The Week Ahead

May 14, 2023

I flew back from Portland, Oregon, on Saturday evening, after doing the #SistersInLaw podcast live there. It was a lovely surprise to get to meet so many readers of Civil Discourse in the audience. And, welcome to those of you who are new here to the newsletter after we met in Texas!

Doing the podcast live was lots of fun! Kim Atkins Stohr, Jill Wine-Banks, Barb McQuade, and I are in the second year of doing #SistersInLaw. Every Friday afternoon, we get together to discuss the week’s legal news. It’s like the conversations we used to have in MSNBC green rooms pre-pandemic. Being together was lots of fun, and Portland was amazing. Barb and I even made it out for the famous Voodoo Doughnut. We’re off to shows in New York and Washington, D.C., later this week and early next, so expect a little lighter posting from me while we’re on the road—but don’t worry, we won’t miss any of the important things!

Also, a reminder that Steve Schmidt and I will be in conversation for our Substack subscribers only on June 7. I hope you’ll join us. Steve is always thought-provoking, and I’m looking forward to our chat. You can pre-register at this link:

https://us02web.zoom.us/meeting/register/tZ0oduusrjguH9K1k6tcLgbrAqmAgakfn07R

June 7, 2023, 8 p.m. Eastern Time (U.S. and Canada)

After registering, you’ll receive a confirmation email containing information for joining us on Zoom.

Flagging two matters to pay attention to in the week ahead:

First, May 17. On Wednesday, the Fifth Circuit Court of Appeals will hear oral argument in the mifepristone (medication abortion) case that is back to it on remand from the Supreme Court. The Court stayed the district court’s order banning mifepristone, so it remains available while the litigation continues. The Biden administration is arguing that the district judge’s order should be overturned.

However, the Fifth Circuit panel that will hear the case is extremely conservative. The panel of judges consists of Jennifer Walker Elrod, who previously upheld a Texas law that made it difficult for abortion clinics to continue to operate; James Ho, who has said abortion is a “moral tragedy”; and Cory Wilson, who supported abortion bans as a Mississippi state legislator.

In case you’re wondering how judges are assigned to cases, the Fifth Circuit uses a computer program that creates random three-judge panels for each court year (July 1 through June 30). Cases, as they come up, are randomly assigned to these pre-set panels and are also randomly assigned for oral argument. Lawyers (and the public) only learn which judges are assigned to hear a case a week before oral argument takes place.

The Fifth Circuit, already conservative, took an even sharper right turn when Donald Trump appointed six new judges to the court. There are currently 16 active judges on the court. One seat is vacant, with a Biden nomination made in April this year pending confirmation. Of the 16 sitting judges, one is a Clinton appointee and two are from the Obama administration. There are nine additional “senior status” judges, who still help out by hearing cases. All but two of them were appointed by Republican presidents.

As an appellate lawyer, I believe that most judges outgrew the political legacy of the party that appointed them. But the Fifth Circuit, its Trump nominees in particular, challenge this notion. For instance, Judge Wilson, who Trump appointed in 2020, tweeted about Hillary Clinton using the hashtags #CrookedHillary, #basketofdeplorables, and #Scandalabra before he became a judge. In response to written questions from Senator Dianne Feinstein about why the tweets remained up on his account although he was serving as a Mississippi court of appeals judge at the time of his federal confirmation process, Wilson wrote, “The referenced tweets were published when I was active in partisan elective politics and when I was serving as an elected member of the Mississippi House of Representatives, not since I began serving as a judge.” That Twitter account no longer appears to be active.

