Jeffrey Epstein’s Legal Aftermath

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Jeffrey Epstein’s Legal Aftermath

07/16/2019

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Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

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Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. I am currently not in the office, I am in Philadelphia, which means that I am coming to you remotely, but Elie Mystal is back in New York. How are you?

Elie Mystal: Are you going to run up the steps of the museum?

Joe Patrice: If I ever get to walk more than like five steps away from these meetings, I would do something like that. I am actually in a time crunch here. I popped you into the 25 minute window that I have that was supposed to be my lunch, so we are going to do that and then I have meetings all the rest of the day.

Elie Mystal: Well, thank you for finding time with me my friend.

Joe Patrice: Yeah. No, I mean always. I mean I didn’t want to miss this, because if you miss stuff, that can be a real problem. Like if you are missing calls, or if you are spread too thin, interruptions kill your productivity, but clients demand a quick response, the US-based professional receptionists at Smith.ai help law firms screen new clients and schedule appointments by phone and website chat.

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That was one where it was just too easy to stick it there. I know we hadn’t even begun the grinding of gears, but I also like changing it up on people, so people never know what to expect.

Elie Mystal: I am here for that.

Joe Patrice: Cool.

Elie Mystal: Actually I didn’t even want to grind my gears today, because I wanted you to have the floor for a second.

Joe Patrice: Okay.

Elie Mystal: When people listen to this podcast they will already know that Labor Secretary Alex Acosta has resigned, in part, or almost exclusively because of his involvement in the Jeffrey Epstein case.

So yes, listening to this podcast now you already know that news, but if you had read Joe Patrice on Above the Law earlier two weeks ago by the time you hear this, you would also have already known that Alex Acosta was going to end up resigning.

Joe, how did you kind of nail — how was it so obvious to you that Acosta would not survive the Epstein fiasco?

Joe Patrice: Yeah. It’s pretty easy. One of the first signs that somebody in this administration is in trouble is when they receive a vote of confidence from the President, that’s usually a very bad sign. So historically —

Elie Mystal: The baseball manager theory.

Joe Patrice: This has happened to, I believe, in order Comey, Spicer, and then Marc Kasowitz as his counsel on the Russia stuff, all of which were given a vote of confidence which began a clock that resulted in them leaving within seven days. So that’s the first kiss of death.

But even at that, there are ways to save yourself but the issue is you need to understand what the President is looking for in your opportunity to save yourself. And in this instance there was a press conference where Acosta was given the job of defending his handling of the Epstein case, which for those who haven’t followed it, Jeffrey Epstein is this billionaire, he is accused —

Elie Mystal: We don’t know how he made his money.

Joe Patrice: Yeah. Well, he is a “hedge fund manager”. But it seems as though maybe he was doing other things that were much more criminal and that’s why he has now been charged by the Southern District of New York.

But 12 years ago he was in trouble in Florida and Alex Acosta was the US attorney and could have put him in prison for years and years and years for apparently, at least according to the evidence that existed then and seems to exist in greater detail today, running a sex trafficking ring of underage girls.

So with that said, Alex Acosta after working with some lawyers, among them Alan Dershowitz, who has his own problems regarding this case, and Jay Lefkowitz of Kirkland & Ellis, who is an Acosta buddy, they all represented Epstein and told Acosta let this guy off basically. He was given a short prison sentence where he was allowed to be in a private wing of a county jail and take 12 hours off every day to go home or to his office because prison is hard.

So that was the tough sentencing that he was given and that’s rightly become a hot point, because people digging into it now, largely through the great work of the Miami Herald have uncovered that this was a terrible deal, largely driven by friendships and an old boys club that let bad things happen to people.

(00:05:10)

So anyway, with all that background, Alex Acosta had an opportunity in this press conference to defend himself and he had an opportunity to say why it was okay that he did this stuff and what he did was ramble and meander and kind of weaselly say well, actually over and over, and that’s not what the Trump White House is looking for. What the Trump White House wants is a Brett Kavanaugh response, yelling, sneering, angry, yell, accuse everyone, play a victim, you are the one who is a victim here, everyone else is a criminal, who is out to get you, conspiracy theories, if available to you, that’s what he wants to see. That’s a tough person in his eyes.

