One of America’s most venerable legal institutions has fallen into rank buffoonery and it’s genuinely tragic to watch. From Bill Barr declaring racism over — except on college campuses — to a stumbling effort to get Michael Flynn out of his own sworn testimony, Joe is joined by ATL and Wonkette columnist Liz Dye to discuss what’s gone wrong over there. And we check in on Kyle Rittenhouse’s legal team who’ve made some… let’s just say “interesting” strategic decisions.
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Above the Law – Thinking Like a Lawyer
The Screwball Antics Of The Department Of Justice
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 am Joe Patrice from Above the Law. My usual co-host Kathryn Rubino is not with us today, she is a healthy scratch as you would say in hockey. So I am joined instead by Liz Dye of Wonkette and an Above the Law Columnist, how are you?
Liz Dye: Hey.
Joe Patrice: Hey. So for those who aren’t reading Above the Law every day which you should, you are familiar that Liz covers a lot of our political leaning commentary and so we thought we would dedicate this episode to some legal political overlap news. I think is fair to say, which I mean there’s just not very much of that these days, but we’re going to find a way.
Liz Dye: Not at all.
Joe Patrice: Yeah. So I guess we should roll right into this and talk about the Attorney General, what’s — what’s up with him?
Liz Dye: He’s got a lot to say. So yesterday he went on CNN with Wolf Blitzer to expound upon his exciting theories of who is a legitimate voter and whether voting fraud is real and whether there is actually racism, and spoiler alert, there’s not, so it was a wild day.
Joe Patrice: I mean well, I don’t know so it’s fair that there’s not, he just says that there’s not in the criminal justice system. He’s very convinced that it exists when Harvard has affirmative action policies. That he’s sure that.
Liz Dye: Right, right, I love that Bill Barr says, Black people don’t get shot anymore than White people when they have guns, like the Second Amendment only exists for White people and if Black people are in possession of any weapon at all, it’s like free open season on them, it’s such a weird way to frame it.
Joe Patrice: Right, and well it was — it was created, it almost seemed like he was playing linguistic games with that to say that because obviously we do have statistics that Black folks are killed like in encounters with police about three times more likely than White people but then he tossed in that gun thing and you’re like, is that oh so then that like makes the numbers a little different, if a White person’s waving a gun it’s almost the same, yeah.
Liz Dye: That’s actually consistently his frame. He always likes to say when Black people are unarmed, they’re no more likely than White people to be shot by police, which is a really kind of strange thing for a pro Second Amendment guy to say, right, like, so yesterday when he was talking to Wolf Blitzer, he was aggressively trying to differentiate Jacob Blake who was shot in Wisconsin from George Floyd, because he said George Floyd was unarmed and thus it was kind of totally legitimate for the cops to shoot Jacob Blake seven times. It’s a very strange framing.
Joe Patrice: Yeah. Well and so this was — this was at least half of what he was talking about. He was also very deep into explaining how voting works and how mail in voting is the biggest fraud of all time, which —
Liz Dye: Right, which he knows because he just knows it. He believes that it’s entirely coercive and that not the Russians but the Chinese, he was very aggressive to say that it’s only the Chinese, it’s not really the Russians, which is not what any of the Intel agencies have said, are aggressively going to be photocopying ballots and you know submitting all kinds of fraudulent ballots. I mean it’s — there’s literally no proof that any of this ever happened, it’s just an excuse to —
Joe Patrice: As a native of Oregon who has been voting entirely by mail for a quarter century not that I’ve been — I mean I don’t live there anymore, so I haven’t been doing it the whole time, but as a state they’ve been doing this now for a quarter century and don’t have any of these problems. It’s weird that every time we hear about mail-in balloting being a problem, no one looks at the empirical examples that we have right here in this very country where it happens and nobody seems to be defrauded.
Liz Dye: Right, which is exactly what Wolf Blitzer said, Blitzer said, there are you know five states which vote entirely by mail and it’s fine and then Barr kind of presented with empirical evidence to started, you know lost his mind and started waggling his finger and saying like this is a fire, this is a big fire Wolf Blitzer and it’s not logical and it really doesn’t reflect well on the profession.
