Category: reason

A short excerpt from yesterday’s 15K-word opinion by Judge Mary Kay Vyskocil (S.D.N.Y.) Friday in Wolff v. Trump:

In this case, a chronicler of the First Family sues the First Lady because she threatened to sue him for defamation. While Plaintiff and the First Lady have a real dispute, they must litigate it according to the same procedures as everyone else.

Plaintiff asks for a declaration that, if the First Lady sues him, he deserves to win. That is not how the federal courts work. He also contends that he should not be in federal court at all. But, while it may have started in state court, this case was properly removed. Plaintiff and the First Lady are citizens of different states, and the lawsuit she threatened seeks a billion dollars in damages.

There are many features of this case that make it complicated: the prominence of the personalities involved, the scandalizing content of the underlying statements, and, frankly, an inappropriate level of tactical gamesmanship. But the outcome is simple. The Court will not be conscripted to oversee an abusively presented spat and so declines to reach the merits here….

From the Complaint, here are Melania Trump’s allegations of what statements are defamatory (the emphasis appears to originate in her demand letter):

“Melania Trump ‘Very Involved’ in Epstein Scandal: Author.”

“First Lady Melania could be the missing link in President Trump’s ties to convicted sex offender Jeffrey Epstein.”

“Melania was ‘very involved’ in Epstein’s social circle, and noted that this is how she met Trump.”

“She’s introduced by a model agent, both of whom Trump and Epstein are involved with. She’s introduced to Trump that way. Epstein [knew] her well.”

“In explosive tapes recorded by Wolff, Epstein alleged that Trump liked to ‘f—his friend’s wives and first slept with Melania on his ‘Lolita Express.’“

“Where does [Melania] fit into the Epstein story? Where does she fit into this, into this whole culture of models of indeterminate age?”

“Epstein told [you], that Trump and Melania got together the first time [] on Epstein’s airplane,” and that “Melania met Trump through the same modeling circles through which Epstein and Trump procured dates.”

“This sham marriage, trophy marriage, hardly any marriage at all is part of the scam.”

“The Epstein story, in which Melania plays no small part.”

“Where does Melania fit in with Epstein?”

“You stated that Mrs. Trump is sending letters threatening to sue anyone who makes the connection between her and Epstein because they are hiding something they don’t want us to know.”

Back to the court’s opinion:

This case is presented to the Court in a somewhat contorted posture: A would-be defamation defendant sues a would-be defamation plaintiff in New York state court. He seeks a declaration that statements identified in a demand letter threatening litigation under Florida law are not defamatory, and, further, that any such litigation would violate—or, perhaps, has violated already—New York’s anti-SLAPP law. Thereafter, the would-be defamation plaintiff removes the action to federal court, and moves to dismiss.

On the merits, the basic issue here is whether Plaintiff’s public statements about the First Lady were defamatory. But that question, however much attention it may have received in the media, is not yet before the Court. Instead, the Court must first decide whether it can hear this case at all. The Court must next evaluate whether it would be a wise and economical exercise of the judicial power to do so….

As brought before this Court, the pending claims for declaratory judgment are not obviously ones the Court is permitted to decide. While the Court finds that it probably could do so, for reasons discussed below it declines to proceed to the merits….

When a plaintiff seeks declaratory relief concerning his past torts, courts generally decline to exercise their jurisdiction over his claim. Plaintiff here asks the Court to bless as non-tortious certain public statements he has previously made about the First Lady. This is an abuse of the Declaratory Judgment Act….

“[T]o allow a declaratory judgment action under the facts before us would be to allow a substitute for the traditional procedures for adjudicating” speech-tort cases between private parties. More specifically, to entertain this case would reward Plaintiff’s brazen attempt to “short-circuit” a suit by the First Lady in Florida, conferring upon him an undue “procedural advantage” by allowing him to “preempt the forum choice of the plaintiff to the coercive action.”

This is textbook bad-faith forum-shopping, in which Plaintiff asks the Court to collude by “exercis[ing] jurisdiction over [a] declaratory action[ ] motivated by a desire to wrest the choice of forum from the real plaintiff.” Plaintiff may or may not have defenses to the First Lady’s would-be claim of defamation. Indeed, he may or may not have—or come to have—anti-SLAPP claims of his own. The Court takes no position on these possibilities. The Parties are free to pursue in good faith whatever claims they wish.

