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I like to begin my Judicial Notice roundups with personal updates (hi Aunt Penny and Aunt Lori!), and I have some good news—because we all could use some, right?
First, I had my annual physical, and although I’ve gained some weight (sigh), my blood work was normal (to my pleasant surprise). Second, our son Harlan had his latest dental checkup, and he had no cavities—something of a shock, given his sugar consumption and the fact that he has my teeth. As my dentist once joked, I paid for his office renovation—and his office is on Fifth Avenue.
I did a fair amount of speaking last week. I visited two law schools, Penn State Dickinson Law and NYU Law, and I joined Jessie Kamens for Bloomberg Law’s On the Merits podcast, where we chatted about headcount changes at firms that settled with the Trump administration. I consider myself very lucky to be able to speak and write, freely and openly, to folks who almost always respond thoughtfully and respectfully—even when they disagree with me.
Why do I feel so fortunate, simply for being able to exercise basic constitutional rights, largely free of blowback, harassment, or cancellation? Because free expression isn’t in a great place right now—the dominant theme of last week’s legal news.
Lawyers of the Week: Pam Bondi, Brendan Carr, and Erik Siebert.
After the September 10 murder of Charlie Kirk—a literal attack on free speech, considering that the conservative activist and author was speaking at a university when he was killed in cold blood—some people had understandably strong reactions. And some people had strong reactions to the reactions—which ran the gamut, from appropriate to appalling.
Let’s start with Attorney General Pam Bondi. After folks on the right criticized people who said or did anti-Kirk things—e.g., an Office Depot worker who refused to print flyers advertising a vigil for Kirk—Bondi announced that she would “absolutely target” protesters engaging in what she called “hate speech.” She was roundly rebuked for her remarks, including by conservative outlets—such as the editorial page of The Wall Street Journal (gift link), which wondered, “Is a basic understanding of the First Amendment too much to expect from the nation’s Attorney General?”
I won’t belabor this; my readers are a self-selecting bunch, and the vast majority of you share my strong support for free speech and the First Amendment. But if you need a refresher on why the government can’t prosecute “hate speech,” read this New York Times article by Adam Liptak, or listen to Sarah Isgur and David French on Advisory Opinions.
Next up: Brendan Carr, Chairman of the Federal Communications Commission (FCC). After late-night host Jimmy Kimmel (erroneously) suggested that Kirk’s killer came from the “MAGA gang,” Carr criticized Kimmel, saying on Benny Johnson’s podcast that (1) Kimmel’s comments were part of a “concerted effort… to lie to the American people”; (2) Kimmel’s network, ABC, has license granted by the FCC; (3) that license comes with “an obligation to operate in the public interest”; (4) when the FCC “see[s] stuff like this,” it “can do this the easy way, or the hard way”; and (5) the FCC has various “remedies” it can consider. Hours after Carr’s interview, ABC announced that it was pulling Kimmel’s show off the air—“indefinitely.”
Could Carr’s comments have created a First Amendment problem? As a private company, ABC isn’t bound by the First Amendment, and it can air or cancel programs as it pleases. But as explained by Professor Eugene Volokh of The Volokh Conspiracy, “if the government coerced ABC into suspending the show, through threats of retaliation, that would have likely violated the First Amendment.” See also this Politico essay, by Professor Aziz Huq, and this Times piece, by Liptak. (I’m not saying there’s a definite constitutional violation here, which would require deeper analysis, but simply flagging the issue.)
Returning to Pam Bondi and the U.S. Department of Justice (DOJ), Bondi showed up in the headlines for another reason. On Saturday night, Trump took to Truth Social, where he complained to “Pam” that “[n]othing is being done” about foes of his like former FBI director James Comey and New York Attorney General Letitia “Tish” James, despite their being “guilty as hell.” Trump then complained about “a Democrat-supported U.S. Attorney” and “Woke RINO” who “was never going to do his job”—which would presumably entail, in Trump’s view, prosecuting these “guilty as hell” parties.
