If you watched the Republican National Convention, you heard a lot of coverage about the Hatch Act and the constant stream of violations occurring on live television. But does anyone really care about this? Maybe more to the point, is the law so overbroad that it’s blunted its own impact? We also check in on Yale Law School where a prominent professor is suspended for two years after an internal investigation into sexual harassment allegations.
Special thanks to our sponsor, Paper Software.
Thinking like a Lawyer
Who Really Cares About The Hatch Act
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. We have a show for you today I am not making any representations that it’s good I just said there is a show for you today anyway as I said I’m from Above the Law I am joined by another Above the Law person that you know so well Kathryn Rubino.
Kathryn Rubino: And love come on now.
Joe Patrice: I again, I wasn’t making representations. Today is all about cabining what I say —
Kathryn Rubino: Here’s a fact, he’s a fact.
Joe Patrice: Very, very, very careful with all the words.
Kathryn Rubino: Just the facts man.
Joe Patrice: I mean that’s what being a lawyer is being very cautious about —
Kathryn Rubino: I think you’re supposed to make arguments aren’t you an advocate for your client?
Joe Patrice: It’s got to be — you’ve got to be very circumspect in what you say, it’s about parsing your words, being careful. So yeah, so we are here and we have all sorts of fun things to talk.
Kathryn Rubino: I don’t know about fun but certainly interesting let’s say that.
Joe Patrice: Fair enough —
Kathryn Rubino: I mean we were very concerned a second ago of being accurate and circumspect in your language choices.
Joe Patrice: Oh that’s fair, that’s fair, that’s fair, so okay, so we are recording as of a — we’re still in the midst of the Republican National convention, which this is not technically a politics podcast especially now that we don’t have Elie anymore. But we you know there were a lot of legal issues that came up in the midst of this well
Kathryn Rubino: They also got quite a few lawyers up there talking.
Joe Patrice: There are a few lawyers but we have some legal issues that came up so we thought we would talk a little bit about that, so what —
Kathryn Rubino: Yeah go ahead.
Joe Patrice: Yeah so what did you want to address first, as you untangle that convention — oh and we have another bit after this we’re going to talk a little bit about sexual harassment and why you shouldn’t do it, especially at Yale but we’ll get to that in a minute but first so RNC, so what did you want to just tackle first?
Kathryn Rubino: I mean there was a lot of issues there the St. Louis couple lawyers that —
Joe Patrice: Kate do you want to start there?
Kathryn Rubino: Yeah sure.
Joe Patrice: Yeah because it was a question.
Kathryn Rubino: Oh sure yeah.
Joe Patrice: All right so. So first up, on the first night we got appearance of the McCloskeys that is the couple that you may remember as the folks who took out an AR-15 and a pistol and started waving them at people marching by their house in St. Louis. At the time they were very — at the time when they did that they were very cognizant of how that looked and felt that it was you know, they wanted people to understand they really didn’t have anything against the movement they were reacting because they felt they were in trouble.
Kathryn Rubino: Right.
Joe Patrice: They have apparently backtracked from that and leaned into the idea that —
Kathryn Rubino: Well they’re getting their own sort of fame and notoriety from leaning into sort of the kind of underbelly of what that all represents.
Joe Patrice: Yeah so they went on and gave, I would say it was a very interesting speech, I thought it was super entertaining, mostly because it looked like a hostage video it was almost as if somebody had an AR-15 aimed at them the whole time. They delivered their lines in the most stilted awkward manner possible.
Kathryn Rubino: They’re not quite ready for prime time is what I’m hearing here.
Joe Patrice: It wasn’t and it was weird considering that these are attorneys and attorneys who are you know trial attorney folks, that they would have such a stilted and awkward way of speaking.
Kathryn Rubino: Not every lawyer is a good lawyer right?
Joe Patrice: Right but sure and obviously there’s a million and one tax attorneys I’m going to pick on you for a second who could not carry a conversation but are just you know they’re like brains that we hide in a room and then they occasionally pop out and say I discovered a new way to port millions of dollars. But trial lawyers that is their game, being able to talk to people is what they’re supposed to do.
