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Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

THE Ohio State University, as they prefer to be called, has commissioned a Biglaw firm to look into its head coach’s handling of domestic abuse allegations against his staff. But what is an internal investigation? What exactly is it going to mean when Mary Jo White gets mentioned on ESPN? Joe and Elie give a quick, high-level rundown on the internal investigation process and Ohio State’s situation. Sorry, I mean “The Ohio State’s situation.”

Special thanks to our sponsor Major, Lindsey & Africa.

Transcript

Above the Law – Thinking Like a Lawyer

Ohio State Football… A Quick Primer On Internal Investigations

08/08/2018

[Music]

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.

[Music]

Joe Patrice: Hello, welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law.

[Applause]

Joe Patrice: And with me as always, Elie Mystal. Welcome back.

Elie Mystal: It’s August.

Joe Patrice: Yeah.

Elie Mystal: It’s hot.

Joe Patrice: You weren’t, you weren’t here last week so we had to talk about legal movies for a little bit.

Elie Mystal: Sorry, I was doing my other five jobs.

Joe Patrice: Yeah. They aren’t actually your other five jobs but they’re the other things you do.

Elie Mystal: Well they don’t – they don’t pay me.

Joe Patrice: Right.

Elie Mystal: So they’re not jobs.

Joe Patrice: Right.

Elie Mystal: In the popular nomenclature.

Joe Patrice: Right or understood definition, yes, that’s, that’s the other way to put it.

Elie Mystal: There are a lot of fucking work though.

Joe Patrice: Yeah, I mean yeah, and it’s great how you don’t do the work that I need so that you can do these other things that don’t pay you, that’s great.

Elie Mystal: I’m here today man, what you want?

Joe Patrice: Well, I thought we would catch up since we weren’t able to talk about movies.

Elie Mystal: Can I bet you about something first?

Joe Patrice: Yeah go for it.

Elie Mystal: It’s not really — this isn’t a normal grinding my gears because I don’t have a strong feeling of what to do. I’m kind of crowdsourcing options here. This weekend, went into my garage to get the kiddie playthings and there was a relatively large, a little bit bigger than a pea sized spider egg sack suspended right on top of my car.

All right. So I have a spider or two, harmless spider or two in my garage. I let them live, I like spiders because they kill things that I don’t like. I also generally try not to be like a maggot asshole just running around stopping foreign invasions that I don’t like, right. I try to live and let live.

The thing is I also don’t want a thousand spiders hatching getting into my car, coming out of like my car — then they are in my car, they’re hiding in my car, I’m driving down the West Side Highway, I hit a bump and like a thousand spiders come pouring out on my steering column and I drive into the Hudson. I don’t want that to happen either.

Joe Patrice: Right. Well good news is that’s absurd and won’t happen, so that’s your good news.

Elie Mystal: So I’m trying to figure out what should I do. Should I let the spider sack alone? Should I kill the spider sack, should I try to move the spider sack, I was really going to move it but then I was afraid that simply by jostling the spider sack, I could trigger the thousand spiders and that would be a bad time.

So I really don’t know what to do. Again, I don’t want to just kill thousands of spiders, I don’t want thousands of spiders in my car. I feel like I’m being forced into some kind of like David Attenborough false choice here.

Joe Patrice: Yeah.

Elie Mystal: What would you do?

Joe Patrice: I mean I’d probably get rid of the spider sack like I don’t, I mean they — this really I’m often shocked at how deeply you have made existential crises over things that don’t matter to everyone else.

Elie Mystal: There’s the damn spiders.

Joe Patrice: I mean —

Elie Mystal: Did you not watch Charlotte’s Web? Right if you watch Charlotte’s Web, you know that there is an excellent chance that like 999 of these spiders are going to fly away or be eaten.

Joe Patrice: Yeah, yeah they probably aren’t going to fly but okay.

Elie Mystal: So my, yeah my inclination, my gut was to like let them be but I am really — there it’s right kind of like, it’s right near where I parked my car.

Joe Patrice: Yeah.

Elie Mystal: And they can get in and it just would be gross.

Joe Patrice: They eat other bugs though, that’s a plus of spiders.

Elie Mystal: Yes, but I don’t have like — I don’t have a lot of bugs in my car.

