Author: TSA Press

What
happens
when
a
judge
relies
on
a
GenAI
tool
in
formulating
their
decision
on
a
key
issue,
particularly
one
that
could
impact
the
GenAI
providers?

It’s
not
only
law
firms
and
legal
departments
that
are
adopting
GenAI
systems
without
fully
understanding
what
they
can
and
cannot
do
—
court
systems
may
also
be
tempted
to
adopt
these
tools
to
short
circuit
workloads
in
the
face
of
limited
resources.
And
that
poses
some
risks
and
concerns
to
the
rule
of
law,
a
notion
that
hinges
on
accuracy,
fairness,
and
public
perception.

The
Role
of
UNESCO

That’s
why
what
organizations
like

UNESCO
(the
United
Nations
Educational,
Scientific
and
Cultural
Organization)
are
doing
are
important.

UNESCO
is
an
agency
that
attempts
to
foster
international
cooperation
in
various
fields.
It
often
sets
standards,
develops
programs,
and
creates
global
networks.
One
such
network
is
devoted
to
the
development
of

Guidelines
for
the
use
of
AI
in
courts.
A
recent

UNESCO
publication
discussed
the
programs
being
developed
to
assist
courts
and
tribunals
in
the
use
of
AI.
According
to
the
publication,
“The
Guidelines
provide
principles
and
recommendations
to
courts
and
judges
on
how
AI
systems
may
be
designed,
procured
and
used
to
strengthen
access
to
justice,
human
rights,
and
protect
judicial
independence.”

What
Are
The
Risks?

The
publication
identified
three
risks
which
resonate
given
the
current
political
climate:

• Technology
  is
  in
  the
  hands
  of
  private
  companies
  that
  have
  little
  concern
  for
  judicial
  independence.
  These
  companies’
  primary
  motive
  is
  making
  a
  profit,
  not
  ensuring
  fairness
  and
  transparency
  in
  judicial
  decisions
• Relatedly,
  there
  is
  the
  opportunity
  for
  subtle
  influence
  and
  manipulation
  of
  judicial
  decisions.
  As
  the
  publication
  puts
  it,
  “Even
  supportive
  AI
  functions,
  such
  as
  document
  summarization,
  can
  shape
  the
  facts
  considered
  in
  judgments.
  When
  judges
  use
  AI
  outputs,
  its
  dataset
  limitations
  can
  inadvertently
  affect
  legal
  reasoning.”
  What
  happens
  if
  that
  occurs?
• There
  is
  public
  pressure
  on
  courts
  to
  adopt
  AI
  tools
  without
  sufficient
  safeguards.
  How
  can
  this
  pressure
  be
  tempered
  in
  favor
  of
  rational
  decision
  making
  when
  it
  comes
  to
  AI
  adoption
  by
  courts?

The
Risks
Are
Not
Theoretical,
They’re
Real

These
dangers
and
risks
are
real.

First,
tech
companies
trumpeting
AI
tools
are
growing
more
and
more
powerful.
They
create
tools
that
can
hallucinate
or
offer
outputs
that
are
inaccurate.
Yet
the
public
drums
seem
to
constantly
beat
the
refrain
of
all
the
wonders
of
these
tools
and
how
they
can
help
humanity
and
law
without
recognizing
the
inherent
risks,
particularly
to
the
judiciary.
The
lack
of
any
watchdogs
on
judicial
use
is
concerning.

Secondly,
given
this
power
and
potential
lack
of
understanding
by
judicial
users
of
the
risks
and
bias
of
the
tools,
there
is
the
opportunity
for
mischief
and
influence
by
the
vendors
to
achieve
their
ends.
Let’s
say
a
judge
is
confronted
with
an
issue
that
can
impact
a
significant
AI
player.
Could
the
tools
be
manipulated
to
increase
the
risks
of
a
favorably
ruling
perhaps
subtlety?
Who
would
know?

How
would
that
be
dealt
with?
In
today’s
political
climate
where
corporations
have
significant
control
over
all
kinds
of
things
from
what
we
are
allowed
to
see
to
what
we
can
say
on
their
controlled
sites,
the
risk
of
influence
is
certainly
not
insignificant.

Judge
Scott
Schlegel,
an
appellate
judge
from
Louisiana
and
one
of
the
leading
voices
on
the
impact
of
AI
on
the
judiciary,
recently
raised
a

similar
point.
What
if
there
were
hidden
or
white
text
in
legal
documents
that
was
designed
to
lead
AI
tools
to
make
certain
recommendations
and
reasoning?
What
if
the
tools
themselves
were
biased
to
reach
or
suggest
certain
decisions?

Indeed,
we
are
already

hearing
of
judges
citing
to
cases
that
don’t
exist.
Who
should
catch
this?
Should
judges
be
required
to
disclose
they
(or
their
clerks)
have
used
GenAI
tools?
Otherwise,
who
would
necessarily
know?
How
would
(or
could)
the
legitimacy
of
an
impacted
decision
be
determined?

