Stat(s) Of The Week: Is Bullying Endemic To The Profession? – Above the Law

Posted on by TSA Press


Many
lawyers
believe
that
bullying
behavior
is
ingrained
in
the
culture
of
the
legal
profession,
according
to
a
recent
study,
and
almost
one-fourth
say
they
have
been
victims.


A


survey
of
more
than
6,000
lawyers

by
the
Illinois
Supreme
Court
Commission
on
Professionalism
revealed
that
24%
of
lawyers
have
experienced
bullying
on
the
job
within
the
last
year,
but
only
20%
of
those
who
were
bullied
reported
it
to
a
supervisor
or
human
resources.


According
to
the
report,
rates
of
bullying
are
particularly
high
among
female
lawyers
(38%
of
women
compared
to
15%
of
men),
as
well
as
among
lawyers
of
color,
LGBTQ+
lawyers,
lawyers
with
disabilities,
and
younger
lawyers.


The
survey
defines
bullying
as
“inappropriate
behavior
intended
to
intimidate,
humiliate,
or
control
the
actions
of
another
person,
including
verbal,
nonverbal,
or
physical
acts.”



Workplace
bullying
affects
1
in
4
lawyers,
study
finds
[Reuters]


Data
From
Commission
Study
on
Bullying
in
the
Legal
Profession

[2civility.org]

JD Vance’s Yale Law Classmates Donate Money To Undo His Damage To The Springfield, Ohio, Haitian Community – Above the Law

Posted on by TSA Press

(Photo
by
Anna
Moneymaker/Getty
Images)



Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.


In
honor
of
JD
Vance
and
Usha
Vance.
YLS
Class
of
2013
stands
against
scapegoating
and
demagoguery
drawn
straight
from
the
playbooks
of
fascism.
With
love
and
a
prayer
that
JD
Vance
and
Usha
Chilukuri
Vance
find
the
moral
strength
to
reverse
the
course
of
their
lives.



—
A
note
written
by
Robert
W.
Cobbs,
a
lawyer
in
Washington,
who
graduated
in
the
same
Yale
Law
class
as
Senator
JD
Vance
(R-OH),
that
was
included
alongside
his
$100
donation
to

fund
Haitian
immigrants
in
Springfield,
Ohio,
during
Tuesday
night’s
vice-presidential
debate.
Peter
Chen,
also
a
member
of
the
Yale
Law
Class
of
2013,
organized
the
donation.
“It
was
emotionally
moving
for
me,
personally,
to
see
all
the
different
messages
and
to
see
all
the
ways
that
people
still
reflect
those
values,”
Chen
said.
Altogether,
the
Yale
Law
Class
of
2013
raised
more
than
$10,000
for
Springfield’s
Haitian
Community.
Click

here
if
you’re
interested
in
donating
to
the
Springfield
Unity
Fund.


Staci ZaretskyStaci
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

X/Twitter
and

Threads
or
connect
with
her
on

LinkedIn.

How Appealing Weekly Roundup – Above the Law

Posted on by TSA Press

(Image
via
Getty)




Ed.
Note:

A
weekly
roundup
of
just
a
few
items
from
Howard
Bashman’s

How
Appealing
blog,
the
Web’s
first
blog
devoted
to
appellate
litigation.
Check
out
these
stories
and
more
at
How
Appealing.


“With
more
support
than
ever
for
innocence
claim,
Richard
Glossip
prepped
for
round
2
at
SCOTUS;
Convincing
a
Republican
attorney
general
to
advocate
against
a
death
sentence
is
a
near
impossible
feat,
but
Supreme
Court
roadblocks
could
force
Oklahoma
to
execute
a
man
in
a
conviction
it
doesn’t
accept”: Kelsey
Reichmann
of
Courthouse
News
Service
has this
report.


“Republicans
expect
to
confirm
even
more
Supreme
Court
justices
if
Trump
wins;
GOP
senators
anticipate
that
in
a
second
term,
Trump
would
have
at
least
one
Supreme
Court
vacancy
to
fill;
Democrats
hope
that
prospect
motivates
their
voters
this
fall”: Sahil
Kapur
of
NBC
News
has this
report.


“More
Women
Are
Being
Locked
Up
for
Their
Pregnancies
Than
Ever
Before;
Thank
the
Supreme
Court”: Law
professor Mary
Ziegler has this
Jurisprudence
essay online
at
Slate.


“Victim’s
Unsealed
Testimony
Reveals
New
Details
in
Epstein
Case;
The
woman
testified
in
a
now-settled
lawsuit
against
JPMorgan
Chase
on
behalf
of
hundreds
of
Jeffrey
Epstein’s
victims”: Matthew
Goldstein
of
The
New
York
Times
has this
report.


“Jack
Smith’s
Big
New
Jan.
6
Brief
Is
a
Major
Indictment
of
the
Supreme
Court”: Law
professor Richard
L.
Hasen —
founder
of
the
“Election
Law
Blog”
—
has this
Jurisprudence
essay online
at
Slate.


“Fifth
Circuit
Doubles
Down
on International
Shoe“: Maggie
Gardner
recently
had this
interesting
post at
the
“Transnational
Litigation
Blog.”

Calling All Biglaw Associates: 2024 Bonus Season Awaits – Above the Law

Posted on by TSA Press

If
you’re
a
Biglaw
associate
in
the
fall
of
2024,
two
things
are
probably
true:
(i)
you’re
billing
your
life
away
while
considering
if
a
lateral
move
is
right
for
you
while
the
market
is
still
hot,
and
(ii)
you’re
eagerly
awaiting
news
of
your
bonus,
which
may
be
right
around
the
corner.

To
kick
off
our
coverage,
we’re
asking
you
to
take
this
(always)
confidential,
(always)
brief
survey
to
share
your
thoughts
on
the
upcoming
bonus
season.
And
if
you’d
like
to
stay
on
top
of
any
changes
this
bonus
season,
enter
your
email
below
to
sign
up
for
our
free
bonus
alerts.


button_take-the-survey

And
as
a
little
reminder,
we
love
covering
the
Biglaw
bonus
season,
but
we
need
your
help.
As
soon
as
your
firm’s
bonus
memo
comes
out,
please

email
us
(subject
line:
“[Firm
Name]
Bonus”).
We
always
keep
our
sources
on
bonus
stories
anonymous.
There’s
no
need
to
send
the
memo
using
your
firm
email
account;
your
personal
email
account
is
fine.
Please
be
sure
to
include
the
memo
as
proof;
we
like
to
post
complete
bonus
memos
as
a
service
to
our
readers.
You
can
take
a
photo
of
the
memo
and
attach
as
a
picture
if
you
are
worried
about
metadata
in
a
PDF
or
Word
file.

Don’t
forget,
if
you’d
like
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sign
up
for
ATL’s
Bonus
Alerts,
please
enter
your
email
address
in
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If
you
previously
signed
up
for
the
bonus
alerts,
you
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anything.
You’ll
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notification
within
minutes
of
each
bonus
announcement
that
we
publish
—
including,
of
course,
the
first
such
announcement.


Staci ZaretskyStaci
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

X/Twitter
and

Threads
or
connect
with
her
on

LinkedIn.

Bonus Time

Enter
your
email
address
to
sign
up
for
ATL’s

Bonus
&
Salary
Increase
Alerts.

Yeah, The Timing Of The Special Counsel Brief Is Political, And You Can Thank Chief Justice Roberts For That – Above the Law

Posted on by TSA Press

(Photo
by
Alex
Wong/Getty
Images)

On
Wednesday,
Special
Counsel
Jack
Smith’s
brief
defending
his
superseding
indictment
of
Donald
Trump
was
unsealed
on
the
public
docket.
As
per
Judge
Tanya
Chutkan’s
instruction,
the
prosecutor
defended
the
permissibility
of
evidence
and
specific
conduct
in
light
of
the
Supreme
Court’s
immunity
decision.
And
as
per

his
custom,
Trump
responded
by
losing
his
shit
on
social
media.

“ELECTION
INTERFERENCE!”
he

screeched,

adding
that
“FOR
60
DAYS
PRIOR
TO
AN
ELECTION,
THE
DEPARTMENT
OF
INJUSTICE
IS
SUPPOSED
TO
DO
ABSOLUTELY
NOTHING
THAT
WOULD
TAINT
OR
INTERFERE
WITH
SAID
ELECTION.
THEY
DISOBEYED
THEIR
OWN
RULE
IN
FAVOR
OF
COMPLETE
AND
TOTAL
ELECTION
INTERFERENCE.
I
DID
NOTHING
WRONG,
THEY
DID!
THE
CASE
IS
A
SCAM,
JUST
LIKE
ALL
OF
THE
OTHERS,
INCLUDING
THE
DOCUMENTS
CASE,
WHICH
WAS
DISMISSED!”

