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Joe Patrice

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

Elie Mystal

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

Episode Notes

Checking in on Elie after a solid week of watching wall to wall impeachment coverage and the wear of the marathon coverage is starting to show. There’s not much “legal” about this trial, but we’re going to parse through what we can. We also talk a little about Tulsi Gabbard’s high stakes defamation suit against Hillary Clinton for calling the Hawaii representative a Russian asset. As a lawsuit it may not come together, but does Gabbard have a moral point?

Special thanks to our sponsor, Logikcull.


Above the Law – Thinking Like a Lawyer

Speaking Of Legal Farce





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.




Joe Patrice: Hello, welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. With me as always is Elie Mystal from The Nation. How are you?


Elie Mystal: Whoo, impeach President.


Joe Patrice: Oh yes, yes, that is definitely a thing that’s going on.


Elie Mystal: It’s happening.


Joe Patrice: Yeah. So –


Elie Mystal: For this week and then next week, the Republicans be like yeah it’s all fine and then nothing loud.


Joe Patrice: Right. Yes, so this thing that is happening that he’s excited about is there are a few political junkies who are watching hours and hours of C-SPAN and you know the rest of us are going on about our lives.


Elie Mystal: Here’s what I am excited about and I know usually this is the point where I am bitching about something or angry about something, I’m not angry today. I am inspired and the reason why I feel good is simple.


I have been a Democrat all my life, all right, like that’s — that is I am a Met fan and I am a Democrat and most of the time those two feelings are exactly the same. This feeling of general incompetence and a lack of forethought in the face of the evil empire whether that be the Republicans or the Yankees, right?


Joe Patrice: Right.


Elie Mystal: This moment for whatever it’s worth and I kind of agree, I’m not naïve, I can’t understand that it might not be worth very much, but this moment, this trial has been one of the Democrats’ best moment in terms of simple preparedness and readiness for the challenge ahead.


Adam Schiff has done I think the entire country proud and certainly the entire party proud. He is so prepared, all of the House impeachment managers are so prepared.


I said on Twitter today, we need to give a shout out to the stabs of these people, of all the House impeachment managers, the staff of the House Judiciary, House Intelligence Committee. Obviously while Nancy Pelosi was holding the articles of impeachment, these people were working round-the-clock through the holidays so that the presentations that the Democrats are making are interlaced with video clips, slides, direct evidence to the extent that they have it to back up everything that they’re saying, it is a tour de force in terms of rhetoric and argument.


Will it matter? Probably not. Will the Republicans care? Probably not. Can you get the number four removal which right now is at 51%? Can you get that to 60%? Probably not.


So I understand that there is a hopelessness to all of this, but as a Met fan, you know all you ask for sometimes is the fighting of the good fight, try your hardest, and I’m particularly impressed that Democrats have come with so much fire and so much preparedness in the face of overwhelming odds, in support of perhaps a losing or lost cause. They have done well. They have done us proud and whatever happens I feel like the Democratic House impeachment managers and their employees and their staff can walk around this country with their heads held high. They did all they could do.


Joe Patrice: Yeah. Yeah, and obviously they’re definitely better lawyers than the folks on the other side and that was true before we even started, started this.


Elie Mystal: It’s been a complete, it’s been a complete, so far they have completely out lawyered the Republicans, right?


Joe Patrice: Right.


Elie Mystal: Adam Schiff has put himself in the annals of great prosecutors even though he’s not technically prosecuting a case, right. He has been – he has done an amazing just a legal job of how you construct an argument, present evidence, use rhetoric to influence a jury.


He has been amazing.


Joe Patrice: Yeah. That said, nothing really comes out of this then does it? And this brings me back to what I’ve said and I wrote some articles about in the past that ultimately a lot of what’s going on here is a rehash of what we already learned in the hearings.




And wow it would have been nice if we just kind of kept having hearings of where there wasn’t this kind of official-looking sham that can easily be weaponized and to see there was a trial and he got acquitted as opposed, which is how this is going to end up.


Elie Mystal: Joe, can I ask you a question now?


Joe Patrice: Yeah.