The
Pressures
to
Use
AI
in
the
Courtroom

And
then
there
is
the
pressure
on
the
judiciary
to
adopt
these
tools.
The
AI
hype
machine
is
in
overdrive.
We
constantly
hear
of
all
the
wondrous
things
GenAI
can
achieve.
Will
legislatures
be
tempted
to
mandate
adoption
of
these
tools
to
reduce
the
costs
of
a
court
system?
Would
overworked
and
understaffed
judges
be
tempted
to
use
AI
tools
to
move
cases,
relying
on
vendor
promises
of
what
these
tools
can
do?

Not
to
mention
the
public
perception
of
the
court
system
already
under
siege:
what
happens
to
that
perception
as
more
and
more
judges
cite
to
cases
that
don’t
exist
and
where
the
case
cited
does
not
stand
for
the
proposition
asserted?
Courts
often
adopt
the
reasoning
in
the
briefs
of
the
successful
party.
What
if
those
briefs
are
wrong
or
contain
errors?
How
will
those
issues
be
dealt
with?

What
about
bias
in
the
models
themselves?
If
a
bias
impacts
a
judicial
decision,
how
will
we
deal
with
it?
What
will
be
the
appropriate
appellate
standards?
Do
we
need
some
new
ones
to
deal
with
AI
influence
on
judicial
decision-making?

Why
It
Matters

That’s
why
what
UNESCO
is
doing
is
important.
It’s
offering
guidelines.
It’s
putting
together
teams
of
experts.
It’s
asking
the
hard
questions.
It’s
trying
to
make
us
all
see
risks
before
the
GenAI
tools
impact
the
rule
of
law
instead
of
reacting
to
them.

The
rule
of
law
is
too
important
to
our
society,
our
way
of
living,
and
our
economic
standards
not
to
ask
these
hard
questions.
How
can
we
deal
with
the
concept
of
fairness
and
due
process
when
some
of
the
decision-making,
even
if
only
small
bites,
is
ceded
to
GenAI?

How
can
we
ensure
transparency
in
judicial
decision-making
when
it
comes
to
AI?
We
already
have
problems
knowing
how
judicial
decisions
are
sometimes
reached.
With
AI,
we
have
yet
another
transparency
barrier
as
we
struggle
to
know
on
what
a
judge
relied.
Should
judges
be
required
to
say
if
they
relied
on
GenAI
tools
and
to
what
extent
in
decision-making?

We
need
to
foresee
and
prepare
for
what
AI
could
bring.
From
all
indications,
UNESCO
is
doing
just
that.
But
we
need
more.
We
need
federal
courts
to
lead
the
way
in
thinking
about
these
issues.
We
need
bar
associations
to
step
up
and
demand
training
and
standards.
We
need
to
ensure
our
judiciary
gets
the
training
and
the
resources
to
understand
and
deal
with
both
the
benefits
and
risks
of
technology,
just
as
lawyers
and
legal
professionals
are
expected
to.

There’s
too
much
at
stake
not
to.

---

Stephen
Embry
is
a
lawyer,
speaker,
blogger,
and
writer.
He
publishes TechLaw
Crossroads,
a
blog
devoted
to
the
examination
of
the
tension
between
technology,
the
law,
and
the
practice
of
law. 

Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.

I
suspect
that
we
have
already
seen
most
of
the
direct
effects
that
we
are
going
to
see
in
terms
of
departures
and
client
responses.
I
don’t
think
the
deals
will
have
a
big
impact
on
recruiting
in
2026.
The
exception
might
be
Paul
Weiss,
which
may
find
that
it
does
not
attract
applicants
with
the
same
attitudes
and
interests
as
it
might
have
in
the
past.

No
one
expected
Paul
Weiss
to
settle
so
quickly.
In
doing
so,
it
signaled
that
it
was
OK
for
other
firms
to
do
the
same.
I
think
Paul
Weiss
drew
a
lot
of
the
anger
and
disappointment
about
the
decision
because
lawyers
felt
that
the
firm
had
not
only
betrayed
its
own
values,
but
the
values
of
the
legal
profession.
Rather
than
stand
up
to
the
executive,
it
capitulated.

—

Leslie
Levin,
a
legal
ethics
professor
at
the
University
of
Connecticut
Law
School,
in
comments
given
to
the

American
Lawyer,
concerning
the
fate
of
the
law
firms
that
settled
with
the
Trump
administration
—
and
that
of
Paul,
Weiss,
in
particular
—
rather
than
litigate
against
the
president’s
retaliatory
law
firm
executive
orders. Scott
Cummings,
a
legal
ethics
professor
at
UCLA
School
of
Law,
thinks
that
the
“verdict
is
still
out”
for
firms
that
capitulated,
saying,
“The
blowback
from
the
legal
profession
is
incredibly
strong.”