Joe Patrice: Yeah. No and this is — this is an interesting question that we’ve been following at Above the Law for a bit now, which is speaking of it not reflecting well on the profession, there is a nascent movement at his alma mater to get his honorary degree stripped from him.
Obviously you can’t take away his degree just because he’s you know kind of a reprehensible person, but the alumni at George Washington have been arguing that honorary degrees that they’ve given him in the past should be taken away given that he’s reflecting badly on the profession and it makes the law school buy in that reflection look bad, which is an interesting idea and one that I have lent my support toward, but after an initial push from faculty and alumni to get this done, it seems to have floundered, so this might be a very good time to put another spotlight on the faculty there to get something done.
Liz Dye: Yeah. I mean that’s a — it’s a kind of, it is a symbolic gesture, but I think there is value in members of the profession saying expressing disapprobation and saying all of these norms that you burnt down mattered, it is kind of — I think incumbent upon us to lay down a marker and say, this is not okay and you’re going to get away with it, but we as lawyers do not approve.
Joe Patrice: Yeah, and this dovetails I mean obviously I’m going to turn this back to the story that has dominated my summer, not that I wanted it to but has dominated my summer, this goes hand in hand of course with the fact that we’re still forcing kids to do a bar exam, because well we have to defend the professionalism and it’s like well if I don’t know as though memorizing the rule against perpetuities is a reflection on the profession as much as making up voter fraud statistics and hiding things from the government. These seem like a bigger problem and that’s a dude who passed. So maybe the test isn’t the problem.
Liz Dye: Right, and begin to have an illustrious career, right. I don’t think that the profession is under attack from kids who haven’t sort of studied this Black Letter Law, I think it’s under attack by people who are burning down all of the norms and who have taken advantage of the other people playing fair to not play fair and to say we can get away with it and to say like, well we’ll just get John Yoo to kind of cough up a memo that says, pretend you believe it and then just keep doing it and if the court stops you eventually, well you got away with it in the interim. That’s much greater danger to the profession than kids not sitting for the bar. It’s but yeah –
Joe Patrice: I was, right of course, I say that and then I instantly think, no, that’s not — that’s not accurate examinees applicants, but I did love that John Yoo managed to come up uh this summer, because I had him on my Administration Bingo Card and I was real close and I didn’t think he was going to make it and then right there at the end.
Liz Dye: Yeah.
Joe Patrice: So maybe it’s time to transition slightly since we were talking about voting, another issue that came up in that discussion and this is a legal question that I need an answer to and you’re going to stand in for my election law expert here. Can you vote twice legally?
Liz Dye: Oh yeah, I vote twice every single year.
Joe Patrice: I mean —
Liz Dye: No, you can’t vote twice legally. I mean it’s just insane and for Bill Barr to say, well, I don’t know, I have to think about it, I mean it’s really ridiculous. First he said, well, I don’t think that, that so okay, so let’s go back and say what the impetus for this story was, which was that in North Carolina yesterday Trump told his voters to test the system by casting a mail-in ballot and then going to the polls and voting again on election day on the assumption that like, well if the system works so well your second vote will be thrown out, which is just blatantly illegal. In fact, one of his supporters got arrested in Iowa for voting twice in 2016.
So there’s no doubt about this. And first Barr in his interview with Blitzer try to kind of play it off and say like well, it’s just like a metaphor and Blitzer was like, no, no, it’s really not and then Barr said, well maybe in North Carolina you can kind of change your mind and like cast a second vote if you’ve decided that you don’t like your first vote, and then purported to kind of not know the laws and every jurisdiction. I mean, it’s offensive, it’s offensive to the profession for the top lawyer in the land to not be able to weigh in any accurate way and to pretend ignorance on such a clear legal issue.
Joe Patrice: Yeah, so the — and it’s interesting you mentioned that somebody did this last time there in New York there was a case, I can’t remember all the details of a woman who tried to vote twice for him in 2016 and the argument she made was she was relatively wealthy and she was like, no I have two houses, so I’m voting now with this house, which —
Liz Dye: Cool.