Kathryn Rubino: Sure but I do think that there is a vast difference between having a trial lawyer and being able to have a conversation as it is with a jury or a judge in a room as opposed to over you know Zoom or whatever technology was being used right, that like I do think that there is a difference between being comfortable via technology and in person and I think that that’s — I mean I think everyone recognizes that as very true right now as we’re only over Zoom.
Joe Patrice: Yeah I mean I guess well it’s not Zoom I mean this was just —
Kathryn Rubino: We are already kind of recording, people are — listen there’s a reason why you know back in the Golden Age of Hollywood there were folks who did great on the stage but didn’t make the transition to Hollywood right? Not everyone translates well over camera.
Joe Patrice: I mean but this choed(ph) has done interviews right, like we’ve seen him on TV talking to people already, we know that he’s not this awkward.
So I don’t know I feel — it felt weird, it felt like a hostage video and it felt as though they weren’t free to say what they necessarily wanted, not that what they were going to say was going to be much different necessarily but it seemed very scripted and that they weren’t ready for a script, was my takeaway.
Kathryn Rubino: That looks like that gives them a lot more a benefit of the doubt.
Joe Patrice: Again I’ve seen them on TV before giving interviews.
Kathryn Rubino: I don’t mean that I mean that you seem to be saying also that there’s some content differential that they would be doing or changing, if it was solely up to them as far as I can tell, listen if they’re willing to get up there, no one’s forcing them to be on, say when they make that decision and they have gone on and they’ve approved the script.
Joe Patrice: Yeah but did you watch this thing they went on a drag for a considerable amount of time of the short speech about like obscure housing regulations like it was clear that this was stuff that wasn’t top of mind to a regular person, that was put in front of them like you have to go on this jag about fair housing Act of 68 amendment that was added to the CFR in 2016, like what the —
Kathryn Rubino: Lawyers are the only ones who are going to be able to do that anyway but
Joe Patrice: Right but it was just so awkward.
Kathryn Rubino: Regardless I don’t think you should give them the benefit of the doubt like, oh they’re somehow better than the speech they gave, they gave the speech they made that decision it’s on them.
Joe Patrice: Sure that wasn’t in any way.
Kathryn Rubino: That is the way you’re coming —
Joe Patrice: That isn’t in any way what we’re talking about, what we’re talking about is the fact that there are people who are trial attorneys, who are incapable of giving a speech and it seems as though it’s because something was thrown in front of them and they don’t understand how to deal with a script and it was because they were being used as a messaging board for some weird obscure policy decisions that probably I mean look if you put them out there to just talk about how important their guns were I think they would have been fine but that wasn’t the decision, the decision was to have them talk about some other stuff that they seemed woefully unprepared for. Anyway, so that was night one, after that we got some more people, so what happened next?
Kathryn Rubino: Tiffany Trump got up there, she’s recent Georgetown Law Center graduate and I saw one publication referred to her as a dollar store Ivanka Trump, which is a good line, it’s a good line, you got to appreciate the cleverness there. But she attempted to come across or to you know impart more of the humanity that I think is missing from large spots of her family and relate to folks by saying hey I’m a recent law school graduate and I need to — I’m looking for a job too which is stunning first of all I don’t know how a T14 graduate who seemingly did just fine in classes is somehow struggling to find a job, but put that to one side it rings especially hollow when someone who’s lived such a life of privilege comes up and says I understand what it’s like to not have a job, it’s vastly different she may not have a job in the sense that and there might be some sort of existential dread oh what am I doing with the rest of my life, what do I want or how am I going to be meaningful whereas other folks who are graduating with hundreds of thousands of dollars in debt and loans as a result of going to law school are thinking about and if they don’t have jobs they’re thinking about lots of different things than just you know their contributions to the world, they’re thinking about how do I feed my family, how do I make sure that we don’t become un-housed during a pandemic, you know there’s a lot more and those are the things that really are both are worrying people right now, keeping folks up not like, oh what am I going to do with my life, which at best is the sort of worry that that I think that a Trump has right now.