Joe Patrice: Yeah. I mean —

Elie Mystal: I don’t know, I think I’m going to try to move it this weekend.

Joe Patrice: Oh, this weekend, you’re gearing up for this.

Elie Mystal: I got, I’ve been looking at the right tools, I got to get a pencil, I got to get a jar. I think I am going to turn it this week.

Joe Patrice: Oh, I mean that’s — you’ve got to order those special, I don’t know if you can find a pencil in a jar anywhere else in the world.

Elie Mystal: You think I got a lot of pencils lying around my house. It’s 2018.

Joe Patrice: Mean?

Elie Mystal: I’ve got tablets.

Joe Patrice: Yeah. So yeah, you’ve turned nothing into an existential crisis that you’re going to spend the weekend working on, that’s —

Elie Mystal: Can we talk about our real existential crisis at the Ohio State University?

Joe Patrice: No, why would we do that before we’ve gotten through our banter?

(00:05:01)

Elie Mystal: Your sighing and eye rolling is usually the indication that banter time is over.

Joe Patrice: Oh, no, no, no, no. Banter time is — banter time ends when I say it ends. No, what I was –

Elie Mystal: Because you got the goddamn sound board.

Joe Patrice: Yeah, yeah I do and you should watch out before the sound board starts making appearance. But no — you know what’s like having a bag of spiders?

Elie Mystal: Having a really bad big law job?

Joe Patrice: Having a bad big law job. Yeah sure. It’s yeah. So if you don’t want that bag of spiders or big law job as the case maybe, you can get the pencil and jar that is –

Elie Mystal: Major, Lindsey & Africa.

Joe Patrice: Major, Lindsey & Africa. Look, we are trying to make this flow thematically. I was thrown a bit of a curve ball by Elie. I did not think in a million years that was the transition I was going to have to work with, but I feel like we’ve weathered it. So we’ll move on and just explain that if you’re wondering what lies ahead down the road to success, whether you’re looking to advance your legal career or grow your legal team, Major, Lindsey & Africa can help you navigate the legal landscape.

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Elie Mystal: Major, Lindsey & Africa, it’s some big.

Joe Patrice: Yeah it’s yeah, I didn’t know okay, so we went — it’s weird because your story well there are Charlotte Web like moments to it, seemed much more arachnophobiaish. They’re all going to come out of my steering column with – well okay, which is interesting for somebody who hates spiders. You’re kind of on the two far extremes of actually having an issue with spiders.

Elie Mystal: I don’t hate spiders, I love especially when they sing, but I don’t hate any animal.

Joe Patrice: Okay.

Elie Mystal: Republicans perhaps, but like I don’t hate any — I try to like I said, I have this live and let live belief when it comes to nature, where it comes to outside of my house right. Inside of my house it gets — I can be a jerk but if it’s a thing that lives outside and my garage is basically outside.

Joe Patrice: Yeah.

Elie Mystal: And that’s really it, right.

Joe Patrice: Yeah.

Elie Mystal: The garage is kind of I think of it as outside. My car I think of it as inside.

Joe Patrice: Interesting.

Elie Mystal: And that’s and if I could just — I need to stop them from –

Joe Patrice: That’s an interesting Fourth Amendment analysis.

Elie Mystal: Yeah.

Joe Patrice: Yeah. So –

Elie Mystal: No, you are right, it is.

Joe Patrice: Yeah.

Elie Mystal: If I especially because like on hot days, we have the kids outside, we have the garage open, any John Q Law could like walk past my property and see into my garage and I think that would be a relatively reasonable search.

Joe Patrice: And your garage isn’t attached. Is it?

Elie Mystal: And my garage is not attached. My car however, unlike what so many people say, I think my car should be an invaluable, — you need, I think you should at the very least need a warrant to get into my car.

Joe Patrice: Yeah, I mean yeah.

Elie Mystal: Of course, the law treats almost the exact opposite.

Joe Patrice: Yeah. We just had a nice little Crim law hypothetical here while talking about spiders.

Elie Mystal: Terrific, terrific, terrific.

Joe Patrice: Yeah that’s the high end analysis you pay for. Yeah, you’re getting exactly what you pay for when you buy this podcast.

Elie Mystal: Can we please get to kickoff?