But it is disingenuous for Plaintiff to assert that he had “no choice” but to preemptively file this action in New York…. There is no reason whatsoever that Plaintiff should be allowed to “rely solely on [the] past injuries” purportedly caused by the assertion of claims against him in Florida “to obtain declaratory relief” thwarting those claims in a parallel action here.

The Court does note that Plaintiff makes much of the “chilling impact” one might experience upon being sued for defamation.. In other words, he contends that his claim concerns “not just past speech, but, significantly, future speech.” But, fundamentally, he is asking the Court to adjudicate the tortiousness of specific statements that he has already made, and to do so in a forum other than the one in which litigation is already threatened (or, perhaps, pending). That he apparently wants to repeat those statements does not entitle him to “short-circuit” the Florida lawsuit here.

{If he means, by contrast, to ask the Court to review statements he has never before made, the Court declines to offer its assistance. Indeed, as discussed, the Court seriously doubts that it would have jurisdiction to issue an opinion staking out for him the boundaries within which any such statements would be immunized from future litigation.}

The Court’s assessment of Plaintiff’s gamesmanship bottoms out into recognition that he should simply seek the “adequate remedy” available to him by the assertion of his defenses and counterclaims in the action that he argues is pending “between the same parties” in Florida, where “all of the same issues raised in the declaratory judgment action are also in dispute.” The coercive action in Florida may already be “pending” or it may merely be “potential.” Either way, it is clearly relevant to the question of “whether there is a better or more effective remedy,” available for the resolution of this case.

It does not trouble the Court that a defensive proceeding in Florida may not afford him “an opportunity for ventilation of the same state law issues,” as would an offensive one in New York. All that might be missing in Florida—depending on a choice-of-law inquiry the Court does not endeavor here to undertake—are “the more protective policies” reflected in New York’s anti-SLAPP law. This merely confirms the obvious reality, already discussed, that Plaintiff’s action here constitutes an improper “rush to file first in anticipation of litigation in another tribunal, thereby enabling [him] to choose the forum and governing law by which to adjudicate the dispute, and otherwise to interfere with or frustrate the [First Lady’s] pursuit of claims elsewhere.”

Relatedly, “the use of a declaratory judgment would increase friction between sovereign legal systems [and] improperly encroach on the domain of a state … court,” undermine “judicial efficiency and … economy,” and potentially still fail to “clarify[ ],” “settl[e],” and “finalize” the controversy. In struggling against the First Lady’s right to select a forum for her coercive action in the first instance, and her right to remove to a federal one in the second, Plaintiff has brought this case to the Court in a posture of profound confusion.

He asks a federal court to interpose “the more protective policies of New York State and its own Constitutional protections of free speech” as reflected in New York’s anti-SLAPP law, in a simulated adjudication of a would-be Florida-based defamation suit. Faced with this procedurally convoluted request, the Court declines to multiply “[t]he risk of potentially contradictory fact finding between the state and federal court[s] on [the] critical issue” of the truth or falsity of Plaintiff’s statements about the First Lady. Nor will it gratuitously volunteer to generate a “needless” decision on the scope of New York’s anti-SLAPP law. To reach the merits here would be an abuse of the judicial system and a waste of its resources.

The First Lady was entitled to have Plaintiff’s action against her heard by a federal court according to federal procedures. That action does concern a live case or controversy, but it is one that should be litigated according to the “traditional procedures for adjudicating” speech-tort cases between private parties. Accordingly, it should not be litigated here….

Alejandro Brito (Brito, PLLC) and Caryn Gail Schechtman and Steven Rosato (DLA Piper US LLP) represent Melania Trump.

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In most states, child custody matters are decided by judges; but in Texas, they are in large part decided by juries. Here’s a Texas Supreme Court decision from yesterday, Gopalan v. Marsh (written by Justice John Devine), that illustrates this and reaffirms the primacy of the jury as to some such matters:

In this divorce proceeding, the jury found that the father should have the exclusive right to designate the children’s primary residence. But the trial court awarded the mother more time with the children under the divorce decree’s possession order.

