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Trials & Litigation

After US prosecutors mistakenly file confidential memo, is their challenge to congestion pricing doomed?

By Debra Cassens Weiss

April 28, 2025, 9:51 am CDT

Federal prosecutors have been kicked off a challenge to congestion pricing in New York City after they mistakenly filed a confidential memo saying the government is “very unlikely” to be successful.

The U.S. attorney for the Southern District of New York will be replaced on the case by the U.S. Department of Justice’s Civil Division, according to a statement by the U.S. Department of Transportation.

Law360, Courthouse News Service, ABC News and the New York Times (here and here) have coverage.

“Are SDNY lawyers on this case incompetent or was this their attempt to resist?” the Transportation Department said in a statement cited by news media. “At the very least, it’s legal malpractice. It’s sad to see a premier legal organization continue to fall into such disgrace.”

The U.S. attorney’s office said in a statement the court filing “was a completely honest error and was not intentional in any way. Upon realizing the error, we immediately took steps to have the document removed.”

The confidential memo dated April 11 said there is “considerable litigation risk” in defending efforts by Sean Duffy, the secretary of the Transportation Department, to block the congestion pricing program using an argument that it was not statutorily authorized.

The Federal Highway Administration might be able to properly end the program, however, under regulations concerning the termination of cooperation agreements that no longer further agency priorities, the memo said.

U.S. District Judge Lewis J. Liman of the Southern District of New York said in an April 24 order the mistaken filing raises two questions. The first is whether there is sufficient basis to seal the document after it was published by media outlets. The second is whether the mistaken disclosure waives the applicable attorney-client privilege.

Liman, an appointee of President Donald Trump during his first term, is temporarily keeping the memo under seal and is asking for parties’ responses with due dates of May 2 and May 7.

Disclosure of the memo is “a lawyer’s nightmare,” but it is unlikely to be a deciding factor in the case, said Eric A. Goldstein, a senior attorney with the Natural Resources Defense Council, a nonprofit environmental advocacy group that supports congestion pricing, in an interview with the New York Times.

Little in the memo was surprising, and Liman, the judge in the litigation, is already familiar with the issues after hearing four other challenges to congestion pricing, Goldstein said.

Corey Bearak, a lawyer who opposes congestion pricing, told the New York Times that the Trump administration should consider other ways to challenge the program, including by joining litigants fighting congestion pricing in state court.

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Ethics

Ex-Wisconsin justice who led election review should be compelled to sit for deposition in ethics case, motion says

By Debra Cassens Weiss

March 6, 2025, 10:00 am CST

A former Wisconsin Supreme Court justice should be compelled to sit for a deposition before a disciplinary review board, a lawyer for the Wisconsin Office of Lawyer Regulation argued in a Feb. 28 motion.

The motion asks the Wisconsin Supreme Court to require Justice Michael J. Gableman’s appearance March 20 and 21 and to state that a failure to appear will result in his admission to the facts in a disciplinary complaint. Filed in November 2024, the complaint alleges ethical misconduct in Gableman’s investigation of the 2020 election for the Wisconsin State Assembly.

The motion to compel was filed after Gableman said through his attorney he would not show up for a scheduled February deposition “after much consideration, including Fifth Amendment concerns.”

WisPolitics.com and the Milwaukee Journal Sentinel covered the motion to compel.

Gableman was initially hired by Republican Wisconsin State Assembly Speaker Robin Vos to help a legislative committee gather facts about how recent elections were conducted in Wisconsin and to suggest possible legislative changes. Gableman’s duties were later expanded, and he was named a special counsel. He was fired in August 2022.

Gableman included in an appendix to his legislative report his legal opinion that the state could decertify the results of Wisconsin’s 2020 general election in which former President Joe Biden was declared the winner.

Gableman’s election review did not find significant fraud, according to the Milwaukee Journal Sentinel.

“Taxpayers paid more than $2.3 million for the investigation,” the newspaper reports, “which yielded a steady drumbeat of explosive court hearings and rulings in lawsuits over his desire to jail election officials and mayors who refused to be interviewed behind closed doors, and his decision to ignore requests from the public for records related to his probe.”

Besides serving as a Wisconsin Supreme Court justice, Gableman was a former prosecutor, a circuit court judge and an adjunct law professor teaching professional responsibility. Before agreeing to represent the committee, he worked in the U.S. Office of Personnel Management for the first Trump administration.

He had “by his own admission, no understanding of how Wisconsin elections worked,” the ethics complaint says.

Part of the ethics complaint concerns Gableman’s quest for information from the cities of Madison, Wisconsin, and Green Bay, Wisconsin, and their mayors. After issuing subpoenas to the mayors, Gableman negotiated agreements that made their appearances unnecessary, the complaint says.

Yet Gableman allegedly failed to tell the legislative committee about the agreements or about his receipt of thousands of pages of documents from the cities. He also falsely said he issued writs of attachment against the mayors because they “failed without reason or excuse to appear for their depositions,” the ethics complaint alleges.

Gableman is also accused of including false statements in the petitions for writs of attachment when he claimed that the two mayors had failed to appear for a deposition “without justification.”

Another part of the complaint alleges that Gableman made improper comments during and after a court hearing on a public interest group’s public-records request. Gableman was called to testify.

Gableman allegedly criticized Judge Frank Remington of Dane County, Wisconsin, who was presiding, instead of responding to questions. He claimed that Remington “has abandoned his role as a neutral magistrate” and later said, “You want to put me in jail, Judge Remington? I’m not gonna be railroaded.”

In a later June 2022 decision and order, Remington said Gableman made his accusations in a “sneering” fashion, raised his voice and pointed and shook his finger at the judge.

During a hearing recess, when the microphone was still live, Gableman allegedly made remarks that “demeaned and belittled opposing counsel by making allegations of improper collusion with the court and by portraying her as an incompetent lawyer whose only role was to aid Judge Remington in his bias,” the ethics complaint says.

After the hearing, in remarks to the press, Gableman again alleged that Remington had abandoned his neutral role.

“The deck was stacked,” he told reporters.

Another allegation in the complaint is that Gableman wrongly revealed information about his representation of the state Assembly committee as a guest on video broadcasts organized by Mike Lindell, the founder and CEO of MyPillow and a supporter of President Donald Trump.

Gableman said he supported an effort to recall Vos, that Vos did not want a serious investigation, and that Vos was a “serial liar who is interested only in his personal monetary financial gain.”

To support his allegation that Vos didn’t want a serious investigation, Gableman described discussions with Vos and staff members, revealing information related to the representation, the ethics complaint says.

The motion to compel says Gableman has a right to refuse to answer deposition questions when he has reasonable cause to think that his answers could expose him to criminal liability, but he does not have the right not to appear for the deposition.

Gableman is represented by lawyer Peyton B. Engel, who did not immediately reply to the ABA Journal’s request for comment via email and voicemail.

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