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Judicial Notice (08.09.26): Star-Crossed Lovers
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U.S. Attorney Jeanine Pirro (D.D.C.), at a press conference announcing her office’s prosecution of former Olympic canoeist David Hearn—a case she dropped, a few weeks later (photo by Anna Moneymaker via Getty Images).This week’s Judicial Notice is sponsored by
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In the last edition of Judicial Notice, the most-clicked link was—to my surprise—the photo I used to illustrate the post, featuring the Wachtell Lipton Rosen & Katz letterhead as of March 2000. And when I posted an image of my former firm’s letterhead on LinkedIn, it went viral (by law-nerd standards), garnering more than 185,000 pageviews.
Given this surprising interest in the WLRK letterhead—which back then listed associates as well as partners, making it something of a curiosity—I updated last week’s Judicial Notice to swap in a more legible and somewhat more recent version (from 2003). If you’re interested, you can click here to view it. (See if you can find my name, as well as those of other Wachtell alumni you might recognize.)
Now, on to the news.
Lawyer of the Week: Jeanine Pirro.
On July 31, U.S. Attorney Jeanine Pirro (D.D.C.) moved to dismiss her office’s indictment of former Olympian canoeist David “Davey” Hearn, whom it had charged with felony destruction of property for allegedly vandalizing the Lincoln Memorial Reflecting Pool. According to her motion, the evidence “strongly suggest[s]” that damage to the lining of the Reflecting Pool was caused not by vandalism, but by a “rushed and botched installation” by the contractor.
This didn’t sit well with her boss, Donald Trump, who has repeatedly blamed the many problems with the Reflecting Pool’s renovation on vandals. He publicly criticized Pirro, historically his staunch ally and loyalist, for “choking” and “folding like an umbrella”—and summoned her to a White House meeting, along with Interior Secretary Doug Burgum (whose office Pirro had blamed for providing incorrect information about the work done on the Reflecting Pool).
The meeting, which took place last Monday, was an “Oval Office showdown,” according to The New York Times (gift link)—“a high-drama, face-to-face meeting” that was “worthy of two decorated veterans of confrontational reality TV.” Here’s more, from Tyler Pager, Glenn Thrush, and Katie Rogers of The Times:
Ms. Pirro came prepared. She entered the White House from the West Executive driveway in a bright red blazer that matched her fight-back mood, schlepping a white box containing evidence, plus a black box with documents, on wheels.
Waiting for her in the Oval Office, along with the president: Mr. Trump’s chief of staff, Susie Wiles, and David Warrington, the White House counsel. After about an hour of intense back-and-forth, Ms. Pirro emerged with her job intact, for now.
Emphasis on “for now.” According to C. Ryan Barber, Josh Dawsey, and Meridith McGraw of the Wall Street Journal (gift link), “People close to the president said it is too early to say whether Pirro’s job is safe, noting that Trump remains angry that his longtime ally publicly undercut him.”
Critics of the Trump administration faulted Pirro for not realizing at an earlier stage, based on publicly available information, that the vandalism claims were far-fetched—and generally viewed the whole situation as “a complete catastrophe for the U.S. Attorney's Office and the administration,” as Ken White said on Serious Trouble.
On the other hand, from a “better late than never” perspective, Pirro did eventually drop the charges—showing that, in White’s words, “even Jeanine Pirro has limits to the extent to which she’ll get kicked around for doing stupid stuff for Donald Trump.” Or as longtime defense attorney Joe Flood told Salvador Rizzo, who wrote an impressively balanced profile of Pirro for the Washington Post (gift link), Pirro should “get[] some credit for standing up to Trump.”
Speaking of standing up to Trump, might we see more of that from Todd Blanche—confirmed as U.S. Attorney General on Saturday, 50-49? That was part of the justification that Senator Bill Cassidy (R-La.) gave for casting the deciding vote for Blanche, expressing the hope that being a Senate-confirmed AG would give him “greater leverage to push for things that should be pushed for.”
