Two Courtroom Showdowns That Reveal The State Of American Democracy With Richard Wilson

In Podcast 153, Richard Wilson and Jackalyn Rainosek, PhD take listeners into two legal battles that—on the surface—seem unrelated: the dismissal of a federal indictment against former FBI Director James Comey, and a three-judge ruling that temporarily blocked Texas’s newly enacted congressional map. But together, these cases tell a single, urgent story about how power is being used, tested, and resisted in the United States right now.

This episode is not a dry legal lecture. It’s a front-row seat to democracy under strain, where courts become the arena in which political retaliation, racial vote dilution, and constitutional guardrails collide. Richard brings his rare ability to translate complex constitutional issues into language that makes sense—and matters—whether you’re a lawyer, a policy follower, or simply someone trying to understand what’s happening to the country.

What follows is the roadmap of our discussion—and why this episode is worth your time.

Part One: The Comey Case — Not About Evidence, But About Power

We begin with the Comey prosecution, and we don’t start with the legal opinion. We start with the human story behind it, because motive is the skeleton key for understanding why this case exists at all.

Why Trump Has Targeted Comey for Years

I open by laying out the long arc of Donald Trump’s animus toward James Comey. It helps listeners understand why a criminal indictment in 2025 doesn’t feel like a neutral act of justice, but rather like the continuation of a deeply personal and political feud.

We walk through the pivotal moments:

• Comey publicly confirmed the FBI’s Russia investigation in March 2017, something Trump has never forgiven.
• Trump’s early demand for Comey’s personal loyalty, which Comey resisted because the FBI Director must be independent.
• Comey’s firing in May 2017, and Trump’s later admission that the Russia thing was part of why he did it.
• Comey’s leaked memos documenting Trump’s pressure to drop the Flynn investigation, which helped trigger the Mueller special counsel probe.
• The deep state narrative Trump used to cast Comey as a traitor instead of a public servant.
• Comey’s post-firing public criticism, including A Higher Loyalty, which has made the feud enduring and personal.

This context matters. Without it, listeners might assume this indictment was simply a procedural enforcement decision. With it, they can see why it looks like something else entirely.

The Legal Heart of the Decision

Then we move into the actual ruling: the indictment was dismissed not because Comey was proven innocent—in fact the court never reached the merits—but because the prosecutor who indicted him lacked lawful authority.

Richard explains this clearly and powerfully:

• The Attorney General tried to appoint Lindsey Halligan as Interim U.S. Attorney for the Eastern District of Virginia.
• But her appointment violated 28 U.S.C. § 546 and the Appointments Clause of the Constitution.
• Because she was unlawfully installed, she had no legal power to present the case to a grand jury.
• Therefore, the indictment was tainted from the start and had to be thrown out.

We underline why this is such a big deal: the rule of law is not just what charges you bring, but who is allowed to bring them. If you let political loyalists become prosecutors outside the statue and Constitution, you destroy legitimacy before a trial even begins.

The Questions I Put to Richard

To make it accessible and compelling, I ask Richard the same things listeners might wonder:

1. What is privileged information, and does it matter here?

Richard clarifies what privilege is in federal law and why the court didn’t even get that far. This wasn’t a privilege case; it was a constitutional authority case.

2. Why is it a problem that Halligan was a political insider with no trial experience?

We talk about the ethics/optics, but we emphasize that even without considering conflicts, the case collapses because the appointment was illegal.

3. What does dismissed without prejudice mean?

Richard walks through the difference between without prejudice and with prejudice, and why without prejudice is not the same as the case will come back.

4. Who should have appointed the U.S. Attorney after the interim period expired?

He explains that once the Attorney General’s statutory window closes, the authority shifts to the District Court—and this procedural boundary is part of the democratic architecture.

By the end of Part One, listeners understand a key truth: even if you believe Comey did something wrong, the government cannot prosecute people through unlawfully appointed prosecutors. Process is democracy’s firewall.

Part Two: The Texas Redistricting Case — A Fight Over Who Gets a Voice

From Virginia we move to Texas, and again we anchor listeners in why it matters. This isn’t just a battle over lines on a map. It’s a battle over representation itself.

What the Case Is About

Six advocacy groups, led by LULAC, challenged Texas’s new congressional map as racially discriminatory. A three-judge panel ruled that the plaintiffs are likely to succeed and issued a preliminary injunction blocking Texas from using the new map in upcoming elections.

We explain that the panel found:

• Plaintiffs are likely to succeed in challenges to key districts.
• Without relief, voters would suffer irreparable harm.
• Equity and public interest favored intervention.
• The panel reverted to the prior map while litigation continues.

Listeners hear the stakes: this is a rare, mid-decade redistricting maneuver—not part of the normal once-every-ten-years process. That timing alone signals political intent.

My Questions for Richard About the Map

To ground the episode in real curiosity rather than legal jargon, I ask Richard:

• Is this fundamentally about racial gerrymandering and minority vote dilution in Harris County and Dallas?
• What are the plaintiffs’ primary arguments for the districts they challenge?
• What are the defense’s primary arguments?
• How is partisan gerrymandering still used as a defense when racial gerrymandering is illegal?
• What statutes and constitutional claims are in play?
• And finally, what do we make of the unusually harsh dissent?

Richard’s answers are the heart of this segment.

Richard lays out the three main pathways plaintiffs use:

1. Racial gerrymandering under the Fourteenth and Fifteenth Amendments

The charge here is not just that the map hurts minority voters; it’s that race was the predominant factor overriding neutral districting principles.

2. Intentional vote dilution

Plaintiffs argue the state acted with purposeful discrimination to reduce Black and Latino electoral power.

3. Effects-based vote dilution under Section 2 of the Voting Rights Act

Even if Texas denies racist intent, the results of the map weaken minority voters’ ability to elect candidates of choice.

Listeners get a vivid sense of what’s at issue: dismantling districts where communities of color had meaningful electoral influence and restructuring them to minimize that influence.

What Texas Argues in Defense

Texas, like many states in similar cases, tries to position itself behind a legal shield:

• This wasn’t about race—it was about partisan advantage.
• We followed neutral map-drawing criteria.
• Coalition districts aren’t protected the way plaintiffs claim.

Richard explains why this defense is used so often: the Supreme Court has effectively removed partisan gerrymandering from federal review, but racial gerrymandering remains illegal. So, if a state can rebrand a race-based map as just politics, it hopes to survive scrutiny.