---

Staci
Zaretsky is
the
managing
editor
of
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 Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

If
there’s
one
figure
in
American
history
who
would
not
stand
for
any
of
the
present
nonsense,
it’d
be
Thomas
Paine.
The
revolutionary
pamphleteer
hated
the
idea
of
monarchs
trampling
on
people
behind
the
veil
of
absolute
immunity
so
much
that
he
followed
up
the
American
Revolution
by
rolling
over
to
France
and
getting
elected
to
the
revolutionary
government

without
knowing
how
to
speak
French.
Then
he
languished
in
prison
as
an
opponent
of
the
Robespierre
administration
and
came
home
to
write
letters
bashing
George
Washington.
Thomas
Paine
had
exactly
zero
tolerance
for
executive
bullshit.
So,
obviously,
the
author
of

Trump
v.
United
States
invoked
Paine
as
a
political
mascot
to
gaslight
the
American
people
into
thinking
any
of
this
is
normal.

Every
year,
Chief
Justice
John
Roberts
releases
his

Year-End
Report
on
the
Federal
Judiciary,
and
every
year
it
reads
like
a
college
sophomore
pulling
an
all-nighter
to
deliver
a
10-page
essay
without
doing
the
reading.
What
is
there
to
say
about
the
state
of
the
federal
judiciary
as
2025
drew
to
a
close?
A
massive
uptick
in

violent
threats
against
judges?
Multiple
instances
of

federal
government
lawyers
caught
lying
to
the
courts?
An
historic
lowpoint
for

public
faith
in
the
Supreme
Court?

Roberts
will
discuss
none
of
those
topics.
While
not
as
far
afield
as
his
2023
report,
which

devoted
several
pages
to
the
advent
of
typewriters,
the
2025
Annual
Report
provides
an
equally
empty
Temu
history
lesson,
with
Roberts
hiding
behind
the
sort
of
phony
portrait
of
Thomas
Paine’s
life
and
work
that
only
a
true
#Originalist
could
concoct.

Two
hundred
fifty
years
ago
this
week,
a
recent
immigrant
to
Britain’s
North
American
colonies
put
the
finishing
touches
on
a
manuscript
in
which
he
hoped
to
express
“plain
truths”
about
his
newly
adopted
home.

Immigrants
get
the
job
done,
eh?
Thomas
Frank
wrote
an
essay
in
the
Baffler
back
in
the
90s
suggesting
that
the
problem
with
protest
art
is
that
it’s
aesthetic
qualities
will
always
end
with
it
getting
repurposed
to
support
the
status
quo.
It’s
why
Donald
Trump
is
celebrating
dropping
bombs
on
Venezuela
to
the
tune
of
Fortunate
Son
—
a
song
explicitly
about
rich
people
sending
regular
folks
to
die
in
wars
for
their
own
personal
enrichment.
The
sad
legacy
of

Hamilton
will
almost
assuredly
be
its
cooptation
into
the
sort
of
“good
immigrant”
mythologizing
that
guys
like
Roberts
cite
while
simultaneously
nodding
gravely
at
the

unfortunate
necessity
of

Kavanaugh
stops
to
round
up
everyone
by
skin
color.

Common
Sense
was,
quite
literally,
a
screed
against
a
monarch
who
believed
he
could
do
whatever
he
wanted.
Roberts
has
spent
the
last
year
rubber-stamping
the
worldview
that
King
George’s
only
crime
was
not
replacing
William
Pitt
with
Stephen
Miller.

Professor
Steve
Vladeck,

commenting
on
the
Roberts
report,
took
a
much
more
gracious
reading
of
the
Roberts
report:

Against
that
backdrop,
the
2025
year-end
report
is
fascinating
for
its
subtleties.
Reading
between
the
lines,
one
can
find
the
Chief
Justice
of
the
United
States
standing
up
for
immigrants;
extolling
the
continuing
aspirations
of
the
Declaration
of
Independence;
and
reiterating
the
importance
of
judicial
independence—three
messages
that
are
certainly
welcome
as
we
look
ahead
to
the
second
year
of
the
second
Trump
administration.
The
problem,
though,
is
that
one
has
to
read
between
the
lines
to
find
those
takeaways.
Given
the
year
that
just
transpired—not
just
the
substantive
behavior
of
the
executive
branch
but
its
unprecedented
hostility
toward,
threats
against,
and
defiance
of
federal
judges—this
would’ve
been
a
golden
opportunity
for
Chief
Justice
Roberts
to
make
the
kind
of
statement
that
might’ve
resonated
across
the
political/ideological
spectrum.
By
opting
for
subtlety,
it
seems
worth
asking
exactly
who
the
Chief
Justice
views
as
his
audience
these
days.
Not
only
am
I
increasingly
unsure
of
the
answer,
but,
far
more
importantly,
I
wonder
if
he
might
be,
too.

It
would
be
nice
if
Roberts
were
just
too
weak
and
subtle
to
meet
the
moment.
But
Chuck
Schumer
already
has
that
job.
Where
Vladeck
sees
positive
signals,
I
see
the
ongoing
effort
to
recast
American
history
to
support
the
contemporary
right-wing
political
project
that
Roberts
has
worked
to
impose
on
the
country.