In
fact,
there
is

no
“60
Day
Rule,”
as
such.
Every
even-numbered
year

since
2008,
the
attorney
general
has
sent
out
virtually
the
same
memo
noting
that
“Law
enforcement
officers
and
prosecutors
may
never
select
the
timing
of
public
statements
(attributed
or
not),
investigative
steps,
criminal
charges,
or
any
other
action
in
any
matter
or
case
for
the
purpose
of
affecting
any
election,
or
for
the
purpose
of
giving
an
advantage
or
disadvantage
to
any
candidate
or
political
party.”
It
also
reminds
DOJ
employees
that
“It
is
critical
that
each
of
us
complies
with
the
Hatch
Act.”

Trump
refused
to
discipline
Kellyanne
Conway
for

repeated
and
egregious
Hatch
Act
violations,
even
as
she

scoffed
“Let
me
know
when
the
jail
sentence
starts.”
And
Trump’s
Attorney
General
Bill
Barr
flouted
the
60-day
rule,
hyping
an
investigation
of
supposedly
discarded
mail-in
ballots
in
Luzerne,
Pennsylvania
in
mid-September
of
2024.
The
reality
was
that
seven
ballots
were
inadvertently
discarded
by
a
person
who
was
“mentally
impaired,”
according
to
a
DOJ
Inspector
General

investigation,
which
Barr
refused
to
cooperate
with.

But
even
assuming
that
Trump’s
newfound
concern
for
Justice
Department
norms
is
genuine
[COUGH],
he’s
just
wrong.
The
“rule”
pertains
to
investigative
steps,
charging
decisions,
and
public
statements
timed
by
the
prosecutors
to
affect
the
outcome
of
an
election.
It
does
not
apply
to
judicially
mandated
court
filings,
such
as
a
brief
in
a
pending
criminal
case.

But
if
the
former
president
is
looking
to
blame
someone
for
this
brief
becoming
public
on
the
eve
of
the
election,
he
ought
to
shift
his
focus
a
few
blocks
—
specifically
from
Main
Justice
on
Pennsylvania
Avenue
to
One
First
Street,
where
six
of
his
buddies
did
their
level
best
to
ensure
that
this
thing
landed
back
in
the
trial
court
on
the
eve
of
the
election.

To
wit,
in
December
of
2023,
the
Supreme
Court
rebuffed
the
Special
Counsel’s
request
to
expedite
the
appeal
of
the

wildly
political
immunity
ruling
in
Trump’s
election
interference
case.
And
after
the
DC
Circuit
issued
a
unanimous
and
thorough
ruling,
the
Supreme
Court
junked
their
work,
then
sat
on
the
case,
refusing
to
issue
their
own
verdict
until
the
very
last
day
of
the
term.
As
the

New
York
Times
reports,
the
Chief
Justice
made
damn
sure
that
the
opinion
would
come
out

as
and when
it
did
on
July
1,
which
meant
that
it
wasn’t
remanded
to
the
DC
Circuit
until
August
2.
And
so,
on
August
3,
it
landed
back
in
Judge
Chutkan’s
lap
with
the
instruction
from
the
Court’s
conservatives
“to
determine
in
the
first
instance—with
the
benefit
of
briefing
we
lack—whether
Trump’s
conduct
in
this
area
qualifies
as
official
or
unofficial.”

Then
when
the
trial
judge
asked
the
parties
how
they’d

like
to
proceed,
Trump’s
lawyers
proposed
to
do
functionally
nothing
for
the
rest
of
the
year,
demanding
that
the
court
allow
them
to
spend
that
time
briefing
a
motion
to
dismiss
based
on
the
theory
that
the
special
counsel
was
illegally
appointed.
This
motion
is
both
untimely,
since
the
deadline
was
more
than
18
months
ago,
and
functionally
irrelevant
for
the
trial
proceedings,
since
the
DC
Circuit

ruled
on
the
issue
during
Special
Counsel
Robert
Mueller’s
investigation.
And
unlike
Judge
Aileen
Cannon,
Judge
Chutkan
is
not
about
to
ignore
binding
precedent.

As
they’ve
done
at
every
juncture,
Trump’s
lawyers
squandered
the
opportunity
to
make
a
real
legal
argument
and
propose
a
rational
briefing
schedule.
Instead
they
opted
to
shout
inanities
about
“the
Biden
DOJ”
doing
WITCH
HUNTS
to
Trump
in
an
attempt
to
tank
his
electoral
prospects.

You
pay
your
money,
you
take
your
chances.

The
special
counsel
responded
by
securing
a

superseding
indictment
that
he
claims
comports
with
the
Supreme
Court’s

immunity
ruling,
and
then
offering
to
provide
the
court
with
“the
benefit
of
briefing
we
lack—whether
Trump’s
conduct
in
this
area
qualifies
as
official
or
unofficial”
in
three
weeks
time.
Given
the
choice
between
NOW
and
NEVER,
Judge
Chutkan
chose
the
former
and
ordered
the
special
counsel
to
get
on
with
it.
That’s
not
a
violation
of
DOJ
policy,
which
anyway
doesn’t
create
a
private
right
for
any
litigant.
And
it’s
not
because
Special
Counsel
Smith
is
sitting
in
some
dark
lair
in
the
basement
of
the
DOJ,
stroking
his
beard
and
saying
“If
it’s
what
you
say
I
love
it
especially
later
in
the
summer.”

The
timing
of
this
filing
is
almost
entirely
thanks
to
the
Supreme
Court,
who
ensured
that
this
case
wound
up
back
on
the
trial
docket
the
first
week
in
August.
And
considering
that
SCOTUS
gave
him
a
get-out-of-jail
free
card
and
promised
to
do
whatever
it
takes
to
ensure
that
he
never
faces
justice,
Trump
should
just
shut
up
for
once
in
his
bloody
life
and
say
“thank
you.”


US
v.
Trump [Docket
via
Court
Listener]




Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.

Elie Honig Makes Pitch To Become Donald Trump’s Favorite Legal Analyst – Above the Law

Posted on by TSA Press

Elie
Honig,
the
former
prosecutor
turned
cable
news
legal
analyst,
has

a
new
piece
in

New
York
magazine
bemoaning
special
prosecutor
Jack
Smith’s
latest
filing
in
Trump’s
January
6
case.

There
was
something
familiar
about
it…


And
while
the
king
was
looking
down,
the
Jester
stole
his
thorny
crown.

That’s
not
exactly
fair.
Turley’s
Trumpy
screeds
routinely
spout

legal
nonsense
when
he’s

just
not
making
up
facts.
Honig’s
work
presents
more
subtlety
—
more
reliance
on
just
casually
ignoring
basic
issues
to
further
his
chosen
narrative.
Like
when
he
parachuted
into
the
New
York
criminal
case
with
analysis
so
far
afield
of
the
facts
and
law

he
got
dragged
to
hell
and
back
by
those
actually
keeping
up
with
the
case.
So
it’s
sort
of
a
trend.

And
while
the
notes
you
DON’T
play
makes
for
good
jazz,
it’s
makes
piss-poor
legal
analysis.

In
Honig’s
defense,
the
article
recites
standard
operating
procedure
in
a
federal
criminal
case
and,
to
that
extent,
is
correct…
in
a
vacuum.

Except

United
States
v.
Trump
doesn’t
exist
in
a
vacuum
unless
you
mean
the
jumbled
refuse
left
in
the
bag
after
unplugging
the
cleaner.
It’s
about
a
massive
news
event,
involving
one
of
the
most
notorious
figures
in
the
world,
that’s
been
delayed
over
and
over
either
by
the
defendant
or
his
personal
Glee
Club
on
the
Supreme
Court.
To
borrow
from
another
political
figure
at
random,
the
case
exists
in
the
context
of
all
in
which
it
lives
and
what
came
before.

Nearly
everything
about
the
posture
of
this
case
is
exceptional,
rendering
any
“legal
analysis”
based
on
prosecuting
a
bog
standard
tax
evasion
charge
all
but
useless.
This
is
like
the
mayor
in

Jaws
telling
the
beach,
“well,
ordinarily,
there
aren’t
any
sharks.”

First,
this
is
backward.
The
way
motions
work
—
under
the
federal
rules,
and
consistent
with
common
sense
—
is
that
the
prosecutor
files
an
indictment;
the
defense
makes
motions
(to
dismiss
charges,
to
suppress
evidence,
or
what
have
you);
and
then
the
prosecution
responds
to
those
motions.
Makes
sense,
right?
It’s
worked
for
hundreds
of
years
in
our
courts.

Normally,
this
would
be
true.
Except
the
motion
in
question
seeks
a
ruling
on
presidential
immunity
which
is
a
motion
Trump
HAS
ALREADY
RAISED.
This
is
the
argument
that
got
the
case
appealed
—
first
to
the
D.C.
Circuit
and
then
to
the
Supreme
Court
—
in
the
first
place.
If
there’s
anyone
expecting
the
defense
to
shrug
off
the
immunity
argument
now
that
the
case
has
been
remanded
to
Judge
Chutkan,
I
have
a
bridge
to
sell.
But
the
defense
has
also
made
clear
its
intention
to

gum
up
the
process
and
delay
the
matter
indefinitely.