The panel didn’t buy it. The evidence, the court said, showed race predominated.

The Dissent and the Attack on the Majority

We close this segment by grappling with the dissent from Judge Jerry E. Smith. Listeners will feel the tension of the judiciary itself: the dissent isn’t simply disagreement. It’s an ideological clash over whether the federal courts should act as guardians of voting equality—or step back and let political actors do what they want.

Richard helps listeners see what this moment represents: courts are not abstract—they are the battleground where the future of representation is decided.

Why These Two Cases Belong in One Podcast

As we move toward the close of the episode, we connect the dots:

• In the Comey case, the fight is over who gets to wield prosecutorial power.
• In the Texas case, the fight is over how states structure voting power.
• Both are attempts at political engineering.
• Both were stopped (at least for now) by courts enforcing rules that protect democratic legitimacy.

The through-line is simple and profound: When political actors try to rig outcomes, the constitutional process becomes the last line of defense.

Why You Should Listen

If you want an episode that explains where America is—right now—at the intersection of law, race, power, and democracy, Podcast 153 delivers.

You will come away understanding:

• Why retaliation politics can masquerade as law enforcement,
• How appointment statutes protect federal independence,
• Why racial vote dilution is still one of the central democratic fights of our era,
• And how courts are acting as both referee and arena in a country wrestling with its own constitutional identity.

Richard Wilson is at his best here: analytical, precise, and clear enough that every listener can follow the stakes. This conversation is one of those rare episodes where you don’t just learn something—you feel why it matters.

Join us for Podcast 153. These two cases aren’t obscure legal episodes. They are warning lights on the dashboard of American democracy.

Episode Summary Points:

• The Central Focus: Legal Battles and Political Clashes

The episode focuses on two major legal cases: the criminal charges filed against former FBI Director James Comey in the Eastern District of Virginia ) and a significant redistricting case in Texas (LULAC v. Abbott). The discussion aims to provide a full understanding of the legal and political context surrounding these hot topics.

• The Legal Context: US v. Comey

The Political Backdrop: Trump’s Anger and History with Comey

Trump’s persistent anger at James Comey is rooted in several key events:

• • The Russia Investigation: Comey publicly confirmed in March 2017 that the FBI was investigating potential ties between the Trump campaign and Russian interference in the 2016 election, which infuriated Trump.
  • Loyalty Demands: Comey refused Trump’s personal loyalty request during a private dinner, believing the FBI Director should be independent of political influence.
  • The Firing and Memos: Trump fired Comey in May 2017, later admitting on social media that the Russia investigation was the real reason. After the firing, Comey arranged for a friend to leak memos documenting private conversations, including one detailing Trump’s request to drop the investigation into Michael Flynn, which led to the appointment of Robert Mueller.
  • Deep State Allegations: Trump views Comey as a leading member of the Deep State bureaucracy working against him and has publicly called for his prosecution.
  • Personal Insults and Book: Comey’s critical memoir, A Higher Loyalty (referencing loyalty to the law/Constitution over Trump), and frequent media appearances have kept the feud alive.
• The Core Legal Issue: Privilege, Warrants, and Procedural Errors

The case against Comey was plagued by several procedural flaws, leading to its dismissal:

• • Improper Use of Privileged Information: The FBI investigating Comey used information, including attorney-client privilege communications between Comey and his lawyer, Daniel Richman, that was seized from Richman’s devices five years earlier in a separate investigation targeting Richman.
  • Lack of Probable Cause for New Target: The FBI did not seek a new warrant establishing probable cause to review the old evidence specifically for the Comey investigation, making the use of that evidence legally incorrect.
  • Inappropriate US Attorney Appointment: Following the resignation of the career prosecutor (Eric Siebert, who allegedly advised against bringing the charges), Attorney General Pam Bondi, upon Trump’s recommendation, appointed Lindsey Halligan as the US Attorney. Halligan was a former personal attorney for Trump with no significant criminal prosecution experience.
  • Faulty Indictment Procedure: Halligan’s office prepared a new indictment with only two charges (out of the three the grand jury heard) and allegedly had the grand jury foreperson sign it without re-presenting the evidence to the grand jury. This was a procedural protection failure that could have led to dismissal.
  • Improper Appointment Authority: A District Court Judge ruled that Halligan’s appointment was improper because the Attorney General’s power to make temporary appointments is limited to 120 days. After this period (which had expired following Siebert’s tenure), the power to appoint a temporary US Attorney belonged exclusively to the District Court judges for that district, not the AG.
• The Conclusion: Indictment Dismissal and Statute of Limitations
  • Dismissal without Prejudice: The court dismissed the indictment because Halligan—the only person to present the charges to the grand jury—lacked the proper legal authority (was improperly appointed). The dismissal was without prejudice, meaning the government could try to bring the charges again.
  • Statute of Limitations: However, the statute of limitations for the alleged crime (lying/false statements under oath to Congress) is five years, and that period had already expired two months prior to the dismissal. Therefore, the charges cannot be successfully brought against Comey again.

• The Legal Context: LULAC v. Abbott (Texas Redistricting)

The Plaintiff’s Argument

• • LULAC (League of United Latin American Citizens) and other minority groups (including African-American groups) sued Texas Governor Greg Abbott, arguing that the new congressional map passed in a 2025 special session was an act of racial gerrymandering.
  • The suit claimed the map violated the 15th Amendment and the Voting Rights Act by improperly using race to dilute the minority vote and prevent minority groups from having the representation they deserve.

The Defendant’s Argument

• • Governor Abbott’s legal team defended the map, claiming the redistricting was based purely on partisan politics (which is legal under the Rucho v. Common Cause precedent) and had nothing to do with race, which would be improper.

The Court’s Decision and Supreme Court Intervention

• • Temporary Injunction Issued: A three-judge district court panel (with a 2-1 majority, including one Trump appointee) found that the plaintiffs had shown a likelihood of success on the merits. The majority opinion, written by Judge Jeff Brown, noted that the districts were drawn with razor-thin racial majorities (e.g., 50.1% African-American or 50.2% Hispanic), indicating that race was improperly used as a factor.
  • The court issued a temporary injunction, preventing the use of the 2025 map and mandating the use of the 2021 map in the interim.
  • Supreme Court Hold: The US Supreme Court, through an order signed by Justice Samuel Alito (on the “Shadow Docket”), put a hold on the injunction, meaning the 2025 map remains in use for now as the case proceeds.