Joe Patrice: I mean look, that to be perfectly originalist, if voting is tied to being a property owner maybe she’s got a point, but I don’t think that’s how this has been working for quite some time now.
Liz Dye: Right.
Joe Patrice: So that’s a good time for me to preview something, which is that next week we are going to have a very special episode of this show, so we’re going to have CNN’s newly minted election law expert Professor Rick Hasen who we’ve had on this show before, but he’s going to come by and answer a series of questions that we’ll have about election law and how it all works, so if you have been wondering how some of these finer points work you will want to tune in for that. And if you’re worried about the state of the election, well he is too. And so he’ll be able to talk a little bit about that.
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Okay, so you have written for us several times about the Michael Flynn case. This is the —
Liz Dye: Never ending.
Joe Patrice: The never ending case of the former national security adviser, who committed, I think it’s fair to say that he committed crimes since he confessed to them a couple of times actually.
Liz Dye: Yeah, once in writing and twice in open court under oath.
Joe Patrice: Yeah. So he’s admitted that he did the things that constitute a crime, which normally is the end of a discussion and indeed it was the end of a discussion up until the administration decided they didn’t like the idea that he was going to go to jail and they changed things around at the Justice Department and made the argument that well, we’ve decided we’re not prosecuting this case anymore.
This set up an interesting conundrum because in normal cases you would say that the Judge is not a prosecutor, those are separate powers and so if the government chooses not to pursue a case then that means the case should end. That said we aren’t really at the stage of the government choosing to prosecute, we’re past that, we have already gotten —
Liz Dye: We are at sentencing.
Joe Patrice: We’ve got a conviction and we’re at sentencing, and as I like to point out like as somebody who, this is my wheelhouse since I did defense work, like this is the point where the government, they write letters of recommendation and say this is what we think the sentence should be and the judge can choose to ignore those. This is entirely the judge’s court now and the government should have no say here.
So the idea of the government being able to put the end to this after this stage has been reached is a bit of a stretch. Nonetheless, there is a specific rule about closing down cases generally and that requires that the judge at least sign off on it once it’s gotten to a certain stage, frankly a stage before this one, but put that aside. And so the Judge said, well, if I have to make a decision on whether or not this is okay, I would like to see a brief about this, which brings us to the next thing that happened which was it got appealed, two judges on the DC Circuit, one of whom is best described as a hack, wrote a lengthy opinion where they explained how merely asking the government to defend itself was a irreparable breach of their rights, not ruling against them mind you, just asking them for their reasoning, and that brought us to — that brought us to the en banc hearing where the rest of the court DC Circuit ruled everyone else to two, that that’s absolutely absurd.
Liz Dye: Right and there was even in there when the Justice Department decided that it was going to kind of blow this case up five seconds before Flynn was finally sentenced, Judge Sullivan appointed retired Judge John Gleeson as an amicus to kind of make the case to interrogate why the Justice Department had behaved so irregularly and Judge Gleeson as the amicus found that there was kind of blatant inappropriate conduct. And so Judge Sullivan wanted to kind of look into this further and that was the point at which Flynn’s counsel Sidney Powell kind of jumped in and demanded mandamus from the Appeals Court which is what Judge Rao and Judge Henderson kind of gave her sort of rescued Flynn from and more to point rescue the Justice Department from having to explain itself and explain its totally irregular behavior and her reasoning was that in theory, the writ of mandamus is an extraordinary remedy and it’s kind of discretionary right, you don’t demand a rubber stamp from a Federal Judge, but and the writ of mandamus should only kind of be awarded when there’s a final something, right, either Flynn was incarcerated or he was sentenced or whatever and you don’t have any other adequate remedy.
Here what writ of mandamus was supposed to prevent was just a briefing, which that’s — that’s crazy, everybody knows that’s crazy, and that’s what the en banc panel said, that I mean other than Judges Rao and Henderson that they said, this is not how it goes and you have other remedy, if Judge Sullivan actually does something besides order a briefing that you don’t like, you can appeal.