So,
yes,
Smith’s
motion
seeking
a
ruling
on
Trump’s
favored
defense
before
Trump
formally
files
that
motion
is
irregular.
But
it’s
only
happening
because
of

Trump’s
dilatory
strategy.
In
fact,
at
the
very
hearing
that
Honig
cites
where
Judge
Chutkan
called
it
“procedurally
irregular”
for
Smith
to
file
first,
Judge
Chutkan
also
said
that
Trump’s
lawyers
could
file
a
simultaneous
motion
to
avoid
any
perceived
prejudice
from
responding
second.
Or
as
she
put
it,
“We
can
all
walk
and
chew
gum
at
the
same
time.”

That
was
the
beginning
of
September.
The
defense
had
a
whole
month
to
go
ahead
and
get
its
motion
together.
Honig
elides
this
issue
in
his
righteous
rage
over
allowing
Smith
to
ask
for
a
ruling
on
Trump’s
primary
grounds
for
dismissal.

But
Smith
argued
that
a
compelling
reason
to
let
him
go
first
and
set
the
stage
for
the
immunity
argument
was
to
avoid
the
defense
trying
to
string
this
out
forever
with
piecemeal
immunity
arguments.
That
would
seem
to
make
this
move
in
the
interest
of
judicial
economy!
Probably
something
worth
mentioning…
though
Honig
does
not.

Which
brings
us
to
the
second
point:
Smith’s
proactive
filing
is
prejudicial
to
Trump,
legally
and
politically.
It’s
ironic.
Smith
has
complained
throughout
the
case
that
Trump’s
words
might
taint
the
jury
pool.
Accordingly,
the
special
counsel
requested
a
gag
order
that
was
so
preposterously
broad
that
even
Judge
Chutkan
slimmed
it
down
considerably
(and
the
Court
of
Appeals
narrowed
it
further
after
that).

Yet
Smith
now
uses
grand-jury
testimony
(which
ordinarily
remains
secret
at
this
stage)
and
drafts
up
a
tidy
165-page
document
that
contains
all
manner
of
damaging
statements
about
a
criminal
defendant,
made
outside
of
a
trial
setting
and
without
being
subjected
to
the
rules
of
evidence
or
cross-examination,
and
files
it
publicly,
generating
national
headlines.
You
know
who’ll
see
those
allegations?
The
voters,
sure
—
and
also
members
of
the
jury
pool.

A
few
paragraphs
before
this,
Honig
took
a
swipe
at
the
filing
as
unnecessary
because
“[t]he
story’s
structure
is
the
same
as
we’ve
long
known.”
You
really
have
to
pick
one,
bud.
Is
this
tainting
the
jury
pool
or
old
news?

But,
again,
Honig
is
right
that
this
isn’t
material
that
would
normally
end
up
going
public.
But,
also
again,
he’s
ignoring
that
Trump’s
defense
strategy
is
the
only
reason
this
is
happening.
The
Supreme
Court,
following
Trump’s
lead,
created
a
standard
that
not
only
immunizes
presidents
from
official
acts,
but
from
using
evidence
of
official
acts
even
to
prosecute
a
president
engaged
in
unofficial
act
criminality.
While
securing
that
ruling
was
a
real
coup
for
Trump
—
a
successful
one
for
him,
for
a
change
—
it
drew
the
battlelines
for
the
next
immunity
fight
around
which
conversations
and
actions
were
and
were
not
“official.”

And
that’s
how
the
docket
ends
up
with
a
voluminous
motion
filled
with
grand
jury
testimony
focused
on
who
Trump
talked
to
when
and
in
what
capacity.
It’s
the
natural
and
logical
consequence
of
the
standard
concocted
by
the
Supreme
Court
last
Term.
Honig
doesn’t
even
acknowledge
this,
much
less
suggest
how
an
immunity
argument
would
be
resolved

without
this
filing.
Even
if
Judge
Chutkan
ordered
Trump
to
file
the
motion
first,
Smith’s
response
would
look…
pretty
much
exactly
like
this.

By
the
way,
this
is
also
the
answer
to
Honig’s
snarky
aside
about
the
redactions
in
the
filing
when
he
said
Smith
“redacted
out
a
few
obvious
names
(who
ever
might
“Arizona
Governor
[Redacted
P-16]”
be?),
and
made
the
rest
public.”
Yeah,
because
the
titles
involved
are
pretty
significant
when
the
standard
is
“was
this
a
conversation
that
a
president
would
have
in
the
ordinary
course
of
their
duties.”
So
it
matters
if
Trump
called
a
governor
to
arrange
flood
relief
or
to
ask
them
to
find
more
ballots.

Bumbling
to
a
conclusion,
Honig
points
to
the
DOJ
Manual’s
edict
that
“Federal
prosecutors…
may
never
select
the
timing
of
any
action,
including
investigative
steps,
criminal
charges,
or
statements,
for
the
purpose
of
affecting
any
election.”

Remember,
Smith
begged
the
judge
to
flip
the
rules
on
their
head
so
he
could
file
this
document
first,
and
quickly
—
“any
action,”
by
any
reasonable
definition
—
with
the
election
right
around
the
corner.
Anyone
who
objected
to
James
Comey’s
outrageous
announcements
about
the
Hillary
Clinton
email
investigation
on
the
eve
of
the
2016
election
should
feel
the
same
about
Smith’s
conduct
now.
What’s
the
distinction?
Both
violated
ordinary
procedure
to
take
public
steps,
shortly
before
an
election,
that
plainly
would
have
an
impact
on
that
election.

Well,

I
did
NOT
object
to
Comey’s
announcements
about
the
Clinton
emails.
It’s
also
an
unfair
characterization
of
how
all
that
went
down
because
Comey
didn’t

announce
shit.
He
wrote
a
congressional
committee
to
clarify
that
when
he
months
earlier
testified
that
the
FBI
had
searched
everything,
it
turned
out
there
was
something
else
to
review
but
that
there
was
no
reason
to
believe
it
would
be
anything
but
redundant.

They
decided
to
make
this
mundane
notification
a
big
deal
(perhaps
in
a
way
that
Comey
should’ve
predicted)
and
it
turned
out
the
new
data
was,
in
fact,
redundant.

Context
matters
and
so
does
the
underlying
purpose
of
all
these
rules.
Defendants
move
first
because
the
defense
has
a
right
to
define
its
strategy
and
streamline
the
pre-trial
process…
which
doesn’t
matter
when
the
argument
is
already
teed
up
and
there’s
a
history
of
dilatory
tactics.
Factual
disclosures
shouldn’t
litter
the
pre-trial
process…
unless
the
specific
argument
the
defense
makes
requires
a
ruling
based
on
grand
jury
testimony.
And,
importantly,
the
DOJ
shouldn’t
take
an
action
that
could
impact
an
impending
election…
except
when
they
took
action
months
and
months
beforehand
and
none
of
this
would
be
happening
weeks
before
an
election
if
Trump
hadn’t
set
out
on
a
strategy
to
drag
this
out
forever
and
his
cronies
on
the
Supreme
Court
hadn’t
dutifully
sat
on
the
case
until
the
last
gasps
of
the
Term.

If
Honig
wanted
to
take
issue
with
these
conclusions,
he
could
easily
explain
why
—
given
all
that
context
—
there’s
still
overriding
reasons
to
stick
with
the
standard
procedure
that
Trump
has
shown
every
interest
in
hacking.
And
we
could
have
that
debate
as
a
legal
community,
but
he
doesn’t
want
to
get
into
that
so
he’s
just
not
going
to
mention
any
of
it.

Besides,
getting
into
that
sort
of
nuanced
and
honest
discussion
about
the
state
of
the
case
is
not
the
sort
of
analysis
that
earns
someone
the
love
and
admiration
of
that
audience
of
one.

Respect
the
hustle.


Jack
Smith’s
October
Cheap
Shot
[New
York]



HeadshotJoe
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 or

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if
you’re
interested
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law,
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Managing
Director
at
RPN
Executive
Search.

Elie Honig Makes Pitch To Become Donald Trump’s Favorite Legal Analyst – Above the Law

Posted on by TSA Press

Elie
Honig,
the
former
prosecutor
turned
cable
news
legal
analyst,
has

a
new
piece
in

New
York
magazine
bemoaning
special
prosecutor
Jack
Smith’s
latest
filing
in
Trump’s
January
6
case.

There
was
something
familiar
about
it…


And
while
the
king
was
looking
down,
the
Jester
stole
his
thorny
crown.

