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Chuck Grassley is mad as hell, and he’s not gonna take it any more! Well, okay, he’s mildly dyspeptic and he’s gonna make a symbolic show of annoyance that will be noticed by literally no one at the White House.

The Senate Judiciary Chair fancies himself the “patron saint” of inspectors general, and is demanding an explanation for the dismissals of State Department Inspector General Steve Linick and Transportation Department Inspector General Mitchell Behm, the fourth and fifth IGs terminated by Trump since he took office.

Behm was investigating Transportation Secretary Elaine Chao, wife of Majority Leader Mitch McConnell, for possible misuse of government resources to benefit her family’s business. And Linick was conducting multiple inquiries into Secretary of State Mike Pompeo for everything from hosting dinner parties on the government dime to illegal arms sales to Saudi Arabia. On Wednesday he testified that, just days after he sought to interview Pompeo, he found himself locked out of the building, unable even to clean out his office. And post hoc may not ergo propter hoc, but it sure is a bad look.

Similarly, former Health and Human Services IG Christi Grimm was dismissed for very serious reasons that have nothing to do with her report documenting pervasive shortages of testing supplies and personal protective equipment during the coronavirus pandemic.

Pay no attention to that crazy man behind the curtain who controls the entire apparatus of the federal government. Those IGs were dismissed for legitimate reasons which have nothing whatever to do with getting crosswise with their bosses! Only… the White House won’t actually say what those reasons are, beyond sending State Department Deputy Brian Bulatao out to imply that Linick was a leaker.

“You know the IG is normally charged with carrying out the investigation,” he told reporters. “It certainly was a very strong finger-pointing at IG Linick’s way.”

Nice, huh?

But a generalized smearing was apparently insufficient for Senator Grassley.

“I want to work with you to ensure that the enemy here is wasteful government spending, not the government watchdogs charged with protecting the taxpayer,” Grassley wrote to the president on May 18. “To that end, please provide a detailed reasoning for the removal of Inspector General Linick no later than June 1, 2020. Please also provide me and my colleagues a written response to our letter of April 8, 2020, regarding the removal of Inspector General Atkinson as soon as possible.”

White House Counsel Pat Cipollone responded in a May 26 letter which supplied no justification for the firings, simply asserting that “When the President loses confidence in an inspector general, he will exercise his constitutional right and duty to remove that officer.” Cipollone insisted that Trump fulfilled his obligation under the statute by giving notice to Congress, and warned Grassley not to press the point because “Executive Branch officials of both parties have long believed that the Act’s notification requirement raises serious constitutional concerns.”

Which is exactly what he’s been saying to Democrats for three straight years. Well, minus the bogus assertion that congressional oversight is illegal and insistence that all Executive Branch communications are top secret classified executive privilege so CONGRESS KEEP OUT.

Which brings us to yesterday.

Don’t get too excited, he’s still going to confirm every 22-year-old fascist the Federalist Society kicks his way to a lifetime position on the federal bench. But he’s taking a real, principled stand when it comes to Christopher Miller, who is nominated to be director of the National Counterterrorism Center, and Marshall Billingslea, who hopes to become undersecretary of state for arms control and international security. The White House will doubtless be duly chastened and supply the requested justification forthwith.

Just kidding. With Donald Trump in the White House and Kavanaugh on the bench, congressional oversight is deader than a deer splayed across Chuck Grassley’s fender.

You can assume it’s dead.

‘All I want is a reason’: GOP senator blocks Trump’s nominations until administration explains why it fired watchdogs [CNBC]

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

President Trump is fond of non-disclosure agreements. He’s been this way for far longer than he’s been president, but his insistence on foisting them on anyone who has worked for him has become problematic now that he’s the ultimate public figure.

Some of these NDAs have been broken inadvertently during the course of dubious lawsuits filed by former Trump associates against journalists. In other cases, the DOJ itself has gotten involved, trying to invoke possibly non-existent agreements with the government to block publications by former Trump staffers.

Now, a former Trump campaign staffer is in court challenging the legality of the NDA she signed when managing phone banks for Trump before moving up to be his director of Hispanic engagement. She argues the NDAs serve no purpose but to block speech critical of her former employer. (Non-paywalled version here.)

In the complaint, Ms. Denson’s attorneys argue that the campaign’s nondisclosure agreement, which all staffers were required to sign, “is wildly broad, prohibiting a vast array of speech about a candidate for the highest office and the current President of the United States—forever. And the campaign has repeatedly invoked its prohibitions in an effort to chill truthful political speech it dislikes.”