Joe Patrice: Yes we’ve got football coming up. And I think everybody in the country is excited about for college football coming back except maybe one team.

Elie Mystal: For those playing long at home, if you don’t know already, Joe and I are big football fans. Joe a little bit more college than pro, me a little bit more pro than college, but still big fans and it’s not like we don’t understand this is a violent sport that concusses people and ruins them.

It’s not like we don’t understand that the NFL has really deep kind of racial and social issues, and it’s not like we don’t understand that college football has significant issues in terms of having slave labor and having their coaches be the highest-paid public employees and things. All those are legitimate issues.

Joe Patrice: On the other hand.

Elie Mystal: How boring is it on Saturday in the summer when there’s no football.

Joe Patrice: Yeah.

Elie Mystal: I mean it’s just — it’s beyond boring.

Joe Patrice: Indeed, yeah and we’re adrenaline junkies here.

Elie Mystal: I need young men running into each other as fast as they can.

Joe Patrice: Probably not how I would have phrased it but yes, we enjoy this sport and it’s been making some legal news over the last couple of weeks, so we wanted to talk briefly about the legal issues currently surrounding Ohio State or the Ohio State University as they pretentiously like to point out. They have some issues, don’t they?

(00:10:03)

Elie Mystal: Yes they do. Their head coach Urban Meyer, one of three coaches in college football history to win national championships at two different schools. Urban Meyer is in hot water because and I think that on the podcast we can dispense with the pleasantries, he lied. He had lied his Ohio his scarlet and red ass off on Big Ten Media Day about domestic violence allegations against one of his assistants.

Zach Smith is the assistant, he is a longtime Meyer assistant. He was an assistant with Meyer when Meyer was the Head Coach at Florida. Meyer hired him again when he went to Ohio State. He has been accused by Zach Smith, the assistant coach, has been accused by his wife of domestic violence across multiple occasions going as far back as 2009 coming to a head it appears in 2015. These accusations are backed up by photographs and police reports and —

Joe Patrice: Contemporaneous texts —

Elie Mystal: Kind of everything you’d want to see in a credible allegation. Meyer knew about it. Meyer knew that his assistant coach had been accused of these violations but when asked about whether he knew on Big Ten Media Day Meyer said —

Joe Patrice: He had no idea, he had — didn’t know what anybody was talking about even, which of course Big Ten Media Day does not at present require you to swear an oath to give testimony. So —

Elie Mystal: That’s SEC thing.

Joe Patrice: Yeah, but only the SEC does that, so it is not technically a perjury or anything like that for him to have lied. It is however a PR nightmare and one that when kicked off a greater discussion of the game that we in the criminal world like to call, what did you know and when did you know it —

Elie Mystal: When did you know it?

Joe Patrice: Yeah.

Elie Mystal: So Meyer did eventually fire this assistant coach, but obviously he didn’t fire him back in 2015 at which point it now is clear that Meyer knew that the coach had been accused of domestic violence.

Ohio State decided to suspend Meyer with pay pending an investigation and while that might sound like a slap on the wrist to non-sports fans. Yo, games start in a month —

Joe Patrice: Yeah.

Elie Mystal: And Ohio State suspending its Uber God coach, a month before the game start, that’s not nothing — that’s — I’m not saying that Ohio State is doing enough or that they’re doing too much, I’m just saying you have to understand college football enough to know that Ohio State suspending him even putting him on paid leave pending this investigation is the significant, is an indication that Ohio State is taking this very seriously.

Joe Patrice: Yeah, I think with a lot of other teams it would have been, we are going to look into that and in the meantime you keep working. This is a sign of some changes societally I think. I think that is a sign of some schools taking these issues far more seriously than others. Yeah, and what they have done while this is going on is they have kicked off what is generally referred to as an internal investigation, which is rather than the law enforcement getting involved in saying we have decided there’s a crime here or not, the school or entity itself hires a law firm to look into it as if they were law enforcement, in this case it’s Debevoise & Plimpton, where I think you used to work.

Elie Mystal: I did — I also think I used to work there. I’m not sure if they think that. But the investigation is being headed by Debevoise & Plimpton specifically Mary Jo White, who is a former head of the SEC and as I think you put it or maybe with Shazar on Dealbreaker, Debevoise is where Mary Jo White goes to hide whenever Republicans are in power in Washington DC.