Elie Mystal: I don’t know the answer of this, but do you think defense matter?


Joe Patrice: Generally, generally not much, they really only matter to the extent that you envision there’s going to be a future change and you’re kind of leaving your footnote on it, but not a huge amount.


Elie Mystal: Based on what you’re — I’m not surprised now by that answer. I think they do. I think there is value in a particularly good dissent, a particularly stinging dissent, a dissent that kind of accurately and artfully rejects the argument of the majority and does look towards a future where people might not be so addled as they are in your own times.


I think defense matter. I think there is value in objecting on the record and I think that that if nothing else that’s what the Democrats have done.


Joe Patrice: Yeah, I just don’t know — I don’t know as though they weren’t doing that already and that’s really the break here, is I don’t know as though days and days of hearings about this wasn’t already making a clear case.


Elie Mystal: Yeah I hear you on not.


Joe Patrice: Yeah.


Elie Mystal: But anyway, so I am not, I am proud of my team today and I don’t often get to say that.


Joe Patrice: Yeah, and by that proud of your team, I assume you mean the Mets here because you have already — you don’t have a manager at this point.


Elie Mystal: Do you have a manager?


Joe Patrice: Soon, soon I am sure.


Elie Mystal: Just, just as an aside listeners, the Mets not caught cheating in a World Series. They didn’t play in.


Joe Patrice: Yes.


Elie Mystal: That’s how this team rolls.


Joe Patrice: And you know when you phrase it that way that’s pretty impressive. Yeah, I hadn’t even thought about that. Wow.


Elie Mystal: That’s just, that is the Mets for you. This, sorry if you’re not following along, there’s a whole huge major league baseball scandal where looks like the Astros, the Houston Astros were using electronic equipment to help them steal signs about what pitches were coming. There are even allegations that some Astros players were wearing buzzers inside their uniform to help them steal the signs and one of the players involved in fact, the only player who was named in Major League Baseball’s report on this scandal was Carlos Beltrán who played for the Houston Astros when they won the World Series in 2017, he had been named as the Mets’ manager for 2020.


Joe Patrice: Yeah.


Elie Mystal: And had to be fired because he was part of this cheating scandal, it’s just — been right, there’s still no sign, and like all the other people — all the other managers who have been caught up in this, they won World Series right? Like the Houston Astros yeah, they’re bad now, but they won the World Series in 2017.


Alex Cora who was the bench coach for the Houston Astros in 2017 went on to manage the Red Sox in 2018. He perhaps cheated for the Red Sox in 2018 but guess what, the Red Sox won the World Series in 2018. The Mets walked a hundred games, right.


Joe Patrice: Right.


Elie Mystal: Because man.


Joe Patrice: Not to transition but let’s have a quick legal discussion on this. So obviously there’s a reports coming out and bans happening, I don’t expect any of the people who are getting tagged with this will go the extra mile of trying to sue over their livelihoods being taken away from them by baseball based on this report, because I think most of them know it’s probably true. But do you think anybody along this who caught up in this thing is going to try to mount a legal challenge to the accusations?


Elie Mystal: Well, you know what baseball is doing that I think as from a legal perspective is smart and from a sporting perspective is horrible, they’re not tagging the players, right.


Joe Patrice: Yeah.


Elie Mystal: One of the reasons why Beltrán was mentioned is because at the time that the report was released, he’s no longer a player, he’s out of the game, he’s the manager, right. Baseball has kind of broader authority to punish its managers than they do to punish their players, because the players are represented by a union, a historically very strong Union and baseball knows that if they start tagging players with this, then the Major League Baseball Players Association will have arguments and will have complaints about the process and will have in some cases, I think justified ways to defend or at least represent their players’ best interest.




So MLB is not punishing any of the players involved in the scandal even though and I’ll be admits that it was a player driven scheme for the most part. Legally you understand why, as a sports fan these people were cheating — these people were straight-up cheating and especially if they can show any use of electronic devices inside — I mean that’s worse than gambling to me on baseball, that is banned for life material from where I sit and MLB isn’t doing anything to punish those players. As a sports fan I think that is horribly wrong, as a lawyer I get it. I get my way why we’re here.