The Dissenting View (Judge Smith)

• • The dissenting judge, Judge Smith, made two legally significant points:

1. 1. 1. Presumption of Good Faith: The dissent argued that the majority failed to honor the legal presumption that the legislature acted in good faith and that the evidence, which included extensive discussions about the goal of adding four Republican districts, supported the legal conclusion that the map was drawn for the permissible reason of partisan politics (even if the side effect was racial dilution, which is an issue with the Rucho precedent).

1. 1. 2. Improper Judicial Remedy: The dissent argued that the majority improperly mandated the use of the 2021 map. Under the US Constitution, the power to draw maps is vested in the state legislatures. If a court strikes down a map, the proper procedure is to send it back to the legislature to correct its own errors, not for the court to impose an alternate, pre-existing map.

• The Coherent Pattern: Ongoing Scrutiny and Constitutional Conflict
  • The Redraw Cycle: The episode highlights the issue of maps being redrawn mid-cycle (2025 using the 2020 census) and the potential for partisan gerrymandering to functionally disguise racial gerrymandering due to the strong correlation between race and party affiliation.
  • The Stakes: The outcome of LULAC v. Abbott, especially considering the current US Supreme Court’s involvement and past rulings, could have profound implications for the future of the Voting Rights Act and the ability of states to redraw maps based on race.

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Two Courtroom Showdowns That Reveal The State Of American Democracy With Richard Wilson

I have the privilege of having Richard Wilson, my very dear friend, who’s an outstanding lawyer. Many of you know about him, so I’m not going to say a lot about him. You already know who he is. I enjoy these monthly things with him because we give you a chance to look at cases to fully understand what’s going on. This show is a way that you can learn about the legal system once a month. You can also learn about many other things that are going on in our country. We have two major cases. Richard, would you do me a favor and name those cases? I then would like to go in and give some information about Comey. Would you at least tell them what we’re going to be looking at?

Major Cases Introduced: US V. Comey & LULAC V. Abbott

First off, and perhaps primarily, is US v. Comey, which are the criminal charges that were filed against former FBI Director James Comey in the Eastern District of Virginia. The second case is LULAC v. Abbott, which is yet another redistricting case that was newly decided. A preliminary or temporary injunction was issued in that case here in Texas. It seems to me that redistricting is the old friend you and I can’t quite escape.

I think it’s true. I keep reading others. Indiana legislatures, unfortunately, had all kinds of threats about bombs and everything else. Many of the legislatures in Indiana have voted to change and redistrict because of all the threats they’ve received. It’s a sad day when a President of the United States uses threats against legislators to get them to do something.

I’ll mention that. It’s going to be coming up. You and I’ll have another discussion about redistricting, whether we like it or not. I want to talk about Comey. I watched Meet the Press. I read a bunch of articles on it. I thought, “What is the reason that Trump is so angry with Comey?” I finally looked it all up, and let me tell you. There are loads of reasons they have, but I picked a few of them to try to give the audience a chance to see what the basis of all this is.

The first thing is the Russian investigation. Comey publicly confirmed in March 2017 that the FBI was investigating the possible tie between Trump’s campaign and Russian interference in the 2016 election. This infuriated Trump, who repeatedly did what he does. It’s a hoax and a witch hunt. If he doesn’t want to deal with something, he calls him that.

Another reason that he’s so mad at Comey is the loyalty demands from Trump. If you don’t, you get fired. According to Comey, Trump requested his personal loyalty during a private dinner in January 2017. Comey was not willing to grant full loyalty because he believed the FBI Director should be independent of political influence. To me, that makes a lot of sense. Trump fired Comey in May of 2017, citing his handling of the Hillary Clinton email investigation, but later admitted on his social media that the Russian thing that he did was the reason he was so angry. He fired him.

Another thing that has happened with him is public memos. After his firing, Comey arranged for a friend to leak memos he had written, documenting his private conversations with Trump, to the media. One memo detailed Trump’s request for Comey to let go of the investigation into former National Security Advisor Michael Flynn. These leaks led to the appointment of Robert Mueller to take over the Russian investigation, which dominated much of Trump’s presidency. That’s another reason.

Another one is the deep state allegations and perceived enemies. Trump views Comey as a leading member of the deep state. The deep state, based on Trump, is an entrenched bureaucracy working against him. Trump has publicly called for the prosecution of Comey and others perceived enemies, viewing the former FBI director’s actions as an attempt to undermine his presidency.

There are many more. This is the last one I’m going to give you, though. Personal insults in a book. Comey has been an outspoken critic of Trump since his firing. He has written a critical memoir titled A Higher Loyalty. From some of our friends, he’s talking about higher loyalty being a supporter of the law and the Constitution rather than bowing down to Trump. Comey has made frequent media appearances, which have kept the feud going.

There’s a lot more, but I think it’s good to have that history because when Richard gets in and starts explaining this case, you can better understand the reason that a lot of people are saying there’s not a lot to this case. First of all, there’s one thing that’s described in the case, which is called privileged information. Would you please describe that, and then would you apply it to what’s going on in the Comey case?

Attorney-Client Privilege & Its Application In The Comey Investigation

Yes. First, let me start, in particular, with the US v. Comey matter. What you and I are discussing are two orders that were entered in the case. The first was an order entered by Magistrate Judge William Fitzpatrick on November 17th, 2025. The second matter, which we’ll get to later on in this discussion, is an order that was entered by a district court judge on November 24th, 2025.

With the November 17th order, you asked about privilege. Under the Federal Rules of Evidence, Rule 502, there’s something called the attorney-client privilege. The idea behind the privilege is to allow the court system to work. Whether it’s a criminal case or a civil case, the rule of evidence applies to both. You want clients to be able to provide full disclosure to their lawyers. In order to encourage full disclosure, you protect everything that a client says to their lawyer with the privilege. Meaning, other people cannot find out what discussions a client has had with the lawyer.

There are some small exceptions, like when you use the lawyer to plan a crime that has not yet occurred or things of that nature, where public goods are seen to outweigh the importance of the privilege. That’s the whole idea with the attorney-client privilege. It is to allow better functioning of the legal system and to allow a lawyer to represent their client better.