Paine
is
a
prop.
This
report
is
filled
with
props.
When
James
Clavell
wasn’t
writing
thousand-page
doorstops
about
feudal
Japan,
he
put
out
a
short
story
about
the
path
to
fascism
being
paved
by
rituals
like
the
Pledge
of
Allegiance.
Tyrants
can’t
just
roll
in
and
make
people
forget
what
their
country
is
all
about,
but
they
can
systematically
repurpose
symbols
when
they’ve
become
deified
by
unquestioning
masses.

Paine
—
a
hero!
—
inspired
the
Declaration
of
Independence.
Everyone
knows
that
the
Declaration
of
Independence
is
“good,”
right?
But
before
anyone
tries
to
draw
any
broad
conclusions
about
the
Framers
opposing
occupying
troops
flooding
the
streets,
remember
the
Declaration,
for
all
its
“good”-ness,
is
merely
ancillary.

This
may
come
as
a
surprise
to
some
readers.
But,
as
Justice
Scalia
observed,
the
Declaration
consists
of
“aspirations”
and
“philosophizing”
that
do
not
lend
themselves
well
to
prescription
or
enforcement.

When
rights
are
inconvenient,
they
always
become
“aspirational.”
But
Roberts
does
acknowledge
the
Reconstruction
Amendments
for
attempting
to
convert
the
Declaration’s
promises
into
something
concrete.

That
work
began
with
the
Thirteenth
Amendment
abolishing
slavery.
Lincoln
lived
to
see
that
amendment
pass
both
the
Senate
and
the
House,
though
it
was
not
ratified
until
after
his
assassination.
As
the
British
philosopher
John
Stuart
Mill
observed,
with
the
adoption
of
the
Thirteenth
Amendment,
“the
opening
words
of
the
Declaration
of
Independence”
would
no
longer
be
“a
reproach
to
the
nation
founded
by
its
authors.”
The
Fourteenth
and
Fifteenth
Amendments
soon
followed,
guaranteeing
due
process
and
equal
protection
of
the
law
and
granting
the
right
to
vote
to
Black
men.

Note
how
the
abolition
of
slavery
gets
top
billing
and
the
“actual
promise
of
equality
and
the
right
to
vote”
are
relegated
to
afterthoughts.
That’s
a
feature
not
a
bug
for
the
guy
who
declared
racism
a
thing
of
the
past
while
gutting
the
Voting
Rights
Act.

This
is
another
juncture
where
I
hope
optimists
like
Vladeck
are
right,
but
suspect
they
are
not.
Roberts
isn’t
sending
a
coded
message
that
this
Court
will
respect
the
promises
of
the
Reconstruction
Amendments,
he’s
telling
us
that
this
Court
“respects”
those
constitutional
principles
and
anyone
who
suggests
otherwise
misunderstands
the
line
between
aspiration
and
reality.
It’s
Clavell’s
Pledge
of
Allegiance
all
over
again:

you
know
we
believe
in
the
Fifteenth
Amendment…
so
when
we
say
it
means
the
executive
branch
can
purge
state
voter
rolls
based
on
race
it’s
only
because
we
believe
in
it
so
much.

Roberts
closes
the
report
by
assuring
us
that
the
Constitution
and
Declaration
“remain
firm
and
unshaken,”
quoting
Great
Depression
architect
Calvin
Coolidge.
This
is
framed
as
offering
solace
to
the
public,
but
it’s
the
opiate.
The
fixed
stars
of
the
American
constellation
are
firm
and
unshaken
because
it’s

un-American
to
question
whether
political
operatives
using
the
Court
to
erase
a
century
—
or
more
—
of
precedent
might
shake
those
foundations.
Joyce
Vance
noted
that

the
report
opens
with
a
photo
of
an
empty
room,
an
appropriate
choice
for
a
report
casting
American
legal
history
as
empty
signifiers
to
be
filled
in
by
his
majority.

Maybe
that’s
not
what
he’s
trying
to
say.
But
if
it’s
not,
he’s
invited
to
drop
the
subtlety
and
write
something
straightforward
and
principled.
Like
Tom
Paine
would’ve.

(Report
on
the
next
page…)

Earlier:

Chief
Justice
John
Roberts
Thinks
You’re
Stupid
And
He’s
Probably
Right

John
Roberts
Once
Again
Uses
Judiciary’s
Annual
Report
To
Express
His
Utmost
Contempt
For
The
Public

Chief
Justice’s
Annual
Report
Recounts
65-Year-Old
Tale
Of
Judicial
Heroism
To
Remind
You
There
Isn’t
Any
Today

---

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 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.

New
York
City’s
Law
Department
is
about
to
get
a
serious
(and
overdue)
reboot.
New
York
City
Mayor
Zohran
Mamdani

announced
last
week
that
Steven
Banks
will
take
the
helm
as
Corporation
Counsel,
pairing
the
appointment
with
an
ambitious
plan
to
expand
the
department
by
at
least
200
lawyers.

