An Alabama Trump appointee is threatening to jail LGBTQ civil rights lawyers

A forum-shopping dispute that been ongoing for two years briefly reached the Eleventh Circuit on Monday. Also: More on Alito. And: Law Dork in the news.

An “unprecedented judicial investigation” into forum-shopping allegations — levied against some of the nation’s top LGBTQ civil rights lawyers — boiled over briefly on Monday after the district court judge overseeing the dispute threatened to jail some of the lawyers involved.

After a hearing on Monday afternoon, however, the lawyer for those threatened lawyers, Donald Verrilli Jr., told Law Dork that the matter is back to a high simmer for now — but just briefly.

U.S. District Judge Liles Burke, a Trump appointee, has been overseeing the challenge to Alabama’s ban on gender-affirming medical care for minors, Boe v. Marshall. At the same time, after Burke raised questions about whether the decisions to dismiss earlier cases initially brought against the ban — Walker v. Marshall and Ladinsky v. Ivey — constituted forum shopping, the chief judges of each district in Alabama appointed a three-judge panel to conduct a secretive and extensive investigation, known as In re Amie Adelia Vague, into the nearly 40 lawyers involved in the various challenges to the law.

The investigation and its fallout have been going on behind the scenes for the past two years. The three-judge panel issued a report — which was initially sealed — on the forum-shopping claims last fall. That report was made public by order of Burke at the end of March, over the lawyers’ objections, but the question of what would happen next is still pending before Burke. He has scheduled a hearing on potential sanctions for late June, although that could change.

All of this was something that I’ve been tracking and wanting to cover — and planned to do so — but it will take time to give it the coverage it deserves and I want to give it that time. It deserves that — and I still plan to do so. The investigation is extremely troubling, as are the report and Burke’s prior efforts in response to the report.

In the midst of all of that, however, Burke did something that requires immediate coverage. He issued an unexpected and extreme order late in the afternoon of Friday, May 17, demanding that several of the lawyers turn over a Q&A document that the lawyers say is protected by attorney-client privilege by 5 p.m. CT Monday — essentially one business day later — or face monetary sanctions and being taken into custody.

In justifying the order, Burke made an explosive claim that the lawyers say had never previously been raised over the past two years of this dispute:

Even if the document otherwise enjoyed the protections of attorney–client privilege or the work-product doctrine, the document loses those protections if the crime–fraud exception applies — a determination the Court can only make by reviewing the materials in camera.

Specifically, Burke later claimed in the order, “Until the Court reviews the document, the Court cannot know whether it reflects a good faith attempt to prepare for a hearing, an orchestrated attempt to distract or mislead the Panel, or something else entirely. Whatever it might show, the document is highly relevant to the Court’s task.”

In response to Burke’s order, counsel for Kathleen Hartnett of Cooley LLP, one of the lawyers subject to Burke’s order, informed the court on Sunday that Hartnett would be seeking relief from the U.S. Court of Appeals for the Eleventh Circuit on Monday before Burke’s deadline if he didn’t stay his Friday order.

Burke didn’t issue a stay by Monday morning, and counsel for Hartnett and four other lawyers — James D. Esseks, ACLU; Carl Charles, formerly of Lambda Legal and currently with the Justice Department; LaTisha Faulks, ACLU of Alabama; and Milo Inglehart, Transgender Law Center — did file a petition for mandamus or for a stay of Burke’s order in the Eleventh Circuit on Monday afternoon.

Stating that they had “attempted to defend themselves before the District Court without involving this Court,” the filing at the Eleventh Circuit was led by Verrilli, a partner at Munger Tolles & Olson LLP and former solicitor general in the Obama administration, and direct — as it needed to be given it was seeking same-day relief from the appeals court:

Lacking any basis to sanction Petitioners for their conduct in the underlying litigation, the District Court has now suddenly levied baseless allegations of fraud, as well as threats to jail Petitioners if they do not turn over their privileged communications on one day’s notice with no opportunity to be heard. That is an abuse of the judicial power that this Court should not countenance.

At roughly the same time, though, Burke held a video conference at the district court — and put off the date by which the document is due.

Burke extended the date by which the Q&A document needs to be produced to 5:00 p.m. CT May 28, according to Verrilli. (The courts are closed Monday for Memorial Day, so this is effectively a one-week extension.) In the meantime, though, Verrilli told Law Dork that Burke also directed the lawyers to brief any crime-fraud exception arguments and submit them to him by 5:00 p.m. CT Friday, May 24.

As such, the lawyers withdrew their request at the Eleventh Circuit. For now.

Verrilli told Law Dork that it “seems very likely” the lawyers will be returning to the Eleventh Circuit within the next week, however, given Burke’s comments at Monday’s hearing.

I’ll have much more on this in the coming days, but it felt like I had to at least highlight now that this is happening and could become a significantly bigger story quickly.

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More about Alito

Some people are aghast that I would question Justice Sam Alito’s stock-trading while on the U.S. Supreme Court.

First of all, this is a man whose excuse for not disclosing a private flight to Alaska was, as he wrote in the Wall Street Journal, that he was using “what would have otherwise been an unoccupied seat” on the flight — in addition to everything else detailed in my original report.

There is simply no reason why we should give Alito the benefit of the doubt. There is no reason not to ask whether Alito’s sale of Anheuser-Busch and purchase of Molson Coors stock on August 14, 2023, were related to the boycott, the coverage of the purported effects of the boycott on Anheuser-Busch sales, or Chaya Raichik’s post.

As I detailed on Sunday, the answers to those questions bear on whether his “impartiality might reasonably be questioned” in cases relating to bans on gender-affirming medical care for minors and whether he “has a personal bias or prejudice concerning a party” in such cases.

Second, and more broadly, this entire situation only even potentially exists due to Alito’s stubborn unwillingness to remove himself from this area of conflict altogether. He doesn’t need to — and should not — own individual stocks at all.

He is one of only two justices who currently own individual stocks. Chief Justice John Roberts has been slowly divesting of his individual stock ownership over the past decade, according to Fix the Court’s tracking, owning only individual stocks from two companies by the end of 2022. Alito, on the other hand, after a few sales earlier in his tenure, has continually held shares in more than two dozen companies since 2016. 

This decision to hold so many individual stocks has led Alito to recuse himself from consideration of many cases as a result of the direct conflict of interest, but it also — when he is trading those stocks in the midst of his time on the Supreme Court — raises questions of motive and purpose that can pose other ethical questions, like here.

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Law Dork in the news

Law Dork’s exclusive report on Alito’s stock trades was picked up by news outlets on Sunday night and Monday all over the place, including by Jen Psaki during her prime-time show on MSNBC:

Other coverage included:

• The Daily Beast

• The New Republic

• Politico Playbook:

  

• MSNBC

• New York magazine’s Intelligencer

• CNBC

• Newsweek

• Wonkette

National Review, shockingly, concluded that we shouldn’t care. (Like most criticism, this piece is premised on the idea that I had drawn a conclusion, as opposed to reporting that facts of what we know and raising the concerns that Alito refuses to answer. In short, see above.)

Finally, I also appeared on Scripps News’s The Race on Monday to discuss the Supreme Court, including questions about court accountability. (Yes, he also addressed the stock story by drawing his own conclusions about Alito’s purpose for selling the Anheuser-Busch stock, but I didn’t think it would be helpful to derail the conversation by focusing on that when there are bigger issues — such as we discussed.)

Check it out!