Sometimes It’s Important to Tell The Client “No.”
Andy McCarthy has a great article in NR concerning a recent “Rule 28(j)” letter sent to the Federal Circuit in V.O.S. Selections, et al. v. Trump, et al., Nos 25-1812, 25-1813. The use and abuse of Rule 28(j) letters is a hobbyhorse of mine, particularly as far as the Department of Justice is concerned. Rule 28(j) is a vehicle for making sure the appellate court does not make a decision without being notified of controlling or persuasive law that occurs subsequent to briefing or between oral argument and decision in a given case. Let’s take a look at it:
(j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
The rule used to forbid “argument” as well, but they’ve struck that, likely because every lawyer on earth did the best he could to “frame the issue” without “arguing” in the letter. This made the rule an “attractive nuisance” to lawyers and an open invitation to sanctions. I don’t want to repeat what Mr. McCarthy has written (you should read it), but certain points are critical. Under Rule 28(j) the authority has to be “pertinent and significant,” and it has to be subsequent to the last time you got a chance to address the Court.
But what did Solicitor General John Sauer and Assistant Attorney General Schumate do in their letter to the Federal Circuit? They repeated arguments already made and cited no law at all. It is a political statement that the results of the illegal activity by the Executive are great. They then lay out a parade of horribles, including threatening “Social Security and Medicare” if the IEEPA tariffs are declared illegal.
This is not a Rule 28(j) letter. It is a Truth Social tweet with better spelling and grammar than we now expect from that platform. It is not likely to aid the lawyers in getting a good result from the Federal Circuit for their client. As the letter in response by (former Judge) Michael McConnell notes, it simply violates the very rule it’s submitted under. So why did they do it?
Mr. Sauer and Mr. Schumate are both very good lawyers, from my knowledge and personal observation of them. So why would they commit this “own goal” devoid of law or new information? There is no explanation other than failure to control the client, in this case, the President, or at the very least, the White House. After Mr. Schumate had a rough day at oral argument before the Federal Circuit, it was likely the client, again the President, or the White House more broadly, wanted to strike back, at least in the media.
A remarkable fact of the letter by two of the highest-ranking lawyers in the administration is that it’s not on Justice Department letterhead. How can that possibly be? It seems implausible that the Justice Department denied its lawyer’s letterhead. Could it be there was none lying around the White House? In any event, the lawyers did not control the client and filed a document that even friendly lawyers have a hard time seeing as anything but an embarrassment. Judges are extremely unimpressed with political posturing to obtain a certain result. Clients listen to your lawyers. Lawyers strive with might and main not to follow a client’s direction that will harm the case.
August 27, 2025