How Federal Judges Put a Trans Civil Rights Lawyer under Criminal Investigation

Mother Jones illustration; Unsplash

Last Monday, federal prosecutors in Alabama revealed that they had indicted^[2] a lawyer for allegedly making false statements under oath. Perhaps such a charge might not seem extraordinary. But the case, which targets Carl Charles, a transgender civil rights attorney, is anything but ordinary. Over three years, multiple federal judges in Alabama have used secret proceedings and strong-arm tactics to harass Charles and other lawyers who are fighting for LGBTQ rights in the South. 

The story began in April 2022, when Alabama passed a ban on gender-affirming care for minors. While the United States Supreme Court blessed^[3] such bans this year in United States v. Skrmetti, in 2022 they were more widely considered as extreme, and civil rights groups rushed in to challenge Alabama’s law. Two groups of civil rights organizations filed separate challenges in quick succession. Over the coming days, in a strange turn of events that defied how cases are normally assigned, both challenges were placed before Judge Liles Burke, a Trump appointee. As they scrambled to figure out why their cases had ended up in the lap of a judge they considered perhaps the most hostile to transgender rights in the district, the civil rights lawyers decided to voluntarily dismiss both their cases. They would regroup and file another challenge with new plaintiffs later. 

This should have been the end of the story. But Burke suspected that the lawyers were trying to avoid his courtroom, and accused them of judge-shopping—a concerning practice, but not a crime. This led to a secret investigation of both legal teams by a panel of judges representing each of Alabama’s three federal judicial circuits, including the chief judges from two of those districts. A year and a half later, the judges filed a 53-page report^[4] accusing 11 of the 39 lawyers of misconduct for attempting to game the federal courts’ random case assignment system. The panel then sent the report to Burke, who demanded the lawyers show cause why they shouldn’t be sanctioned. These proceedings briefly went up to the 11th Circuit Court of Appeals when Burke threatened^[5] to jail the lawyers after they refused to produce a document they claimed was protected by attorney-client privilege. 

Ultimately, Burke levied sanctions on three lawyers, including Charles, a junior attorney with Lambda Legal; the group appealed the penalties to the 11th Circuit, where they are still pending. Burke also sent a criminal referral to the US attorneys office of the Middle District of Alabama regarding testimony Charles gave at the onset of the investigation about a phone call.

When the three-judge panel first began its inquiry in May 2022, it began with testimony under oath, which took Charles by surprise. During that questioning, Charles failed to recall phoning a judge’s chambers about the case. Minutes later, after the judges read him his phone number, he said he remembered the call and corrected his testimony. Still, that initial false statement is the basis of the extraordinary indictment against Charles unveiled last Monday. 

This twisted tale harkens back to the days of mistreatment^[6] of civil rights lawyers by southern judges. But in our current era, in which the federal government, states, and some courts seek to strip rights from LGBTQ people, it’s also a foreboding vision of how a future judiciary dominated by Donald Trump appointees could target attorneys whose positions they dislike. 

“If a federal judge thinks there was judge shopping, is it irrational for the judges of the circuit to investigate it? No,” says Chris Geidner, a legal journalist who writes the Law Dork^[7] Substack. “But then, does it make sense that the chief judges of the circuits are assigned to do that? And that they are going to haul all of the lawyers in the case to secret hearings where they have to give testimony on the first day of the hearing, when they haven’t been prepared? It’s like, as soon as you move beyond step one, the wheels just fall off the wagon.” Or, as Charles’ attorneys described the situation in one brief^[8], “the process and procedures employed in this matter were so extraordinary as to approach unprecedented.”

Geidner has spent considerable time following this case’s many twists and turns^[9], even traveling to Alabama to witness proceedings. The further it goes, says Geidner, the more alarming it becomes. “To have started covering this in 2024 before Skrmetti was decided, before Donald Trump was reelected, I found it extremely concerning,” he says. “To cover it now, in September, when the US Attorney’s Office issues an indictment in the aftermath of Skrmetti, in the aftermath of Donald Trump issuing now nearly a half dozen executive orders attacking specific lawyers and law firms based on the fact that he doesn’t like what they’ve been arguing in court in defense of clients, makes this indictment look exceptionally alarming.”