Other lawyers in the news:
I’ll surely have more to say about this news in next week’s Judicial Notice—it broke just as I was putting the finishing touches on this edition—but at around 5:30 p.m. on Sunday (today), Donald Trump announced on Truth Social that effective September 1, Will Scharf will succeed David Warrington as White House Counsel (and Warrington will return to the private sector).
As some of you might recall, Scharf—a Harvard Law School graduate, former federal law clerk and prosecutor, and former personal lawyer to Trump—currently serves as White House staff secretary, an influential role once held by Brett Kavanaugh. Back in June, Scharf was Lawyer of the Week for persuading Trump not to (1) suspend habeas corpus for unlawful immigrants or (2) invoke the Insurrection Act to deal with domestic protests.
If anyone has additional info on this transition in the White House Counsel’s Office—e.g., whether Scharf had much competition for the job (I’m guessing no), or where Warrington is headed next (I’m guessing a conservative boutique like his former firm, Dhillon Law Group)—please drop me a line.Last Friday, the Senate used its relatively new en bloc process to confirm a fifth batch of second-Trump nominees, 51-47. This group of over 70, whose names can be viewed on the Senate website, included a number of lawyers, such as a new Department of Justice Inspector General, Donald Berthiaume; four U.S. attorneys, namely, Kenneth Sorenson (D. Haw.), Timothy VerHey (W.D. Mich.), Sean Costello (S.D. Ala.), and Christopher Nassar (N.D. Okla.); and two members of the National Labor Relations Board (NLRB), James Macy and David Prouty, whose arrival will give the NLRB a quorum.
A year ago last month, Louis Capozzi became Missouri Solicitor General—and, at age 30, the youngest state SG in the country. He spoke about his first year in office, including growing his team from five lawyers to 15, with the National Law Review and Law360 (which wrote about the rise of state SG’s offices more broadly, in an article titled “How State SG Offices Became A Judicial Pipeline”)
Speaking of successful young lawyers, congratulations to Bloomberg Law’s latest 40 Under 40 honorees, as well as to Law360’s 160-plus Top Attorneys Under 40.
Judge of the Week: Judge Jennifer Mascott.
Last week, Daniel Barnes and Jacob Wendler wrote a piece for Politico about an unusual situation involving Judge Jennifer “Jenn” Mascott (3d Cir.). Here’s the opening of their piece, titled “‘Is she even allowed to be doing this?’: Inside a federal judge’s side gig running a PR firm”:
A Trump-appointed federal appeals judge spent months running a Washington public affairs firm after being appointed to the bench last year, an arrangement that contributed to an exodus among the firm’s staff and clients and only ended when the firm went out of business at the end of June.
Jennifer Mascott, a former conservative law professor who sits on the 3rd Circuit Court of Appeals, was deeply involved in daily operations at the firm, Adfero, for at least six months after she was confirmed as a judge in October 2025, according to 14 former employees and clients granted anonymity to discuss internal details of the firm’s final months.
Nine of the former employees said Mascott, who inherited her ownership stake in the firm from her late husband in 2023, worked at least once a week out of Adfero’s office in Washington and oversaw the firm’s staffing, business development efforts and client relations in between her full-time judicial duties in Wilmington and Philadelphia.
Readers who alerted me to the Politico piece expressed surprise at this arrangement. In general, to avoid ethical issues, federal judges don’t take on non-judicial employment (setting aside teaching and writing books, which they’re allowed to do). If judges do decide to take positions outside the judiciary, they almost always resign from the bench (as former judge Gregory Van Tatenhove (E.D. Ky.) did last month, before becoming dean of the University of Kentucky’s Rosenberg College of Law).