That’s
not
exactly
fair.
Turley’s
Trumpy
screeds
routinely
spout

legal
nonsense
when
he’s

just
not
making
up
facts.
Honig’s
work
presents
more
subtlety
—
more
reliance
on
just
casually
ignoring
basic
issues
to
further
his
chosen
narrative.
Like
when
he
parachuted
into
the
New
York
criminal
case
with
analysis
so
far
afield
of
the
facts
and
law

he
got
dragged
to
hell
and
back
by
those
actually
keeping
up
with
the
case.
So
it’s
sort
of
a
trend.

And
while
the
notes
you
DON’T
play
makes
for
good
jazz,
it’s
makes
piss-poor
legal
analysis.

In
Honig’s
defense,
the
article
recites
standard
operating
procedure
in
a
federal
criminal
case
and,
to
that
extent,
is
correct…
in
a
vacuum.

Except

United
States
v.
Trump
doesn’t
exist
in
a
vacuum
unless
you
mean
the
jumbled
refuse
left
in
the
bag
after
unplugging
the
cleaner.
It’s
about
a
massive
news
event,
involving
one
of
the
most
notorious
figures
in
the
world,
that’s
been
delayed
over
and
over
either
by
the
defendant
or
his
personal
Glee
Club
on
the
Supreme
Court.
To
borrow
from
another
political
figure
at
random,
the
case
exists
in
the
context
of
all
in
which
it
lives
and
what
came
before.

Nearly
everything
about
the
posture
of
this
case
is
exceptional,
rendering
any
“legal
analysis”
based
on
prosecuting
a
bog
standard
tax
evasion
charge
all
but
useless.
This
is
like
the
mayor
in

Jaws
telling
the
beach,
“well,
ordinarily,
there
aren’t
any
sharks.”

First,
this
is
backward.
The
way
motions
work
—
under
the
federal
rules,
and
consistent
with
common
sense
—
is
that
the
prosecutor
files
an
indictment;
the
defense
makes
motions
(to
dismiss
charges,
to
suppress
evidence,
or
what
have
you);
and
then
the
prosecution
responds
to
those
motions.
Makes
sense,
right?
It’s
worked
for
hundreds
of
years
in
our
courts.

Normally,
this
would
be
true.
Except
the
motion
in
question
seeks
a
ruling
on
presidential
immunity
which
is
a
motion
Trump
HAS
ALREADY
RAISED.
This
is
the
argument
that
got
the
case
appealed
—
first
to
the
D.C.
Circuit
and
then
to
the
Supreme
Court
—
in
the
first
place.
If
there’s
anyone
expecting
the
defense
to
shrug
off
the
immunity
argument
now
that
the
case
has
been
remanded
to
Judge
Chutkan,
I
have
a
bridge
to
sell.
But
the
defense
has
also
made
clear
its
intention
to

gum
up
the
process
and
delay
the
matter
indefinitely.

So,
yes,
Smith’s
motion
seeking
a
ruling
on
Trump’s
favored
defense
before
Trump
formally
files
that
motion
is
irregular.
But
it’s
only
happening
because
of

Trump’s
dilatory
strategy.
In
fact,
at
the
very
hearing
that
Honig
cites
where
Judge
Chutkan
called
it
“procedurally
irregular”
for
Smith
to
file
first,
Judge
Chutkan
also
said
that
Trump’s
lawyers
could
file
a
simultaneous
motion
to
avoid
any
perceived
prejudice
from
responding
second.
Or
as
she
put
it,
“We
can
all
walk
and
chew
gum
at
the
same
time.”

That
was
the
beginning
of
September.
The
defense
had
a
whole
month
to
go
ahead
and
get
its
motion
together.
Honig
elides
this
issue
in
his
righteous
rage
over
allowing
Smith
to
ask
for
a
ruling
on
Trump’s
primary
grounds
for
dismissal.

But
Smith
argued
that
a
compelling
reason
to
let
him
go
first
and
set
the
stage
for
the
immunity
argument
was
to
avoid
the
defense
trying
to
string
this
out
forever
with
piecemeal
immunity
arguments.
That
would
seem
to
make
this
move
in
the
interest
of
judicial
economy!
Probably
something
worth
mentioning…
though
Honig
does
not.

Which
brings
us
to
the
second
point:
Smith’s
proactive
filing
is
prejudicial
to
Trump,
legally
and
politically.
It’s
ironic.
Smith
has
complained
throughout
the
case
that
Trump’s
words
might
taint
the
jury
pool.
Accordingly,
the
special
counsel
requested
a
gag
order
that
was
so
preposterously
broad
that
even
Judge
Chutkan
slimmed
it
down
considerably
(and
the
Court
of
Appeals
narrowed
it
further
after
that).

Yet
Smith
now
uses
grand-jury
testimony
(which
ordinarily
remains
secret
at
this
stage)
and
drafts
up
a
tidy
165-page
document
that
contains
all
manner
of
damaging
statements
about
a
criminal
defendant,
made
outside
of
a
trial
setting
and
without
being
subjected
to
the
rules
of
evidence
or
cross-examination,
and
files
it
publicly,
generating
national
headlines.
You
know
who’ll
see
those
allegations?
The
voters,
sure
—
and
also
members
of
the
jury
pool.

A
few
paragraphs
before
this,
Honig
took
a
swipe
at
the
filing
as
unnecessary
because
“[t]he
story’s
structure
is
the
same
as
we’ve
long
known.”
You
really
have
to
pick
one,
bud.
Is
this
tainting
the
jury
pool
or
old
news?

But,
again,
Honig
is
right
that
this
isn’t
material
that
would
normally
end
up
going
public.
But,
also
again,
he’s
ignoring
that
Trump’s
defense
strategy
is
the
only
reason
this
is
happening.
The
Supreme
Court,
following
Trump’s
lead,
created
a
standard
that
not
only
immunizes
presidents
from
official
acts,
but
from
using
evidence
of
official
acts
even
to
prosecute
a
president
engaged
in
unofficial
act
criminality.
While
securing
that
ruling
was
a
real
coup
for
Trump
—
a
successful
one
for
him,
for
a
change
—
it
drew
the
battlelines
for
the
next
immunity
fight
around
which
conversations
and
actions
were
and
were
not
“official.”

And
that’s
how
the
docket
ends
up
with
a
voluminous
motion
filled
with
grand
jury
testimony
focused
on
who
Trump
talked
to
when
and
in
what
capacity.
It’s
the
natural
and
logical
consequence
of
the
standard
concocted
by
the
Supreme
Court
last
Term.
Honig
doesn’t
even
acknowledge
this,
much
less
suggest
how
an
immunity
argument
would
be
resolved

without
this
filing.
Even
if
Judge
Chutkan
ordered
Trump
to
file
the
motion
first,
Smith’s
response
would
look…
pretty
much
exactly
like
this.

By
the
way,
this
is
also
the
answer
to
Honig’s
snarky
aside
about
the
redactions
in
the
filing
when
he
said
Smith
“redacted
out
a
few
obvious
names
(who
ever
might
“Arizona
Governor
[Redacted
P-16]”
be?),
and
made
the
rest
public.”
Yeah,
because
the
titles
involved
are
pretty
significant
when
the
standard
is
“was
this
a
conversation
that
a
president
would
have
in
the
ordinary
course
of
their
duties.”
So
it
matters
if
Trump
called
a
governor
to
arrange
flood
relief
or
to
ask
them
to
find
more
ballots.

Bumbling
to
a
conclusion,
Honig
points
to
the
DOJ
Manual’s
edict
that
“Federal
prosecutors…
may
never
select
the
timing
of
any
action,
including
investigative
steps,
criminal
charges,
or
statements,
for
the
purpose
of
affecting
any
election.”

Remember,
Smith
begged
the
judge
to
flip
the
rules
on
their
head
so
he
could
file
this
document
first,
and
quickly
—
“any
action,”
by
any
reasonable
definition
—
with
the
election
right
around
the
corner.
Anyone
who
objected
to
James
Comey’s
outrageous
announcements
about
the
Hillary
Clinton
email
investigation
on
the
eve
of
the
2016
election
should
feel
the
same
about
Smith’s
conduct
now.
What’s
the
distinction?
Both
violated
ordinary
procedure
to
take
public
steps,
shortly
before
an
election,
that
plainly
would
have
an
impact
on
that
election.

Well,

I
did
NOT
object
to
Comey’s
announcements
about
the
Clinton
emails.
It’s
also
an
unfair
characterization
of
how
all
that
went
down
because
Comey
didn’t

announce
shit.
He
wrote
a
congressional
committee
to
clarify
that
when
he
months
earlier
testified
that
the
FBI
had
searched
everything,
it
turned
out
there
was
something
else
to
review
but
that
there
was
no
reason
to
believe
it
would
be
anything
but
redundant.

They
decided
to
make
this
mundane
notification
a
big
deal
(perhaps
in
a
way
that
Comey
should’ve
predicted)
and
it
turned
out
the
new
data
was,
in
fact,
redundant.