It’s hard to capture all the convoluted pieces of this tale—and, besides Geidner^[10], few reporters have even tried. We spoke last week about what’s happened in the case, its real impacts on the fight for civil rights, and what it portends for the future.

Mother Jones: Can you start by laying out what happened to Carl Charles last week, and where things stand now?

Chris Geidner: On Monday, in the Middle District of Alabama, the federal court there unsealed this indictment against Carl Charles, who is a lawyer with Lambda Legal, an LGBTQ Legal Defense Organization, and it alleged that he had made false declarations to this three judge panel.

The wild thing about this is—I mean, there are 25 wild things—but the panel’s anger at Charles was based on when they asked him, ‘Did you ever call a judge’s chambers about a temporary restraining order?’ He essentially said, like, ‘I’m confused.’ And he did eventually say no. Then the judges returned to it and asked him about his phone number. And at that point, he has said in filings since, he went through and thought about that week, this intense period—of filing this lawsuit, deciding that this lawsuit needed to be dismissed, deciding whether they were going to file another lawsuit—and remembered that he had called one of the judges chambers and said, ‘Hey, just to let you know, we filed this and we’re going to be filing a [temporary restraining order].’ And he told the judges that on the panel. He was like, ‘I forgot about that in the course of all this, and I apologize.’ 

That happens in depositions, in court hearings, all the time. There’s a provision in the federal rules that says if you correct your testimony, that that is a defense. But essentially what happened was that the panel decided, and then Judge Burke decided, and apparently the Middle District of Alabama US attorney’s office decided that when he heard his phone number, Charles decided he’d been figured out and that therefore he had to come clean about this call. 

What his lawyers have said in various filings and responses is that there’s nothing to come clean about. There was nothing wrong about this call. Nobody, at any point, not the three judge panel, not Burke, not the US Attorney’s Office, have said that this call was improper. It was an ordinary call that lawyers make every day. But, literally, they have made a federal case over it.

MJ: I’m trying to think of the right analogy here, but it’s like, you take judge shopping, which is not a crime, and then you start asking about calls which are totally ordinary, and then the fact that someone doesn’t immediately recall the phone call is a crime. It’s like you found an alleged crime on a pile of legitimate things.

CG: There is also a very real question of, even if everything they’re alleging is true, even the motive, all of that is true, whether it meets the definition of the crime, because it needs to be a material misrepresentation. And how was this material to the investigation of judge shopping? Nobody thinks that this call was an attempt to steer the case. Even in this indictment, they seem aware that if the materiality is based on the judge shopping investigation, this isn’t material. I really question how a US attorney’s office thought that that was appropriate, just in the filing itself.

MJ: What makes this case extraordinary is that it just looks like harassment, all the way up to the indictment, because the decisions made along the way seem aimed to harass, not actually in the pursuit of justice.

CG: If the Alabama judges were being honest, I think they would say that this federal judge, Liles Burke, was offended that these lawyers apparently thought he was a bad draw for this case. And his colleagues circled around to defend him, and they decided this was an offense from the activist organizations and the big law lawyers from DC who were involved in the case to do what they wanted with Alabama’s federal courts. And they don’t like that, and they were going to keep going until they found something to do. 

This started with nearly two dozen lawyers involved, and they put them through this initial round of questions before the three judge panel. By the time it got to Burke, he decided to go further with 11 of them. By time Burke got done, he sanctioned three of them. He only referred one of them to the US Attorney’s Office, and the US Attorney’s Office issued an indictment of that one. Even when you look at it from their side, it really looks like, in a best case scenario, like an extremely ego driven, petty attack on lawyers that they were mad at. 

From the civil rights lawyers’ side, it clearly looks like an attempt to treat them differently than they would treat any other lawyers who are doing similar things in cases in their courtroom.

MJ: The facts of this case are so outside the norm, you could say this must be a one-off situation. But, given the world we’re in right now, it seems foreboding. 

CG: I think the indictment is alarming on its own. But I’m actually almost more concerned by the fact that the indictment signals that what preceded it was somehow appropriate. There’s just so much about this that is disturbing. To give you just one example, throughout the three judge panel’s proceedings, they kept on insisting to the lawyers that they didn’t get certain due process rights because it wasn’t an adversarial proceeding. And the results of that panel’s investigation led to an indictment. So I’m not sure how much more adversarial you get than that.