Joe Patrice: Or the squad’s where they could face some franchise agreement fights but this does feel very black — you mentioned gambling, this feels very black socks level of perhaps these teams should be — I mean it will never change what “happened” but you can take that symbolic act of taking away somebody’s win. And it certainly doesn’t look like they’ve done that – yeah for a —


Elie Mystal: Well you make the good point about — the franchises themselves I mean why — the owner of the Houston Astros you could force him to sell his team. He’s — he didn’t know at all like I think it’s highly unlikely that this guy didn’t know something was up. The owner of the Astros his name escapes me right now but he by reputation is a very hands-on owner like not all owners are like in the clubhouse and whatever on the field, the Astra’s guy was on the field. It’s strange credulity to believe that he had knew nothing about this cheating, this massive cheating scandal.


So you’re right and MLB could be trying to force him to sell his team a la — Donald Sterling, you remember for people who were particularly old we’ll remember when Marge Schott for the Reds and George Steinbrenner for the Yankees were forced to divest themselves for a year, because of a collusion scandal. So there are even stiffer penalties that MLB could be using against the owners that they’re not using as well.


Joe Patrice: Yeah it just it’s just a mess like the — and it seemed like something that just expanded upon itself that it was a person’s idea and more people got involved and then more teams got involved as these people proliferated other squads, it’s just like it people laying down in the slop and it just gets everywhere.


Elie Mystal: It would be the biggest story in sports if more people cared about baseball.


Joe Patrice: Yeah right.


Elie Mystal: Instead we got the KU fight.


Joe Patrice: Right. So yeah — so putting aside your stepping all over that, yeah it could get messy because today’s episode is brought to you by your adorable pot-bellied pigs, who are very mad at you and rolling around in the mud in anger all because you are still at the office slogging through an endless doc review project. Make better decisions, keep your pet and work smarter with Logikcull, e-discovery software that gets you started in minutes. Stop with your ham-fisted discovery approach; create your free account today at


Elie Mystal: I’m sitting here — I’m thinking like oink doesn’t even rhyme with anything so you can’t go there.


Joe Patrice: See, and this is what makes it all worth it is the way in which you’re left with this expectation like I can feel the tenseness as you wonder what is he going to do for the second half of this. See that’s why people listen to ads, because I mean I do this I understand that there are people who 00:13:50 play hear kind of the robotic ad we read every time, they might go through it but here there’s a game to be played and you have to stick it out to find out.


Elie Mystal: It is a live read in more ways than one my friend.


Joe Patrice: Yeah. So anyway —


Elie Mystal: Let’s return to impeachment for a second, not just to do what I was doing and praise the Democrats but to actually look at some of the legal maneuverings around this. Now for those who don’t know and I don’t know where you’ve been living, if you don’t know but for those who don’t know the Senate Impeachment Trial has absolutely nothing to do with a real trial, the rules are set by the majority in this case the Republicans about what can happen, what can be called, who can be called so on and so forth.


Mitch McConnell put out a set of rules that were highly restrictive. They don’t allow for witnesses. They don’t allow for votes to be taking on whether or not they will have witnesses until the end of the proceedings as opposed to the beginning, lots of different ways to kind of hide the ball on what’s actually taking place here, not at all like a real trial.




In response Senate Minority Leader Chuck Schumer offered a number of amendments, 11 in total. They were all voted down 53, 47 on straight party line votes. Most of the amendments were to request or demand specific batches of documents or specific witnesses they were all voted down but the last amendment Joe is what I want to talk about from a lawyer perspective, the 11th amendment was yeah and it happened I came out at 1 o’clock in the morning so a lot of people missed it but it was specific to who should be in-charge of determining whether or not there are witnesses.


And Schumer’s amendment said that you should basically let John Roberts presiding officer, Chief Justice Supreme Court and presiding officer over there —


Joe Patrice: Yeah —


Elie Mystal: And justice the United States —


Joe Patrice: There you go.


Elie Mystal: And presiding officer over the impeachment trial. You should let him decide on the relevancy of witnesses right? So like you should — the amendment would have allowed either party to say Chief Justice, we would like to call X, and John Roberts could make a determination about whether X was relevance and if so X could be called right?


