ABA Journal
The top 10 legal news stories of 2017
It’s hard to imagine a year more packed with major legal news than 2017, much of it generated by President Donald Trump's administration. We may never get used to the frenetic pace. Here are 10 stories—themes, really—that dominated legal news reports.
- President Trump fires FBI Director James Comey. That, said Steve Bannon, Trump’s former chief strategist, on 60 Minutes was the biggest mistake “maybe in modern political history.” reported at the time. On Jan. 27, the president dined alone with Comey and asked, the former G-man says, for his “loyalty.” The rest is history, though still being written. Short version: Michael Flynn soon would be fired; Comey later would be fired; and Robert Mueller then would be hired. Fireworks began with the Oct. 30 indictment of Paul Manafort, who had managed Trump’s campaign, and a business associate of Manafort’s in consulting work for the pro-Russian government in Ukraine, concerning an alleged money-laundering conspiracy and false statements. A couple of hours after they were in custody and charged, Mueller’s follow-up punch was a guilty plea/deal, secret since earlier that month, from George Papadopoulous, a member of Trump’s foreign policy advisory council during the election campaign, for lying to the FBI about contacts with the Russian government. Manafort declined to enter a plea deal. But the already roiling White House grew tumultuous Dec. 1 when Michael Flynn, Trump’s former national security adviser, pleaded guilty to a lesser charge for agreeing to cooperate in an investigation that possibly could reach high up in the administration.
- A cascade of revelations concerning Harvey Weinstein and other powerful men wrought huge change in the climate of public concern over sexual assault and harassment. Amid the litany of allegations, apologies, denials and firings, high-profile lawyer David Boies’ work for Weinstein led to questions of a conflict of interest and Boies losing the New York Times as a client. The “Weinstein effect” went viral worldwide, fueled by the fast-growing #MeToo testimony of victims, including U.S. Senator Elizabeth Warren. The furor has prompted criminal investigations and litigation. And on Dec. 18, the same day that Judge Alex Kozinski retired abruptly from the 9th U.S.Circuit Court of Appeals amidst complaints of sexual misconduct, the federal judiciary revised the handbook for federal court law clerks, noting that confidentiality requirements do not prevent them from filing sexual harassment complaints against judges. This climate change just might be irreversible.
- President Trump’s travel ban has been a frequent flyer through the courts. Exactly one week into the job, he ordered the ban mostly targeting majority-Muslim countries. The ban drew thousands of attorneys to U.S. airports to help foreigners trying to enter the country along with vociferous opposition from the ABA. Trump harshly criticized judges and the judiciary, but the Department of Justice also filed do-overs, hoping to gain court approval. In December, the U.S. Supreme Court said the latest version can remain in place while federal appeals courts look at it, possibly indicating the ban eventually will fly at the high court. On Dec. 22, the 9th Circuit once again issued a ruling against the latest travel ban, but stayed its decision. On Dec. 23, a federal judge in Seattle issued a nationwide preliminary injunction (PDF) preventing the Trump administration from processing or admitting refugees from 11 countries—Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen&who have “bona fide” ties to the United States, Politico, Reuters and the Associated Press reported.
- Justice Neil M. Gorsuch came out guns a-blazin’, then 7th Circuit Judge Richard Posner retired with a bang. Typically, new justices on the high court politely insinuate themselves among their colleagues and within the institution. Instead, Gorsuch, who clerked at the high court, spoke early and often, took jabs at colleagues with mini-lectures and comments in his writing and in court, and according to some published reports clashed face-to-face with Justice Elena Kagan in conference. But Clarence Thomas, in a rare interview, defended him as “a good man.” And typically, prominent federal appeals court judges who have served for decades retire in celebratory fashion. Posner suddenly announced his retirement on Friday, Sept. 1, effective the next day, over what he called “difficulty” with his colleagues on the 7th U.S. Circuit Court of Appeals. Posner, perhaps the most prolific writer in the American judiciary’s history, has authored 40 books, mostly about law, economics and politics, and more than 3,300 judicial opinions—both conservative and liberal. He self-published a book to explain his views on pro se litigants and those of his former colleagues.