And when that wasn’t Acosta, I made note after watching that press conference, minutes after I put out his days were numbered and would be gone by the end of the week and at the end of the week he was gone.

Elie Mystal: I mean it’s really — it’s a point that I wanted to emphasize because I don’t know that everybody fully understands just how bat shit insane the Trump administration is. Acosta had gone on and been like, Jeffrey Epstein was a great friend of mine, we had a beer together, we still have beers together, like that actually would have saved his job, like if he had actually come out in a kind of — and wrapped himself in the cloth of Jeffrey Epstein and accused underage rape victims of making up their stories, that would have been more likely to save his job than, as you put it, the kind of weaselly, the past happened, mistakes were made press conference that Acosta actually did get.

Joe Patrice: Yeah. And a good counter to this and you can read about all of these things on Above the Law, because we have stories on the press conference, the resignation, as well as the next thing I am going to bring up, a good —

Elie Mystal: Dershowitz’s underwear.

Joe Patrice: Well, it’s also a Dershowitz story; that is a story that you wrote about his — and this isn’t — that claim isn’t a new claim actually. Dershowitz’s has said for a long time his massages that he gets, he wears his underwear, which is okay.

Anyway, there is another Dershowitz story from the week that deals with kind of a counterpoint to how Acosta handled his hearing, and that was Dershowitz went on CBS News and doubled down with his lingering regret from this case, if you will, was that he didn’t get Epstein an even better deal. He should have gotten him a better deal because that’s what happens in criminal justice. I was just a defense lawyer and if I knew something was wrong, then yeah, wouldn’t have worked with him, but I didn’t and based on that they had no case and I should have gotten him no jail time and yadi, yadi, yada, just an aggressive, in your face, there is nothing wrong here, I did nothing wrong, you are all out to get me.

Dershowitz is currently involved in a legal dispute where he is claiming that David Boies is running a conspiracy to extort and blackmail Dershowitz.

So it’s these kind of conspiracy theory things.

Elie Mystal: Are you breaking news?

Joe Patrice: No, no, I mean this is very much what’s going on, and we have also had stories about this, but there is a defamation suit that is a couple of months old at this point, that’s still very much in the early stages, where Dershowitz went on TV and declared of some of the underage girls’ claim that Epstein handed them out as sexual favors to Dershowitz as part of some kind of payment. Dershowitz denies this, which that’s neither here nor there, but beyond denying it, he has made claims about how those girls are liars and they are out for money and the extra level that David Boies himself is running some sort of conspiracy to blackmail and extort Dershowitz. These claims he then has doubled down on repeatedly through the years.

Recently, after the Miami Herald broke a story that has more or less been the impetus for where we are right now in the Epstein case, Dershowitz went on TV and made claims — repeated these claims and declared that he demands that if these people believe that he did these things, they should sue him for defamation right now and we will have trial on it and I will prove that it didn’t happen.

So they sued him because he said to. His response to that has been to first file a motion to disqualify Boies Schiller; that is still — that was tossed immediately, but it’s now back on the docket and they are in the process of working through that.

(00:09:51)

He also moved to dismiss the complaint rather than answer it, claiming that everything was time barred because when he said all those potentially defamatory things recently, they were just kind of repeating the general things he has always thought about them, so therefore it’s time barred, I guess.

Elie Mystal: Can I just pause you right here, because I know we have some prelaw listeners and people who haven’t been through the full law school thing. We just need to highlight and emphasize how bat shit, again, just bat shit insane it is, for you to be a person who demands that people sue you for defamation; not random homeless people on the street, who demands that a lawyer of the stature of David Boies sues you for defamation.

Gets the lawsuit that you asked for and then whips around and tries to get it kicked on — sorry, get this law — say you want this lawsuit, so that you have an opportunity to defend yourself on the merits and on the record, and then turn right around and try to get that lawsuit kicked on a motion to dismiss. It is not — lawyers understand this, it is not a thing that happens, and just increasingly in the Trump craziness of this era, I just always like to try to emphasize the things that we are seeing happening are not things that are supposed to happen. It’s not how any of this works.