Now the Senate could have still because and constitutionally they would have to still have the power to vote to overrule Roberts, right? So Chief Justice I would like to call — I would like to call Scooby-Doo Roberts okay, Scooby Doo is relevant, Senate actually we’re going to vote no, Scooby Doo is not relevant. The Senate would still retain the power to overrule Roberts, but it would allow this allegedly neutral arbiter to decide on relevancy.


The Republicans as they did with all the other amendments voted that down 53, 47, Joe I think that this was the best amendment that this was the most obvious, the most fair to both sides, decent amendment offered, what do you think are you at all surprised that even on this one the Republicans were able to maintain their 53 vote lockstep majority?


Joe Patrice: It’s certainly fair to have a neutral arbiter decide what the rules are theoretically neutral, anyway I guess we’re not even getting into any of the questions of his bias, but theoretically the presiding officer is neutral and could decide that, that makes total sense. Am I surprised that they were able to hold that together? No. Because none of the what’s going on has anything to do with what is actually fair or based on evidence, it’s a — just — we’re just waiting out the clock on a show and it’s a show that is happening largely at 1:00 in the morning which is not when people are watching.


Elie Mystal: I am.


Joe Patrice: Right and that and that’s the thing. I think there is definitely a perspective gap between a lot of the media including you that I follow on social media and elsewhere and there are breathless excitement about how important everything is and everyone else who is unable to see it because of the way that it’s been — the show because of the way it’s being controlled by Republican votes is purposely being created in a way that minimizes its impact and I think that’s a real problem but that’s where we are.


Elie Mystal: But Joe don’t you think it would be assuming as we both basically are that Republicans are going to vote to quit regardless, assuming as we both basically are that nothing can be done to shake them from the thrall of Donald Trump. Don’t you think it’s better for Republicans, if there’s least the appearance of fairness as they are doing this?


Joe Patrice: Sure and they have that to the extent that they say we had a trial and we had the Chief Justice. I don’t think that the particulars, the problem is they don’t need to get into the particulars, they will be able to spin this as though this was a real proceeding by just saying you all saw it on TV, saw the guy sitting up there who wasn’t one of us. And unfortunately that’s how it will play, does it impact the election or not who knows.


Elie Mystal: But when there was an opportunity to vote to give that guy who’s just sitting up there any measure of actual power they said no.


Joe Patrice: Yeah and you’re now like and how’s that message come out like — that you’re now dealing with such nuances that that’s just not going to change things and this is why I’ve never liked the idea of going to this point because it is so easily manipulable by the forces who are looking to downplay the significance of it.




It basically hands – it’s handing keys of the car to exactly the wrong people, which is why I was always troubled by it. I actually thought that one of the things that I’ve said a few times if you’ve listened to this show before where we’ve talked about this subject or in some of the Above the Law stuff I’ve written hey, I feel as though the Republicans back to your the Mets and the Democrats and not ever having a clue about how to maneuver, I’ve always felt like the Republicans had the right end of it with their stupid Benghazi and fast and furious inquiries into Obama, where they understood, they ranted and raved about how they were impeachable but never did it.


Because they knew that at the point that it got outside of the houses breathless and insane processes, it was going to lose its impact but they were able to rally their base by just continuing never-ending enquiries and I thought that that was a smart move on their part diabolical, perhaps not ideal for the country, but I thought that was their version of stealing signs, let’s put it that way.


Elie Mystal: One of the things that I’ve noticed in my breathless watching of this is that I try to be fair, I do my due diligence, I don’t just watch the impeachment hearings on MSNBC and CNN. I occasionally flip over to Fox to see how they are covering it for as long as my like guest role integrity can take it.


Joe Patrice: Yeah.


Elie Mystal: And one of the things that I’ve noticed is that in primetime, Fox is not even showing the hearings. If you were a Hannity watcher and you tune on Hannity at 9 o’clock while the hearings are still going on, you will see a picture of the hearings but you will hear no audio when the Democrats are talking.