Context
matters
and
so
does
the
underlying
purpose
of
all
these
rules.
Defendants
move
first
because
the
defense
has
a
right
to
define
its
strategy
and
streamline
the
pre-trial
process…
which
doesn’t
matter
when
the
argument
is
already
teed
up
and
there’s
a
history
of
dilatory
tactics.
Factual
disclosures
shouldn’t
litter
the
pre-trial
process…
unless
the
specific
argument
the
defense
makes
requires
a
ruling
based
on
grand
jury
testimony.
And,
importantly,
the
DOJ
shouldn’t
take
an
action
that
could
impact
an
impending
election…
except
when
they
took
action
months
and
months
beforehand
and
none
of
this
would
be
happening
weeks
before
an
election
if
Trump
hadn’t
set
out
on
a
strategy
to
drag
this
out
forever
and
his
cronies
on
the
Supreme
Court
hadn’t
dutifully
sat
on
the
case
until
the
last
gasps
of
the
Term.

If
Honig
wanted
to
take
issue
with
these
conclusions,
he
could
easily
explain
why
—
given
all
that
context
—
there’s
still
overriding
reasons
to
stick
with
the
standard
procedure
that
Trump
has
shown
every
interest
in
hacking.
And
we
could
have
that
debate
as
a
legal
community,
but
he
doesn’t
want
to
get
into
that
so
he’s
just
not
going
to
mention
any
of
it.

Besides,
getting
into
that
sort
of
nuanced
and
honest
discussion
about
the
state
of
the
case
is
not
the
sort
of
analysis
that
earns
someone
the
love
and
admiration
of
that
audience
of
one.

Respect
the
hustle.


Jack
Smith’s
October
Cheap
Shot
[New
York]



HeadshotJoe
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 or

Bluesky
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.

Elie Honig Makes Pitch To Become Donald Trump’s Favorite Legal Analyst – Above the Law

Posted on by TSA Press

Elie
Honig,
the
former
prosecutor
turned
cable
news
legal
analyst,
has

a
new
piece
in

New
York
magazine
bemoaning
special
prosecutor
Jack
Smith’s
latest
filing
in
Trump’s
January
6
case.

There
was
something
familiar
about
it…


And
while
the
king
was
looking
down,
the
Jester
stole
his
thorny
crown.

That’s
not
exactly
fair.
Turley’s
Trumpy
screeds
routinely
spout

legal
nonsense
when
he’s

just
not
making
up
facts.
Honig’s
work
presents
more
subtlety
—
more
reliance
on
just
casually
ignoring
basic
issues
to
further
his
chosen
narrative.
Like
when
he
parachuted
into
the
New
York
criminal
case
with
analysis
so
far
afield
of
the
facts
and
law

he
got
dragged
to
hell
and
back
by
those
actually
keeping
up
with
the
case.
So
it’s
sort
of
a
trend.

And
while
the
notes
you
DON’T
play
makes
for
good
jazz,
it’s
makes
piss-poor
legal
analysis.

In
Honig’s
defense,
the
article
recites
standard
operating
procedure
in
a
federal
criminal
case
and,
to
that
extent,
is
correct…
in
a
vacuum.

Except

United
States
v.
Trump
doesn’t
exist
in
a
vacuum
unless
you
mean
the
jumbled
refuse
left
in
the
bag
after
unplugging
the
cleaner.
It’s
about
a
massive
news
event,
involving
one
of
the
most
notorious
figures
in
the
world,
that’s
been
delayed
over
and
over
either
by
the
defendant
or
his
personal
Glee
Club
on
the
Supreme
Court.
To
borrow
from
another
political
figure
at
random,
the
case
exists
in
the
context
of
all
in
which
it
lives
and
what
came
before.

Nearly
everything
about
the
posture
of
this
case
is
exceptional,
rendering
any
“legal
analysis”
based
on
prosecuting
a
bog
standard
tax
evasion
charge
all
but
useless.
This
is
like
the
mayor
in

Jaws
telling
the
beach,
“well,
ordinarily,
there
aren’t
any
sharks.”

First,
this
is
backward.
The
way
motions
work
—
under
the
federal
rules,
and
consistent
with
common
sense
—
is
that
the
prosecutor
files
an
indictment;
the
defense
makes
motions
(to
dismiss
charges,
to
suppress
evidence,
or
what
have
you);
and
then
the
prosecution
responds
to
those
motions.
Makes
sense,
right?
It’s
worked
for
hundreds
of
years
in
our
courts.

Normally,
this
would
be
true.
Except
the
motion
in
question
seeks
a
ruling
on
presidential
immunity
which
is
a
motion
Trump
HAS
ALREADY
RAISED.
This
is
the
argument
that
got
the
case
appealed
—
first
to
the
D.C.
Circuit
and
then
to
the
Supreme
Court
—
in
the
first
place.
If
there’s
anyone
expecting
the
defense
to
shrug
off
the
immunity
argument
now
that
the
case
has
been
remanded
to
Judge
Chutkan,
I
have
a
bridge
to
sell.
But
the
defense
has
also
made
clear
its
intention
to

gum
up
the
process
and
delay
the
matter
indefinitely.

So,
yes,
Smith’s
motion
seeking
a
ruling
on
Trump’s
favored
defense
before
Trump
formally
files
that
motion
is
irregular.
But
it’s
only
happening
because
of

Trump’s
dilatory
strategy.
In
fact,
at
the
very
hearing
that
Honig
cites
where
Judge
Chutkan
called
it
“procedurally
irregular”
for
Smith
to
file
first,
Judge
Chutkan
also
said
that
Trump’s
lawyers
could
file
a
simultaneous
motion
to
avoid
any
perceived
prejudice
from
responding
second.
Or
as
she
put
it,
“We
can
all
walk
and
chew
gum
at
the
same
time.”

That
was
the
beginning
of
September.
The
defense
had
a
whole
month
to
go
ahead
and
get
its
motion
together.
Honig
elides
this
issue
in
his
righteous
rage
over
allowing
Smith
to
ask
for
a
ruling
on
Trump’s
primary
grounds
for
dismissal.

But
Smith
argued
that
a
compelling
reason
to
let
him
go
first
and
set
the
stage
for
the
immunity
argument
was
to
avoid
the
defense
trying
to
string
this
out
forever
with
piecemeal
immunity
arguments.
That
would
seem
to
make
this
move
in
the
interest
of
judicial
economy!
Probably
something
worth
mentioning…
though
Honig
does
not.

Which
brings
us
to
the
second
point:
Smith’s
proactive
filing
is
prejudicial
to
Trump,
legally
and
politically.
It’s
ironic.
Smith
has
complained
throughout
the
case
that
Trump’s
words
might
taint
the
jury
pool.
Accordingly,
the
special
counsel
requested
a
gag
order
that
was
so
preposterously
broad
that
even
Judge
Chutkan
slimmed
it
down
considerably
(and
the
Court
of
Appeals
narrowed
it
further
after
that).

Yet
Smith
now
uses
grand-jury
testimony
(which
ordinarily
remains
secret
at
this
stage)
and
drafts
up
a
tidy
165-page
document
that
contains
all
manner
of
damaging
statements
about
a
criminal
defendant,
made
outside
of
a
trial
setting
and
without
being
subjected
to
the
rules
of
evidence
or
cross-examination,
and
files
it
publicly,
generating
national
headlines.
You
know
who’ll
see
those
allegations?
The
voters,
sure
—
and
also
members
of
the
jury
pool.

A
few
paragraphs
before
this,
Honig
took
a
swipe
at
the
filing
as
unnecessary
because
“[t]he
story’s
structure
is
the
same
as
we’ve
long
known.”
You
really
have
to
pick
one,
bud.
Is
this
tainting
the
jury
pool
or
old
news?

But,
again,
Honig
is
right
that
this
isn’t
material
that
would
normally
end
up
going
public.
But,
also
again,
he’s
ignoring
that
Trump’s
defense
strategy
is
the
only
reason
this
is
happening.
The
Supreme
Court,
following
Trump’s
lead,
created
a
standard
that
not
only
immunizes
presidents
from
official
acts,
but
from
using
evidence
of
official
acts
even
to
prosecute
a
president
engaged
in
unofficial
act
criminality.
While
securing
that
ruling
was
a
real
coup
for
Trump
—
a
successful
one
for
him,
for
a
change
—
it
drew
the
battlelines
for
the
next
immunity
fight
around
which
conversations
and
actions
were
and
were
not
“official.”

And
that’s
how
the
docket
ends
up
with
a
voluminous
motion
filled
with
grand
jury
testimony
focused
on
who
Trump
talked
to
when
and
in
what
capacity.
It’s
the
natural
and
logical
consequence
of
the
standard
concocted
by
the
Supreme
Court
last
Term.
Honig
doesn’t
even
acknowledge
this,
much
less
suggest
how
an
immunity
argument
would
be
resolved

without
this
filing.
Even
if
Judge
Chutkan
ordered
Trump
to
file
the
motion
first,
Smith’s
response
would
look…
pretty
much
exactly
like
this.