The “Democrat-supported U.S. Attorney” was Erik Siebert, who on Friday left his post as U.S. attorney for the Eastern District of Virginia (E.D. Va.). There’s some ambiguity over whether Siebert resigned or was forced out, but that’s neither here nor there. The key point—as reported by The Times, ABC News, Reuters, and others—is that Siebert departed after it became clear that he was unwilling or unable to use his prosecutorial post to pursue Trump adversaries like Comey and James.
With Siebert out of the picture, Trump announced that he would appoint Lindsey Halligan—one of his former personal attorneys, now working for him in the White House—as U.S. attorney for the Eastern District of Virginia. Trump praised Halligan as “tough,” “loyal,” and a veteran of “the winning fight against the Weaponization of our Justice System by Crooked Joe Biden and the Radical Left Democrats.” I won’t prejudge Halligan, but I obviously hope that she will make prosecutorial decisions based on the facts and the law.
Other lawyers in the news:
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In other Kirk-related news, Perkins Coie fired a litigator based on his comments about Kirk on social media (discussed in detail below under Law Firm of the Week). [UPDATE (9/22/2025, 1:24 p.m.): These comments were posted privately, i.e., only to this lawyer’s “friends”—but someone in the lawyer’s network produced a screenshot and shared it with the media, and it went viral from there.]
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And Professor Felicia Branch was suspended by the University of Arkansas at Little Rock, after she posted on Facebook that people shouldn’t be criticized for celebrating that “an evil person is no longer on this earth causing immense suffering.”
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Rachel Brand, chief legal officer of Walmart since 2018, announced that she’ll be leaving the company on January 31. She didn’t reveal what her “next chapter” will be—but based on her remarkable legal career, explored in my 2022 profile of Brand, I’m sure it will be exciting.
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On Thursday, Senate Republicans took advantage of new rules—which they previously approved by a party-line vote—and confirmed, by a vote of 51-45, the first 48 Trump nominees to be voted on as a group, i.e., “en bloc.” You can view their names on the Senate website, and I noticed at least five lawyers (please feel free to flag anyone I missed, either by emailing me or posting in the comments—some positions aren’t explicitly lawyer jobs, so I surely missed some attorneys):
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Daniel Aronowitz, Assistant Secretary of Labor
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Jonathan Brightbill, General Counsel of the Department of Energy
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William Doffermyre, Solicitor of the Department of the Interior
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John Squires, Director of the United States Patent and Trademark Office
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Peter Thomson, Inspector General, Central Intelligence Agency
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[UPDATE (9/22/2025, 1:31 p.m.): Edward Aloysius O’Connell, Associate Judge, Superior Court of the District of Columbia]
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Congratulations to the 250 honorees who made the Forbes list of America’s Top Lawyers. It’s the second year that Forbes has prepared such a list, expanded in size from the inaugural list of 200. Fun fact: 14 of my podcast guests have been recognized as top lawyers by Forbes—in 2024, 2025, or both—and I have two more scheduled for the coming weeks.
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Things keep getting worse for former U.S. attorney and former New York City mayor Rudy Giuliani. On Thursday, Justice Arthur Engoron (remember him?) ordered Giuliani to pay $1.3 million to the lawyers who represented him in various Trump-related investigations.
In memoriam: labor lawyer Bob Goodenow, who served as executive director of the National Hockey League players’ union, passed away at 72. According to The Times, Goodenow gave the union “newfound muscle in collective bargaining negotiations.” May he rest in peace.
Judge of the Week: Judge Steven Merryday.
On Monday, Donald Trump filed a defamation lawsuit against The New York Times; Times reporters Susanne Craig, Russ Buettner, Peter Baker, and Michael S. Schmidt; and Penguin Random House, publisher of Lucky Loser: How Donald Trump Squandered His Father’s Fortune and Created the Illusion of Success, a bestselling book about Trump by Buettner and Craig. Trump’s complaint went on for 85 pages, before concluding with a demand for $15 billion in compensatory damages (plus unspecified punitive damages).
Filed in the Middle District of Florida (Tampa), the case wound up before Judge Steven D. Merryday. A George H.W. Bush appointee, Judge Merryday is perhaps most well-known for certain rulings during the Covid-19 pandemic—including one that prevented the Centers for Disease Control (CDC) from enforcing certain public-health rules against cruise ships, and another that blocked the Navy from removing an insubordinate commander who refused to get vaccinated.