When the Democrats are talking, Hannity is doing his regular show. So while Adam Schiff or Sylvia Garcia or all these impressive people were out there talking, Hannity is talking to Geraldo Rivera and Devin Nunes and 00:22:03 and as usual, cadre of bad faith actors.


When the Republicans rise to speak, Hannity shuts up plays Sekulow or Cipollone or Feldman and then when the Democrats stand up to her boat, cuts off the audio goes right back to his normal talking points.


So the thought — if any Democrat had a thought that this trial was going to sway the opinions of Fox News voters I have news for you, they’re not even being allowed to hear it. What is happening however is that and this I think is the strategy is that the Democrats are using their time I believe to inspire people who are paying attention, people who do know to get pissed off about it, to take that extra step of not just being like oh this is all bad what the Republicans are doing.


It’s actually like call their senators, call their government officials and demand justice. What do you think about that strategy?


Joe Patrice: Yeah I mean it’s just — there’s just so much wishful thinking involved in this whole — this whole endeavor, yeah. I mean Fox’s position is I mean they’re mirroring what the actual Republican jurors are doing which is not watching it when it’s not what they want to see.


We’ve learned that lots of seats are empty even though they’re not allowed to leave and I defy you the next time you get jury duty to just get up in the middle and leave saying yeah I decided to stretch my legs in the middle of the trial that won’t go over well.


Elie Mystal: I’m writing about this right now actually.


Joe Patrice: Yeah no and yeah so the whole idea of messaging I think you’re right I think that the house managers are doing the best that they can and they’re doing what they hope will move the needle in some way. I just — I’m just not sure that I’m one of these people how about I put it this way like I feel as though the fallout of Leva’s – Lev’s, I am blanking on how to do that but Lev’s interview with Rachel Maddow probably moved the needle potentially more than anything that’s about to happen in the Senate.


Elie Mystal: Let’s get to something actually legal.


Joe Patrice: Sure.


Elie Mystal: We are questionable right happening in an actual court of law as opposed to this show trial. I thought you wrote a very interesting article this week about Tulsi Gabbard.


Joe Patrice: Sure.


Elie Mystal: For those not following along, Tulsi Gabbard has now sued former Secretary of State Hillary Clinton.


Joe Patrice: I think you should probably for — if our listeners are normal people let’s pull back Tulsi Gabbard is apparently running for president. She’s a congress person. Yeah a relatively insignificant member of the primary field is suing the former Secretary of State.




Elie Mystal: Yes you are absolutely right, for defamation because Hillary Clinton lightly sort of, kind of alleged that Tulsi Gabbard was a Russian asset running in the Democratic primary. Again, if you – without trying to catch a defamation true to my own, Tulsi Gabbard, a lot of her supporters online at least, there’s a lot of 00:25:29 activity around Tulsi Gabbard support.


She’s got a very weird, I don’t know how to put it exactly but relationship is not the right word but allowance for Syrian leader Assad seems to be somewhat sympathetic to his agenda, which is sympathetic to the Russian agenda, which is not at all sympathetic to the agenda of people who don’t like to be gassed.


So Tulsi Gabbard has got some interesting views on let’s put it like that. Hillary Clinton suggested in a podcast I believe that those views were kind of bought and paid for by the Russians and Tulsi Gabbard is suing her for $50 million. Joe that’s where your piece comes in?


Joe Patrice: Yeah so she’s suing her for 50 plus like another 50 of additional damages so ultimately a hundred but like the actual violation she says is worth $50 million, yeah. I think we should parse a couple of things. I have a very dim view of the success of this lawsuit. I think that this is probably not anything that rises to the level of defamation especially of a public figure where there are heightened bars that people have to reach.


And I certainly don’t think she was a person polling it like one person was harmed $50 million worth, all those things said. What I wrote my piece was that I think there is a value to the symbolic action of somebody standing up for the idea that we really need to pump the brakes on all this calling everybody we don’t like Russian assets.


I think it’s possible that somebody may be inadvertently playing into the hands of the Russians or have sympathies that the Russians agree with and these sorts of claims sure. But when you start calling people assets, I think in the common parlance that we all understand of diplomacy and spy games, we’ve seen Bond movies when you talk about somebody’s an asset, you’re saying that they’re an agent who are working for somebody.