By
the
way,
this
is
also
the
answer
to
Honig’s
snarky
aside
about
the
redactions
in
the
filing
when
he
said
Smith
“redacted
out
a
few
obvious
names
(who
ever
might
“Arizona
Governor
[Redacted
P-16]”
be?),
and
made
the
rest
public.”
Yeah,
because
the
titles
involved
are
pretty
significant
when
the
standard
is
“was
this
a
conversation
that
a
president
would
have
in
the
ordinary
course
of
their
duties.”
So
it
matters
if
Trump
called
a
governor
to
arrange
flood
relief
or
to
ask
them
to
find
more
ballots.

Bumbling
to
a
conclusion,
Honig
points
to
the
DOJ
Manual’s
edict
that
“Federal
prosecutors…
may
never
select
the
timing
of
any
action,
including
investigative
steps,
criminal
charges,
or
statements,
for
the
purpose
of
affecting
any
election.”

Remember,
Smith
begged
the
judge
to
flip
the
rules
on
their
head
so
he
could
file
this
document
first,
and
quickly
—
“any
action,”
by
any
reasonable
definition
—
with
the
election
right
around
the
corner.
Anyone
who
objected
to
James
Comey’s
outrageous
announcements
about
the
Hillary
Clinton
email
investigation
on
the
eve
of
the
2016
election
should
feel
the
same
about
Smith’s
conduct
now.
What’s
the
distinction?
Both
violated
ordinary
procedure
to
take
public
steps,
shortly
before
an
election,
that
plainly
would
have
an
impact
on
that
election.

Well,

I
did
NOT
object
to
Comey’s
announcements
about
the
Clinton
emails.
It’s
also
an
unfair
characterization
of
how
all
that
went
down
because
Comey
didn’t

announce
shit.
He
wrote
a
congressional
committee
to
clarify
that
when
he
months
earlier
testified
that
the
FBI
had
searched
everything,
it
turned
out
there
was
something
else
to
review
but
that
there
was
no
reason
to
believe
it
would
be
anything
but
redundant.

They
decided
to
make
this
mundane
notification
a
big
deal
(perhaps
in
a
way
that
Comey
should’ve
predicted)
and
it
turned
out
the
new
data
was,
in
fact,
redundant.

Context
matters
and
so
does
the
underlying
purpose
of
all
these
rules.
Defendants
move
first
because
the
defense
has
a
right
to
define
its
strategy
and
streamline
the
pre-trial
process…
which
doesn’t
matter
when
the
argument
is
already
teed
up
and
there’s
a
history
of
dilatory
tactics.
Factual
disclosures
shouldn’t
litter
the
pre-trial
process…
unless
the
specific
argument
the
defense
makes
requires
a
ruling
based
on
grand
jury
testimony.
And,
importantly,
the
DOJ
shouldn’t
take
an
action
that
could
impact
an
impending
election…
except
when
they
took
action
months
and
months
beforehand
and
none
of
this
would
be
happening
weeks
before
an
election
if
Trump
hadn’t
set
out
on
a
strategy
to
drag
this
out
forever
and
his
cronies
on
the
Supreme
Court
hadn’t
dutifully
sat
on
the
case
until
the
last
gasps
of
the
Term.

If
Honig
wanted
to
take
issue
with
these
conclusions,
he
could
easily
explain
why
—
given
all
that
context
—
there’s
still
overriding
reasons
to
stick
with
the
standard
procedure
that
Trump
has
shown
every
interest
in
hacking.
And
we
could
have
that
debate
as
a
legal
community,
but
he
doesn’t
want
to
get
into
that
so
he’s
just
not
going
to
mention
any
of
it.

Besides,
getting
into
that
sort
of
nuanced
and
honest
discussion
about
the
state
of
the
case
is
not
the
sort
of
analysis
that
earns
someone
the
love
and
admiration
of
that
audience
of
one.

Respect
the
hustle.


Jack
Smith’s
October
Cheap
Shot
[New
York]



HeadshotJoe
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 or

Bluesky
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.

Elie Honig Makes Pitch To Become Donald Trump’s Favorite Legal Analyst – Above the Law

Posted on by TSA Press

Elie
Honig,
the
former
prosecutor
turned
cable
news
legal
analyst,
has

a
new
piece
in

New
York
magazine
bemoaning
special
prosecutor
Jack
Smith’s
latest
filing
in
Trump’s
January
6
case.

There
was
something
familiar
about
it…


And
while
the
king
was
looking
down,
the
Jester
stole
his
thorny
crown.

That’s
not
exactly
fair.
Turley’s
Trumpy
screeds
routinely
spout

legal
nonsense
when
he’s

just
not
making
up
facts.
Honig’s
work
presents
more
subtlety
—
more
reliance
on
just
casually
ignoring
basic
issues
to
further
his
chosen
narrative.
Like
when
he
parachuted
into
the
New
York
criminal
case
with
analysis
so
far
afield
of
the
facts
and
law

he
got
dragged
to
hell
and
back
by
those
actually
keeping
up
with
the
case.
So
it’s
sort
of
a
trend.

And
while
the
notes
you
DON’T
play
makes
for
good
jazz,
it’s
makes
piss-poor
legal
analysis.

In
Honig’s
defense,
the
article
recites
standard
operating
procedure
in
a
federal
criminal
case
and,
to
that
extent,
is
correct…
in
a
vacuum.

Except

United
States
v.
Trump
doesn’t
exist
in
a
vacuum
unless
you
mean
the
jumbled
refuse
left
in
the
bag
after
unplugging
the
cleaner.
It’s
about
a
massive
news
event,
involving
one
of
the
most
notorious
figures
in
the
world,
that’s
been
delayed
over
and
over
either
by
the
defendant
or
his
personal
Glee
Club
on
the
Supreme
Court.
To
borrow
from
another
political
figure
at
random,
the
case
exists
in
the
context
of
all
in
which
it
lives
and
what
came
before.

Nearly
everything
about
the
posture
of
this
case
is
exceptional,
rendering
any
“legal
analysis”
based
on
prosecuting
a
bog
standard
tax
evasion
charge
all
but
useless.
This
is
like
the
mayor
in

Jaws
telling
the
beach,
“well,
ordinarily,
there
aren’t
any
sharks.”

First,
this
is
backward.
The
way
motions
work
—
under
the
federal
rules,
and
consistent
with
common
sense
—
is
that
the
prosecutor
files
an
indictment;
the
defense
makes
motions
(to
dismiss
charges,
to
suppress
evidence,
or
what
have
you);
and
then
the
prosecution
responds
to
those
motions.
Makes
sense,
right?
It’s
worked
for
hundreds
of
years
in
our
courts.

Normally,
this
would
be
true.
Except
the
motion
in
question
seeks
a
ruling
on
presidential
immunity
which
is
a
motion
Trump
HAS
ALREADY
RAISED.
This
is
the
argument
that
got
the
case
appealed
—
first
to
the
D.C.
Circuit
and
then
to
the
Supreme
Court
—
in
the
first
place.
If
there’s
anyone
expecting
the
defense
to
shrug
off
the
immunity
argument
now
that
the
case
has
been
remanded
to
Judge
Chutkan,
I
have
a
bridge
to
sell.
But
the
defense
has
also
made
clear
its
intention
to

gum
up
the
process
and
delay
the
matter
indefinitely.

So,
yes,
Smith’s
motion
seeking
a
ruling
on
Trump’s
favored
defense
before
Trump
formally
files
that
motion
is
irregular.
But
it’s
only
happening
because
of

Trump’s
dilatory
strategy.
In
fact,
at
the
very
hearing
that
Honig
cites
where
Judge
Chutkan
called
it
“procedurally
irregular”
for
Smith
to
file
first,
Judge
Chutkan
also
said
that
Trump’s
lawyers
could
file
a
simultaneous
motion
to
avoid
any
perceived
prejudice
from
responding
second.
Or
as
she
put
it,
“We
can
all
walk
and
chew
gum
at
the
same
time.”

That
was
the
beginning
of
September.
The
defense
had
a
whole
month
to
go
ahead
and
get
its
motion
together.
Honig
elides
this
issue
in
his
righteous
rage
over
allowing
Smith
to
ask
for
a
ruling
on
Trump’s
primary
grounds
for
dismissal.

But
Smith
argued
that
a
compelling
reason
to
let
him
go
first
and
set
the
stage
for
the
immunity
argument
was
to
avoid
the
defense
trying
to
string
this
out
forever
with
piecemeal
immunity
arguments.
That
would
seem
to
make
this
move
in
the
interest
of
judicial
economy!
Probably
something
worth
mentioning…
though
Honig
does
not.