As is the case with any agreement, people can voluntarily give up some of their rights (in this case, free speech) in exchange for employment. But there’s more to it than simply preventing the release of any information Trump might want to remain secret. It also says everyone who signed one must continue to play nice in perpetuity.

[I]t contains a nondisparagement clause that prevents staffers from ever demeaning or disparaging the president, his family or his companies.

Denson is arguing this violates the state’s contract law, as well as her free speech rights under both the New York constitution and under the First Amendment. And it will probably be greeted with a strong defense from the Trump campaign, given the fact that Denson has already sued the Trump campaign for allegedly subjecting her to sexual discrimination and slander. That lawsuit, filed in 2017, has led directly to this legal challenge of the NDA itself, which Trump lawyers say Denson violated when she filed her discrimination lawsuit.

NDAs may be common but they’re never as necessary as those forcing them on employees think they are. Campaign staffers may have access to a lot of information candidates may not want to see released, but a lifelong gag isn’t the only way to handle this. The Wall Street Journal reports the Biden campaign does not require staffers to sign NDAs, indicating it’s possible to run a presidential campaign without swearing everyone to secrecy.

If this challenge is successful, it will be a nightmare for Trump and his campaign team. Very rarely has any former staffer or employee stepped forward with anything positive to say about the President. The criticism tends to flow faster now, given the turnover rate in the White House. Not every NDA is foisted on employees by bad employers, but a lot of them are. And when the employer ends up being the leader of the free world, it makes little sense for the man up top to continue to insist former employees can’t have full access to their rights.

Trump Campaign Non-Disclosure Agreements Again Being Challenged In Court

More Law-Related Stories From Techdirt:

If The NY Times Doesn’t Publish My OpEd On Why James Bennet Is An Incompetent Dweeb, It Must Hate Free Speech
Nextdoor Is Courting Guinness World Records People Accidentally Claiming Copyright On Tons Of ‘Super Mario Bros.’ Speedruns

Bill Barr is presumably not concerned about losing a fake degree. He may not even know where he’s stashed the honorary degree that George Washington University Law School gave him in 1992. His J.D. from the same school in 1977 is a more important keepsake. In the end, that’s the only chit they won’t be able to take from him as his legacy as “dumb John Mitchell” solidifies and he becomes just another obscure Jeopardy! response.

But when a law school faculty is fed up watching their good name get sullied by dint of association with a guy, they feel compelled to do something and there’s no act more drastic in legal academia than initiating an internal faculty debate.

The George Washington Law faculty is in turmoil this week as a “serious” effort is underway to strip Barr of the honor the school afforded him years ago:

The push, which one source described as “serious,” was met by opposition from other members who argued that Barr’s actions—while aggressive and controversial—did not merit such a punishment from the university. For now, it appears Barr will keep his degree, amid warnings that it could send the university down a slippery slope of politically motivated degree-rescinding.

The slippery slope, paved by a thousand “Stonewall Jackson Avenues,” is always the last refuge of casual violence. It continues its undefeated reign as the logical fallacy of choice for anyone interested in draping immorality in the faux high-minded vestments of amorality. “We’re not saying we agree, but we just think the real injustice would be disagreeing.”

This one really isn’t that hard. A law school doesn’t have to stand for much but it at least has to stand for the rule of law or it’s just $200K and three years of reading Enlightenment fan fiction. Gassing peaceful protesters, illegally bringing National Guard troops into Washington, and hiring… whoever the hell these paramilitary shocktroops are, all safely fall outside the confines of “respecting the rule of law.” Taking away a fake degree — and perhaps the “William P. Barr Dean’s Suite” that graces the school — would seem the very least that the school could do to protect their legacy.

But a better question is what prompted the school to award Barr an honorary degree at all? He received this honor in 1992 when he was Attorney General the first time, a tenure marked by aggressively covering up the Iran-Contra scandal where Republicans gave weapons to folks arming terrorists so they could arm their own band of terrorists. Even then we weren’t exactly talking about an upstanding defender of the rule of law.

Maybe if some faculty find the present circumstances too slippery, they can find purchase asking if the school should have given Barr an honorary degree in the first place.