The central issue is whether the court’s possession order contravened the jury verdict. We hold that it did. The ordinary meaning of “primary residence” does not encompass a home where the child lives less time than elsewhere, and the statutory context supports that understanding….

Section 105.002(c) of the Family Code provides that “[i]n a jury trial”:

(1) a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of: …

(D) the determination of which joint managing conservator [generally a parent] has the exclusive right to designate the primary residence of the child; … [but]

(2) the court may not submit to the jury questions on the issues of: …

(B) a specific term or condition of possession of or access to the child; or

(C) any right or duty of a conservator, other than a determination under Subdivision (1)(D), (E), or (F).

At its core, this question comes down to what “primary residence” means within the statutory context…. When a statutory term is undefined, as here, we apply its common, ordinary meaning unless this yields an absurd result or a different meaning is apparent from the statutory context. To ascertain a term’s ordinary meaning, we often start by consulting dictionaries. Dictionaries define (1) “residence” as “the place where one actually lives or has his home as distinguished from his technical domicile,” (2) “primary” as “first in rank or importance,” and (3) “primary residence” as “[t]he place where a person lives most of the time.” Simply put, a home where the child actually lives less time than elsewhere is not the child’s “primary residence” as that phrase is ordinarily understood….

We therefore hold that the trial court contravened the jury verdict by awarding greater possession time to Marsh. The verdict on the primary-residence right does not dictate a “specific term or condition” of possession; it imposes a general constraint. Thus, remand is necessary for the trial court to redetermine the decree’s possession order….

[It] deserve[s] mention … [that] the plain meaning of “primary residence” in its statutory context does not preclude a possession arrangement of equal periods. The Family Code provides that “[j]oint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to each of the joint conservators.” This provision implies that equal time is permissible; otherwise, the statement that it is not required would be surplusage. And in such an arrangement, the children would not be spending more time living elsewhere. That said, there can be only one “primary residence.” Accordingly, even when the parent with the primary-residence right has been awarded equal or greater possession time, the order would still contravene the jury verdict if the possession periods are structured such that the designated residence would not be “primary” in the sense of “first in rank or importance.” …

Richard R. Orsinger, Leslie Bollier, Katherine Obando, and Stephen Orsinger represent Gopalan.

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Just when you think there is no further outrage that the President of the United States can perpetrate to top all of the preceding outrages, along comes the Great Settlement Agreement of 2026.

Read it for yourself.  It’s only three pages long.  It’s titled “Settlement Agreement.” It is, however, not a “Settlement Agreement” within the usual and ordinary meaning of that term. You can call a duck a goose, but it’s still a duck.

Let’s review how we got here.  Trump, on January 26, 2026 (while serving as President) filed suit in federal court (SD FL) against the IRS, alleging negligent conduct by an IRS contractor which led to the release of the confidential tax records of millions of people (including Trump), and seeking $10 billion in damages.

This claim is nonsensical and worthless; a reasonable valuation of this claim – i.e., the amount a reasonable person in the claim valuation business would have offered to buy this claim were he allowed to do so – is $0.00.  You can’t sue yourself; the President runs the IRS; he can fire any or all of the IRS employees, and he can determine IRS policies (including its litigation policies); the President and an Executive Agency wholly within the scope of Presidential control cannot be legal “adversaries.” So there is no Article III “case or controversy” where the President is on one side of the case, and the IRS is on the other, and without a case or controversy the court has to dismiss the case for want of jurisdiction.

It would be a good question for a Con Law I exam. The short answer portion; it’s too easy for a longer essay.

Trump’s lawsuit was going to be dismissed. Everyone – you, me, Pam Bondi, Todd Blanche, Donald Trump – knew that.

At the court’s first hearing back in February, District Judge Williams noted the “outstanding question as to whether an actual case or controversy existed” between the “parties,” and requested that the “parties” brief the question for her.

No briefing from either one of the “parties,” interestingly enough, was ever forthcoming on the question.[1]

There things remained until May 16, when Trump filed a “Notice of Voluntary Dismissal With Prejudice.”[2] The court, in accordance with ordinary practice (and with the governing Federal Rule of Civil Procedure, Rule 41(a)), dismissed Trump’s claim with prejudice, noting further that “once a notice of dismissal pursuant to FRCP 41(a)(1) is filed, the Court is stripped of jurisdiction.”