- President Trump came into office with a lot of vacant federal judgeships, and is refashioning the judiciary. Among other things, there has been a significant drop in nominations of women and minorities. The White House is not submitting its nominations to the ABA Standing Committee on the Federal Judiciary, which has been rating federal judge candidates since the Eisenhower era. That hasn’t stopped the committee’s work, and it rated Neil Gorsuch as well qualified, while finding at least four candidates as not qualified. The rating system faced some harsh words from members of the U.S. Senate Judiciary Committee, and the New York Times reported that Trump was considering asking his nominees not to participate in standing committee interviews. By year’s end, the Senate approved the nomination of one candidate with a not-qualified rating, while Judiciary Committee Chairman Chuck Grassley said another would not be confirmed.
- After 64-year-old Stephen Paddock managed to fire into an outdoor crowd of 22,000 at a Las Vegas country music concert, killing 58 people, litigation quickly followed, its success uncertain. And while Massachusetts banned bump stocks, the device that helped Paddock fire over 1,100 rounds in 10 minutes, the U.S. House of Representatives went a different way, passing a concealed weapon reciprocity bill in December that would allow gun owners with state-issued concealed carry permits to do so in any state. It’s a bill the ABA opposes.
- President Trump’s deregulation efforts have gone root-and-branch at the deconstructing “the administrative state,” and the pace of new regulations has slowed. First came the president’s tall, Sharpie-pen thick signature on an executive order requiring that every new regulation be offset by eliminating two old ones. Trump also targeted a couple of prominent agencies for regulatory rollback, installing directors who are diametrically opposed to the way the agency missions have been carried out. Longtime Environmental Protection Agency foe Scott Pruitt became its director, who has announced his plan to repeal President Obama’s Clean Power Plan. Trump later named Mick Mulvaney, director of the Office of Management and Budget, as acting director of the Consumer Financial Protection Bureau. Mulvaney has survived an attempt to block his appointment.
- Some law schools got failing grades in legal education. The Charlotte School of Law closed in August 2017 when the North Carolina attorney general’s office said it was required to under state law. The for-profit school had faced mounting challenges from since the ABA Section of Legal Education and Admissions to the Bar placed it on probation in 2016, finding it out of compliance with admissions standards. Later, the U.S. Department of Education pulled its student loan funding, the University of North Carolina system set a deadline for it to meet accreditation committee requirements, and the state attorney general began a civil fraud investigation. Finally, the council of the Section of Legal Education rejected the school’s proposed teach-out plan, the deadline was missed and the school’s license was not renewed. But CSL wasn’t the only law school facing accreditation troubles in 2017. Nine law schools received public notice that they were out of compliance with accreditation standards, compared to just three the previous year. And by December, Whittier Law School in California reported it was closing, and Valparaiso Law School in Indiana announced it would not be enrolling a 2018 1L class.
- President Trump pardoned a fellow fan of wall-building, former Sheriff Joe Arpaio, just weeks after the controversial lawman was convicted of criminal contempt of court for violating a federal judge’s order to stop his Maricopa County, Arizona, deputies from detaining citizens they suspected of being here illegally. ABA President Hilarie Bass said that the president’s broad pardon powers should not be used in a manner that undermines public trust in the justice system. “Pardoning a law enforcement officer who has disobeyed the courts and violated the rights of people he has sworn to protect undercuts judicial authority and the public’s faith in our legal system,” Bass said in a statement immediately after Arpaio’s pardon. But a federal judge ruled the pardon did not vacate his conviction.
- And it was another big year for law firm mergers, for reasons good and bad. By October, 68 law firm mergers had been announced; by mid-December, that figure had jumped to 95, four more than the record year of 2015. In the world of BigLaw, the 4,000-lawyer DLA Piper took in a Los Angeles boutique, while the most mega of megafirms, Dentons, at 8,500 lawyers, made three international mergers in just a few months: including Scotland’s largest independent firm, the 200-lawyer Maclay Murray & Spens.
Updated at 9:18 p.m. to note 9th Circuit decision in travel ban case. Last updated Dec. 23 to note federal court decision in travel ban case.