George Washington University Law School Faculty Tried To Get Bill Barr’s Honorary Degree Revoked [Daily Beast]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Well in Texas, it appears we have a similar statutory framework as in Minnesota. You can have a murder conviction if you intend to cause serious bodily injury, committed in a clear danger to human life, that results in death. Assuming that they have a similar statutory framework in Minnesota, that would be the backing that I would guess [Minnesota Attorney General Keith Ellison] would go with. I don’t know what that officer meant—it’s nothing good—but what he did was an action that would have caused serious bodily injury. It did. It did result in death. I think the conviction on him is extremely likely.

— Judge Mike Snipes of the First Administrative Judicial Region in Texas, commenting on the likelihood that former Minneapolis police officer Derek Chauvin will be convicted for George Floyd’s death. Chauvin faces second-degree murder and second-degree manslaughter charges for kneeling on Floyd’s neck for more than eight minutes until Floyd died. Snipes is one of the few former prosecutors in the country to have successfully prosecuted a murder case against a police officer.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

The man acting in Bernie Madoff’s name has gotten a Supreme green light to go island-hopping in search of the Ponzi mastermind’s stolen billions. The man himself will not be following suit, as it turns out the judge who sentenced him to 150 years in prison did not expect him to live to be 221.

Prison authorities had determined Madoff was likely to die within 18 months of kidney disease. Sample had argued that Madoff was confined to a wheelchair and wanted to contest claims by prosecutors that he has failed to show remorse…. [U.S. District Judge Denny] Chin said in his written decision Thursday that in 2009 “it was fully my intent that he live out the rest of his life in prison.”

He noted that Madoff’s lawyers then had asked for a sentence of as little as a dozen years, hoping their client would again see “the light of day.”/“I was not persuaded,” Chin said. “I did not believe that Mr. Madoff was deserving of that hope. Nothing has happened in the 11 years since to change my thinking.”

I spent much of the past two months in the great state of Georgia, which had many benefits, not the least of which was Publix, one of the greatest supermarket chains on Earth. Publix presents its lucky shoppers with many delights, including freshly made sweet tea, a thoughtfully curated deli selection, and, of course, a highly regarded made-to-order sandwich program.

Publix’s greatest weakness, however, is that same sandwich program. Their workers, at least at my location, were unfortunately not fully trained in the sandwich arts and would constantly seek over-feedback throughout the entire process. This is, of course, a far-from-optimal dining experience. The best dining experiences are where the chefs spare their customers the crippling costs of decision fatigue while utilizing their own far-greater food expertise to deliver the best possible result.

Modern menus are barbaric: I don’t want to know the ingredients in what I’m eating; it ruins the surprise, and I’m wildly unqualified, as are most diners, in evaluating them and their interplay, especially compared to a chef who has not only dedicated his life to developing that expertise, but has experimented with this exact recipe, maybe for months or years, to achieve the desired result. Eleven Madison Park made a brief run at fixing this problem with its grid menu back in 2010, but it only lasted about two years, presumably due to paralyzing cultural effects of the tyranny of choice on the Dunning-Kruger-affected dining crowd.

Publix, like Subway and some similar sandwich shops, tries to make a feature out of the passing off of decisions. The sandwich worker asks for input on every minute step in the process: the type of bread you want; whether you want it toasted; the type of meat; the type of cheese; the vegetables you want; the condiments you want; the type of mustard you want; even whether you want the sandwich cut or not. And worst of all, the workers generally refuse to respond to instructions to exercise discretion. No matter how many times you tell them to use their judgment or do whatever they think best, they just keep relentlessly asking you for your micromanaging feedback in the next item on their checklist. It’s truly infuriating.

Even more infuriating is when lawyers do this.

Why It’s Terrible When Lawyers Act Like Publix Workers

Lawyers are paid to exercise their judgment, and this permeates all aspects of the job. It goes to what arguments to make, how to make them, reading the audience in every paper or court appearance, determining what the client needs, evaluating the merits of various claims, and countless other decisions small and large. Someone told me once that the worst possible comment in a lawyer reference check is a concern about judgment, and for good reason: the job is pretty much all judgment calls.

As lawyers get more senior, the job, like many, becomes increasingly about judgment calls until it’s almost nothing else. Many lawyers struggle with this or just try to avoid it altogether, often resulting in CYA behavior, creation of needless work, and general paralysis. Either way the result is usually very bad.

