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By Elie Honig
It’s time for year-end lists and, I admit, I’m in for all of them. I’m a big, gullible, wide-mouthed bass for that kind of clickbait.
One recent list in particular drew me in: Most Mispronounced Words of 2021. I’ll plead guilty on most of these. I’m a serial mis-pronouncer of Omicron, Glasgow, and Dogecoin. Some of the listed words I’ve never heard of at all (Yassify? Cheugy?) Others, I have pretty much down pat; I know who Billie Eilish is, and I pronounce her last name flawlessly.
So in that list-making spirit, we’re going to use the final column of the year to celebrate the top legal heroes of 2021. I know, there are many more than this, and I can’t hit them all. (Send an email about any I’ve missed to firstname.lastname@example.org.) These lawyers did themselves proud, and did the country a real service, in 2021. Without further ado:
The Minnesota Lawyers. All of the participants in the trial of former Minneapolis Police Officer Derek Chauvin for the murder of George Floyd did their jobs competently, ethically, and effectively. The prosecution team – Jerry Blackwell, Steve Schleicher, Matthew Frank, and Erin Eldridge – presented the case fairly, concisely, and powerfully, with an abiding respect for Floyd’s family and for other victims in the community, accompanied by a real sense of the moment. Judge Peter Cahill kept firm control of his courtroom, treated the parties with respect, granted the public full access to the proceedings, and made sensible, reasoned rulings from the bench. And while defense counsel, Eric Nelson, absorbed public fury for representing a reviled figure in Chauvin, the fact is Nelson presented a good faith, ethical defense of his client. Every criminal defendant is constitutionally entitled to effective, zealous representation, and Nelson delivered just that. Together, the Minnesota lawyers gave the nation what it deserved: a fair trial, which resulted in a just verdict, under the most intense public spotlight.
The DOJ Guardians. Big picture, I’ve got plenty of criticisms of the Justice Department under Donald Trump and Bill Barr, and that extends to Barr’s Deputy Attorney General, Jeffrey Rosen. However, after Rosen took over as Acting AG in December 2020, he did the job honorably. During the frantic end days, as Trump and his mole inside DOJ, Jeffrey Clark, tried to run a coup, Rosen and his acting number two, Richard Donoghue, held strong. At one point after White House chief of staff Mark Meadows asked the Justice Department to investigate some nutjob theory about voter fraud, Rosen forwarded the message to Donoghue, with a note reading, “Can you believe this? I am not going to respond to the message below.” Donoghue deadpanned in response, “At least it’s better than the last one but that doesn’t say much.” Another time, when Donoghue received a message about some other wacko Meadows theory, he replied, “pure insanity.” Rosen, Donoghue, and others resisted Trump, Meadows, and Clark. They held the fort and refused to go along with an audacious scheme to weaponize the Justice Department to steal the election. Imagine if they hadn’t.
The January 6th Judges. Federal judges do, fairly routinely, criticize Justice Department prosecutors for being too aggressive. Judges sometimes find that a prosecutor has overcharged a case, or has made unduly aggressive arguments to a jury, or has sought an excessive sentence. But it’s extraordinarily rare to see the converse – a federal judge calling out DOJ or being too lenient. Yet, in a pattern that cannot be ignored, a string of federal judges have done just that regarding the Justice Department’s prosecutions of January 6 Capitol insurrectionists. One federal judge called DOJ’s approach to the January 6 cases “schizophrenic,” “baffling,” “puzzling,” and “peculiar.” Another rejected DOJ’s probation recommendation and sentenced a Capitol rioter to 45 days in jail, noting sharply that “there have to be consequences… beyond sitting at home.” A third judge questioned the Justice Department’s unduly forgiving charging decisions, and a fourth sharply criticized DOJ for seeking insufficient monetary penalties against rioters. I’ve been critical of Attorney General Merrick Garland and DOJ for going too light on January 6 defendants in general. Give these judges credit for standing up to the Justice Department and for noting its shortcomings, on the record.
Linda Dunikoski. The lead prosecutor in the Georgia trial against three defendants for the murder of Ahmaud Arbery, Dunikoski put on a clinic. Law students and aspiring litigators, watch the clips of Dunikoski – that’s how it’s done. She was calm, meticulous, prepared, persuasive, and conversational. She let the powerful evidence of the defendants’ guilt stand on its own. And she treated Arbery’s family, and his memory, with dignity and respect. Despite some initial skepticism about a nearly all-white jury, Dunikoski got the job done and delivered justice. (The judge, Timothy Walmsley, also did an exemplary job in trying the case fairly and efficiently.)
The DC federal courts. Throughout his battles with prosecutors and Congress over the past five years, Trump has deployed a secret weapon that nobody has been able to solve: delay. Win or lose – and he almost always lost, in the end – Trump often got his way, simply by pressing his cases in federal courts and waiting for them to take forever. The legal battle over Don McGahn’s testimony, for example, dragged on for nearly two years. I’ve railed in this space before that federal courts must do better when it comes to expediting cases that pose important questions of constitutional law. Judges can hear cases as quickly as they want, I’ve argued, and it’s simply a matter of will and attention to get a case argued and decided promptly. Finally, that has happened. When Trump tried to block the National Archives from producing documents to the January 6 Committee, federal district court judge Tanya Chutkan got the case briefed, argued, and decided in three weeks. The Court of Appeals followed suit, rendering its decision a month after that. This is lightning speed, and it’s the only practical antidote to Trump’s delay tactics. Other courts should take note and follow suit.
Anytime we’re covering legal news, there’s plenty to criticize. I do plenty of that in this space. But it’s also worth taking note and giving credit when lawyers and judges do their jobs right and well and honorably.
Wishing all of you, and your families and friends, a happy, healthy, and joyful holiday season and new year.