[bctt tweet=”The whole idea with the attorney-client privilege is to allow better functioning of the legal system.” via=”no”]

For instance, an example you can have is turning in Comey with testimony in front of Congress. A lot of discussions with attorneys might focus on, “Here’s what happened. If I’m asked this question, how can I answer it to avoid these issues that might be embarrassing to me or embarrassing to others, while providing all of the information that is sought from the question?” Turning away from that and getting to the November 17th opinion for Magistrate Fitzpatrick, there was an interesting thing that happened with the Comey investigation in the Eastern District of Virginia, leading to his indictment.

In 2019 and 2020, during President Trump’s 1st term, the FBI undertook an investigation into the disclosure of privileged information in a 2017 New York Times article. The target of that investigation was a lawyer by the name of Daniel Richmond, who had, as I recall, served as an attorney within the FBI or the Department of Justice. He was, in 2019 and 2020, a professor at Columbia Law School, but also acted as private counsel to people. One of the people who had hired Daniel Richmond to act as their attorney was James Comey.

In 2019 and 2020, the FBI presented probable cause to get a judge to issue a search warrant for Daniel Richmond’s iPhone and iPad to review his messages and see if he may have been the source of the leak of privileged information. As I understand, it was that earlier investigation. When the FBI got that information, it included privileged communications, not just between former Director Comey and Daniel Richmond, but privileged communications between other clients of Mr. Richmond and himself as their lawyer.

In 2025, President Trump demands ultimately that the Eastern District of Virginia and the US Attorney’s Office begin investigating Comey. The way a search warrant works is that I go to a judge, and I have to show probable cause to get the judge to issue a warrant. It is so that I can go into somebody’s house to look for a particular piece of evidence or get their phone records to look for a particular piece of evidence.

[bctt tweet=”Legally, you don’t get to just go and pick evidence out of other cases you’ve prosecuted.” via=”no”]

In 2025, with James Comey, the FBI and the US Attorney’s Office did not go and seek a new warrant focusing on James Comey as the subject of the investigation. They did not seek a new warrant, focusing on whether or not there is probable cause to look at the communications with Mr. Richmond to see if they might reveal information about Comey’s testimony to Congress and whether or not that testimony was false, which is what was being investigated.

No probable cause was ever presented to get a judge to sign off on the warrant. What the FBI did was they simply went and took the evidence from the Richmond investigation five years earlier, and then used that information to investigate a new target, that being James Comey. Included in those communications were privileged information between Mr. Comey as the client and Daniel Richmond as the lawyer.

If that material is being used in this case, then no wonder there have been some decisions that we’ll talk about in a minute. It seems like, to me, they had no right to use that information at all.

Legally, you are correct. I may have gotten your readers bogged down, but that’s why I talked about probable cause and warrants. The whole idea is that if I’ve got something important to one investigation and I can convince a judge to let me have the evidence, it doesn’t mean that that evidence can then be used or that I have probable cause to use it for an investigation of someone else. I have to meet the same burden of proof if I’m looking to charge another person with a different crime. In Comey’s case, that did not happen. Legally, you don’t get to go and pick evidence out of other cases you’ve prosecuted, especially when you’ve gotten that private information by virtue of a warrant that was appropriate in that case, but that a judge might not deem to be appropriate in the new case.

The Improper Appointment & Actions Of US Attorney Lindsey Halligan In The Comey Case

You’re right on. That’s one of the problems in this case. The other problem I see is that all of a sudden, Trump decides that one of the US attorneys resigns. We have Trump wanting to pick someone. He then names the person he wants the Attorney General to pick, which happens to be Halligan. Halligan has a background with Trump because she was his personal attorney through a lot of his difficult situations. Number two, she has no trial experience to any extent that would be needed in the Comey case. I’d like for you to go in and talk about the appointment of her and then what all happened with it because it created a problem for the defendants. The defendants are the United States, right?

The defendants would be James Comey. The prosecution would be the United States.

Correct me. Thank you very much. The defendant is Comey. Let’s talk about what was extremely inappropriate about this appointment, and then what it led to in the entire case. I’m going to give you plenty of time to talk about it.

Let’s go back to what normally happens when a president takes office. Under the Constitution, there are certain positions within government. It’s called the appointments clause, where these individuals are appointed to their positions by the president with the advice and consent of the Senate. Legally, what that means is the president will pick a person and say, “I want this person to have this job. Marco Rubio, I want him to be Secretary of State.” The advice and consent of the Senate means the Senate then has to confirm that appointment.

With a lot of the lower-level positions, the president can pick someone. With US attorneys for the different districts of the federal court system, those appointments still have to be approved by the Senate. What happens is, while you’re waiting for an appointment to be made, temporary appointments can take place and can be made by, first off, the Attorney General.

What happened in January of 2025 is that Trump took office. As a matter of course, the then-sitting US attorney for the Eastern District of Virginia tendered their resignation. They resigned from the position because they had been appointed by a prior president, leaving the position free for the new administration to appoint someone else.

In the Eastern District of Virginia, what happened was that a gentleman by the name of Erik Siebert was appointed temporarily to that position by Attorney General Pam Bondi. He was appointed under a federal statute that allows the Attorney General to make a temporary appointment of up to 120 days. Siebert holds that position. I believe that in May 2025, when his 120 days were about to expire, what the district court judges in the Eastern District of Virginia did was they then got together and voted to allow Siebert to remain in that position beyond 120 days.

Why did the district court judges have to do this? The way the statute works is that if the president hasn’t appointed someone who’s been confirmed by the Senate, the Attorney General can appoint someone, and that appointment only lasts for 120 days. After 120 days, the district court judges for that particular district where the US attorney works have to make the appointment.

What happened was they made the appointment of Siebert continuing beyond 120 days. As I understand it, there was pressure being applied from Washington to indict James Comey and Letitia James in the Eastern District of Virginia. The understanding is, from multiple press reports, that Siebert, who is a former police officer and who, since graduating from law school and clerking for a federal court judge, has served as a career prosecutor. He had spent fifteen years as a prosecutor in the Eastern District of Virginia.

It’s understood that Siebert advised people that there was no valid basis for bringing the charges. What happened then is President Trump tweeted, because I don’t want to call his post a truth. They may be true, or they may be false. He posted that Siebert needed to go, so Siebert tendered his resignation. Rather than waiting to be fired, he went ahead and resigned from the position, presumably understanding that he was no longer wanted. At that point, Attorney General Pam Bondi, based upon a recommendation by President Trump, appointed Lindsey Halligan as the US Attorney for the Eastern District of Virginia.