But the importance of judgment extends to the most junior levels of the profession. Even a basic analysis memo is both excruciating to read and wildly unhelpful if it doesn’t make some thoughtful calls on what arguments to focus on, and, most of all, take a position on the merits of the different positions. Beyond that, even the smallest junior task requires some exercise of judgment, even if you don’t realize it. You have to decide how to start the research, how to prioritize various assignments, how to format the document to make it look best, and a million other things. As a great philosopher once said, If you choose not to decide, you still have made a choice. You’re either using your judgment, or you’re making bad calls by default.

How To Stop

If you’re a junior attorney thinking that you’re somehow being respectful or deferential by not making decisions, you’re probably wrong and should stop. I always tell people not to come to me with questions — they should come with proposed solutions. That way, even if it’s a bad solution, it’s usually quicker for me to change it than start from scratch. And about as importantly, they get practice thinking in solutions. Thus, not, “should I include a section about the rule against perpetuities in the brief?” but rather, “I think I should include a section about the rule against perpetuities in the brief because the statutes of Mortmain are highly relevant to the arguments that the other side made in their brief on page 27.” In that example, obviously the hypothetical junior attorney is wrong — the rule against perpetuities is never relevant to anything in the other brief — but he also exercised a heck of a lot more more critical thinking than if he’d just asked the question.

So whatever you do, start flexing those critical thinking muscles any time you can.

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Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

Are we at the point in 2020 where nothing is really shocking anymore? I mean, probably. This country’s deep racism and profound protectionism of white privilege (well — even more than usual) has been on display since the violent murder of George Floyd compounded the horror over the deaths of Breonna Taylor and Ahmaud Arbery and mixed with the outrage over Christian Cooper’s treatment in Central Park and the heavy burden of COVID-19 the black community was shouldering due to systemic health inequalities that spilled over into protests around the nation.

While many are taking the opportunity to reexamine the ways they’ve benefited from systems of oppression, that is not what everyone is doing. Like South Carolina personal injury attorney David Traywick. He’s taken this moment in history to use social media to engage in a shameful degradation of George Floyd’s character, and participate in the disgusting tradition of valuing money over the lives of black people.

These ugly words are circulating social media:

And if you’re depending on legal ethics to put this guy in his place, well, you’re going to be disappointed, as a tipster notes:

Unfortunately, SC has not adopted the ABA’s rule 8.4(g) so there’s very little the Bar can do to censure him, at present, though I expect they’ll be taking this rule up again soon. The alternative is getting his colleagues and potential clients to vote with their wallets…

But, of course, that’s not the only incident of lawyers behaving badly. Connecticut attorney Norm Pattis — a controversial attorney who has represented InfoWars radio host Alex Jones — made incendiary remarks, as reported by the Connecticut Law Tribune:

“Call me privileged, and the first thought that comes to mind is: What do you want?” Pattis wrote. “What tax shall I pay in the name of your view of distributive justice? I suffer from White Male Fatigue Syndrome.”

And in a social media exchange with Aigne Goldsby, outgoing president of the George W. Crawford Black Bar Association and diversity director of the Connecticut Bar Association’s Young Lawyers Section, Pattis doubled down on his hurtful sentiments.

Goldsby, who said she’s since been blocked from Pattis’ LinkedIn page, wrote to him saying, “This is the most white privilege nonsense I have ever read. If you want to understand why this is wrong and actually help eliminate racial injustice instead of being a part of the problem, feel free to reach out.”

Goldsby said Pattis’ response “was totally disrespectful and bullying.”

Pattis responded: “I suspect I would run circles around you in my sleep. Be an entitled race panderer. Pick up your bed and walk. Founder of Black Esquire? Show us what you can do not what you are. Good riddance to you.”

Goldsby disagreed.

“The race pandering hash tag was disrespectful and inauthentic,” she said. “If anyone is race pandering, it’s him.”

Goldsby said she decided to speak out because Pattis “is holding himself out as an advocate for justice and the voice for freedom and he can’t have these ideologies because they can’t co-exist with each other.”

Goldsby continued: “He is not acknowledging his white privilege and not using his privilege in the right way. He was also outright rude in his conversation with me.”

Goldsby said of Pattis’s behavior, “He essentially threatened me and my friend, and was nasty in the language he used.”

But, unfortunately, there’s more. (Of course there’s more, there’s always more.)

The South Carolina Bar sent an email to its membership taking a stand “against injustice, racism and discrimination.” And affirming their commitment to making a positive difference:

“We are committed to the principle of equal justice for all and will join our communities in reflection, conversation and action to make a positive difference in South Carolina and the United States.”