Which
brings
us
to
the
second
point:
Smith’s
proactive
filing
is
prejudicial
to
Trump,
legally
and
politically.
It’s
ironic.
Smith
has
complained
throughout
the
case
that
Trump’s
words
might
taint
the
jury
pool.
Accordingly,
the
special
counsel
requested
a
gag
order
that
was
so
preposterously
broad
that
even
Judge
Chutkan
slimmed
it
down
considerably
(and
the
Court
of
Appeals
narrowed
it
further
after
that).

Yet
Smith
now
uses
grand-jury
testimony
(which
ordinarily
remains
secret
at
this
stage)
and
drafts
up
a
tidy
165-page
document
that
contains
all
manner
of
damaging
statements
about
a
criminal
defendant,
made
outside
of
a
trial
setting
and
without
being
subjected
to
the
rules
of
evidence
or
cross-examination,
and
files
it
publicly,
generating
national
headlines.
You
know
who’ll
see
those
allegations?
The
voters,
sure
—
and
also
members
of
the
jury
pool.

A
few
paragraphs
before
this,
Honig
took
a
swipe
at
the
filing
as
unnecessary
because
“[t]he
story’s
structure
is
the
same
as
we’ve
long
known.”
You
really
have
to
pick
one,
bud.
Is
this
tainting
the
jury
pool
or
old
news?

But,
again,
Honig
is
right
that
this
isn’t
material
that
would
normally
end
up
going
public.
But,
also
again,
he’s
ignoring
that
Trump’s
defense
strategy
is
the
only
reason
this
is
happening.
The
Supreme
Court,
following
Trump’s
lead,
created
a
standard
that
not
only
immunizes
presidents
from
official
acts,
but
from
using
evidence
of
official
acts
even
to
prosecute
a
president
engaged
in
unofficial
act
criminality.
While
securing
that
ruling
was
a
real
coup
for
Trump
—
a
successful
one
for
him,
for
a
change
—
it
drew
the
battlelines
for
the
next
immunity
fight
around
which
conversations
and
actions
were
and
were
not
“official.”

And
that’s
how
the
docket
ends
up
with
a
voluminous
motion
filled
with
grand
jury
testimony
focused
on
who
Trump
talked
to
when
and
in
what
capacity.
It’s
the
natural
and
logical
consequence
of
the
standard
concocted
by
the
Supreme
Court
last
Term.
Honig
doesn’t
even
acknowledge
this,
much
less
suggest
how
an
immunity
argument
would
be
resolved

without
this
filing.
Even
if
Judge
Chutkan
ordered
Trump
to
file
the
motion
first,
Smith’s
response
would
look…
pretty
much
exactly
like
this.

By
the
way,
this
is
also
the
answer
to
Honig’s
snarky
aside
about
the
redactions
in
the
filing
when
he
said
Smith
“redacted
out
a
few
obvious
names
(who
ever
might
“Arizona
Governor
[Redacted
P-16]”
be?),
and
made
the
rest
public.”
Yeah,
because
the
titles
involved
are
pretty
significant
when
the
standard
is
“was
this
a
conversation
that
a
president
would
have
in
the
ordinary
course
of
their
duties.”
So
it
matters
if
Trump
called
a
governor
to
arrange
flood
relief
or
to
ask
them
to
find
more
ballots.

Bumbling
to
a
conclusion,
Honig
points
to
the
DOJ
Manual’s
edict
that
“Federal
prosecutors…
may
never
select
the
timing
of
any
action,
including
investigative
steps,
criminal
charges,
or
statements,
for
the
purpose
of
affecting
any
election.”

Remember,
Smith
begged
the
judge
to
flip
the
rules
on
their
head
so
he
could
file
this
document
first,
and
quickly
—
“any
action,”
by
any
reasonable
definition
—
with
the
election
right
around
the
corner.
Anyone
who
objected
to
James
Comey’s
outrageous
announcements
about
the
Hillary
Clinton
email
investigation
on
the
eve
of
the
2016
election
should
feel
the
same
about
Smith’s
conduct
now.
What’s
the
distinction?
Both
violated
ordinary
procedure
to
take
public
steps,
shortly
before
an
election,
that
plainly
would
have
an
impact
on
that
election.

Well,

I
did
NOT
object
to
Comey’s
announcements
about
the
Clinton
emails.
It’s
also
an
unfair
characterization
of
how
all
that
went
down
because
Comey
didn’t

announce
shit.
He
wrote
a
congressional
committee
to
clarify
that
when
he
months
earlier
testified
that
the
FBI
had
searched
everything,
it
turned
out
there
was
something
else
to
review
but
that
there
was
no
reason
to
believe
it
would
be
anything
but
redundant.

They
decided
to
make
this
mundane
notification
a
big
deal
(perhaps
in
a
way
that
Comey
should’ve
predicted)
and
it
turned
out
the
new
data
was,
in
fact,
redundant.

Context
matters
and
so
does
the
underlying
purpose
of
all
these
rules.
Defendants
move
first
because
the
defense
has
a
right
to
define
its
strategy
and
streamline
the
pre-trial
process…
which
doesn’t
matter
when
the
argument
is
already
teed
up
and
there’s
a
history
of
dilatory
tactics.
Factual
disclosures
shouldn’t
litter
the
pre-trial
process…
unless
the
specific
argument
the
defense
makes
requires
a
ruling
based
on
grand
jury
testimony.
And,
importantly,
the
DOJ
shouldn’t
take
an
action
that
could
impact
an
impending
election…
except
when
they
took
action
months
and
months
beforehand
and
none
of
this
would
be
happening
weeks
before
an
election
if
Trump
hadn’t
set
out
on
a
strategy
to
drag
this
out
forever
and
his
cronies
on
the
Supreme
Court
hadn’t
dutifully
sat
on
the
case
until
the
last
gasps
of
the
Term.

If
Honig
wanted
to
take
issue
with
these
conclusions,
he
could
easily
explain
why
—
given
all
that
context
—
there’s
still
overriding
reasons
to
stick
with
the
standard
procedure
that
Trump
has
shown
every
interest
in
hacking.
And
we
could
have
that
debate
as
a
legal
community,
but
he
doesn’t
want
to
get
into
that
so
he’s
just
not
going
to
mention
any
of
it.

Besides,
getting
into
that
sort
of
nuanced
and
honest
discussion
about
the
state
of
the
case
is
not
the
sort
of
analysis
that
earns
someone
the
love
and
admiration
of
that
audience
of
one.

Respect
the
hustle.


Jack
Smith’s
October
Cheap
Shot
[New
York]



HeadshotJoe
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 or

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if
you’re
interested
in
law,
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and
a
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sports
news.
Joe
also
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Managing
Director
at
RPN
Executive
Search.

Elie Honig Makes Pitch To Become Donald Trump’s Favorite Legal Analyst – Above the Law

Posted on by TSA Press

Elie
Honig,
the
former
prosecutor
turned
cable
news
legal
analyst,
has

a
new
piece
in

New
York
magazine
bemoaning
special
prosecutor
Jack
Smith’s
latest
filing
in
Trump’s
January
6
case.

There
was
something
familiar
about
it…


And
while
the
king
was
looking
down,
the
Jester
stole
his
thorny
crown.

That’s
not
exactly
fair.
Turley’s
Trumpy
screeds
routinely
spout

legal
nonsense
when
he’s

just
not
making
up
facts.
Honig’s
work
presents
more
subtlety
—
more
reliance
on
just
casually
ignoring
basic
issues
to
further
his
chosen
narrative.
Like
when
he
parachuted
into
the
New
York
criminal
case
with
analysis
so
far
afield
of
the
facts
and
law

he
got
dragged
to
hell
and
back
by
those
actually
keeping
up
with
the
case.
So
it’s
sort
of
a
trend.

And
while
the
notes
you
DON’T
play
makes
for
good
jazz,
it’s
makes
piss-poor
legal
analysis.

In
Honig’s
defense,
the
article
recites
standard
operating
procedure
in
a
federal
criminal
case
and,
to
that
extent,
is
correct…
in
a
vacuum.

Except

United
States
v.
Trump
doesn’t
exist
in
a
vacuum
unless
you
mean
the
jumbled
refuse
left
in
the
bag
after
unplugging
the
cleaner.
It’s
about
a
massive
news
event,
involving
one
of
the
most
notorious
figures
in
the
world,
that’s
been
delayed
over
and
over
either
by
the
defendant
or
his
personal
Glee
Club
on
the
Supreme
Court.
To
borrow
from
another
political
figure
at
random,
the
case
exists
in
the
context
of
all
in
which
it
lives
and
what
came
before.

Nearly
everything
about
the
posture
of
this
case
is
exceptional,
rendering
any
“legal
analysis”
based
on
prosecuting
a
bog
standard
tax
evasion
charge
all
but
useless.
This
is
like
the
mayor
in

Jaws
telling
the
beach,
“well,
ordinarily,
there
aren’t
any
sharks.”