Despite what people would say, just because I’m a lawyer doesn’t mean that I’m a skilled criminal prosecutor or that I am qualified to be the US Attorney for the Southern District of Texas. I’ve spent my 30 years engaged in civil trial work. While I am a trial lawyer, it doesn’t involve criminal cases where the rules can be a bit different, and the burden of proof is a lot different.

Halligan, as I understand it, was an insurance coverage lawyer down in Florida, not a federal prosecutor. She gets appointed to the position, and there are two things that appear to have happened. I say appear because these are conclusions I’m drawing based on circumstantial evidence. One is that it doesn’t appear that she understood what she was doing or what she was supposed to be doing.

Going back to the November 17th order that we’re talking about, one of the things that’s interesting in that order is that the indictment that was ultimately presented against James Comey only had two charges. The reason this is unusual is that of the charges that were presented to the grand jury and the charges on which there was evidence presented to the grand jury, there were 3 of them, not 2.

What appears to have happened is the grand jury voted yes on charges 2 and 3, which both, as I understand it, involved misrepresentations or false statements to Congress, but voted no on the 1st charge. I don’t know what Lindsey Halligan’s motivations were. Here’s the thing. She could have proceeded with that indictment and brought the charges against James Comey on 2 and 3, but not 1. Whatever the motivations were, her office then prepared a new indictment, which only contained the two charges on which the grand jury had voted yes.

Those charges, based upon Judge Fitzpatrick’s explanation of the circumstances, appear that she simply went to the grand jury foreperson and got that person to sign off on this new indictment with only two charges without representing the evidence to the grand jury. The 2 charges in the 2nd indictment, as it’s explained in the order, appear to have been charges 2 and 3 from the 1st indictment.

The argument would be that if evidence was presented on those charges the 1st time around, that ought to suffice for the second indictment. Procedurally, legally, that’s not the way it works. If I’m going to bring charges, I’ve got to present evidence on the indictment the grand jury issues. I don’t get to go back after the fact and ask the foreperson to sign a different indictment. That’s because then, I could conceivably present a new charge that was never presented to the grand jury and voted on, and have the foreperson sign off on something that was never even presented to the grand jury. I present charges for wire fraud, and then suddenly, the indictment has bank robbery on it.

While some might view it as a technicality and a simple procedural rule, the procedural rule has an effect across the board. What it means is that the indictment that ultimately was issued against Comey, Judge Fitzpatrick seems to question the propriety of that. The manner in which it was done may have been improper and might have been a basis for the dismissal.

There’s been a lot of speculation as to why Ms. Halligan did that, but it would seem to me that inexperience had to play a role in some regard. The only witness that testified to the grand jury was an FBI agent who had access to attorney-client privilege communications between James Comey and Daniel Richmond. The indictment that’s ultimately issued is something different than the indictment that the grand jury voted on.

Let me say something. I have served on grand juries for many years. There were many times that we approved and said yes to something, and then they had to come back and present us with the information again because they had changed the indictment. I understand fully what you’re talking about because it’s a procedural protection for all of us that they cannot do something like this. She didn’t have the qualifications to hold that position. I don’t think she knew what she was doing, and it created problems.

It’s problematic. The question is why, given the initial indictment. Even though the vote was no on count one, which, as I understand it, was whether or not Comey lied about the Russia investigation, they could have legally gone forward on that, whether it’s a state or federal court. If the grand jury votes yes on one charge, you can try the person for that and see if you can get a conviction on that one charge, that one alleged crime. It was completely unnecessary to do that.

The other thing, touching on the appointment, what happened was on November 17th, in his order, Judge Fitzpatrick questions whether or not dismissal might be appropriate. What happens is, being a magistrate judge, Judge Fitzpatrick would’ve presented these issues to the district court judge to ultimately make a decision about. The magistrate judge is an underlying judge beyond the district court judge who will take care of important issues, but issues that largely are tech discovery and things of this nature. These are issues that the district court judge doesn’t have time for, given how busy their dockets are.

There were all of these questions about whether the Comey indictment should be dismissed. Ultimately, another order from another judge in the Comey case led to the dismissal of the indictment. What the judge did was look at the technicalities of Ms. Halligan’s appointment. As we talked about earlier, you’ve got an appointment with the advice and consent of the Senate. That didn’t happen here. The second thing is you’ve got an appointment with the Attorney General Pam Bondi. That happened once with Eric Siebert, and Siebert resigned.

The approach that the AG’s office and the Department of Justice were taking is, “We now get to make another appointment that can run for another 120 days.” The district court judge disagreed with that and said, “If it were to operate that way, then what would happen is the Attorney General’s office could continue to make temporary appointments of the same person or a different person, and then the district court judges would never have the ability to make an appointment under the law.”

Since the law gave them the ability to make that appointment, what the district court judge did in the November 24th order is that the judge said, “The 120 days is for all appointments or any appointments that could be made by the Attorney General. Once that 120-day window closes, then only the district court judges can make a temporary appointment. A permanent appointment can still be made by the president with the vote of the Senate, but all temporary appointments beyond that 120 days have to be made by the district court judges in that district.” What effect did this have?

It’s unusual. When Comey was indicted, the only attorney who presented the potential charges to the grand jury was Lindsey Halligan. I’ve read in different reports that she could not get another US attorney in the Eastern District to go with her to present the charges. Maybe that relates to questions about whether or not they were appropriate. It could be that she simply wanted that and wanted the publicity of obtaining the indictment.

I can tell you from talking to colleagues who do this type of work that it’s rare that a sitting US attorney would present charges to a grand jury. The US attorney for a district court in the US court system is more of a manager. They’re deciding who’s working on what cases and what cases we’re going forward on and presenting. You’re in control of that entire US Attorney’s office. You’re in control of, and you’re managing a large law firm. You don’t have time to be presenting individual indictments to a grand jury.

[bctt tweet=”A US Attorney is essentially managing a large law firm—you don’t have time to be presenting individual indictments to a grand jury.” via=”no”]

What happens is that the district court judge says that Halligan lacked the power. She was not properly appointed as a US attorney. What that then means is that no US attorney or no one with the power to present indictments to the grand jury presented the indictment against James Comey. What the court did was then dismiss the indictment because Halligan’s appointment was improper.

There are plenty of questions about it. They’re saying they’re going to try this again or whatever else. There is a question, though, that I know the case cannot be tried again because the time has run out on being able to file against Comey for whatever actions. That’s another thing I read.