MJ: If this goes to trial, there’s an opportunity to bring some daylight to what happened here. But could this also be a template for judges who don’t like the lawyers before them?

CG: Two things on that. First, there is a long history of civil rights lawyers facing extremely questionable, if not outright illegal treatment and unconstitutional treatment, from Southern judges. 

Second, I would note that you have this in contrast with the way that conservative groups are acting within the Fifth Circuit^[11], going to single judge divisions of various federal courts to make sure that their cases get in front of Matthew Kaczmaryk or Reed O’Connor in the Northern District of Texas, so that they can get absolutely unjustified rulings, like the ruling that purported to withhold approval of mifepristone^[12] nationwide. So you literally have that going on in dozens of cases in Texas, while 100 miles away in Alabama, a now three and a half year investigation [about judge shopping] across multiple bodies and now branches of government. 

MJ: You talked about the history of civil rights attorneys in the South, and how this case appears like a throwback to that era. I’m also worried that it’s a harbinger. The more Trump-appointed judges—although it could be any judges—deciding that they’re just going to exercise their powers to harass lawyers that they don’t like. As you mentioned, the president himself has been harassing attorneys and law firms, so why not them?

CG: It’s very concerning. I think it’s why it should be a bigger deal to legal organizations. I think that there is concern from other organizations that they don’t want to jump into this because of the fact that they don’t want to sully their name with these judges. This is the problem: you literally are having to question the action of judges who civil rights lawyers are going to need to practice in front of.

MJ: There’s a fear that you might be next, so you self censor.

CG: There’s a fear that you might be next, but also, are you being irresponsible to your future clients? If you are a civil rights lawyer, don’t make it about yourself. What ethically is the right thing for you to do?

MJ: What’s the mood right now, particularly for the LGBTQ community and their lawyers? Because you can’t really divorce this case from the fact that the country has really turned against transgender people, in particular, from the president to the Supreme Court and on down. And then the lawyer who is indicted is transgender himself.

CG: It should not go unnoted that the one person to get a criminal referral out of this is one of the trans lawyers. I think that that is extremely concerning.

I should note that the day of the first show-cause hearings in Alabama, when I was down there in front of Judge Burke, with all of these lawyers sitting in the courthouse in Alabama, also happened to be the day that the Supreme Court granted cert in Skrmetti. That is the bigger picture; these lawyers have more important things to be doing right now. In the midst of trying to fight this ban, and then, more importantly, in the year when these bans spread nationwide, some of the top lawyers in the country working to defend the people being targeted were in front of and secretly fighting a secret panel of judges overseeing all three federal courts in Alabama.

If you remember what was happening in 2023, the fact that every week we got a different state that was introducing [anti-trans] legislation. 

MJ: There are thousands or millions of people that rely on civil rights lawyers to jump up and defend them. And particularly now, if it’s against a trans medication ban, or an abortion ban, or you name it. And it’s worrying if they also have to expend resources—emotionally, time-wise, financially—having to defend themselves in some sort of proceeding over their conduct.

MJ:  What came of it was deadly serious, because of the impacts it could have on the ability to do that work. And you saw [former solicitor general] Donald Verrilli was on the 11th Circuit brief when there was the effort to potentially send them to jail. [Former White House counsel] Neil Eggleston is one of the lawyers on the 11th Circuit appeal [of the sanctions]. One of the lawyers who was caught up in this initially was Kathleen Hartnett, who is a partner with [big law firm] Cooley LLP. Some of the top lawyers in the LGBTQ orgs were a part of the initial running of this. This was serious people involved at all levels needing to expend time, energy, and money on this while these other fights were going on, while this litigation was going through the appeals courts over gender affirming care bans, over sports bans. Real stuff is happening, impacting civil rights lawyers’ real clients, while some of the top minds in the movement, and then as it went forward, some of the top lawyers on the left in the country, were engaged in dealing with this. 

In some ways, that’s also an answer to your question about how serious is this? What’s the evidence? Well, Don Verrilli and Neil Eggleston were willing to come on board to help fight this.