Joe Patrice: Yeah.
Liz Dye: Which is what normal defendants do.
Joe Patrice: Right. So we’re now at a stage where theoretically if Judge Sullivan goes through, that he cease this briefing and determines fine, the government you have every power to put a stop to this and we’ll just move on, then that can happen and then it’ll be over and if the judge does not do that and instead says, this is ridiculous, he has confessed, I don’t care that you don’t want to pursue anymore it’s my court now and here’s the sentence, then they can appeal again and it’s unclear what the breakdown of the DC Circuit would be under those circumstances, obviously two of the judges would not like it. The one of the concurring judges will not have this job by the time that happens, but he has been replaced by Wil Skippy, Mitch McConnell’s little intern.
Liz Dye: I know.
Joe Patrice: So –
Liz Dye: Yeah, he’s like 18 or something.
Joe Patrice: Yeah. So we’ll assume that that’s going that direction, but the other judges, even the rest of the majority did not actually opine correctly on how they would rule in that circumstance they just said, this doesn’t — this isn’t at that point yet. So it’s ongoing.
Liz Dye: Right, look we all know where this is going. Flynn is going to get off. Everybody knows that’s where this is headed and I wish it weren’t that way, because I think he’s confessed. He pled down which means that he got — he didn’t get charged with any of the FARA violations, which he also allocuted to. He’s not going to go to jail, nothing bad is going to happen to Michael Flynn.
The only issue here is whether the Justice Department gets to walk away from this thing without embarrassing itself by having to explain what it did. And that’s — that’s really what we’re talking about here, is the Justice Department going to have to say, yeah we really made a totally political decision here and treated Flynn unlike any other defendant.
So if the issue is does the Justice Department have the right not to be embarrassed, well no, I don’t think so, and that’s really what we’re talking about here.
Joe Patrice: It remains mind-boggling that the administration doesn’t just pull the trigger and pardon him. If all they want to do is put a stop –
Liz Dye: I am sure that’s coming November 4, right.
Joe Patrice: Yeah.
Liz Dye: I mean, we all know that’s coming, well no matter what happens November 4, there’s going to be a raft of pardons, but clearly Trump didn’t want to expend the political capital to do it before the election and simultaneously he wanted to save Flynn from having to go to jail. So this was kind of what Bill Barr could cook up the way that he did after he kind of got rid of the US Attorney for DC and US attorney as he tried to do for New York, he’s kind of tried to help Trump in these very political ways and pretend that Flynn was entitled to protections unlike any other defendant, like these are just laughable defenses.
So the issue here is will the Justice Department have to be embarrassed because it has to explain itself, and that’s not really compelling like you don’t want to be embarrassed, that’s not really a compelling legal theory.
Joe Patrice: I mean it’s be on the topic of being embarrassed, it’s just so — they’ve been so sloppy about all of these efforts, that’s what really, like there’s a small part of me that like, I don’t care as much as like, like I do care about the substance of what they’re doing, but there’s a small part of me that’s like, this is really about form man, like if you’re going to do something shady at least do it right, and it seems as though consistently the Justice Department both under sessions and bar has just done everything wrong.
I mean this is what we had on the Supreme Court, the DACA case, right, it was just — you people can’t figure out even how to do the bad jobs you want to do. It’s —
Liz Dye: I mean thank god for it, right, like how much –
Joe Patrice: I mean I guess yeah.
Liz Dye: How much worse could it be if there were somebody competent as opposed to just a bunch of unitary executive hacks kind of trying to implement whatever nut ball order Trump barks out after watching Fox & Friends.
Joe Patrice: It’s so weird that they just can’t — that they can’t get it right, like that we were talking about reflection on the profession and that’s, that’s one like, come on man, you got to figure this out.
Liz Dye: Yeah truly.
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All right, so now let’s talk about two of America’s finest lawyers, two real American heroes, Lin Wood and John Pierce, these fine exemplars of our profession are representing Kyle Rittenhouse, the kid who decided to take a machine gun to Kenosha and kill people. But it’s not just that they’re representing him, both of them have — have interesting takes on how this operates, right.