Dismissal Of Comey Indictment & Expiration Of The Statute Of Limitations

There are two things to touch upon there. First off, the dismissal of the charges was what was called without prejudice. What that means is that because you never had the case tried to a jury, because this wasn’t a full-on criminal trial, double jeopardy never attached under the US Constitution. When something is dismissed without prejudice, you are free to try to do it again. You are free to try and bring the charges again.

The idea is, what we were dealing with here was not a substantive issue where the court examined the evidence and said the evidence was not enough for these charges to be issued by the grand jury. It was a procedural issue where things were not done properly under the technical requirements. You dismiss the charges without prejudice to allow someone with the authority to present those charges to then come before the grand jury.

That’s the first step. The dismissal was without prejudice. Meaning, it could be done again. Why is it that it likely cannot be done? Again, with respect to James Comey? When someone is being charged with a crime, there is something legally called the statute of limitations. The idea is that even if someone has committed the crime, there’s only a limited period of time in which you can bring the charges and try them for the crime.

[bctt tweet=”When someone is being charged with a crime, there is something legally called the statute of limitations.” via=”no”]

With crimes that are deemed to be lesser crimes from the societal impact standpoint, the statute of limitations is shorter. With respect to James Comey, it is alleged that he lied or made false statements under oath to Congress. The statute of limitations for that is five years. That five-year period expired in September 2025, a couple of months ago.

Since the limitations have passed, the charges should not be able to be brought against Mr. Comey again. They could be brought, but if they’re brought, all that’s going to happen is another motion to dismiss will be filed based upon them being outside limitations, and the dismissal will be with prejudice because it has taken too long to bring these charges.

The statute of limitations is different. I’m sure your readers have seen TV shows where they talk about there not being a statute of limitations on murder. The more serious the crimes are, the longer the period of time you have to bring charges for them. It’s a benefit-burden analysis with respect to the public need or public protection with respect to something like this.

I can understand that. What you’ve done is you have done everything we need in this case. We do have time to go through because we’re in good shape. We ought to go ahead and go into the redistricting case, the one with LULAC v. the Governor of the State of Texas, Greg Abbott. When I read all the case law that you sent me, and I commented to you earlier that I don’t know how your lawyers do it because after a while, it gets blurry and crazy, I kept thinking, “I know this argument and I know that argument, but the two of them together are hard to determine from what’s going on.”

What I see in this case is whether they like it or not, and they tried to cover it up, it was gerrymandering based on race, and it was an effort to dilute minority vote. I happen to know, in some of the things I’ve read, that they are trying to say they were trying to give Hispanics more dominant districts because they voted for Trump. There’s a lot of stuff going on to cover up what they did because they did a very poor job. They were trying to base it on partisan politics, which I’m not a big supporter of. You and I have talked about that with the Rucho case, but I know it can be done.

There are a number of districts they’re looking at, which are 9, 18, 22, 27, 30, 32, 33, and 35. Most of them are in Harris County. Two are in Dallas. What I’m asking you to do is to first go through and see what LULAC was presenting and who the plaintiff was, and then go and tell us what Greg Abbott and his attorneys were arguing. Tell us the case itself, and then what we see as a conclusion, okay?

LULAC V. Abbott: Racial Gerrymandering & The Temporary Injunction

Okay. In one of our prior discussions, we talked about Rucho, which is the ability to gerrymander based upon partisan politics, Republicans and Democrats. The Rucho case involved Democratic gerrymandering in Maryland and Republican gerrymandering in North Carolina. You and I have discussed this. I don’t think either of us practically agrees with the idea of taking a new census, drawing congressional maps in 2021, and then coming back and doing it again in 2025, regardless of the reasons for it. Nonetheless, the Texas legislature held a couple of special sessions, as your readers in Texas are probably aware of. A new congressional map was passed and signed into law.

LULAC filed suits saying that the map was improperly using race in drawing the congressional districts in violation of the 15th Amendment of the US Constitution. The governor’s office, their defense was, “It had nothing to do with race. That’s improper. This was entirely a decision based upon partisan politics, which is proper.”

Not every opinion issued by a federal district court judge or even a 3-judge panel is close to 200 pages as this one is. What they found was that the opinion that was issued was an injunction while the case is ongoing. Two of the three judges, including one who was appointed by Trump, said that in this circumstance, based upon the evidence, race was a factor.

The opinion is written by Judge Jeff Brown, who used to be a district court judge here in Houston, was an appellate court judge here in Houston, and was on the Texas Supreme Court before being appointed to the federal bench. He looked at the evidence and said that, based on the way the maps were redrawn, there were certain districts where the district was 50.1% African American and 50.2% Hispanic. He said, “It’s clear that these were redrawn on the basis of race, given how close the maps are to a racial majority in particular districts.”

I have to tell you. In some of these maps, if you look at the opinion, the outlines of the maps are the types of things that only a map maker could come up with. There’s no real semblance of order to them in any way whatsoever, be it the map in Harris County or the map up in the Dallas-Fort Worth Metropolitan Area. He looked at it and said, “We’ve got discrimination here on the basis of race,” looking at the way the particular maps came out from a racial demographic.

Finding that there was discrimination on the basis of race, this is not a final opinion or a final judgment. It was what’s called a temporary injunction. The steps for getting a temporary injunction legally are, “Based on this evidentiary hearing, not a full-blown trial, but a hearing in which evidence is presented, have I shown the court that I have a likelihood of success on the merits when we finally try this case? Is there a chance of me suffering irreparable harm, meaning a harm that money cannot make up for, if we allow this to go forward in the meantime?”

If the answers to 1 and 2 are yes, you then move to the third element, which is, does the balance of equities tip in favor of the plaintiff? In this case, LULAC. Does the benefit of putting an injunction in place outweigh the burdens of the injunction to the party that you’re imposing it on? The final step is, does the injunction serve the public interest?

Through the analysis, the two-judge majority answers all four of these questions yes, so they grant a temporary injunction preventing the use of the 2025 map for the time being. They say that in the interim, going forward, we’ll use the 2021 map that existed prior to this new map being passed in the summer of 2025. That’s what LULAC was asking for. That’s what the court did. The court said, “We’re seeing discrimination on the basis of race, not partisan politics. As a result, we’re not going to allow you to use this map while we decide the case in full.”