I think it becomes dangerously Alger Hiss level s**t to start saying somebody that thinks something I disagree with is obviously an agent of the Russians. That’s got a dark history in this country and I think it’s good that there’s at least attention being paid to maybe we should pump the brakes on crossing that last little threshold of saying that somebody who maybe bots are supporting is really working for Russia.


Elie Mystal: I want to press back on you in two ways, one kind of very almost strictly legal strategery. I would not consider you Jo Patrice to be generally speaking a fan of the performative defamation lawsuit, right?


Joe Patrice: Yes I think that’s fair too yeah.


Elie Mystal: So that even though you might have these views that that we should as you put it pump up the brakes on some of the aspersions that we cast on people that we don’t like, certainly I would not think of you as a person who supports 00:28:35 the level of an actual defamation lawsuit just to prove that point.


Joe Patrice: I think that’s true. Yeah, I would much rather this had stayed out of the level of defamation lawsuits and had been — and continued to have been fought in press releases and just general publicity garnering activities around how it is bad that we have reached the point of following a Dick Nixon, Joe McCarthy worldview of everybody who disagrees with us even if they are helping out other countries or aligned with the ideas of other countries is therefore treasonous.


I think that it would be good if that were brought to the attention of people and stopped. I think I see this lawsuit as an attempt to do it is not one that I particularly like because I don’t like people working around the law — the judicial system but it is — I think there’s at least the colorable claim that false statements were made about her for the purpose of causing her damage.


Do I think that that is an actionable claim considering she’s a public figure and all that, probably not but that’s where I sit?


Elie Mystal: All right my second pushback and look we — look I hate defamation lawsuits like so I even if I agreed with your overall point about pumping the brakes like taking its level defamation lawsuit is an anathema to me like.




Joe Patrice: I think that’s fair.


Elie Mystal: Yeah, that is just wrong.


Joe Patrice: Yes.


Elie Mystal: But the second push back is more colloquial and less legal, hit dog will holler, right? Like if you look at Hillary Clinton’s statement and the podcast or whatever, she did not say Tulsi Gabbard is a Russian asset, she said that there are Russian assets participating in the Democratic primary.


Joe Patrice: Yeah, that’s —


Elie Mystal: We all think that Hillary was talking about Tulsi, yeah, that’s what we all think.


Joe Patrice: Yeah.


Elie Mystal: But it was not incumbent upon Tulsi to take Hillary Clinton’s statements as a personal attack. She did that herself.


Joe Patrice: That seems very — that requires a level of naiveté that I would hope that we all don’t have. She pretty specifically was talking about the qualities of her campaign and she pretty specifically said when she was referring to Jill Stein as an asset, which also probably is problematic. She said that she was also one as in that the mystery women who happens to be exactly Tulsi Gabbard, was that — was one too. That’s, that’s not cool.


And it’s something that should be reined in, because I fear that this is going to only get worse. I think that without people paying attention to it and you’re right I would rather it not be in the form of the lawsuit, but without people paying attention to it, I think that we’re going to start hearing lots of people accused of being Russian who the Russians want and Russian assets and working with them over the next few months, because it’s going to become the go-to insult and that seems bad to me.


I would also say as far as the hit dog thing, that is always kind of a — that’s generally a fair point. I think there’s a bit of an asymmetric power dynamic here though when the powerful person hits a relative political nobody sorry that said for a sitting Congress person that feels sad, but we’re talking about Hillary versus Tulsi, so yeah.


When somebody does that, I think that the dog that gets hit has a reason to yell out. They can’t just let it slide because they’re on the wrong end of that power dynamic.


Elie Mystal: Okay. But I’m so glad you brought this up, because this goes to my — this goes to the larger point that I have about this dynamic, and the reason why I used that particular colloquialism, I think you put exactly right.


When a powerful person hits out you understand the yelping. Is Hillary Clinton a powerful person still, because one of the things that I just – folks, just want people to understand, you do not have to respond every time Hillary Clinton says something, okay, she’s not, she’s not the president, she’s not the Secretary of State, she’s not the First Lady, you don’t actually have to take everything that falls out of this lady’s mouth as a gospel personal attack on your entire being.