So we thought this to be a good opportunity not just talk about some more football but to also talk about what does a law firm do when they are contracted to do an internal investigation. We have seen this in a lot of different situations. We have seen obviously a lot of sports leagues, Roger Goodell, Paul Weiss hiring big law firms. Paul Weiss did the Deflategate investigation.

So we see this a lot of times in sports leagues, we see this a lot of times with other kind of MeToo situations. NBC will hire a law firm to do an investigation to figure out just how creepy was Matt Lauer. So we see this a lot of time, from the law firm perspective what are you doing when you were involved in an internal investigation?

(00:14:51)

Joe Patrice: Well, there are a few things you do. You do a lot of the things that you would assume a law enforcement inquiry would do. You gather documents, you schedule interviews with key witnesses, you are trying to create a report for your client and this is kind of where it gets sketchy, your client which is the institution that hired you, in this case it would be if not The Ohio State University, the probably technically it will be some subcommittee of the Board of Trustees that probably is the technical client here. You are trying to create a report for them so that they can look at it and say with some confidence here’s what happened, here’s what we are going to do about it.

The issue with law enforcement is if you feel there’s going to be some sort of a crime you’re doing an internal investigation to head off your blame, you are trying to get to a point where you can turn to law enforcement and say, look, we looked into it and it seems like it’s cool, so please leave us alone, or conversely if you think there’s something wrong you throw everyone under the bus immediately and say don’t blame us here however the people you need.

That’s where it gets a little sketchy to be involved in one of these things, because you come in theoretically working for the same institution of all the people you are interviewing but you aren’t, you are working for their bosses oftentimes in a way where you might be trying to throw those people under the bus and it’s — it is an uncomfortable thing, you will have legal obligations to warn them that that’s what you are doing which people may or may not listen to.

Elie Mystal: I was involved in one and person I was interviewing said to me and I was junior as all hell here, said to me, well you are my lawyer so I can tell you this, and I was like it was really I mean just making a face, like it was really a —

Joe Patrice: I mean that’s what I just played, yeah.

Elie Mystal: And I really had to say like as a very junior person actually I am not your lawyer, I am your boss’s lawyer.

Joe Patrice: Yeah.

Elie Mystal: Oh my god does that mean I should have a lawyer when I am talking to you and I just kind of shrugged, I was like you could.

Joe Patrice: Yeah. And that —

Elie Mystal: That would be okay.

Joe Patrice: And that’s technically what you are supposed to say, you don’t have an obligation to tell them they should have a lawyer, you have an obligation to tell them maybe, maybe that would be a smart move.

Elie Mystal: If I were you, I would have a freaking lawyer like that —

Joe Patrice: Yeah, so it is uncomfortable and it’s uncomfortable in that way, it’s uncomfortable because there’s a somewhat coercive effect that comes in where you basically are saying to Urban Meyer can take care of himself, he’s a wealthy and incredibly powerful dude. But like Urban Meyer’s administrative assistant for example, could be the sort of person they might talk to and in that instance, you are often talking to somebody with the extra coercive power of you could choose not to tell me everything I want to know, but then you’ll be fired.

Elie Mystal: Right.

Joe Patrice: And it, it’s a way in which law enforcement and it happens particularly in securities fraud kind of world, where entities that go after those sorts of white-collar crimes don’t often have as much power like the DOJ does, but the SEC wants to enforce things. They don’t have all the resources that a Department of Justice, US Attorney’s investigation might have behind it, but they can rely on this as a way of getting around the fact that they don’t have nearly as much law enforcement power to kind of deputize indirectly a law firm often with tons of resources to do the investigation for them, and that’s on some hands good, obviously their white-collar crime is crime, on the other hand troubling to the extent that you think that oftentimes these prosecutions ultimately punish people who are low on the totem pole who really didn’t do any of the actual wrongdoing in a way that covers up for the wrongdoing of supervisors, it’s troubling because those are the people that the internal investigation often ends up pointing fingers at.

Elie Mystal: It’s very rare that you are going to get an internal investigation and the report afterwards that says clearly that the person who paid the law firms checks is actually the person that needs to be fired.

Joe Patrice: Yeah.