Joe Patrice: It is rare to issue a challenge and then immediately try to avoid having to go through with the challenge, that is not normal, but that is where we are. That motion to dismiss has been filed.

And yeah, so at this point there is a motion to disqualify and a motion to dismiss, both of those are yet, as of this recording, to be answered, but we are monitoring this docket pretty closely, as you might imagine, because it’s interesting, it involves legal luminaries in a story that is now — an underlying fact pattern that is now the subject of a criminal investigation and a criminal investigation that has now toppled a cabinet official and could well result in charges against him, though I am not as sanguine about that.

Elie Mystal: Confidence about that, yeah.

Joe Patrice: Yeah.

Elie Mystal: Joe, can I get you to weigh in, what’s your thought — so now Acosta is gone, we are going to have an Acting Secretary of Labor, we have got an Acting Secretary of Homeland Security, we have got an Acting Under Secretary of Homeland Security, we have got an Acting Chief — we have got an acting position in — Acting Secretary of Defense. So much of our government is now being run by acting officials as opposed to Senate confirmed cabinet appointees.

Joe Patrice: Yes.

Elie Mystal: People bring this up a lot as an indication of the case-octocracy that we are running in this country. Do you think that this is a truly kind of dangerous situation or do you think that yeah, it’s weird, but it’s fine?

Joe Patrice: No, it’s not good to have acting officials. And look, there is two ways of looking at this. There is the way that says that this is bad to have acting officials and that a lot of it is based on kind of a naked cynicism that if you appoint somebody to be Labor Secretary, you have to involve public hearings, where people ask questions about your labor policy, which could be an issue.

Defense, Homeland Security, these are sensitive areas where an administration, especially this one, would like to have no public spotlight on and so just don’t nominate anybody and that’s how you get around it, which is an unfortunate turn of events.

But it’s also fair to say that a lot of this comes up because of a cynicism driven by both sides-ish, but to the extent that dating back years, maybe, probably around the Nixon years was the first attempts at something like this. When you appoint increasingly crazy nominees for things and increasingly less serious ideologues basically for jobs, it creates a situation where they don’t end up getting confirmed or they get run through a wringer and have to step away and so on.

And the more that happens, which it happened for a bunches of good and logical reasons, at all levels; I remember the Tower hearings, like all of these things happen, because more and more people who were not really fit were nominated and then they lost and then it created this idea that oh, these are just political shows, we are better off avoiding them. That’s a cynicism that’s been baked into the system because of a affirmative decision to make the system look more broken and then you can claim that it’s not my fault, it’s the people who are denying my crazy people.

(00:14:52)

So, I kind of like to revise people about that, but it’s not just this administration wants to keep a lid on public hearings, it’s part and parcel of a long-running strategy to increase the level of cynicism in government among the people by creating a world in which it seems as though the administration is always on the beating end of an out-of-control Congress who is just trying to cause trouble.

Elie Mystal: Do we need a constitutional fix for this because I feel like the Executive Branch nominating and have — oh, sorry not nominating, that’s no point. The Executive Branch being run by acting officials who are not subject to the advice and consent of the United States Senate. Is a violation in spirit if not in actuality of the constitutional principles, right? Like it puts more power in the hands of the executive, it takes less power — it takes more power away from Article I and Congress and therefore the public.

So I am of the opinion that we need some kind of actual constitutional fix, some kind of actual constitutional amendment that specifies exactly what an acting official can do, how long that acting official can serve, and the penalties were not having a Senate-confirmed official in terms of basically that the acting officials actions become null and void after, whatever, three months, six months, whatever you want to do.

Joe Patrice: Yeah, I mean, rulemaking to fix things has a few problems always and it’s an unsatisfactory answer for you to hear probably, but you create a rule like that. Oh, those things get reversed. Well, in some of these departments those things kill people or — and don’t really get easily reversed, and even if they don’t there are things where their actions upon which industries rely and therefore reversing them actually causes more damage than just leaving them as is or at least immediately reversing them do.

So, there’s not a great way of doing it and it kind of highlights the way in which the Constitution is unfortunately based in real spirit on the idea that everybody agrees to play ball under certain norms, and then when that doesn’t happen there’s not really a good answer to it.