I am — you know exactly what I’m talking about now, Joe, like I am referring in part to the media just, just consternation when Hillary Clinton revealed that she did not like Bernie Sanders.


Now political operational standpoint, I don’t think it’s particularly helpful for the previous Democratic nominee to say that she doesn’t like the potential future Democratic nominee. I don’t think that’s particularly politically helpful or useful or strategic or anything, but I also don’t think that it’s a story, it’s not you don’t — I saw on Twitter, Hillary Clinton is not 00:33:46, you do not have to start salivating every time she rings a bell, you could just let some of it, like slot — I mean you said you can’t let it slide. I say no, Hillary Clinton, you can start to let slide now, you can start to let some of her statements slide beyond the pale of breaking news coverage.


Joe Patrice: Yeah, I mean, I hear yeah, but, but it is what it is. Yes, that shouldn’t be the case, however the folks in the mainstream media make it that, that case.


It is true, it is a truism whether or not it should be, and that’s all that really matters for how somebody in the moment reacts to it. But I hear your point that probably it’s time to not pay as much attention to somebody who lost a layup election, but yeah.


Elie Mystal: I am not saying that’s like diminish the qualities or the impact or the relevance that Hillary Clinton has had in our society, I think that I agree with all people who’s saying that she did not shatter the glass ceilings but she put in enough cracks that hopefully the next person can shatter.




I think she’s been a generally done some important service to the country, so I’m not trying to diminish her comments and I’m certainly not saying like Hillary Clinton she just shut up, I’m never one of those guys that thinks that Hillary Clinton doesn’t have the right to speak out and what she speaks out upon.


I’m just saying that we don’t have to take every bon mot out of Hillary Clinton’s mouth as important breaking news that must be responded to or defeated or whatever in real time. She’s a former politician. She is a former politician. If Dick Gephardt showed up today and we’re just like that, Elie Mystal, he is crazy, like I don’t – I wouldn’t be filing a defamation suit.


Joe Patrice: Yeah. I mean I guess that’s a fair point. If Dick Gephardt showed up, I think we would all be very surprised, but, but yeah, no, it, yeah it sure.


My bigger concern is even though this isn’t the best way to do it, I feel like a lot of people’s response to the lawsuit was to say, well, this is ridiculous. There’s nothing wrong with this. She is an asset whatever.


I feel as though it’s an important inflection point for us all to wonder if maybe we should not be so quick to use that sort of language, that’s all.


Elie Mystal: I thought it was an interesting — I thought it was an interesting point.


Joe Patrice: Yeah.


Elie Mystal: It was interesting and I think an important point to make, it’s important to maintain in the general consciousness, the point you made, I still think that this lawsuit is horribly misplaced.


Joe Patrice: Sure. Yeah, and I don’t think that, that, I don’t think we disagree necessarily on that. I think that there’s — maybe I wouldn’t necessarily say horribly misplaced, but I will say there are a lot of hurdles in it that would have given me pause if I were filing.


Let’s put it that way. That’s the more kind way of saying what I want to say.


So anyway, we should wrap up. We’ve been going for a while now. Thanks everybody for listening. We are a show that you should be subscribed to if you — if this was just your first time listening, you should subscribe at all your various podcasting subscription places and leave us reviews, stars, but also say something about it, showing that you are engaged with the show helps get some more traction with the various algorithms that those groups use. It allows more people to hear us.


You should also be reading Above the Law as well as The Nation. You should be following us on Twitter. I’m @JosephPatrice. He is @ElieNYC.


You should be listening to the other shows that we have some involvement with. The Jabot which is about diversity in the legal industry that Kathryn Rubino hosts and you should also listen to the other shows of the Legal Talk Network family of which there are too many to list here.


And with all of that said, I think that we’re done and we will be back next week with some more to talk about.


Elie Mystal: Adam Schiff is talking, got to go.


Joe Patrice: All right. Bye.




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


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.



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Episode Details
Published: January 28, 2020
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal Entertainment , Legal News
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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