Mamdani
didn’t
mince
words
about
the
current
state
of
affairs.
“There’s
a
clear
need
for
a
few
hundred
additional
lawyers
at
the
Law
Department,
just
from
the
beginning
of
it,”
he
said,
pointing
to
the
growing
need
for
legal
services
for
immigrant
New
Yorkers.
He
added
that
the
Law
Department,
once
“on
the
front
lines
of
equal
rights
across
the
country,”
has
been
“hollowed
out”
in
recent
years.
His
goal?
A
Law
Department
that
is
fully
staffed,
assertive,
and
unapologetically
engaged
in
advancing
the
administration’s
agenda.

Enter
Banks,
whose
résumé
reads
like
a
blueprint
for
exactly
that
kind
of
transformation.
Banks
spent
three
decades
at
the
Legal
Aid
Society,
building
a
career
around
public
service
and
impact
litigation.
Banks
spent
eight
years
in
NYC
government
too,
as commissioner
of
the
New
York
City
Department
of
Social
Services
under
Mayor
Bill
de
Blasio.
Most
recently,
he
led
the
pro
bono
department
at
Paul,
Weiss,
where
he
was
responsible
for
steering
one
of
Biglaw’s
most
powerful
institutional
resources
toward
public-interest
work.

And
then
came
the
Trump
deal.

Banks
didn’t
quietly
shuffle
along
when

Paul,
Weiss
capitulated
to
Donald
Trump,
striking
a
deal
that
promised
the
president
$40
million
in
pro
bono
services.
Instead,

he
very
publicly
quit
in
a
move
that
spoke
volumes
about
his
professional
priorities.
In
a
legal
market
that
too
often
treats
“principles”
as
optional
when
powerful
interests
come
calling,
Banks
made
it
clear
that
his
weren’t
for
sale.

That
makes
him
a
fitting
choice
to
lead
a
Law
Department
that
Mamdani
wants
back
on
offense.

“I
know
firsthand
the
key
role
that
the
staff
of
the
Law
Department
can
play
in
supporting
[Mamdani’s]
vision
and
agenda
for
transformative
change,”
Banks
said,
emphasizing
that
the
job
is
ultimately
about
helping
New
Yorkers.

In
an
era
when
too
many
institutions
are
shrinking
back,
cutting
deals,
or
retreating
into
defensive
crouches,
New
York
City
is
signaling
something
different.
With
Steven
Banks
at
the
helm,
the
Law
Department
looks
poised
to
become
a
legal
engine
for
the
public
good.

---

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
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 or
Mastodon

@[email protected].

This
is
the
time
of
year
to
make
predictions.  

Who
am
I
to
buck
a
trend?
I
have
one
very
specific
(and
extended)
prediction.

My
prediction
begins
with
the
Supreme
Court
seeing
an
opportunity
in
the
pending
litigation
involving
President
Donald
Trump’s
tariffs.

Trump’s
“liberation
day”
tariffs
are
probably
unlawful. If
the
Supreme
Court
were
to
strike
down
the
tariffs,
that
decision
would
have
the
benefit
of
following
the
law. That’s
good,
for
starters.

But
a
decision
striking
down
the
tariffs
would
do
much
more
than
follow
the
law. Invalidating
the
tariffs
would
also
allow
the
Supreme
Court
to
show
that
it’s
independent,
occasionally
willing
to
defy
Trump. That
would
help
the
court. Invalidating
the
tariffs
also
doesn’t
hurt
Trump
too
much
because
Trump
has
fallback
mechanisms
for
reimposing
similar
tariffs
under
other
laws
if
he’s
dead-set
on
maintaining
tariffs.
Also,
because
Trump
can
reimpose
tariffs,
he’s
unlikely
to
ignore
the
court’s
order,
creating
a
constitutional
crisis.
Instead,
he’ll
use
a
different
route
to
reimpose
the
tariffs. Finally,
striking
down
the
tariffs
would
probably
benefit
Trump
politically: The
tariffs
have
increased
certain
prices
in
the
United
States
and
decreased
employment
(by
creating
uncertainty,
which
reduces
business
investment). By
striking
down
the
tariffs,
the
Supreme
Court
would
probably
be
helping
the
economy.

That’s
not
really
the
way
the
Supreme
Court
thinks.
The
court
actually
does
more
law
and
less
politics
than
I
do,
but
you
see
what
I’m
driving
at.
The
Supreme
Court
will
strike
down
Trump’s
tariffs,
which
might
well
improve
the
economy
and
strengthen
the
Republicans’
hand
in
the
midterm
elections
in
November.

The
court
would
be
doing
Trump
a
favor.

The
next
question
is
whether
Trump
would
accept
the
gift.

I
think
not.

Trump
has
loved
tariffs
his
entire
life. He’s
called
“tariffs”
his favorite
word (although
in
the
1980s
he
wanted
to
impose
tariffs
on
Japan,
rather
than
China). Trump’s
an
old,
stubborn
guy;
I
suspect
he
won’t
change
his
thinking
now.

Trump
also
does
not
like
to
admit
defeat,
as
the
events
of
January
6,
among
other
things,
have
demonstrated. If
the
Supreme
Court
strikes
down
Trump’s
tariffs,
he’ll
choose
another
route
to
reimpose
them. To
do
otherwise
would
be
to
admit
that
the
Supreme
Court
thwarted
him,
and
Trump
could
never
stomach
that.