Liz Dye: Yeah, they sure do.
Joe Patrice: That’s fair to say.
Liz Dye: Is it normal for criminal lawyers to put out like a 700 word statement detailing all of the factual scenario as they would like to present it before he’s even been extradited to the state, I mean it’s really bizarre, and it’s of a piece with all of these kind of culture war cases that we see consistently in the Trump era where the Justice Department and the Justice System has kind of been perverted in ways that make a public relations strategy look like a viable legal strategy.
And so lawyers who should know better go and issue these long-winded statements where they kind of lay out their whole theory of the case in ways that are super incendiary and kind of not perhaps consonant with regular legal practice.
Joe Patrice: Yeah and I mean this is — for a long time this has been a strategy that Alan Dershowitz has believed in, this predating this administration that was part of his historic career to wage the war in the press strategies. But this is as you said very tailored, they understand that certain statements can shape a narrative that is on a TV channel that potentially a president might watch, and that has value to them.
Liz Dye: Right, I mean so here’s a little bit from this statement. It says Kyle did nothing wrong, he exercised his god-given constitutional common law and statutory law right to self-defense, however in a reactionary rush to appease the divisive destructive forces currently roiling this country prosecutors in Kenosha did not engage in any meaningful analysis of the facts or any in-depth review of available footage, it just goes on and on and on, and it’s so overwrought and so it’s as we’ve been discussing as a theme, it’s really not a great reflection on the profession.
Joe Patrice: Yeah. Now meanwhile John Pierce who had a firm called Pierce Bainbridge that he still claims to have though, I’m not —
Liz Dye: It’s a going concern.
Joe Patrice: It is a going concern, I’m not altogether sure anyone works there anymore, but other than him, but it is — it is certainly a law firm and he’s also in this case now he wrote his own statement which you won’t be able to find because Twitter took it off, because it violated all sorts of policies.
Liz Dye: And he’s going to sue, he’s going to sue darn it.
Joe Patrice: Fair enough. So what this statement was, I don’t really know off top my head how to get into this, he went further than even the long-winded statement and declared that this kid was the moral equivalent of the person who started the revolutionary war.
Liz Dye: He said, Kyle Rittenhouse will go down in American history alongside that brave unknown patriot at Lexington Green who fired ‘The Shot Heard Round The World’ on April 19, 1775. A Second American Revolution against Tyranny has begun. Totally normal stuff for a lawyer.
Joe Patrice: Yeah.
Liz Dye: Right, and by the way if you’re trying to kind of — if you’re going to put forward a self-defense plea for your client or you’re going to make that case, it’s a little bit maybe not so helpful to come out with and say that he’s part of a revolution and that he kind of showed up there to defend against tyranny.
Joe Patrice: Yeah, it’s very — it’s very disturbing and it does kind of suggest that there’s a mindset at play here, that is more than — I mean that, well we’ll just go ahead and say there’s a race war mindset playing in a lot of this, that there’s a revolution that needs to be fought, which I don’t know revolution is the right answer, rehash of the civil war is probably more accurate.
Liz Dye: Right.
Joe Patrice: But that’s what they’re — that’s how they want to talk about it.
Liz Dye: In what universe is in, I mean look, I have three teenagers, in what universe isn’t it acceptable course of events for a 17-year-old from Illinois to cross state lines and be handed an automatic weapon and run around the streets patrolling it having deputized himself as sort of the auxiliary law enforcement official against what he terms anarchist rioters, like I mean, I understand that Tucker Carlson would sort of like to stoke the flames of this by saying things like, well if he doesn’t do — in the absence of law enforcement our children are leading us in this direction, but as a parent like that’s just totally inappropriate and as a lawyer I don’t like to see the law taken into the hand of teenage vigilantes.
Joe Patrice: Right, right. It’s interesting, I mean look it, if anything, it’s hard to suggest that the problem in Kenosha was police not willing to shoot people.
Liz Dye: Right.
Joe Patrice: So like clearly that’s not the problem. So the idea that there was some sort of open window for people to step up is purely absurd.
