florida State University Law Review.

If confirmed, Allen C. Winsor of Florida will serve as a District Judge on the U.S. District Court for the Northern District of Florida.  Allen Winsor serves as a Judge on the First District Court of Appeal. Prior to his appointment to the bench, Mr. Winsor served for nearly three years as the Solicitor General of the State of Florida, where he represented Florida's interests in State and Federal courts and argued two cases in the Supreme Court of the United States. Before joining the Florida Attorney General's Office, Mr. Winsor was a partner in the Tallahassee office of GrayRobinson, P.A., where he practiced civil, constitutional, and appellate litigation. Upon graduation from law school, Mr. Winsor served as a law clerk to Judge Ed Carnes of the U.S. Court of Appeals for the Eleventh Circuit. Mr. Winsor earned his B.S.B.A. from Auburn University and his J.D., with high honors, from the University of Florida, Levin College of Law, where he was inducted into the Order of the Coif and served as editor-in-chief of the Florida Law Review.

Trump nominates Georgia Supreme Court Justice Britt Grant to 11th Circuit

This nomination is for Julie Carnes' seat.  From the AJC:

President Donald Trump on Tuesday will nominate Georgia Supreme Court Justice Britt Grant to fill an upcoming vacancy on the federal appeals court in Atlanta, according to an administration official familiar with the nomination.
If approved by the Senate, Grant, 40, would succeed Judge Julie Carnes, who will become a senior judge in June. She was appointed to the state appellate court bench by Gov. Nathan Deal in January 2017.
Savannah attorney Pat O’Connor, former president of the State Bar of Georgia, said the nomination comes as no surprise to him.
“Through her service on the Georgia Supreme Court, Justice Grant has proven herself to be a bright star, both intellectually and in terms of judicial philosophy,” O’Connor said. “She’s thoughtful, articulate and thorough.”

“All of his comments have involved braggadocio and zero remorse."

That was Judge Robert Scola in sentencing Cocaine Cowboy Mickey Monday to an above-guideline sentence. From Curt Anderson at the AP:

A smuggler who flew loads of drugs for Colombian cartels during Miami’s “cocaine cowboys” era in the 1980s was sentenced to 12 years in prison Monday for using his old talents in a sophisticated auto theft ring.

U.S. District Judge Robert Scola imposed the relatively harsh sentence — more than four years higher than prosecutors recommended — because of the intricacy of the theft scheme, a total loss of about $1.8 million and because 72-year-old Mickey Munday boasted and bragged constantly for years about his cocaine smuggling past.

“All of his comments have involved braggadocio and zero remorse,” Scola said at a hearing.

Munday spent most of the 1990s in prison after pleading guilty to drug smuggling charges involving tons of cocaine from Pablo Escobar’s Medellin cartel and also the Cali cartel during the 1980s. He frequently talked about his exploits in media interviews, social media posts, and in a starring role in the 2006 documentary “Cocaine Cowboys.”

Assistant U.S. Attorney Joshua Rothstein said Munday transferred his abilities to evade law enforcement to the auto theft ring because he couldn’t resist getting back into the criminal game.

“It wasn’t enough to talk about the past. He couldn’t resist the urge to get back in the criminal action,” Rothstein said. “He traded his wings for wheels.”

But at the hearing, Munday said much of what he said over the years was enhanced or fictional and that he was hoping to land a movie deal for his life story’s rights.

“I write about what I know. I combine stories,” he said, adding that he had no arrests after his original release from prison until 2017 for the car theft ring. “I have done everything I could to stay on the straight and narrow.”

Slowwwwwwww pace

The Supreme Court has decided only 18 cases this Term. That's very slow compared to other Terms. Some have said the new dynamics with Justice Gorsuch are causing the slow down. Others have said it's because there are huge and divisive cases, like gerrymandering and cell-site data. Here's a Reuters article about the lag in decisions:

Supreme Court experts expect the justices to issue a larger-than-normal number of 5-4 rulings in the coming months. That would increase the chances of conservative Justice Anthony Kennedy, who sometimes sides with the court’s four liberals in major cases, casting the deciding votes.

“It’s reasonable to suggest there are going to be fewer unanimous decisions and more division,” said Nicole Saharsky, a lawyer who often has argued cases before the court.

Meantime, I love that this guy went to trial over videotaping a local and public meeting, which was held in the secretive federal courthouse (that doesn't allow photography). The locals should not be able to avoid the openness that usually attach to those types of meetings simply by going to a federal courthouse. I hope he appeals.

Kerri Ruttenberg to speak at Federal Bar Association meeting

I usually don't post about local events because there are just too many to keep up with, but this one is worth mentioning. Kerri Ruttenberg, a partner at Jones Day in DC, will be speaking at the local Federal Bar Association's lunch meeting next Wednesday, April 11. She is a wonderful speaker and will be discussing graphics for lawyers. You've seen all of the bad graphics lawyers use these days... Kerri gives a great talk about how to make them better. Sign up here.