But not everyone was there for that message. In a opaque reply-all message, prominent Florence, South Carolina, attorney Reynolds Williams said, “Stop.” That’s it. That’s what he wrote, just “Stop” to the entire bar association:

As Fits News says of the comment:

That’s right … he told the association to “stop.”

And no, Williams did not follow-up by saying “collaborate and listen,” which would have turned his email into a nifty Vanilla Ice lyric.

Not to mention a much better commentary on the current divisions rocking this country …

What was Williams thinking?

Or better yet … was he thinking?

These incidents are deeply depressing and don’t provide much hope for the legal profession at a time when we need it most.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

A distinguished panel of legal industry experts authored a report expounding upon the results of Legal Decoder’s recent survey on the disruption currently rippling throughout the legal industry.  The authors prepared this report on a pro bono basis and it is available free of charge.  The industry-wide survey elicited information that will help legal industry constituents recover from crisis mode as fast as possible once the dust begins to settle.  Hundreds of experienced professionals from all sectors of the legal industry participated in Legal Decoder’s survey and shared their views on short-term and longer-term forecasts for the legal industry; increases/decreases in volume of work by practice area; and strategic priorities for legal industry organizations. In the report, Ms. Corey, Ms. Krow, Prof. Rapoport, and Mr. Tiano have highlighted how the survey results can inform decision-making and facilitate transparency throughout the entire legal industry.  Armed with empirical data, this report provides keen insights that should afford readers meaningful perspective as we all navigate a path forward for our businesses and our law firms and has been geared towards all legal constituents whether at law firms, in-house legal departments, legal industry vendors, academics, law students, and regulators and judges alike.

Click here to see the must-read report, or check it out below.

Judge Paul Senzer of Suffolk County has some colorful opinions about what goes on in his courtroom and thankfully he shares those so we can all fairly wonder if he’s really fit for this job.

The New York Court of Appeals heard argument on exactly how to punish Judge Senzer after the New York State Commission on Judicial Conduct recommended kicking Senzer off the bench based on his language in a string of emails about a family law matter he worked on as an attorney — his judgeship being part-time. Among the choice words Judge Senzer had:

According to the commission, Senzer used the B-word to describe the client’s daughter…. In another, he referred to the lawyer as “eyelashes.” Senzer also referred to a court’s attorney referee as an “asshole” and the daughter and her ex-husband as “scumbags.”

The Court of Appeals raised serious concerns about the whether or not someone deploying this language with this kind of regularity isn’t indicative of an unchecked misogyny that disqualifies him from the bench:

From Law360:

“The various words were used. You say there’s no pattern, but there is at a minimum a recurrence of the conduct,” Judge Rivera said, as Blakey tried to interrupt her to agree before being silenced. “Excuse me. A recurrence of words that are disparaging to females and using other words that are also problematic because of their profanity or body parts that they’re referring to, correct?

The continuous return to the well of sexist attacks in the email thread certainly doesn’t bode well for Judge Senzer’s attempt to reduce his punishment to a censure for being salty as opposed to removal for evincing bias.

It’s a case that becomes harder to make when the Court turns to the epithet that earned the starring role in his hearing: his reference to his adversary as a “[C-Word] on wheels.”

In arguing on Senzer’s behalf, his attorney Michael Blakey argued that “It’s not a C-word by itself. It’s a term of art: ‘C on wheels.’ Which, obviously, refers to the aggressiveness of that attorney. It’s a left-handed compliment is one way to look at it.”

Bold strategy, Cotton, let’s see if it pays off for him!

Law360 managed to get ahold of the attorney Judge Senzer was talking about and she offered some snark:

Senzer was referring to lawyer Karen McGuire in the C-word email. She offered a sarcastic reaction when contacted by Law360.

“Isn’t it every female attorney’s dream to be called a c- – – on wheels? Right?” she said, spelling out the letters for the word. “Don’t we swear our oath and say, ‘This is what I want my legacy to be’?”

In fairness, there can be some transgressive power in seizing ownership of the mantle. Part of the reason the C-word is increasingly working its way into these conversations is because “bitch” underwent a linguistic overhaul that muddied its pejorative connotation. Maybe that time will come for the C-word too, eventually, but today it’s the trump card pulled from the sexism deck.

The Court of Appeals reserved judgment, but based on the questions it doesn’t look good for Judge Senzer.

NY Judge Who Called Atty C-Word Says It Was ‘Compliment’ [Law360]
Judge’s use of the C-word could be seen as ‘left-handed compliment,’ lawyer argues [ABA Journal]