Elie Mystal: The Constitution is based on an assumption of good faith that simply doesn’t exist in reality and it’s an assumption of good faith that people have been criticizing George Washington.

Joe Patrice: Sure, but I’ll say here’s a good example though of the problems with trying to create a rule-bound solution to exactly this problem. So dating back very early in the administration Sally Yates is the acting Attorney General as many of the Obama people have left, Trump’s hasn’t not gotten his own people. In yet there is acting Attorney General and Sally Yates is performing this job because you need to have somebody doing the job even during the transition, but there’s also this little wrinkle, which is, we actually have a rule on who can be the acting Attorney General.

This happened back in the 70s, it was in the immediate aftermath of Nixon, there was a fear that FISA power in particular this ability to go around and wiretap your enemies — domestic enemies by claiming there’s some kind of foreign folks with things that Nixon is largely attached to of having done.

A rule was created, you don’t get to just name, even though there’s a lot of latitude for you naming your own Cabinet, you don’t get to name an acting Attorney General, that person has to come through a certain defined hierarchy of line of succession and that person has to be somebody who was already defined as able to be someone we trust with that FISA power. There’s a limited number of officials who could be the acting Attorney General all of them before they even get to their first role, their deputy role have to go through the process just in case they end up on that end of the line of succession.

That’s the point of this rule. It was defined for this reason because they didn’t want a new Nixon firing everybody who disagreed with him and putting in charge somebody random and then having that person write warrants with no real oversight.

Sally Yates says she’s not willing to do a Trump-mandated policy that is unconstitutional, and the response is, firing her and just replacing her with a random person. The way in which legal scholars, not all of them, but some legal scholars even jumped in and said, yeah, I guess the president gets the right to do that, that’s not the purpose of this law and the law was defined for exactly this situation, but the way in which everybody can find a reason to just ignore the spirit, if you don’t have a world where people believe in the norms then no rule really can stop it unfortunately.

(00:19:57)

Elie Mystal: And Trump did the same thing with Matt Wicker, I mean, that’s why Matt Wicker was a bit — but that’s why I am saying that it’s — that because we know that people like Trump exist and because of Trump people like Trump will continue to exist at some point we need a rule that null and voids every action that these fake officials, these officials who should have no actual power take, because if you don’t have any accountability mechanism, if you don’t have any punishment for when a Trump does something like this, then a Trump is just going to do this.

Joe Patrice: Well, I mean, look, you highlight Trump as though Trump is some kind of unique existential problem, which he’s not. As I pointed out this is a line that has run since Nixon and while it’s a line that’s run largely on the Republican side since Nixon, it’s certainly not exclusively so.

I mean part of that whole Noel Canning Recess Appointments decision, which was a bad one in my thinking, but a lot of what was going on in these decisions was an attempt to prevent the Obama Administration from just appointing people because of a recalcitrant Senate.

The executives always got to have that power, and that’s why there are things like recess appointments and laws about naming acting folks, because the business of government needs to move forward even if the opposing party holds the other house and is just going to not play ball and whatever rule you create —

Elie Mystal: Yes, but the opposing party does follow the law, what are we supposed to do?

Joe Patrice: The rule you create for instance, that you’re talking about, only creates the scenario where some future Democratic President is told by the Republican Senate that no official will ever be confirmed as any cabinet or regulatory official position and that all of their acts are immediately taken away and without any precedential effect as soon as their term ends. And that is just as bad if not worse, then we are here, and that’s unfortunate, but this just — the point is rule-making is fraught with disaster and whenever folks try to respond to these little flare-ups with, well, I’ve got an idea for a rule that will stick it to them, that rule almost always bites you worse on the back end.

Elie Mystal: So your solution is do-nothing?

Joe Patrice: My solution is actually a more damning and troubling solution, which is there is no quick legislative fix. This only gets fixed with widespread changes in the way in which officials are elected and forced to respond to voters. And when that doesn’t happen no rule-making in the world is going to fix anything, we need to stop living in this dreamland where we can rely upon a quick fix at the end of the day and start thinking that a more broad-based reassessment of how democracy is supposed to function is the only solution, and if that doesn’t happen then this just repeats itself over-and-over again and there’s no point to even trying these little quick fixes, because they’re just going to continue to be perverted and made worse.