In other news, Judge Mark Walker absolutely crushed Rick Scott and Pam Bondi in this order yesterday. It starts out this way:

Rather than comply with the requirements of the United States Constitution, Defendants continue to insist they can do whatever they want with hundreds of thousands of Floridians’ voting rights and absolutely zero standards. They ask this Court to stay its prior orders. ECF No. 163.

No.

Marc Caputo and Matt Dixon of Politico's Playbook summarize the order:

It was a little challenging putting together Florida Playbook because it took extra time to pull the choicest quotes from federal Judge Mark E. Walker's order on Wednesday torching Gov. Rick Scott and Attorney General Pam Bondi's legal arguments as the state defends its "arbitrary" clemency process. It might have been easier to just reprint the entire order. Wrote the judge: "this court does not play games." Indeed. Nor did he pull punches in noting that the Republican politicians' have "personal stakes in shaping the electorate" in the way they restore felons' voting rights. It's a pretty direct shot at Scott as he plans to announce next week whether he'll run for Senate.
DRIPPING WITH SARCASM, Walker said Scott, Bondi and the rest of the clemency board should get to work respecting the First and Fourteenth Amendments by drafting a constitutionally sound clemency scheme by April 26. "Bitter pills are clearly too hard to swallow," Walker snarked, saying they "fall woefully short" in some areas and "regurgitate" arguments that are "unpersuasive ... disingenuous ... astounding" or are "rooted in neither common sense nor reality."
'SCREAM INTO THE WIND' - Walker even compared them to toddlers: "Defendants stamp their feet and wail that 30 days is 'not [a] reasonably calculated' time to create a constitutional system of executive clemency. This Court again declines to act as a fifth Board member. But drafting new rules need not be complicated or time-consuming. Defendants could simply identify those rules that run afoul of the Constitution and rewrite them with specific and neutral standards. Instead, Defendants scream into the wind various questions it might consider in crafting constitutional rules. Answering those questions may be a better use of time."

Justice Sotomayor is fighting for criminal defendants

In two opinions this week, she explained how the Supreme Court was giving short shrift to criminal defendants.  SCOTUSblog has more:

Justice Sonia Sotomayor dissented from today’s summary reversal, in a 15-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor recounted the facts of the case, positing that if the story “sounds unreasonable, that is because it was. And yet,” she complained, “the Court today insulates that conduct from liability,” “effectively treating qualified immunity as an absolute shield.” In particular, she lamented, the court’s ruling “ultimately rests on a faulty premise”: that the cases on which the 9th Circuit relied “are not identical to this one.” But the Supreme Court, she argued, has never ruled that the “clearly established law” standard is met only when the plaintiff can point to a case with identical facts. “It is enough,” Sotomayor contended, “that governing law places the constitutionality of the officer’s conduct beyond debate” – as Kisela’s was here. But at a minimum, Sotomayor added, there is enough dispute about the facts and the law in Kisela’s case that the court should not have reversed without the benefit of briefing or oral argument on the merits.

The majority opinion may have contained a strong rebuke of the 9th Circuit, but Sotomayor’s dissent concluded with an equally forceful reprimand for her colleagues. She asserted that today’s ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Sotomayor had more strong words in her solo dissent from the court’s denial of review in two Florida capital cases. The inmates in the cases, Jesse Guardado and Steven Cozzie, had argued that their death sentences were unconstitutional, but the Supreme Court declined to step in. Sotomayor complained that the Florida Supreme Court had – as it had in two earlier cases – “failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences” after the Supreme Court’s 2016 decision holding that the state’s death-penalty-sentencing scheme violates the Constitution. In a somewhat unusual footnote, Sotomayor quoted from a 19th-century essay by the French author André Gide: “’Everything has been said already; but as no one listens, we must always begin again.’”

Good for her.

Meantime, there is a legal dispute in the 9th Circuit about anal clefts and what bikinis are too small for coffee baristas. From Reason:

So, what part of the butt is the ass crack, really? As a legal matter.

You see, a fight over scantily clad baristas in one Washington State community hinges partly on whether the average person can objectively tell which part of the bottom counts as the "anal cleft" and whether police could (or would) objectively be able to measure whether one is exposed or not.

The city of Everett, Washington, is trying to get rid of its "bikini barista" stands with an ordinance that forces the ladies there to wear more coverage. The city claims that these tiny stands where scantily clad women serve coffee are incubators of prostitution, public lewdness, and crime. They're trying to shut them down by forcing the women to button up.

The stands are fighting back and won an initial injunction against the ordinance's enforcement in December. A U.S. district judge determined that Everett's ordinance was too vague in its description of what needed to be covered and thereby risked arbitrary enforcement issues. And the judge further determined that the law likely violated the First Amendment free expression rights of the women who worked there.

Everett is now fighting back itself against the injunction, submitting a legal brief arguing that the judge erred on both counts. Its appeal calls for the judge to be overruled and the injunction dissolved.

You'll never read a more boring 66-page document about butts. It includes four pages listing all the federal court cases used to bolster its claim that there's no real confusion about what counts as an "anal cleft" and that there's no evidence that the women are actually expressing anything in particular in their clothing choices.