So that’s that for Trump’s so-called case.

Here’s an excerpt from the court’s final “Order Closing Case” [available here]:

“Plaintiffs state that they are voluntarily dismissing the instant litigation with prejudice. Because the dismissal with prejudice extinguishes the claims regarding the unlawful disclosure of Plaintiffs’ tax returns, the Court cancels all deadlines, including the date that the Parties were required to submit briefing as to whether an actual case or controversy existed in this matter.”

Judge Williams adds the interesting concluding paragraph:

Because [Trump’s] Notice does not reference any settlement or include a stipulation of settlement, there is no settlement of record. Additionally, Defendants—federal agencies represented by the Department of Justice, which has an independent obligation to uphold the “public’s strong interest in knowing about the conduct of its Government and expenditure of its resources” and the “fair administration of justice,” neither submitted any settlement documents nor filed any documents ensuring that settlement was appropriate where there was an outstanding question as to whether an actual case or controversy existed.

The court, in other words, is saying: “We don’t know why Plaintiff is withdrawing. There may have been a ‘settlement’ between Plaintiff and Defendants, but we have no information about that one way or the other. If there was a settlement, you might want to consider whether it is legitimate, given that it’s just the left hand settling with the right.”

In the ordinary case, the Plaintiff does not have to explain why he is withdrawing his claims; Plaintiffs are free to withdraw their claims for pretty much any reason or no reason at all.[3] It could be because Plaintiff reached some agreement with the Defendant, or because Plaintiff suddenly realizes he will lose the case, or because Plaintiff has had a change of heart, or because Plaintiff has been diagnosed with a terminal illness and wants to spend his remaining days entirely with his family, etc.

But the court here is signaling that this is not the ordinary case. The court doesn’t need to know why Trump is withdrawing, but if there has been some kind of “settlement,” it may not have been “appropriate”; just as you can’t sue yourself, you can’t enter into a “settlement” with yourself to relinquish those claims that you have asserted against yourself.

Then, on May 18th, Trump and the DOJ execute something they call a “Settlement Agreement.” In it, Trump relinquishes his so-called “claims” against the IRS.[4] In exchange, the Defendant agrees (a) to issue an apology to Trump, and (b) to set up an “Anti-Weaponization Fund,” entailing a “systematic process to hear and redress claims of others who, like Plaintiffs, state that they incurred harm from Lawfare and Weaponization.”[5]

This “Anti-Weaponization Fund” will have $1.776 billion* (get it?) at its disposal.

And because the parties to this Settlement Agreement apparently think that you and I and the rest of the American people are complete morons, they say, in the Agreement, that “the corpus of the Anti-Weaponization Fund’s funding … is based on the projected valuation of future claimants’ claims.”  It is, therefore, just a coincidence that it comes to 1.776 billion.

The Fund will be administered by five Members, all of whom are to be appointed by the Attorney General (an employee of the President). One Member – but one Member only – must be chosen “in consultation with” (though not necessarily the approval of) “congressional leadership.” Members can be removed at any time, without cause, by the President. The Fund “shall have the power to determine its own procedures for submitting, receiving, processing, and granting or denying claims,” and the Fund “may make those procedures public in whole or in part, in its discretion.”

Every quarter, the Fund “shall provide to the Attorney General a confidential written report” enumerating names of everyone who “received any relief” from the Fund and “the nature of such relief.”

And should you harbor any concerns about fraudulent claims, you can rest easy; the Fund “shall impose controls and systems to avoid fraudulent claims.”

Think it’s a bad deal, or even an unlawful deal, for the American people? Too bad for you! “This Settlement Agreement is enforceable and challengeable solely by Plaintiffs, Defendants, and the United States.”

And, oops!  As noted above, the May 18th Settlement Agreement contains a provision under which Trump releases his (non-existent) claims against the IRS.  It doesn’t say anything about the IRS releasing its claims against Trump.