Elie Mystal: Like that’s just an unlikely outcome, but Joe, to what extent do you think that all of this is a little bit, a little bit like the kid who wrecks the car and comes home and says like oh dad, I wrecked the car, I think I should be grounded for a week and a half.

Joe Patrice: Oh yeah.

Elie Mystal: Right, like how much of this is in this situation Ohio State trying to self-punish so it doesn’t get a more severe penalty down the road?

Joe Patrice: Yeah, and in this instance it’s hard really to know what the penalty would be for them here. It’s not theoretically criminal to have just known that crimes that weren’t being reported existed.

Elie Mystal: I mean look if Urban Meyer had given a high school kid a sandwich, the NCAA would be on it.

(00:20:04)

Joe Patrice: Right, and that’s true and that gets us to the question and this is a question that was very big during the Penn State discussion too, right. To what extent does a sanctioning body whose only purpose is theoretically to keep the games fair, to what extent do they have some authority to punish, oh you look the other way while criminal activity happened?

Obviously, and a lot of people wanted the NCAA to come down hard on Penn State. I was one of those people who thought, maybe criminal justice should be involved here and not so much the pinheads who decide whether or not — whether or not the kickoff should be from the 25 or not. Like I just didn’t think that that was the right answer there and I think I’m still on that side here.

I’m not sure that the NCAA should be involved but obviously the NCAA mandate is rather large and that could be the issue here.

Elie Mystal: I mean at Penn State, and it’s a little bit different I think situation at Penn State, where I think there was clearly as one of the NCAA’s favorite lines, a lack of institutional control when it came to not raping boys, right, like that was an institution that seemed to be an institutional problem at Penn State. But fundamentally, I agree with you Joe, that’s when you call the cops, not when you call the booster police.

At Ohio State, I don’t think what we’re seeing — I mean look who knows what information could come out later. So I don’t want to date myself, but at least from what we know now, this does not seem like an institutional problem, this seems like a moral failure on the part of the head coach, and perhaps the other coaches as well.

I mean we don’t know who else besides Meyer in that hierarchy knew but we do know that Meyer is the most important man in that hierarchy and if he knew and didn’t say anything, the buck I think has to stop with him. But it does not look like one of those situations where — like a Penn State situation or a Larry Nassar situation, where it’s kind of extending throughout the entire university system, the entire athletic program.

Joe Patrice: Yeah.

Elie Mystal: From what we know now.

Joe Patrice: Yeah, that’s it. I mean obviously there are court of public opinion issues here, there are conference wide implications here like the Big Ten –

Elie Mystal: Explain that.

Joe Patrice: The Big Ten, as historically had and this came up a lot during the Penn State discussion too, the Big Ten as part of their belief that they can moralize about everything football related and that they’re somehow better than everybody else. As part of that, they tend to act like this is the sort of thing that they should be involved in.

So it’s entirely possible that the Big Ten could internally say that there is some shaking of fists that need to be done in Ohio State’s direction. So I mean that obviously there are a lot of overlapping groups and contracts that could be implicated here. There’s the fact that they’re public employees period, which means the state of Ohio has some tangential interest in what’s going on.

Elie Mystal: Urban Meyer highest paid public employee in the state of Ohio, that’s not an Ohio problem, that I think it’s something like 39 states where the highest public employee is a football or men’s college basketball coach.

Joe Patrice: And I mean in a lot of those states you look at their governors and go, yeah, it actually makes sense to pay the footballer player more.

Elie Mystal: Is Urban Meyer worth 63 times the value of John Kasich.

Joe Patrice: What John Kasich’s worth? Yeah.

Elie Mystal: Probably, what do you think legally speaking Meyer should have done when these allegations were made known to him in 2015?

Joe Patrice: Yeah, well, as far as we can tell, if we’re to assume that the first time he heard of them was in 2015, which —

Elie Mystal: And not 2009?

Joe Patrice: Exactly, which is also all stuff that we do not know that Mary Jo White is going to find out. Assuming, that he found out these things for the first time in 2015, the argument that has emerged so far is that he did at the time what he was supposed to do.

If according to the people who are making public statements about it, his response was to kick this up to the athletic director level and let a process begin to investigate that. Now, if that’s true or not we are not entirely sure at this point, a lot of things are in flux, but if that’s true that is probably what he was supposed to do.