First,
this
is
backward.
The
way
motions
work
—
under
the
federal
rules,
and
consistent
with
common
sense
—
is
that
the
prosecutor
files
an
indictment;
the
defense
makes
motions
(to
dismiss
charges,
to
suppress
evidence,
or
what
have
you);
and
then
the
prosecution
responds
to
those
motions.
Makes
sense,
right?
It’s
worked
for
hundreds
of
years
in
our
courts.

Normally,
this
would
be
true.
Except
the
motion
in
question
seeks
a
ruling
on
presidential
immunity
which
is
a
motion
Trump
HAS
ALREADY
RAISED.
This
is
the
argument
that
got
the
case
appealed
—
first
to
the
D.C.
Circuit
and
then
to
the
Supreme
Court
—
in
the
first
place.
If
there’s
anyone
expecting
the
defense
to
shrug
off
the
immunity
argument
now
that
the
case
has
been
remanded
to
Judge
Chutkan,
I
have
a
bridge
to
sell.
But
the
defense
has
also
made
clear
its
intention
to

gum
up
the
process
and
delay
the
matter
indefinitely.

So,
yes,
Smith’s
motion
seeking
a
ruling
on
Trump’s
favored
defense
before
Trump
formally
files
that
motion
is
irregular.
But
it’s
only
happening
because
of

Trump’s
dilatory
strategy.
In
fact,
at
the
very
hearing
that
Honig
cites
where
Judge
Chutkan
called
it
“procedurally
irregular”
for
Smith
to
file
first,
Judge
Chutkan
also
said
that
Trump’s
lawyers
could
file
a
simultaneous
motion
to
avoid
any
perceived
prejudice
from
responding
second.
Or
as
she
put
it,
“We
can
all
walk
and
chew
gum
at
the
same
time.”

That
was
the
beginning
of
September.
The
defense
had
a
whole
month
to
go
ahead
and
get
its
motion
together.
Honig
elides
this
issue
in
his
righteous
rage
over
allowing
Smith
to
ask
for
a
ruling
on
Trump’s
primary
grounds
for
dismissal.

But
Smith
argued
that
a
compelling
reason
to
let
him
go
first
and
set
the
stage
for
the
immunity
argument
was
to
avoid
the
defense
trying
to
string
this
out
forever
with
piecemeal
immunity
arguments.
That
would
seem
to
make
this
move
in
the
interest
of
judicial
economy!
Probably
something
worth
mentioning…
though
Honig
does
not.

Which
brings
us
to
the
second
point:
Smith’s
proactive
filing
is
prejudicial
to
Trump,
legally
and
politically.
It’s
ironic.
Smith
has
complained
throughout
the
case
that
Trump’s
words
might
taint
the
jury
pool.
Accordingly,
the
special
counsel
requested
a
gag
order
that
was
so
preposterously
broad
that
even
Judge
Chutkan
slimmed
it
down
considerably
(and
the
Court
of
Appeals
narrowed
it
further
after
that).

Yet
Smith
now
uses
grand-jury
testimony
(which
ordinarily
remains
secret
at
this
stage)
and
drafts
up
a
tidy
165-page
document
that
contains
all
manner
of
damaging
statements
about
a
criminal
defendant,
made
outside
of
a
trial
setting
and
without
being
subjected
to
the
rules
of
evidence
or
cross-examination,
and
files
it
publicly,
generating
national
headlines.
You
know
who’ll
see
those
allegations?
The
voters,
sure
—
and
also
members
of
the
jury
pool.

A
few
paragraphs
before
this,
Honig
took
a
swipe
at
the
filing
as
unnecessary
because
“[t]he
story’s
structure
is
the
same
as
we’ve
long
known.”
You
really
have
to
pick
one,
bud.
Is
this
tainting
the
jury
pool
or
old
news?

But,
again,
Honig
is
right
that
this
isn’t
material
that
would
normally
end
up
going
public.
But,
also
again,
he’s
ignoring
that
Trump’s
defense
strategy
is
the
only
reason
this
is
happening.
The
Supreme
Court,
following
Trump’s
lead,
created
a
standard
that
not
only
immunizes
presidents
from
official
acts,
but
from
using
evidence
of
official
acts
even
to
prosecute
a
president
engaged
in
unofficial
act
criminality.
While
securing
that
ruling
was
a
real
coup
for
Trump
—
a
successful
one
for
him,
for
a
change
—
it
drew
the
battlelines
for
the
next
immunity
fight
around
which
conversations
and
actions
were
and
were
not
“official.”

And
that’s
how
the
docket
ends
up
with
a
voluminous
motion
filled
with
grand
jury
testimony
focused
on
who
Trump
talked
to
when
and
in
what
capacity.
It’s
the
natural
and
logical
consequence
of
the
standard
concocted
by
the
Supreme
Court
last
Term.
Honig
doesn’t
even
acknowledge
this,
much
less
suggest
how
an
immunity
argument
would
be
resolved

without
this
filing.
Even
if
Judge
Chutkan
ordered
Trump
to
file
the
motion
first,
Smith’s
response
would
look…
pretty
much
exactly
like
this.

By
the
way,
this
is
also
the
answer
to
Honig’s
snarky
aside
about
the
redactions
in
the
filing
when
he
said
Smith
“redacted
out
a
few
obvious
names
(who
ever
might
“Arizona
Governor
[Redacted
P-16]”
be?),
and
made
the
rest
public.”
Yeah,
because
the
titles
involved
are
pretty
significant
when
the
standard
is
“was
this
a
conversation
that
a
president
would
have
in
the
ordinary
course
of
their
duties.”
So
it
matters
if
Trump
called
a
governor
to
arrange
flood
relief
or
to
ask
them
to
find
more
ballots.

Bumbling
to
a
conclusion,
Honig
points
to
the
DOJ
Manual’s
edict
that
“Federal
prosecutors…
may
never
select
the
timing
of
any
action,
including
investigative
steps,
criminal
charges,
or
statements,
for
the
purpose
of
affecting
any
election.”

Remember,
Smith
begged
the
judge
to
flip
the
rules
on
their
head
so
he
could
file
this
document
first,
and
quickly
—
“any
action,”
by
any
reasonable
definition
—
with
the
election
right
around
the
corner.
Anyone
who
objected
to
James
Comey’s
outrageous
announcements
about
the
Hillary
Clinton
email
investigation
on
the
eve
of
the
2016
election
should
feel
the
same
about
Smith’s
conduct
now.
What’s
the
distinction?
Both
violated
ordinary
procedure
to
take
public
steps,
shortly
before
an
election,
that
plainly
would
have
an
impact
on
that
election.

Well,

I
did
NOT
object
to
Comey’s
announcements
about
the
Clinton
emails.
It’s
also
an
unfair
characterization
of
how
all
that
went
down
because
Comey
didn’t

announce
shit.
He
wrote
a
congressional
committee
to
clarify
that
when
he
months
earlier
testified
that
the
FBI
had
searched
everything,
it
turned
out
there
was
something
else
to
review
but
that
there
was
no
reason
to
believe
it
would
be
anything
but
redundant.

They
decided
to
make
this
mundane
notification
a
big
deal
(perhaps
in
a
way
that
Comey
should’ve
predicted)
and
it
turned
out
the
new
data
was,
in
fact,
redundant.

Context
matters
and
so
does
the
underlying
purpose
of
all
these
rules.
Defendants
move
first
because
the
defense
has
a
right
to
define
its
strategy
and
streamline
the
pre-trial
process…
which
doesn’t
matter
when
the
argument
is
already
teed
up
and
there’s
a
history
of
dilatory
tactics.
Factual
disclosures
shouldn’t
litter
the
pre-trial
process…
unless
the
specific
argument
the
defense
makes
requires
a
ruling
based
on
grand
jury
testimony.
And,
importantly,
the
DOJ
shouldn’t
take
an
action
that
could
impact
an
impending
election…
except
when
they
took
action
months
and
months
beforehand
and
none
of
this
would
be
happening
weeks
before
an
election
if
Trump
hadn’t
set
out
on
a
strategy
to
drag
this
out
forever
and
his
cronies
on
the
Supreme
Court
hadn’t
dutifully
sat
on
the
case
until
the
last
gasps
of
the
Term.

If
Honig
wanted
to
take
issue
with
these
conclusions,
he
could
easily
explain
why
—
given
all
that
context
—
there’s
still
overriding
reasons
to
stick
with
the
standard
procedure
that
Trump
has
shown
every
interest
in
hacking.
And
we
could
have
that
debate
as
a
legal
community,
but
he
doesn’t
want
to
get
into
that
so
he’s
just
not
going
to
mention
any
of
it.

Besides,
getting
into
that
sort
of
nuanced
and
honest
discussion
about
the
state
of
the
case
is
not
the
sort
of
analysis
that
earns
someone
the
love
and
admiration
of
that
audience
of
one.

Respect
the
hustle.


Jack
Smith’s
October
Cheap
Shot
[New
York]



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