Joe Patrice: Yeah there’s a real — it’s pernicious, this problem and when you go to law school you run across it. There are just people who don’t quite grasp that their experience of the same problem you’re having is a very different experience when I don’t have a job I don’t know what I’m doing, when they don’t have a job they go to the Hamptons for a week like it’s really —
Kathryn Rubino: For a year, right they have that luxury, it’s more than just you know a short period of time and I don’t think that they grasp that and I don’t — and also something that we’ve talked a lot about on Above the Law generally is that just having a law degree does not insulate you from those sorts of fears and economic uncertainty and insecurity issues, right and a lot of times people go to law school assuming that, oh it’s a great profession you can make a lot of money and those opportunities may or may not be there for you when you graduate law school particularly you know during a pandemic, we don’t know what those who are starting law school now, we don’t know what the market’s going to look like in three years.
But the reality is you know people think that, oh I have a law degree I’m going to be okay but we don’t, you don’t know that and that’s the truth and you’ve put a big mortgage on your future when you’ve taken out $200,000 worth of loans in order to get said degree and you know, assuming that you’re going to be able to pay it back in some reasonable amount of time but that’s not always true.
Joe Patrice: Yeah and I feel as though she did not take out many loans.
Kathryn Rubino: That’s my guess.
Joe Patrice: And I — and you know and — but it is true that you know I don’t think people quite grasp and I assume the intention was that the audience for this speech wouldn’t grasp that within the T14 the job cycle is such that you do know where you’re going to work by the time you graduate that’s all real usually been settled during your second year. So it’s weird to assume she didn’t have that lined up, it’s probably because she — I don’t know like it’s all you almost half do not have.
Kathryn Rubino: Right, right I think that I think that’s true if you’re graduating you know with decent grades and from a T14 law school your chances of not knowing what you’re doing after graduation is pretty small and if you don’t know it’s either because you have a wealth of options available to you and you can make a decision on a dime because you have the sort of family connections that will give you plenty of options in the future right, or something’s gone very, very awry, which is always possible I don’t want to say that, you know people — bad things happen to people.
Joe Patrice: Oh absolutely.
Kathryn Rubino: That’s certainly a possibility but it seems far more likely in this case that she’s — if she doesn’t have a job, it was not the way she phrased it was a little awkward it’s not 100% clear whether or not she has a job lined up but if she doesn’t it’s because she has all the options right, she will always be the daughter of a president. No matter what happens and that will inevitably open up doors even besides the money that she comes from.
Joe Patrice: Right. So real quick, I guess the last topic that I can think of coming out of that — oh actually no, before we get on that, there’s another thing I wanted to say about Tiffany. So right, so she suggested that she had this problem but I think you’ve made a great point that there are you know normal people in these sorts of situations have different, it’s just a different relationship to that and a different reason to worry. Another reason to worry is if you have a contract deadline. Contract tools by paper software is the most powerful, versatile and fully featured Microsoft add-in for contracts, for less than a dollar a day contract tools can help you navigate complex legalese, fix common contract drafting problems and much more see for yourself with a seven day free trial go to paper software.com/trial and get started today. So the last issue that came out of that was the Hatch Act which is —
Kathryn Rubino: Should just say if you had a Google alert set for Hatch Act you’ve been just getting —
Joe Patrice: Yeah, it’s been blowing up. So the Hatch Act which is the law that says that various federal government officials are not allowed to engage in the political process, this typically covers people like say, the secretary of state or the — I would say the secretary of homeland security, but this person isn’t that he’s claims to be the acting secretary of homeland security but it appears as though legally he’s not even that according to a recent report so it’s not really clear but whatever that guy’s job is, whatever that guy’s job is he’s part of this too they’re not supposedly allowed to do this, both of them have spoken at the convention which would appear to be a violation however, the entity whose job it is to enforce violations has zero members on it right now because they have been purged and not replaced by the administration so.
Kathryn Rubino: Seems problematic.
Joe Patrice: The Hatch Act appears to be completely toothless, is our takeaway for this week.
Kathryn Rubino: Yeah, no it’s true and I mean the Trump Administration has — and not only that but a lot of right-wing critics have also been spreading rumors and mistreat lies about various instances of other presidents using folks that would be violations of the Hatch Act as well, but all the ones that I’ve seen have proven to be inaccurate and just —
Joe Patrice: I mean it definitely comes up and it —
Kathryn Rubino: Sure.