Now, whether that’s the right thing to do, that’s maybe you can obviously, you are an at-will employee, you could fire him for any reason. You could fire him for having mediocre wide receivers, right, like you can fire the guy for anything. But if there’s an actual procedure in place and it was followed that goes a long way toward helping the school avoid any sort of penalty from anyone else down the road.

That said, that all hinges on did they actually do that process and did he only learn of this at that time.

(00:25:02)

Elie Mystal: Right, and then also what the athletic director did, if it got elevated to the athletic director, what the AD did, what was communicated back down the channel on that.

Joe Patrice: Yeah.

Elie Mystal: Right, I agree with you on that. Two of the things that have disturbed me and again, I’m almost — I’m almost getting over the lying, like part of is because we live in Trump world and he lies to the media all time and they kind of deal with it. But like either Ohio State has decided that lying about it is a fireable offense or not a fireable offense and Mary Jo White isn’t going to find anything else about that.

And if they want to fire him for just the straight-up lie, I’m cool with that. If they want to not fire him just for lying that one time, if it turns out to be that one time, I think I can wrap my head around that too.

The thing that really has jumped out at me has been and it’s been all in the media coverage if you’ve been following this story, one of the real disgusting things is that Zach Smith, the coach, who allegedly abused his wife has been on like a media tour kind of just with his side.

Like we’re not hearing from the ex-wife, we’re just hearing from the coach now and that bothers me. But one of the things that kind of came up in his interview and also came up in one of Meyer statements, I think indirectly was that, he never hit her. There’s always evidence that he’s choked her and — he never hit her, and that seemed to have been according to Smith, Meyer was very like in 2015, did you hit her? No, I didn’t hit her. Well if you hit her, you’re fired.

Joe Patrice: Yeah.

Elie Mystal: And it’s such a — and again, thinking like a lawyer, it’s such the wrong standard, right. The standard for domestic abuse in this country is not a closed fisted punch to the face, all right, it is physicality, it is choking, it is abusive behavior beyond physical behavior and for the kind of chesty football coaches, we like did you hit her, no I ain’t hit her.

Well if you didn’t hit her, it’s fine. Like that really bothered me.

Joe Patrice: Yeah, I can see that.

Elie Mystal: And I kind of — I’m interested in the internal investigation in part to see if those statements that we’re hearing in the media was actually kind of disseminated amongst the coaching staff, right, because if Urban Meyer is kind of legal standard for being on the Meyer squad was don’t actually close fist punch a woman. If that’s all he has got, then to me, that’s got to be fire him.

Joe Patrice: Yeah, well, one thing to go back a little bit to the process discussion and whether that is a huge part of whenever something like this happens, was there a process did it get followed and to the extent that there was a process, was it sufficient, which I’ll tie back into we already have talked about the Penn State investigation.

We’ll also go to the Baylor investigation which a Law Firm Pepper Hamilton did.

Elie Mystal: You mean Urban Meyer’s next employer?

Joe Patrice: Well, I don’t know as though they’re in a position to do anything. I think they’re trying to keep themselves pretty clean right now. But so Pepper Hamilton’s report which received a lot of criticism for being fairly opaque but one of the things that it did, was come down fairly hard on pretty much everybody at every stage of it.

And one criticism that’s come up recently was from a defensive coach who was there at the time, who was arguing that the coaching staff should probably not have been fired, that they didn’t do things wrong.

In his argument, which to somebody who has conducted an internal investigation before, not over sports, but his argument was very legalistic. He was like it was entirely Ken Starr’s fault. The administration had no Title IX process whatsoever for any complaints and what were we supposed to do. We weren’t in a position to kick people out of school for accusations, that’s what a Title IX office is for. We elevated it to our AD and the president of the University and they said, don’t worry about it, we’ll handle it and did nothing.

And that argument, whether or not that’s true or not, is kind of the gold standard of what these investigations are supposed to be looking at. Was there a process, was that process good? If yes, then was it followed? If no, wow, the people who are supposed to be in charge of that process need to be gone.

And in this instance seems though everybody kind of went out but that’s a good like primer for what these things are supposed to look like and kind of a good preview for what this should look like.