From 2010 to 2013, in a series of written columns in the Madison County Journal, he described President Obama as “petty and small,” “a fit-throwing teenager,” and “King Barack.” He also wrote a column, in November 2012, called “Blessings” where he said that his wife’s parameters for where the family could celebrate Thanksgiving were “no state that voted Democrat.” In 2007, while a political candidate, the judge completed a candidate questionnaire for the Mississippi Right to Life organization where he said he supported “the complete and immediate reversal” of Roe v. Wade and believed abortion should be illegal even when the life of the mother is at stake, in cases of incest, and in cases of forcible rape. Asked about those comments by Feinstein, he responded that, “When I was active in partisan politics . . . it was appropriate to take positions on political and policy issues and represent the preferences of my constituents. In contrast, as a judge, neither past political debates nor my personal views (or those of voters) play any part in deciding cases. Beyond that, it would be inappropriate for me, as a sitting judge and nominee, to comment on political issues or issues that may come before the Court.” Wilson was confirmed to the Fifth Circuit by a vote of 52-48 on June 24, 2020. Even Democratic senators Joe Manchin and Kyrsten Sinema (now an Independent) voted against him, joined by Susan Collins (R-ME). He failed to capture a single vote from a Democratic senator.

This isn’t to say that people with progressive views aren’t also nominated and confirmed to the courts, but there are screening measures while candidates are being vetted for nomination that usually winnow out those with an extremely strong partisan bent, at least for Democratic nominees. The composition of the Fifth Circuit continues to be deeply concerning.

I’ve written about the mifepristone case a number of times previously as it made its way through the courts. Here, when the district judge first entered his order banning mifepristone but permitting a brief stay for DOJ to appeal. Here, when the Fifth Circuit ruled on DOJ’s request to stay that order. (It permitted the drug to remain on the market but without ready access.) And here, when the Supreme Court entered the stay of the district judge’s ban of the drug, which remains in place at least until the Fifth Circuit rules, but more likely until the case is heard on the merits (the earlier matter was a request for an injunction), by the Supreme Court. In addition to the abortion issue, the context for the case is interesting because affirming the district judge’s ban would mean upending the FDA regulatory process, something that could upset certain big business interests. It’s hard to predict exactly what will happen when those interests go up head to head with the abortion issue.

Second, May 15. That’s the deadline New York state Judge Arthur Engoron has given the Trumps for certifying they have turned over all of their discovery in the New York AG Tish James’s $250 million civil fraud lawsuit questioning their business practices. She alleges that the Trumps violated New York law by inflating property values to obtain economic benefits like securing cheaper loans. The Trumps, of course, deny those allegations. The judge’s order came on the heels of allegations by the attorney general that Donald Trump, Don Jr., Eric, Ivanka Trump, and the Trump Organization failed to provide emails and other communications to the attorney general in the discovery process for the lawsuit, which they are required to do.

In court papers, the attorney general expressed an interesting, specific concern about “an unexplained drop-off in emails for Ivanka Trump.” In the first nine months of 2014, Ivanka Trump had an average of 1,200 emails per month. But for 2016, only 37 emails a month were produced. The AG’s office noticed the obvious discrepancy and said Ms. Trump’s lawyers weren’t forthcoming when asked about it. The defendants have engaged in delay tactics, refusing to set completion schedules for discovery or to provide information about how they conducted their searches for responsive information so the AG’s office could have confidence they were getting everything they are entitled to.

Shot: The judge ordered the Trumps to complete discovery by last Friday, the 12th.

Chaser: The judge ordered them to certify that they had complied with their obligations under oath by Monday the 15th.

This isn’t the first go-round of foot-dragging by a Trump in this case. In May 2022, the former president paid a $110,000 fine for contempt after he failed to comply with a subpoena from the attorney general’s office. The judge is ratcheting up the pressure on the Trumps to comply in a timely fashion or face more serious consequences this time. Requiring a statement filed under oath is a strong signal he means business.

If you’re thinking, by the way, that this sounds familiar, it’s because it is. The certifying-compliance-with-legal-requirements part of the process is what got Trump in hot water with DOJ during the classified documents investigation at Mar-a-Lago. It was the false certification that all materials had been returned that really amped up that investigation, leading to a situation where indictments are widely expected.

The process is easy for most litigants—you turn over responsive information in your files to the other side and the case moves forward. But it’s the part where Trump seems to have repeatedly stumbled. And judges seem to be getting wiser about repeated efforts to manipulate the system. This is the part of the process where the Trumps have to act like any other litigants in a civil matter and turn over discovery.

Will they have learned their lesson? Stay tuned.

We’re in this together,

Joyce