Joe Patrice: It comes up and it came up during the Obama Administration though they — so a good example that I remember just kind of off top of my head was Kathleen Sebelius when she was at health and human services did interview talking about normal work and at some point somebody asked a question about the upcoming at this point 2012 Election.
And she responded with something about re-electing the president which that technically is a violation of the Hatch Act and her response was to write a check and pay for the travel that was involved in the entire trip to compensate the federal government for the fact that she technically was politicking on federal government’s time. Now it was a —
Kathryn Rubino: But that’s very different —
Joe Patrice: It was a minute out of —
Kathryn Rubino: Nor was the Obama Administration trotting out Kathleen Sebelius in order to politic for her on the government’s time which is what I think a lot —
Joe Patrice: Right, it is very much —
Kathryn Rubino: Probably means are saying or doing it.
Joe Patrice: Yeah and this is the problem with the whole both side-ism which I hate that phraseology because I think that it’s often misapplied by people.
Kathryn Rubino: For sure.
Joe Patrice: But this is kind of the problem with it which is both sides did this but the distinctions between what they did are barely substantive.
Kathryn Rubino: Yes.
Joe Patrice: Yeah I guess there was also —
Kathryn Rubino: Also there was teeth in the in the in the Hatch Act back then because there were people on the committee.
Joe Patrice: Well the question now is do we even need a Hatch Act anymore like if we if we’re going —
Kathryn Rubino: I think we need a better Hatch Act.
Joe Patrice: I mean, there are two questions one, that it needs to get far toothier and do that or —
Kathryn Rubino: More toothsome?
Joe Patrice: Or is it just one of those situations where we all know that people who are political appointees to jobs like the secretary of state position do have a stance on who wins the upcoming election and it’s okay for them to say, we believe as a matter of the foreign policy that we’re executing that our boss is right.
Kathryn Rubino: I could not believe more strongly that we can’t allow this to be the beginning of the end we need to see it and respond and make it stronger and make it less and make less of it right I think that it’s really problematic I think that you know being able to draw distinctions between you know, the business of do — of running a country and trying to get the job again, it needs to be clear, it needs to be distinct and of all the things that are going to change, both ways politics will change because of the Trump Administration, I think it behooves the next administration to make sure that this does not become a commonplace and to create rules also that prevent it from becoming commonplace because just because the next administration may not engage in it does not mean it needs to be very clear there needs to be a more toothier response or consequences available.
Joe Patrice: Yeah I guess, I don’t know I really — I’m kind of coming around to the idea that obviously there’s these —
Kathryn Rubino: It seems very nihilistic though right?
Joe Patrice: No, look there needs to be something, there needs to be something to prevent the government from saying we’re going to take all of our people off of working on nuclear arms reduction deals and have them hand out leaflets like on the federal government dime, that’s obviously problematic, but I do think there’s a distinction between that and the secretary of state expressing that yes I’m obviously a political appointee, I obviously was a prominent republican legislator for years, I do think that from what I’ve been working on like the president’s fine, I don’t think that’s necessarily bad and I think it would — I think part of the problem with the Hatch Act is that we have been requiring people in that sort of position to adhere to it in a way that was somewhat chimerical that it would ever work. I think that the idea of making a distinction between the career work of the bureaucracy and politicking is important but that there are certain figures who are political appointees and high-profile jobs who we should not hold to the standard of not being able to express obviously I’m part of this administration and support it you know. Like, it might be a situation where it’s so — where it’s breadth right now is the problem.
Kathryn Rubino: But there is like a way to deal with it right that’s what Kathleen Sebelius did, right she said okay you know the government shouldn’t be paying for this, that’s not a reason to say like we should get rid of all of our regulations that we should go backwards.
Joe Patrice: No not all I’m saying that there’s a distinction and that it — should we have, there is a carve out now for the president and the vice president because obviously they have to run for office.
Kathryn Rubino: If their jobs on the line.