Trump
also
like
tariffs
for
personal
reasons. Tariffs
give
Trump
the
power
to
rule
the
world. Brazil
is
prosecuting
Jair
Bolsonaro? Impose
tariffs! India’s
buying
Russian
oil? Impose
tariffs! Mexico
and
Canada
aren’t
doing
enough
to
stop
the
flow
of
fentanyl
into
the
United
States? Impose
tariffs!

Unilateral
discretion
to
impose
tariffs
lets
Trump
reward
friends
and
punish
enemies
internationally,
a
vast
expansion
of
his
personal
power. I’m
sure
he
likes
that.

Tariffs
also
make
domestic
companies
come
to
heel. Trump
can
authorize
exemptions
from
tariffs
on
an
individual
basis. Apple
doesn’t
want
tariffs
to
apply
to
its
iPhones? Voila! Apple
just
has
to
cooperate
with
Trump,
and
iPhone
components
are
exempted
from
tariffs. 
Trump
loves
the
idea
of
using
government
policy
(tariffs)
as
a
racket
for
extorting
money
from
U.S.
companies. He
won’t
sacrifice
that
power
lightly.

So
Trump
will
use
alternate
routes
to
reimpose
many
of
the
tariffs
that
the
Supreme
Court
strikes
down.

What’s
the
last
piece
of
my
prediction?

Reimposing
tariffs
will
continue
to
hurt
the
economy,
raising
prices
and
decreasing
business
investment. Voters
will
notice
a
stumbling
economy. And
the
Republicans
will
lose
their
majority
in
the
House
of
Representatives
this
November
in
part
because
Trump
will
look
a
gift
horse
in
the
mouth. Instead
of
accepting
defeat
on
the
tariff
issue
and
winning
the
midterms,
he’ll
insist
on
a
tariff
victory
and
thus
suffer
an
electoral
defeat.

Trump
will
win
the
tariff
war,
but
lose
the
House
of
Representatives. A
stable
genius
indeed.

Happy
New
Year!

---

Mark Herrmann spent
17
years
as
a
partner
at
a
leading
international
law
firm
and
later
oversaw
litigation,
compliance
and
employment
matters
at
a
large
international
company.
He
is
the
author
of The
Curmudgeon’s
Guide
to
Practicing
Law and Drug
and
Device
Product
Liability
Litigation
Strategy (affiliate
links).
You
can
reach
him
by
email
at [email protected].

Nearly
2,000
votes
were
cast,
so
it’s
fair
to
say
our
2025
holiday
card
contest
was
a
great
success.
This
year’s
competitors
were
incredibly
strong,
and
with
37%
of
the
vote,
our
top
contender
was
separated
from
the
second-place
finisher
by
15
percentage
points.

Our
newest
winner
joins
the
company
of
previous
holiday
card
contest
winners:

2024:

Butler
Snow
2023: Butler
Snow
2022: “Lambert
&
Lambert”
2021: McBrayer
2020: Wolf
Greenfield
2019: Goodman
Allen
Donnelly
2018: Wolf
Greenfield
2017: Wolf
Greenfield
2016: Gowling
WLG
2015: Wolf
Greenfield
2014: Haynes
&
Boone
2013: Akin
Gump
2012: Van
Winkle
Law
Firm
2011: Haynes
&
Boone
2010: Proctor
Heyman
2009: Akin
Gump

Congratulations
to…
Lowenstein
Sandler!
The
New
Jersey-based
firm
managed
to
clinch
the
2025
crown with
its
take
on
the
use
—
or
misuse
—
of
artificial
intelligence
when
it
comes
to
holiday
greetings.
You
can
check
out
Lowenstein’s
winning
submission
by clicking
here.

Congrats
to
all
the
worthy
finalists,
and
thanks
to
everyone
who
nominated
a
card
or
voted
in
the
contest.
We
can’t
wait
to
see
what
cleverness
comes
our
way
in
2026.

---

Staci
Zaretsky is
the
managing
editor
of
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 Bluesky, X/Twitter,
and Threads, or
connect
with
her
on



LinkedIn.

On
December
4,
2025,
the
Justice
Department
announced
that
it
had
finally
arrested
the
one
January
6
criminal
they
care
about:
Brian
Cole,
Jr.,
the
alleged
DNC
pipe
bomber.
On
the
dais
for
the

half-hour
victory
rally
were
FBI
Director
Kash
Patel
and
his
then-deputy
Dan
Bongino,
two
former
podcasters
who
previously
claimed
that
the
bombs
were
planted
by
Biden
allies
to
distract
from
a
“stolen”
election.

Asked
about
this
discrepancy
by
Fox
News’s
Sean
Hannity,
Bongino

sulked
that
“I
was
paid
in
the
past
for
my
opinions.
One
day
I
will
be
back
in
that
space
but
that’s
not
what
I’m
paid
for
now.”

As
of
this
week,
he’s

back
in
his
safe
space.

Bingo,
bango,
Bye-o!