What I think is important to mention is that the League of Women Voters contributed to this. There are African American groups that have contributed to it. There are other Latino groups that have contributed to it. Even though LULAC is named in the case, there are lots of backups of other minority groups that are saying, “This is an effort to dilute the minority vote and give us the right to have representation in Congress that we deserve.” That’s what I think is going on.

I apologize for interrupting you, but on that point, when you look at the case, what they do is when these cases are issued and published, they’ll list all of the attorneys and groups that are involved. In this particular case, there are three pages worth of lawyers and groups that were involved in the case and participated in the case in some capacity.

It’s saying that there is a major issue going on in Texas. The Latinos voting for Trump don’t mean they’re in the same place because they are very upset about what’s going on district-wise. I read the dissent. I think there are some real issues with it. You say that there are two valuable points that the dissent has mentioned. The readers need to know all of it and know what the points are because it’s going to go more into the trial. The governor is screaming and yelling that it’s going to go to the Supreme Court because the Supreme Court is more Republican in nature. I’ll be talking about this.

The point is that whatever is going on, we still have dissent. I think most of it is ridiculous, but you say that there are two points that we might need to know about in order to consider what happened. Why don’t you give your opinion of what happened with the dissent, and then talk to us about the two legal issues that we might want to consider?

Supreme Court Puts Hold On LULAC Injunction Via “Shadow Docket”

Okay. Before we get to that, there are two things I want to touch on with the majority opinion. First off, the US Supreme Court, in an order without an opinion, and the order signed by the Supreme Court Justice Samuel Alito, put a hold on the injunction that the three-judge district court panel issued. As the case exists, the preliminary injunction has been placed on hold. Meaning, it has not taken effect due to a Supreme Court order issued by what one legal scholar has referred to as the court’s shadow docket. These are orders that are issued with no opinion to explain why the injunction has been put on hold.

First off, I wanted to make it clear to your readers that the injunction is not in place because the Supreme Court has gotten involved in this. The reason the Supreme Court is involved is because when you have these important decisions like this that are tried to these three-judge panels, the net effect of that is you don’t appeal to an intermediate court of appeals. What ends up happening is that the appeal goes straight to the US Supreme Court. That’s the first point.

The Smoking Gun: DOJ Letter On Racial Composition

The second point is that a lot of focus in the press and otherwise with the majority opinion has been on a letter that was sent to the state of Texas and the Attorney General of the State of Texas by the Department of Justice. In the majority’s opinion, that Department of Justice letter was the focal point of their decision-making process.

The reason for that is the Department of Justice letter, and they printed the letter verbatim in the opinion, had directed the State of Texas that the map had to be redrawn based upon certain racial issues with the existing map that the Department of Justice was saying are incorrect or improper under the law. The majority opinion pointed out that several of the witnesses who testified referred to the Department of Justice letter as ham-handed and incorrect.

This will be a good segue to the dissent. The majority opinion points out that the letter was factually incorrect and that the legal conclusions set forth in the letter were incorrect as well. Nonetheless, that letter, which told the state, “You’ve got to redraw districts based upon racial issues,” was the focal point of the majority opinion. That was the smoking gun for LULAC in this injunction hearing.

Moving to the dissent, what most of your readers have probably heard about the dissent has nothing to do with any legal analysis undertaken by Judge Smith, who was the third judge on this panel and the dissenting judge. The dissent, largely, is very personal with respect to Judge Brown, who wrote the majority opinion. He calls Judge Brown out by his full name in the dissent. When I was a child, when I heard my mother call me Richard Gardner Wilson, I knew I was in trouble. To me, that’s reminiscent of a parent calling out their child for doing something wrong.

The other thing with the dissent is that it engages in a lot of political attacks. Judge Smith singles out Gavin Newsom, the Governor of the state of California, and talks about what Newsom has been doing. He singles out George Soros and argues that the lawyers who brought this case on behalf of LULAC and the experts who testified on behalf of LULAC and other plaintiffs are being paid ultimately by George Soros.

I have a problem with that because even if it is factually accurate, that is not an analysis of the law. It’s not the type of thing I would expect to see in a legal opinion where you’re breaking down the facts and applying the law to them. Who might have paid for the expert to testify has nothing to do with the legal basis for the decision and the credibility or lack thereof of a particular witness.

Judge Smith’s Legal Dissent Point 1: Presumption Of Legislative Good Faith

Where you and I probably diverge is that I think, legally, when he finally gets down to analyzing the law in the dissent, Judge Smith is correct on two particular legal issues. One is in these cases, as both the majority opinion and the dissent pointed out. When you analyze the law, when you have burdens of proof, the law imposes a presumption that the legislature acted in good faith. The law requires the district court or this three-judge court to draw any inference that cuts in the legislature’s favor when confronted with evidence that could support multiple conclusions.

What Judge Smith points out is that in all of the talk leading up to the special session for redistricting, and you and I discussed it in one of our prior analyses of all things redistricting in relation to the Rucho case, there was all this discussion about partisan politics. I remember, for a week, not being able to turn on the TV without hearing on the news that Texas was going to redraw the maps, not to increase the number of minority districts or decrease the number of minority districts, but specifically for the purpose of adding four Republican districts to the State of Texas’s congressional map.

There is evidence that supports that the legislature did this for a legally appropriate purpose, that being to draw maps under Rucho v. Common Cause, which focuses on partisan politics. As we discussed earlier in one of our prior discussions, that is not something that’s protected by the Voting Rights Act or by the US Constitution. I can be discriminated against because I’m a Republican or a Democrat. It’s not protected like race.

[bctt tweet=”If the legislature’s purpose was partisan politics, that’s legally allowed — unlike discrimination based on race.” via=”no”]

One of the things I want to interrupt about here for a moment is that one of the things that bothers me so much about the partisan politics is just because Trump won a large number of Latino voters, we have a ten-year cycle that we use for our census, so that we can have a rational decision about what’s going on in our state. To have an odd situation occur here that only occurred after five years, that’s where I’m objecting to what is happening here. You and I agree on that part.

Your explanation of what has happened here, I don’t like partisan politics as an excuse to justify redistricting. I can see how the judge had some grounds for saying what he did. It’s that I don’t like the fact that we’re not abiding by a ten-year cycle, which gives us a much greater picture about what’s going on politically. I’ll stop talking. It’s your turn.

In one of the discussions you and I have had, it is a potentially troubling side effect of Rucho v. Common Cause. The analysis I used for you is, let’s say, all circles are blue, and all squares are red. I’m allowed to discriminate based upon the colors blue and red, but I’m not allowed to discriminate based upon the shapes circle and square.