Joe Patrice: I just think that we could probably solve a lot of the violations that exist —
Kathryn Rubino: By not making them violations sure, that true of everything.
Joe Patrice: Well fair enough but we could solve a lot of the violations that have been happening dating back and including people like Sebelius’ situation if we just said that the political appointees who are the heads of these departments are not going to be held to the standard of not being allowed to express political opinions.
Kathryn Rubino: There has to be a standard there, right it can’t just be like they can do whatever they want because —
Joe Patrice: I’m not sure like does it really bother anyone to know that the secretary of state supports the administration?
Kathryn Rubino: No, that’s not what is bothersome about the violations of the Hatch Act right, it’s that they’re spending their time in resources of the federal government doing these electioneering activities, it’s bad enough like I understand the car about for the president and the vice president but it’s bad enough that the American people are “paying” for them to politic. That is sort of inevitable and you know you deal with it whatever but the owner should not be on the American people to pay for more members of the federal government to election year.
Joe Patrice: Yeah I don’t know I there is definitely, there definitely acts that go too far and stuff like that I think the idea of hijacking a naturalization ceremony as a prop is bad. That said you know like that’s bad, the idea of a cabinet official speaking just doesn’t, it doesn’t bother me and it didn’t bother me when it happened before and it doesn’t necessarily bother me now but alas.
Kathryn Rubino: I think who’s paying for these events also is a big consideration and it needs to be for any future legislation.
Joe Patrice: Sure and yeah like look if somebody was flying somewhere for the sole purpose of electioneering then that’s problematic. If you’re in Jerusalem for other reasons and you hop in —
Kathryn Rubino: I think the defining sole purpose is really problematic I think that if you’re doing electioneering there I think that that has to count as electioneering, right because it’s like, oh I could take my trip to wherever you know any time but I’m going to do it in order to coincide with the RNC —
Joe Patrice: I just feel like this is like law firm expensive now.
Kathryn Rubino: They’re leveraging.
Joe Patrice: Yeah I just —
Kathryn Rubino: They’re leveraging their office.
Joe Patrice: Sure, sure.
Kathryn Rubino: In a way that’s problematic.
Joe Patrice: I mean and I think that’s that fine distinction between like using an a naturalization ceremony as a prop is certainly leveraging that power but somebody whose job required them to be in a city for other reasons is doing their job in the city for other reasons then appearing on a Zoom call to say you know, I stand with my boss.
Kathryn Rubino: I mean listen —
Joe Patrice: Doesn’t strike me as —
Kathryn Rubino: This is a Zoom call right? You can have any background you want right they don’t have to be utilizing the trappings of their position in order to election —
Joe Patrice: Yeah fair enough I mean maybe that’s the distinction that has to happen I don’t know I like — I definitely think that the reason this —
Kathryn Rubino: Live from the Jerusalem that would not be the happened.
Joe Patrice: I just think this gets violated because so often because it is so broad and it’s treated as a non-issue by so many because it’s so broad and that if we — if we want to fix we need to nail at that.
Kathryn Rubino: So, would you support sort of levels like you know, level one, level two?
Joe Patrice: Sure or maybe it, maybe it’s that, maybe it’s specific act carve outs rather than whole positions whatever it is, I don’t pretend to have an answer, I just feel like we’re too eager to say oh just off with our heads with all of this I think that that’s the mentality that got us to this problem. Well anyway, hey do you want to talk about Yale Law School.
Kathryn Rubino: Sure.
Okay so, two years ago in 2018, news broke that there was an investigation into inappropriate behavior going on that involved a very prominent law professor Jed Rubenfeld. He’s very well-known law professor and also married to Amy Chua who’s you know known for being writing Tiger Mom and she’s also a Yale Law School professor and she’s also on the Yale Clerkship Committee and the investigation went into a series of inappropriate behaviors against Professor Rubenfeld and finally two years later they came back with a finding as reported by New York Magazine that there was sexual harassment and inappropriate behavior and he would be suspended for two years from the law school also bans I think from having small meetings and groups because a lot of the allegations came from dinner parties that he was supposedly having with law students and stuff like that. So he won’t be able to have small meetings and with students again.