But interestingly enough, the Code of Conduct for United States Judges provides that a judge “may serve as an officer, director, active partner, manager, advisor, or employee of a business,” as long as the business is “closely held and controlled by members of the judge’s family.” This provision allowed Mascott to run Adfero as managing trustee, as requested by her late husband Jeff Mascott—who tragically passed away in 2023 at 48, from pancreatic cancer. As Judge Mascott told Politico:
Consistent with those fiduciary and legal and ethical duties, I endeavored to keep the company going while that was viable and also routinely consulted with long-time firm HR lawyers and other advisors and legal and ethical experts about how to comply with all requirements and how to evaluate whether the company should be wound down, sold, or otherwise entrusted to other firm leadership.
Not surprisingly, responses to Politico’s report varied based on one’s political leanings. Senator Chris Coons (D-Del.), a prominent Democrat on the Senate Judiciary Committee, announced that he’s thinking about filing a judicial misconduct complaint against Mascott (whose nomination to a Delaware-based seat on the Third Circuit he opposed). Meanwhile, conservatives assailed the Politico piece as “disgusting” (Ilya Shapiro) and a “hit job” (Eric Wessan).
I’m friendly with Judge Mascott; I like her personally (based on admittedly limited interactions), and I have a positive opinion of her as a judge (based on her limited tenure on the bench). That said, I wouldn’t call the Politico article a hit piece; it struck me as a legitimate piece of investigative journalism, reporting on an unusual situation that certainly raises ethical questions (but doesn’t appear to involve any ethical violation, based on the code provision mentioned above).
I don’t know the specifics of the situation that Mascott was thrust into by the shockingly sudden passing of her husband—who was diagnosed in 2022 and died in 2023, leaving behind Jenn Mascott as the sole parent to four young children. As a general matter, though, I’d suggest that judges should probably try to avoid situations where they’re involved in the running of outside businesses, even closely held family concerns. And I wonder whether Judge Mascott—with the benefit of hindsight, which is admittedly 20/20—regrets not immediately selling Adfero (perhaps to its employees with an earn-out), in light of the fact that the business ultimately closed its doors.
In other news about judges and the judiciary:
In an interview with James Taranto of the Wall Street Journal (gift link via Howard Bashman’s How Appealing), Justice Samuel Alito confirmed what we already knew (thanks to things like his clerk hiring): “Obviously I’m here for another term.”
Speaking of SCOTUS, a new Marquette Law School Poll (via Adam Liptak’s The Docket) found that 47% of adults approve of the way the Court is handling its job, while 53% disapprove (pretty much unchanged from May—so the final merits rulings of OT 2025 didn’t move the needle).
Judge Brantley Starr (N.D. Tex.)—yes, he’s related to the late Ken Starr (his uncle)—received a lot of attention for the colorful footnotes in his recent opinion in CFTC v. TMTE, Inc. Some readers enjoyed them—like Peter Beck and Seamus Hughes of Court Watch, who wrote that “the entire opinion… is a ride, complete with a reference to the greatest Christmas movie ever produced (footnote 37).” But I did hear privately from others who found the opinion self-indulgent—especially footnote 51, which apparently references a 4chan Meme (or so Reddit tells me). I also wonder whether Judge Starr’s opinion is what Judge Stephen Dillard had in mind when he tweeted, a few days later, “There may be cases where it’s necessary (or at least reasonable) to include an emoji, meme, or the like in a judicial opinion. But I do think judges should avoid using them in a way that appears to be gratuitous.”
In the past year or so, Fifth Circuit judges have started dissenting from grants of rehearing en banc, issuing opinions that some call “disgrantles” or simply “grantals.” Perhaps this will become a trend in other circuits, now that it has been covered by folks like Jacqueline Thomsen of Bloomberg Law and Avalon Zoppo of Law.com. I’m not sure how I feel about this; readers, what do you think?
In nominations news, the Senate confirmed eight judges to the D.C. Superior Court and Court of Appeals—the District’s local courts—but no new Article III judges. The senators will return from their August recess on September 14.
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