Elie Mystal: Well, I am with you there. I’m the one on team who burned all the f**k down.

Joe Patrice: Oh sure, and I think that’s totally fair; but, I don’t think it needs to be even that kind of — I think a more Fabianous strategy works too, but its end goal has to be some kind of a broad-based change, it can’t be simple rule-making. That’s just kind of my take.

But, we kind of digressed off the subject of Epstein in particular, but yeah, this is going to be a big deal and I mean I just had a conversation with an expert in trade and we’re looking at how NAFTA 2.0, if that’s ever going to happen, where that’s going to go and we just lost the Labor Secretary.

Now, query whether or not Acosta had much role in negotiating that, but I mean it is a Testament to where we are that one of the more significant labor agreements that this country has entered in is now going to be dealt with by some kind of an acting person, I guess, probably the fall is when we would be looking at whether that agreement would ever happen, and that’s where we sit now. Even if they did nominate somebody they wouldn’t be in place in time to deal with that.

Elie Mystal: Do you think other big law attorney types are going to get caught up in the up scene of litigation as it goes forward?

Joe Patrice: I think there will be some bloodied noses. I think they are like Lefkowitz’ way at Kirkland & Ellis, his role in this is certainly going to come under some fire especially if somebody chooses to bring charges against Acosta for the way in which he handled it since a lot of people believe that Acosta’s handling of it is part and parcel of him just doing what his buddy at Kirkland told him.

But no, I don’t necessarily think that there’s criminal work against any of these big law folks who are involved. I think it’s just going to be kind of a don’t hate the player hate the game sort of situation, where these folks did a lot to help Epstein survive much like lawyers were involved in enabling people in all sorts of levels.

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Because the way the system set up in a very adversarial way, their job is to help their client and it’s the job of the government to not play favorites and help out the rich and powerful, and when the government falls down on that job, it’s not necessarily the fault of the defense attorneys for that having happened.

Elie Mystal: I’m pretty much with you there. I think that if anybody gets caught up, it’s not going to be because of their legal aid to Epstein, it will be because of their consumer frequenting Epstein services.

Joe Patrice: Right, and now that —

Elie Mystal: And that is a nice — that is a tortured euphemism or child rape that I just hate.

Joe Patrice: Right, and now there are obviously floating around several names, high-profile names including former and current presidents who are alleged to have been involved with Epstein and partying with these women. So there could definitely be some fallout on that front. I don’t necessarily think that, I mean, to the extent that some of those people are lawyers maybe, but it’s not going to be folks that are necessarily key to the legal industry.

Elie Mystal: It’s not going to be because of their legal work.

Joe Patrice: But I mean — but I will say, Acosta, he’s going to take some hits on this and then probably still cash in and be a partner at some big firm and make millions anyway. But it’s not just him, Cy Vance, in the New York, the Manhattan DA, the —

Elie Mystal: Oh my God, did we burn him?

Joe Patrice: — the everyday reports of how they tried to get Epstein sex offender status reduced, they were told by the police that he was violating his, the terms of his agreement and they said, yeah, don’t worry about it. Like the real negligence on that office’s part is going to cause some trouble for him too.

Elie Mystal: I mean, Cy Vance has been really negligent since he got into that office and he always seems to escape. So, I believe that Cy Vance is going down when I can step over his burning corpse.

Joe Patrice: All right. Well, I am on Route 2, I’m actually a little bit late to a Panel about the future of court nominations, so I’m going to get moving on that.

So fun conversation. Thanks to Smith.ai for sponsoring. You should read Above the Law. You should subscribe to this podcast. Give the podcast reviews. Follow us on Twitter. I am @JosephPatrice. He is @ElieNYC. Listen to other LTN shows, there is several of them, and you should — can listen to The Jabot, which is another Above the Law podcast. And that is all that I have, and I’m running a block and a half down the street.

Elie Mystal: Bye

Joe Patrice: Bye.

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