Joe Patrice: Seems like Amy needs to be more of a tiger wife.
Kathryn Rubino: Oh okay but you know. Okay, you know and I think that what some folks have pointed out and I think is a very fair point to make is that you know the other way to phrase this is not just law professor gets to your suspension for sexual harassment is law professor allowed to keep his job despite sexual harassment and that is a very I think fair and interesting way of turning the lens and saying you know what are we focusing on and it’s true I mean I should also note that Rubenfeld denies the allegations and says that he did not sexually harass anybody during the course of his tenure at Yale Law School.
But it should be said that you know the law school has made this finding about behavior that he allegedly engaged in and two years is the is the only, that’s it, you know he still gets to come back, he still gets to be noted Yale Law School professor. So and in some of his statements you know he said that he was unable to know who his accusers were however, Yale policy is pretty explicit and has says that you have the accusers have to be known to everyone and additionally one of the claimants came and spoke to New York Magazine and said that they were very clear that their name was absolutely known to Rubenfeld during the course of the investigation.
Joe Patrice: And this is certainly something that has been heard of before this, the conversations about this were certainly circulating during the Kavanaugh Hearings because Rubenfeld and Chua were both very active and aggressive supporters of Kavanaugh’s nomination. Their daughter actually clerked for Kavanaugh. So they were pushing that as that was happening obviously most of the country’s attention was on the Kavanaugh part but there were conversations and articles popped up then about these allegations circulating and that’s what ultimately prompted Yale to begin an internal investigation which is how we got to where we are today.
Kathryn Rubino: Very true but I think it’s I think it’s a very fair point to turn the lens as to what the ultimate impact has been despite the finding of inappropriate behavior.
Joe Patrice: Yeah I mean it’s weird like you do have tenure which is designed to protect academics which it makes it very difficult to get rid of somebody.
Kathryn Rubino: Sure it’s also designed it’s supposed to, in its ideal form right supposed to protect academics, so that they have academic freedom not so that they then can
Joe Patrice: Right.
Kathryn Rubino: So they can harass folks.
Joe Patrice: Right although I mean as a general matter, I think it’s a labor protection to protect them from those schools.
Kathryn Rubino: Because I’m pro labor.
Joe Patrice: Yeah so it’s hard and that’s why I think that there is no termination but it’s a suspension. There’s obviously some degree of hope that a punishment can lead to some changing of behaviors that would avoid these sorts of problems but we’ll see like and —
Kathryn Rubino: Yeah (00:27:46), finished being written.
Joe Patrice: Yeah and especially considering that he’s seems as though he’s going to be fighting so there we go. Well cool I think we’ve covered everything haven’t we?
Kathryn Rubino: Yeah.
Joe Patrice: This was an eventful week.
Kathryn Rubino: Pretty (00:28:01) week.
Joe Patrice: Yeah so it’s been and we didn’t even discuss the exciting stuff coming out of the International Legal Technology Association Show, which okay that’s a different kind of sound effect yeah no. Yeah, I’ve been doing that, you can check some of my coverage of that on the website which is where you should be all the time checking out Above the Law because we’re writing there pretty much constantly this 30 minutes is our only real break, please send help. With all that said thanks for listening you should be subscribed to the show, you should give it reviews, write something about, it always helps us get more attention for what we’re doing here you should follow us, she’s @Kathryn1, the numeral one, I’m @JosephPatrice at twitter. Listen to this show you already have successfully done good job to you. You can also check out our ATL COVID cast, our special report series on COVID and the changing of the legal profession and the jabot which is a show Kathryn hosts about women and minorities and diversity issues in law firms, oh and all the other offerings of the Legal Talk Network and thank you as always to contract tools by Paper Software who is sponsoring the show and with that now I think we’re done.
Outro: If you’d like more information about what you’ve heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, 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.
Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.
A conversation with Neal Katyal about the late justice.
Firms are signaling their strength in a COVID impacted economy.
Despite Trump's urgings, you'd be risking possible felonies.
Why doesn't the Attorney General know how many times we can vote?
Taking stock of the law after a week of consistent violations.
Online exams have a bathroom break problem.