Liz Dye: Right, and I mean this is a an issue that just came out this morning or yesterday when Trump released that memorandum that he was going to try and defund all of the anarchist cities where the police are coming back, like the people are on the street protesting because they think the police need to pull back, not because they have pulled back. They’re not protesting police in action, they’re protesting active violence or that is what they perceive anyway by the police.
Joe Patrice: Yeah. So just a real quick Con Law reminder, no, the president can’t declare that certain cities he doesn’t want to give money to because he doesn’t like them, that’s also illegal.
Liz Dye: See Tenth Amendment.
Joe Patrice: Yeah, it’s — it’s I feel constantly when talking, when I get these sorts of memos come across my desk and I get asked questions by non-lawyers about them, I feel like Walter from Big Lebowski when he’s talking about the ferret, and it’s like and they broke into your house whatever he’s like and then keeping a aquatic mammal in city limits that’s, that’s illegal too. Like you get to a point where you’re so far down the rabbit hole of things that are a problem.
Liz Dye: Right. I mean we’ve reached the mad king stage here where Trump you know kind of barks out nonsense like Antifa is a terrorist, domestic terrorist and like we’re going to make Twitter not be allowed to censor conservatives and it’s — it’s nonsense. All of the adults to the extent that there were adults have left the White House and now you’ve got all of these kind of lackeys who dutifully type out like this is a memo that’s going to do exactly what you want Mr. President even though, it’s nothing, it’s nonsense.
Joe Patrice: Yeah it is, it is weird how there’s just not any adult supervision.
Liz Dye: Even Kellyanne Conway has left the building.
Joe Patrice: Yeah.
Liz Dye: Mother of the year.
Joe Patrice: And that yes, well, and that’s a whole — that’s a whole other — whole other thing. I’ve met George a couple of times and he’s a very funny gregarious engaging person and I constantly think as I watch how everything has played out in this administration, I constantly think how did you get to this point.
Liz Dye: That you know —
Joe Patrice: What turn when —
Liz Dye: You know what, look, you got on the bus and you stayed on that bus and this is the destination, this is the result of 25 years of double down, double down, double down.
Joe Patrice: Yeah.
Liz Dye: If you couldn’t hop off the bus when Sarah Palin was your nominee, I’m sorry, I have limited sympathy, because you don’t like the neighborhood you wound up in.
Joe Patrice: Yeah, yeah, I think that’s fair. All right, so, yes, what do we got, we – that, that’s pretty much everything unless while we’ve been talking something else went wrong, I don’t think it have.
Liz Dye: I am sure while we went we were talking something else went wrong, come on.
Joe Patrice: I’ve got — I’ve got –
Liz Dye: It’s been four years dude.
Joe Patrice: I’ve got notifications popping, but they all seem to be about bar exams and stuff, so I think we’re okay.
So yes, thank you for joining today Liz, and also thank all of you for listening. You should be subscribe to the show, you should give it reviews, stars as well as write something about it, all those little words prove you’re engaged and when it proves you’re engaged, a little robot algorithm goes, hey, this is something people listen to and then it suggests it to more people, which is a good things.
Liz Dye: Do it for the bots.
Joe Patrice: Yeah, like it’s all about — it’s all about impressing AI. With all that said, you should be reading Above the Law as always. You should follow us, I’m @JosephPatrice, you are at some form of @5DollarFeminist, right, I guess.
Liz Dye: Yeah, with the five as a number.
Joe Patrice: The five is the numeral. I was like I always try to clarify that part, so @5DollarFeminist, with five being a numeral. You should also read Wonkette, where she appears more frequently.
Liz Dye: (00:29:21).
Joe Patrice: Yeah, so with that said, you should listen to The Jabot and the ATL COVID Cast, our other show about COVID and the law, you should listen to the other offerings of the Legal Talk Network. Check out Paper Software who has sponsored this show, their Contract Tools. You can go to their website and see. You should also check out the new report from LexisNexis InterAction on Previous Economic Crises.
And with all of that said, I think we’re done and we will be back next week, talking to Rick Hasen.
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