That, apparently, was an oversight.  Like I said, oops!  Oh-so-quietly, on May 19th, the Department corrected that little oversight, notifying the world, in a document signed by Acting Attorney General Blanche, that:

“The United States RELEASES, WAIVES, ACQUITS, and FOREVER DISCHARGES each of the Plaintiffs, and is hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, counterclaims, [etc.], whether previously known or unknown, that, as of the Effective Date of the Settlement Agreement [i.e., May 18th], have been or could have been asserted by [the IRS] against any of the Plaintiffs or related or affiliated individuals…”

Wow!  Blanche provides no explanation for why this rather important paragraph had been omitted from the original, signed, Settlement Agreement. My guess is: Bad lawyering. Maybe that’s what happens when the DOJ sheds hundreds of competent attorneys.

It is, as Mitch McConnell – Mitch McConnell! – describes it: “the nation’s top law enforcement official asking for a slush fund to pay people who assault cops . . . Utterly stupid, morally wrong.”

You do, though, have to hand it to Trump’s lawyers; they transformed a claim worth $0.00 into a $1.776 billion Fund to be handed out, most likely in secret, to Trump’s supporters, plus they got their client a get-out-of-jail card in connection with any possible liability Trump may have incurred for prior IRS-related defalcations (an immunity that the NY Times estimates may be worth up to $100 million to Trump and the Trump Organization). It’s truly a testament to their immense lawyerly skill that they were able to get the other side to agree to this deal, no?

---

In the history of this country, there have been many, many people who have stuck their hands, inappropriately and unlawfully, into the public till.  Some have ascended to high public office from which they could more easily implement their unlawful schemes. Democrats and Republicans, black and white, Christian and Muslim and Jew, men and women … Sad, but true.

But Donald Trump is more than just the latest member of this very unseemly fraternity – he is doing something truly without precedent. Never before, in the history of the United States, has the grab been conducted so openly and so brazenly, out there in full view of the very public that is getting fleeced.[6]

That this all comes as part of an “Anti-Weaponization” initiative from a president who has refined “weaponization” of the Justice Department into a fine art is beyond irony and beyond satire.

That Trump would like to get his hands on $1.776 billion of taxpayer money to hand out to friends and supporters is no surprise. What is much more difficult to understand is why so many people seem willing to let him get away with it.

The semi-revolt by Senate Republicans in the face of this monstrosity gives me (a little) hope that this may have finally crossed the line, for at least some of his supporters in the Republican party. We’ll see if this gives a few of them the backbone to stand up to Trump, at least so as to nullify (if, indeed, nullification is even a possibility) this “Settlement.”

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[1] I can understand why Trump’s lawyers didn’t file a brief addressing the question; there’s nothing they could possibly have come up with to defend the continuation of the suit.  But you’d think that the IRS lawyers would jump into the fray, no? Their reluctance to do so can’t have anything to do with the fact that the plaintiff is their boss, could it?  Proving the point, no?

[2] A “Notice of Voluntary Dismissal with Prejudice” is a notification to the court from the Plaintiff: “I give up my claims now and forever; please dismiss them with prejudice.” It’s a “notice”, not a “motion”; it’s not asking the court to do something, it’s telling the court what plaintiff has decided to do. Under Rule 41(a)(1), the claim strips the court of jurisdiction once it is filed by the plaintiff, so there’s nothing the court can do anymore, other than close the case.

[3] There are exceptions to this general rule, of course; in class action cases, for example, the court has to approve any voluntary dismissal, which will involve examining the terms of any settlement that the parties have entered into, because the dismissal will affect the rights of third-parties who are parties to the suit but not to the settlement negotiations.

[4] The Agreement reads: “In exchange for the relief provided in this Settlement Agreement, and except as provided herein … Plaintiffs hereby RELEASE, WAIVE, ACQUIT, and FOREVER DISCHARGE Defendants and the United States from, and are hereby FOREVER BARRED and PRECLUDED from prosecuting or pursuing, any and all claims, charges, counterclaims, causes of action, appeals, or requests for any relief, … that –  as of the Effective Date – have been or could have been asserted by Plaintiffs …”)

[5] “Lawfare and Weaponization” are defined in the Agreement as the “sustained use of the levers of government power . . . in order to target individuals, groups, and entities for improper and unlawful political, personal, and/or ideological reasons”.

[6] If you know of any actual case to prove me wrong on this, please let me know in the Comments or otherwise.