Elie Mystal: Do you have any worry about the 14 days. So Ohio State came out and said that the investigation will be wrapped up in 14 days. We don’t know if that’s because Debevoise said, we can get it done in 14 days or if that’s because Ohio State said can you get it done in 14 days. What do you feel about the kind of at least press acknowledgement of an arbitrary deadline for this work?

(00:30:04)

Joe Patrice: Yeah, I mean it seems somewhat, somewhat bad to say that a complex legal investigation should be done in two weeks just because it is I guess theoretically, it’s a relatively closed universe of relevant information, you just need to kind of look at their correspondences of the various people who were supposed to be involved. You probably don’t need to interview nearly as many people like maybe five principles or something to get as much as you need to know.

At least as everything that you need to know about Meyer’s involvement, so maybe Debevoise said that’s what we could do. We could get that part done in 14 days. I wouldn’t set an artificial deadline, but as a school, they have concerns about getting everything done before the season one way or the other.

And like we have the cynical view that is they want to get it done, so that he could be back on a sideline before the game. But the reverse is also true. They want to have it done so that they don’t act — they don’t have to turn around give him his job back and then mid-season, fire him either.

So I think there’s a lot of reason why it needs to be wrapped up quickly. We’ll see if they can pull that off. I don’t know as though 14 days is the right thing to say, but all haste is probably correct.

Elie Mystal: See I think with the same information I kind of come to the different conclusion. I feel like the 14 days is the one part where post the revelation where football has unduly intruded on what should be a legal process.

Clearly Ohio State has an interest in having this wrapped up one way, exactly what you said, one way or the other before kick-off, either it’s going to be Meyer or they’re going to fire Meyer and they’re going to give the job to the acting guy, whatever they’re going to do, they want to know that for sure before they got to play Oregon State on September 1st, and that’s a terrible reason to — that’s a terrible reason. To me that’s a reason that shouldn’t be — that this simply isn’t good enough.

Yes, it will be messy and difficult for the team. It will be a distraction on the field if Meyer remains suspended but not fired while games are actually being played. I understand that will be a distraction to the Ohio State and that’s just a distraction they’re just going to have to me, just going to have to deal with to let the investigation take its course.

Joe, why are you looking at me like I’m a Michigan fan? Like why? Like that’s not funny.

Joe Patrice: No.

Elie Mystal: I wasn’t — it has nothing to do with the back of the Michigan fan, I’m just saying that this is a distraction that Ohio State needs to be able to bear.

Joe Patrice: Oh yeah. Yeah, I would — they wasn’t that, I was just saying they’re not concerned about having this done by September 1st, nobody cares about playing Oregon State.

And they, then they play Rutgers next. So they don’t really care about getting it done until September 15th, but you raised a good point.

Elie Mystal: Yeah. Do you eat chicken, Joe?

Joe Patrice: Yes, that’s a side reference to Michigan’s coach saying that he bans — we’re hearing from former Michigan players that Michigan’s coach bans people from eating chicken because he thinks there’s a conspiracy where white meat is weakening people, which yeah — so yeah.

Elie Mystal: Jim Harbaugh is crazy but so far he is morally upright.

Joe Patrice: And a passionate defender of Legal Aid Services, yeah, which is weird but nonetheless true.

All right. So with that, we’ve now had an actually fairly substantive and serious conversation that had some tide of football. So, maybe that will carry us for the next couple of weeks.

Thanks everybody for listening. You should be subscribed to the show. If you aren’t, you should do that, that way you’ll get it sent to your phone, usually correctly. You will — you’ll want to give us reviews not just the stars, you’ll also want to write something about how awesome it is, because that helps in the algorithm of all your podcasting services to push it up so that we can be higher up on the list of legal podcasts for people just looking for legal podcasts.

You should listen to other Legal Talk Network shows. You should follow us on Twitter, I’m @JosephPatrice, he is @ElieNYC. You should read Above the Law all the time and that’s pretty much everything.

Elie Mystal: Happy August.

Joe Patrice: Yeah, we’ll be back next week.

Elie Mystal: Really?

Joe Patrice: Yup, right away, bye.

[Music]

Outro: If you would like more information about what you heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, iTunes, RSS, Twitter, and Facebook.

(00:35:00)

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]

Episode Details
Published: August 8, 2018
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Podcast
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

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