So Judge Merryday is conservative (as noted by, among others, Ed Whelan of National Review). But His Honor also doesn’t put up with shenanigans, and he knows how to dole out a benchslap—which Trump just learned firsthand. Four days after Trump’s lawsuit was filed, Judge Merryday struck the complaint for violating Federal Rule of Civil Procedure 8(a)’s requirement that the complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Here’s an excerpt from the judge’s order:
The pleader initially alleges an electoral victory by President Trump “in historic fashion”—by “trouncing” the opponent—and alludes to “persistent election interference from the legacy media, led most notoriously by the New York Times.” The pleader alludes to “the halcyon days” of the newspaper but complains that the newspaper has become a “full-throated mouthpiece of the Democrat party,” which allegedly resulted in the “deranged endorsement” of President Trump’s principal opponent in the most recent presidential election….
The complaint continues with allegations in defense of President Trump’s father and the acquisition of the Trumps’ wealth; with a protracted list of the many properties owned, developed, or managed by The Trump Organization and a list of President Trump’s many books; with a long account of the history of “The Apprentice”; with an extensive list of President Trump’s “media appearances”; with a detailed account of other legal actions both by and against President Trump, including an account of the “Russia Collusion Hoax” and incidents of alleged “lawfare” against President Trump; and with much more, persistently alleged in abundant, florid, and enervating detail….
[A] complaint remains an improper and impermissible place for the tedious and burdensome aggregation of prospective evidence, for the rehearsal of tendentious arguments, or for the protracted recitation and explanation of legal authority putatively supporting the pleader’s claim for relief. As every lawyer knows (or is presumed to know), a complaint is not a public forum for vituperation and invective—not a protected platform to rage against an adversary. A complaint is not a megaphone for public relations or a podium for a passionate oration at a political rally or the functional equivalent of the Hyde Park Speakers’ Corner.
Ouch. For additional responses, see Travis Gettys. As the popularizer of the term “benchslap,” I appreciated this quip highlighted by Gettys, which The Questionable Authority posted on Bluesky: “Oh my god, this isn’t a benchslap, it’s a bench hulksmash. I would literally cry if a judge ever did this to a complaint I wrote.”
Judge Merryday struck the complaint but granted leave to amend, giving Trump 28 days to file a complaint not exceeding 40 pages. Good luck to Trump’s lawyers—Alejandro Brito of Brito PLLC, Edward Andrew Paltzik of Taylor Dykema PLLC, and Daniel Zachary Epstein of Epstein & Co. LLC—as they try to draft a complaint that contains the ego-stroking demanded by their client but complies with the requirements of the court.
In other news about judges and the judiciary:
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On Tuesday, Justice Sonia Sotomayor spoke out in defense of free speech, democracy, and the rule of law, while participating in a panel at New York Law School. Then on Wednesday, which was Constitution Day, 42 former federal judges voiced similar views. They signed a letter arguing that “the Constitution is under attack,” before “call[ing] upon every American to join us in upholding judicial independence.”
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Former California state-court judge Jeffrey Ferguson was sentenced to 35 years to life in prison for the second-degree murder of his wife, whom he shot and killed in August 2023 after a drunken argument.
In nominations news, assistant U.S. attorney Rebecca Taibleson (E.D. Wis.), Trump’s pick for a Wisconsin-based Seventh Circuit seat, is taking flak from some conservatives—for things that strike me as pretty ridiculous, such as two minor campaign contributions ($50 to Joe Manchin), plus a donation to a Jewish nonprofit that offers some programming to supports its LGBTQ members (the horror). A former law clerk to then-Judge Brett Kavanaugh and the late Justice Antonin Scalia, Taibleson pushed back strongly against the criticisms—as did prominent conservatives like Mike Davis, Michael Fragoso, Josh Blackman, and the editorial page of The Wall Street Journal (gift link via How Appealing).
Job of the Week: an opportunity for environmental lawyers in Atlanta or Washington, D.C.
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