At
the
press
conference,
Bongino
blustered
that
“this
is
what
it’s
like
when
you
work
for
a
president
who
tells
you
to
go
get
the
bad
guys
and
stop
focusing
on
other,
extraneous
things,
not
related
to
law
enforcement.”

According
to
the

Wall
Street
Journal,
the
break
in
the
case
came
when
someone
at
the
FBI
wrote
a
code
to
unscramble
a
cache
of
damaged
cell
tower
data.
There’s
zero
indication
that
this
code
went
unwritten
for
five
years
because
the
FBI
was
in
mandatory
DEI
training,
and
the

Journal
reports
that
agents
expressed
“resentment
over
FBI
Director
Kash
Patel,
who
has
suggested
that
they
didn’t
work
doggedly
on
the
probe
until
Trump
administration
leadership
arrived.”

But
that
may
wind
up
being
the
high
water
mark
for
this
case,
which
has
been
prosecuted
in
truly
shambolic
fashion
since
being
handed
off
to
Jeanine
Pirro,
the
US
Attorney
for
DC.

Calendars
are
hard

On
December
3,
the
DOJ
filed
a

criminal
complaint
alleging
that
Cole,
a
30-year-old
man
living
with
his
mother
in
Virginia,
traveled
to
DC
on
the
eve
of
the
Capitol
Riot
and
planted
crudely
constructed
pipe
bombs
outside
the
RNC
and
DNC.
But
a
criminal
complaint
is
not
an
indictment;
it
merely
allows
the
government
to
seek
detention
of
a
suspect
and
starts
a
30-day
clock
to
charge
him.

Under

Federal
Rule
of
Criminal
Procedure
5.1,
a
magistrate
judge
must
also
hold
a
preliminary
hearing
within
21
days
to
establish
probable
cause
that
the
defendant
committed
the
crime.
But
that
almost
never
happens
because
a
competent
prosecutor
will
go
to
a
grand
jury
and
secure
an

ex
parte
indictment
rather
than
participating
in
an
adversarial
hearing
where
the
defendant
gets
to
present
evidence
and
interrogate
the
government’s
witnesses.

No
preliminary
hearing
was
calendared
here
because
all
parties,
including
Magistrate
Judge
Matthew
Sharbaugh,
assumed
that
the
DOJ
would
proceed
expeditiously
to
a
federal
grand
jury
and
seek
an
indictment.
But
for
whatever
reason,

they
didn’t.

On
Christmas
Eve,
with
no
indictment
on
the
horizon,
Cole’s
lawyers
started
tapping
their
watches
and
asking
the
DOJ
what
it
planned
to
do
about
its
obligations
under
Rule
5.1.
On
December
29,
Assistant
US
Attorney
Charles
Jones
admitted
that
there
were
no
grand
juries
sitting
in
the
US
District
Court
for
DC
between
December
19,
2025
and
January
5,
2026,
and
thus
there
would
be
no
federal
indictment.
Jones
proposed
scheduling
the
probable
cause
hearing
for
January
6
or
7,

i.e.,
never,
since
by
then,
he’d
have
presumably
managed
to
get
an
indictment.
Cole’s
lawyers

responded
that
the
government
had
to
hold
the
probable
cause
hearing
on
December
30,
or
let
him
go
home.

Before
Judge
Sharbaugh
could
rule,
the
DOJ
showed
up
on
December
29
with
an

indictment
returned
by
a
grand
jury
sitting
in
DC
Superior
Court.

Po-tay-to,
po-tah-to?

In
the
infinite
wisdom(?)
of
our
nation’s
founders,
our
seat
of
government
is
located
in
no
state.
And
because
DC
is
a
non-state
municipality,
the
US
Attorney
prosecutes
crimes
in
DC
Superior
Court
(the
analog
to
state
courts)
as
well
as
in
the
US
District
Court
for
DC.
In
the
past,
indictments
returned
by
DC
Superior
Court
grand
juries
have
occasionally
been
accepted
by
federal
judges.
But
Pirro’s
office
ran
into
trouble
recently
when
it
used
the
local
grand
jury
as
an
end-run
around
the
federal
grand
jury.

On
September
26,
after
a
federal
grand
jury
no-billed
an
indictment
of
DC
resident
Kevontae
Stewart
for
gun
possession,
Pirro’s
office
successfully

shopped
the
case
to
a
Superior
Court
grand
jury
instead.
Magistrate
Judge
Zia
Faruqui,
who
had
expressed
outrage
at
the
DOJ
for
charging
and
then
dropping
so
many
garbage
cases,
refused
to
accept
the
indictment.
After
extensive
briefing,
he

ruled
that
indictments
from
DC
Superior
Court
are
not
valid
in
federal
court.

The
DOJ
appealed,
and
Chief
Judge
James
Boasberg

ordered
Judge
Faruqui
to
accept
the
Stewart
indictment.
But,
noting
that
“the
public
interest
lies
in
letting
the
Court
of
Appeals
decide
this
issue
before
the
Government
moves
forward
both
on
this
case
and
in
similar
fashion
on
other
cases,”
he
stayed
the
case
pending
Stewart’s
appeal
to
the
DC
Circuit.