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Since a Democratic trifecta took control of Virginia’s government in the 2025 election, two longtime progressive labor policy priorities have been front and center: repealing the state’s right-to-work law and mandating public sector collective bargaining. Now, less than six months into the Democratic reign in Richmond, pro-union forces have come away empty handed. While unions may be disappointed, Virginia taxpayers have new reason to celebrate.

They also have an unlikely person to thank, at least for the moment: Gov. Abigail Spanberger, who vetoed collective bargaining legislation last week.

The drama traces back to the campaign trail. Then-candidate Abigail Spanberger secured the Democratic nomination amid strong support for unions. She even managed to  secure the endorsement of the Virginia Police Benevolent Association—a police union that had largely supported GOP candidates in recent elections—over Republican candidate Winsome Sears, further underscoring Spanberger’s pro-union appeal.

Despite her strong affiliation with organized labor, Spanberger said several times during her campaign that she did not support a “full” repeal of Virginia’s right-to-work law, which has existed in the state for close to 80 years. This led many observers—including yours truly—to try to read the tea leaves behind her statements, including whether she might still support some version of a “partial” right-to-work repeal.

Yet there was much less ambiguity when it came to public sector collective bargaining. During the campaign, Spanberger answered “yes” on a candidate questionnaire that asked if she would “champion and sign legislation to ensure collective bargaining rights for all public employees.”

Virginia is one of a handful of states that bans public sector collective bargaining, having done so since a 1977 state supreme court decision. In 2021, when former Gov. Ralph Northam was in office, Democrats changed the law to an opt-in system, whereby localities could pass ordinances to allow public sector collective bargaining. (Only a small fraction have opted in).

The goal of Virginia Democrats in 2026 was to turn collective bargaining into a statewide mandate, not a local choice. Earlier this year, Democratic lawmakers introduced a bill to make this mandate a reality. The bill cleared the state legislature and went to Spanberger’s desk, where union interests were confident it would be signed by the governor.

But Spanberger surprised many by sending a revised version of the bill back to the Legislature. The governor’s amended version made material changes to the bill, including changing “shall” language—as in, the scope of collective bargaining “shall include” bargaining over wages, hours, and benefits—to “may,” thereby cutting back on the prescriptive text. It also delayed the law’s implementation for localities from 2028 to 2030 and opted for advisory arbitration, rather than binding, to settle contract disputes.

Perhaps most significantly, Spanberger’s version gave more power to a new government agency that would be created under the legislation, known as the Public Employee Relations Board. An analysis by the Economic Policy Institute noted that the original bill contained detailed rules about union elections and contract negotiation timelines, while Spanberger’s version left these matters up to the body’s discretion.

Unions argued that this amounted to a regulatory death sentence given that the board’s five members are appointed by the governor, raising fears that a future Republican leader could stock the board with anti-union members. Spanberger’s revised version also eliminated a requirement that two of the board’s members must be union representatives, further watering down union influence over the process.

Faced with this revised bill, the state assembly bowed to union pressure and rejected Spanberger’s amendments. This put the ball back in the governor’s court, daring her to veto the original bill or acquiesce. Spanberger chose the veto.

Predictably, union interests cried foul, viewing it as a bait and switch and likening Spanberger to her Republican predecessor Gov. Glenn Youngkin. Despite her veto, Spanberger maintains that she supports public sector collective bargaining and that she will “continue to look forward to a place where we’ll have a bill that I’ll sign into law.” Virginia Democrats will retain their trifecta through at least the 2027 state elections, perhaps providing enough time for them to iron out the dispute before the balance of power in Richmond potentially changes.

In the meantime, Virginians can enjoy the reprieve—because public sector collective bargaining continues to be a bad bet from a policy standpoint. Research has found that mandatory bargaining raises state and local government spending anywhere from $600 to $750 per person annually, which could amount to a substantially larger tax burden for a small family. It is estimated that the proposed Virginia legislation would have cost the state $50 million annually, while the costs for localities could have ranged anywhere from $50,000 to $403 million over a two-year period.

Virginia taxpayers, in other words, dodged a bullet with Spanberger’s veto. They’ll have to hope she continues holding the line.

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5/23/1991: Rust v. Sullivan is decided.

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