When you have a strong correlation of these two properties, where all circles are blue, and all squares are red, what ends up happening is I am discriminating based upon something that I’m permitted legally to discriminate on the basis of. The side effect of that is that ultimately, I’m discriminating on the basis of something I’m not allowed to discriminate on the basis of.

To bring that to real world facts as opposed to circles, squares, colors, shapes, and things of that nature, if there is a strong correlation between the African American community and being registered as a Democrat, let’s say not 100%, but a much larger percentage, then by discriminating on the basis of someone’s political party, the side effect of that is you can have maps that will discriminate on the basis of race.

Judge Brown points out that for multiple of these districts, the manner in which they were redrawn, they were 50.1% African American majority or 50.2% Hispanic majority. That clearly shows some analysis or use of race is what Judge Brown is saying. The point I’m making is, let’s say that it doesn’t. Let’s say that was not the basis for drawing the maps. The basis for drawing the maps was party affiliation. I think the problem you run into there is that if you’re using what Rucho says is a legal basis, we’re still resulting in what, in my opinion, might be an improper discrimination that is not permitted under the Voting Rights Act as it exists while we’re talking about this or under the United States Constitution on the first issue.

Judge Smith’s Legal Dissent Point 2: The Court Cannot Impose the 2021 Map

The second issue that I legally agree with Judge Smith on, and you and I discussed this in one of the other cases we discussed, and you got a big laugh about it, was the Alabama case, Allen v. Milligan. That was the one where the Supreme Court said, “You improperly discriminated on the basis of race. You need to redraw these maps so that you have two districts where African Americans make up the majority of those districts based upon the population of your state.”

The thing is, the court didn’t draw the districts themselves. Legally, what the courts are supposed to do is leave the drawing of the congressional districts to the legislature because that is a power that has been granted to the states under the United US Constitution. The Constitution doesn’t give the courts the right to draw congressional maps under Article 3.

What happened in Allen v. Milligan, if you remember, is that they sent it back to Alabama, and they did the same thing all over again. The court struck it down a second time and said, “We’ve given you a second chance. Legally, now, we get to draw the map.” It may be that things are different from a temporary injunction standpoint, but based upon Judge Smith’s analysis, the answer to that is no. The point he’s making is, “If the map is improper, we don’t impose our own map. We send things back to the legislature.”

What the majority did was they said, “The 2025 map discriminates improperly on the basis of race. You can’t use it for the time being, so we’re going to allow the 2021 map to be used.” What Judge Smith points out is, “You don’t get to decide which map gets to be used in the meantime. It has to go back to the legislature because this is a power vested in the states. We need to let the state redraw the maps and try to correct its own errors.” Legally, Judge Smith is correct on that. The decision to use the 2021 map legally was improper by the majority. Having said that, I will point out that this goes back to what you’re harping on about them doing it midway through the census in 2025.

In 2021, the Texas legislature drew up a map that has survived legal scrutiny and has passed muster. That’s based upon the same census that was used in 2021, as we’re using in 2025. Ordinarily, with these cases, what you end up with is a map from 2010 and another map with the 2020 census. The information is different in one way or another. There are more or less congressional districts, and the population has shifted. Here, that is not the case.

From a practical standpoint, I understand why the majority did what it did. It’s looking at a framework where none of the facts have changed since 2021. That is a unique circumstance we have, withdrawing the maps midway through based upon the same census that was used four years earlier for that map. Practically, I completely understand what the majority did. It’s legally based upon controlling precedent. I’m not sure if it’s something that’s permitted to do. Perhaps the Supreme Court will say, “We’re going to make an exception in this circumstance given that none of the information has changed from 2021 to 2025,” but I doubt it.

The Enduring Importance Of Procedural Protections & Legal-Political Conflicts

There’s a problem that you and I are going to warn everybody about. Certainly, you have to pay attention to what the Supreme Court is doing about 1965 Section 2 of the Civil Rights Act.

I apologize for interrupting, but they could issue an opinion in Callais that wipes the entire board clean.

I know. What that means is we would have gerrymandered maps all over the country.

We already do, but it means they would be able to gerrymander on the basis of race, perhaps.

I think that’s true. What I want to say, though, is we have given them the best we could possibly do about Comey, and we’ve given them about the redistricting. Whether you and I like it or not, we’re going to talk about redistricting because it has become a major discussion. I want to thank you for the conversation we’ve had. I’m very grateful to do these things with you. I’m learning a tremendous amount. Even though I find some of these longer cases confusing, I want to thank you for all the effort that you put into our show. Thank you so much.

Thank you.

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About Richard Wilson

Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.

For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.

During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.

His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.

KERR WILSON, P.C. 16676 Northchase Drive, Suite 450 Houston, Texas 77060 (281) 260-6304

EDUCATION

• University of Texas at Austin, J.D., 1995

• Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

• State Bar of Texas

• U. S. District Courts for the Eastern, Northern, and Southern Districts of Texas

• U. S. Court of Appeals for the Fifth Circuit

PROFESSIONAL EXPERIENCE

Kerr Wilson Shareholder Houston, Texas 2008 – present

• Represented clients in breach of contract, tort, employment, and insurance cases

• First chair trial experience

• Lead counsel in multiple appeals in both state and federal appellate courts

• Advisor for small and mid-sized businesses in the energy industry

• Responsible for all facets of managing and operating a law office

McFall, Breitbeil & Shults Associate & Shareholder Houston, Texas 2001 – 2008

• Represented clients in breach of contract, tort, employment, and insurance cases

• First chair trial experience

• Lead counsel in multiple appeals in both state and federal appellate courts

• Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Associate Houston, Texas 1997 – 2001

Hirsch, Robinson, Sheiness & Glover Associate Houston, Texas 1995 – 1997

ACHIEVEMENTS

• First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases

• Appeals to the Fifth Circuit and Texas appellate courts

• AV Rated by Martindale-Hubbell

PUBLISHED CASES

• Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)

• O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)

• Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)

• Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)

• Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)

• Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)

• Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)

• Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)

• Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)

• Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)

• Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

• Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)

• Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)

• King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)

PUBLICATIONS

• Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)

• Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17 (cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))

• Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements

• Co-author, Recent Legislation Concerning Attorneys, Texas Lawyers’ Insurance Exchange Newsletter

• Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party? Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE

• Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.

• Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.

• Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.

• After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.

• Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.

• Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.

• After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.

• Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.