On
December
30,
Magistrate
Judge
Sharbaugh
asked
for
briefing
on
whether
he
should
accept
the
DC
Superior
Court
indictment
of
Brian
Cole
in
light
of
Judge
Boasberg’s
ruling
in
the
Stewart
case.

Sensing
that
the
best
defense
was
a
good
offense,
Jones
indignantly
protested
that
the
cock-up
was
all
the
defendant’s
fault.

“In
good-faith
reliance
on
the
representations
of
defense
counsel
of
record,
the
government
chose
not
to
secure
an
early
indictment
in
this
case
on
or
before
December
19,
2025,
the
last
date
on
which
grand
jury
panels
would
be
sitting
in
the
District
Court
for
the
District
of
Columbia
until
January
6,
2026,”
he

whined.
“The
government
would
have
sought
such
an
early
indictment
from
a
federal
grand
jury
panel
had
there
been
any
indication
that
the
defense,
contrary
to
all
indications,
intended
to
pursue
a
preliminary
hearing
on
December
30,
2025.”

To
be
clear:
This
indictment
is

not
“early.”
The
defendant

agreed
to
postpone
the
detention
hearing
and
allow
the
government
a
few
more
days
to
get
in
front
of
a
grand
jury.
That’s
not
an
agreement
to
forego
a
preliminary
probable
cause
hearing.

But
the
government
pinky-promised
that
it

would
get
a
federal
grand
jury
to
bless
this
thing
on
January
6,
and
that
was
good
enough
for
Judge
Sharbaugh.
Based
on
“the
government’s
confirmation
that
it
does
not
intend
to
use
the
Superior
Court
grand
jury
as
an
ultimate
end-run
around
a
federal
grand
jury
empaneled
by
this
Court,”
he
accepted
the
indictment
in
a
one-paragraph
minute
order,
obviating
the
need
for
a
probable
cause
hearing.

Out
of
the
frying
pan
…

After
the
indictment
—
or
“indictment,”
depending
on
your
perspective
—
the
case
was
assigned
to
Judge
Amir
Ali,
ending
Sharbaugh’s
involvement.
Landing
on
the
docket
of
a

former
civil
rights
litigator
who
argued
multiple
Supreme
Court
cases
on
behalf
of
criminal
defendants
was
either
a
lucky
break
or
a
potential
disaster
—
again,
depending
on
your
perspective.

Cole’s
lawyers
promptly
filed
an

emergency
motion
to

un-accept
the
indictment
and
release
their
client
because
he
never
got
his
preliminary
hearing.
They
characterized
Judge
Sharbaugh’s
ruling
as
“conditional”
and
argued
that
his
brief
minute
order
“avoid[s]
any
legal
analysis
of
the
dispositive
issue,
which
is
whether
a
valid
indictment
has
been
returned
in
this
case.”

Judge
Ali
ordered
the
government
to
respond
by
5
p.m.
on
Monday,
January
5.
Presumably
prosecutors
will
race
into
the
grand
jury
room
on
Tuesday
morning
and
try
to
get
a
federal
indictment
before
Judge
Ali
rules
on
Cole’s
motion.
Maybe
that
will
moot
the
issue,
and
this
prosecution
can
proceed
normally.
But
it
won’t
change
the
fact
that
the
DOJ
spent
three
weeks
flailing
around
because
Pirro’s
office
couldn’t
be
bothered
to
present
this
high-profile
case
to
a
federal
grand
jury
before
wandering
off
for
vacation.

And
right
on
time,
the
US
Attorney
is
stumbling
in
to
make
it
worse.
In
posts
on
Facebook
and
X,
she
wrote
that
Cole
“gave
a
detailed
confession
to
the
charged
offenses,
telling
law
enforcement
he
was
frustrated
with
both
political
parties.”

My
office
has
filed
court
documents
that
Brian
Cole,
Jr.,
accused
of
placing
pipe
bombs
outside
the
RNC
and
DNC
has
admitted
that
he
was
responsible
for
the
devices
and
gave
a
detailed
confession
to
the
charged
offenses,
telling
law
enforcement
he
was
frustrated
with
both…

—
Jeanine
Pirro
(@JudgeJeanine)

December
29,
2025

This
is
a
ham-fisted
effort
to
obscure
the
fact
that
Cole,
who
is
on
the
autism
spectrum,
did
what
he
did
because
he
believed
Trump’s
lies
about
a
stolen
election
—
lies
that
Pirro
herself
was

pulled
off
the
air
for
fomenting.
It
will
also
feature
prominently
in
an
upcoming
motion
for
a
gag
order
to
stop
DOJ
from
poisoning
the
jury
pool.

If
we
didn’t
know
better,
we’d
think
the
DOJ
was
deliberately
trying
to
tank
this
prosecution.
Guess
we’ll
have
to
wait
for
Dan
Bongino
to
get
back
to
podcasting
and
connect
the
dots
for
us.

Subscribe
to
read
more
at
Law
and
Chaos….

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Liz
Dye produces
the
Law
and
Chaos Substack and podcast. You
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