Can the Senate try a former president on an impeachment charge? Must a fact witness recuse themselves from serving as an advocate in a trial? The answer to both of these questions is obviously, “yes” and yet the last week involved a number of right-wing outlets trying to muddy the waters up to and including Jonathan Turley demanding that everyone stop citing Jonathan Turley. Joe and Kathryn also discuss the Supreme Court’s race to approve executions in Trump’s waning days and the state of the legal industry entering 2021.
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Above the Law – Thinking Like a Lawyer
An Impeachment So Nice They Did It Twice
Joe Patrice: Hello, welcome to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I’m joined by my fellow editor Kathryn Rubino.
Kathryn Rubino: Hi, Joe Patrice.
Joe Patrice: Hey, how are you?
Kathryn Rubino: I’m pretty good, how about yourself?
Joe Patrice: Good, good.
Kathryn Rubino: You know, it’s a short week. There was a holiday this Monday so, I expect things to be pretty quiet.
Joe Patrice: Yeah, yeah — no I don’t see any reason to believe that any major news —
Kathryn Rubino: Well, yesterday the capitol police and they don’t think anything’s going to happen.
Joe Patrice: Anything is going to be fine.
Kathryn Rubino: Yeah.
Joe Patrice: Well, we’re going to talk a little bit about that. I guess, let’s jump right into that subject. There’s all these concerns that things could get worse and by the time you hear this maybe they have but there’s also something to be said. From my perspective as somebody who did criminal defense obviously it was white-collar and it was more complex. Has there been a situation ever where so many new defendants did such a bad job of hiding what they were doing?
Kathryn Rubino: Yeah, it’s pretty stark. I don’t know if you’ve seen a bunch of Tiktoks that are going around where people are like “you’re criming bad.” You were bad at crime.
Joe Patrice: That’s the only thing that makes me think that maybe things won’t get too much worse right now is that most of the people who would cause that trouble are systematically getting indicted by —
Kathryn Rubino: Well, I mean — yes and no. I don’t think nearly as many people as should have been — have been indicted yet I think if there have been more arrests made the day of the insurrection, we would be in a much better place to prevent a second attack because more people will be arrested and I think that is off the top, I’m not going to say anything else that implies that — there was a better option. It was out there, it was obvious, it’s what would have happened if any other group particularly if it was folks of color who did it. It’s astonishing that that’s not what had happened and even what has happened is not nearly good enough. That said, it is nice to see people arrested for you know trying to overthrow the government since they tried to overthrow the government.
Joe Patrice: Seems like the least you could do.
Kathryn Rubino: The very least.
Joe Patrice: Yeah, so — yes as I said, it was — as somebody who dealt with the system just watching — some of these indictments are hilarious like they read like where there’s usually paragraph after paragraph like explaining how the thing goes and there’s just one paragraph going on x date defendant posted a picture of themselves in sight committing crimes.
Kathryn Rubino: Attached please see this Youtube video. I mean listen, this was a very public. It was an incredible sense of entitlement from — I think that’s really the big difference you have a group of defendants or potential defendants that felt they were incredibly entitled to do what they did and they did not care about what the law may or may not be. You even see that — what’s her name who flew on the private jet over and it was like “well, I demand an indict – pardon.”
Joe Patrice: By the time this comes out they may well have been pardoned, we are doing this before what’s promised to be the big pardon dump. So, who knows but seemingly over 100 pardons are coming is what we hear and theoretically not one for –
Kathryn Rubino: Who do you think is the best ads of getting a pardon?
Joe Patrice: I don’t know, I think there’s going to be some weird ones in here. I wouldn’t be shocked if there’s like long dead people who end up getting pardons for things that don’t matter like –
Kathryn Rubino: Really?
Joe Patrice: I saw somebody — I saw somebody make — muse on twitter that like Al Capone or something like — just random people I think could end up.
Kathryn Rubino: Well, I mean I heard little Wayne is supposed to get one.
Joe Patrice: Yes.
Kathryn Rubino: No, but I mean like who do you think has the best ads if you were — if you were making ads?
Joe Patrice: I don’t know.
Kathryn Rubino: Ivanka?
Joe Patrice: Yeah, it seems as though the family is not being discussed but this is really not a topic I intended to have conversed about more than three seconds since it’s all going to have happened by the time this podcast is out. So, it doesn’t really make any sense for us to be making these sorts of guesses.
Kathryn Rubino: So, what do you want to talk about Joe Patrice?
Joe Patrice: Well, I was just talking about you know, indictments and how they operate and stuff like that and writing those and that’s just something that you deal with on the litigation side but if you work with contracts and don’t use contract tools you’re missing a lot, save time, make more money and do a better job for your clients with contract tools by paper software. Contract tools is the most powerful word add-in for working with contracts. Thousands of lawyers all over the world rely on contract tools every day for every kind of deal. Visit papersoftware.com to watch a demo and get a free trial. As a special offer to podcast listeners use coupon code ltn2020 to get one month free. That’s papersoftware.com and ltn2020. So, there’s been an impeachment.
Kathryn Rubino: Yeah, a second.
Joe Patrice: Yes, which we were –
Kathryn Rubino: Impeachment two electric boogaloo.
Joe Patrice: Yes, we had since last week that this was probably going to happen. It has now happened. We went through a lot of the procedural elements of it, there have been two like legal questions about it that have come up. One of which that’s been kicking around a lot today is this continued debate over whether or not former presidents can be trialed in the senate like can you conduct this trial?
Kathryn Rubino: Yes.
Joe Patrice: Well, so the argument is that the –
Kathryn Rubino: Is there much of an argument?
Joe Patrice: Yeah, because the punishment for impeachment is to be removed from office which would seem moot if somebody is no longer –
Kathryn Rubino: Well, they can also vote potentially to have them barred from future office as well.
Joe Patrice: Yes, so there’s a separate vote that can happen off of that to do that. Now, the question is whether or not that’s something that fits within this context of impeachment. Now, there are arguments going around that I’ve seen of people making points that we have notes of the conduct of the constitutional convention and that this scenario was more or less discussed not you know, social media outrage leading to an insurrection but there were people during the constitutional convention making points about it has to include more than just removal or else people would just commit crimes on their way out the door and so there’s some original public meaning history behind it that suggests that there’s scope of continuing a trial even after somebody’s left the office.
Kathryn Rubino: Yeah, if only there was a body of thought that cared about the original meaning.
Joe Patrice: Yes — no absolutely. The question here which deals with originals is so Jonathan Turley’s the main character who everyone’s talking about because Jonathan Turley is going from network to network explaining how there’s no justification for trying somebody after they’ve left office, right? but as you’ve probably seen, the issue though is that people have dug up this 1999 article in which he goes on at length about how clearly the constitution means that you can do this after people have left office.
Kathryn Rubino: It’s almost as if people changed their opinion about what words and procedures mean based on who they applied to.
Joe Patrice: Well, in his case though — in his case it’s not even that –
Kathryn Rubino: What do you — what’s your hypothesis?
Joe Patrice: Well, to the extent that — I mean he’s historically been a more liberal-leaning academic. It seems as though it’s just whoever is going to let him be on TV at any given moment.
Kathryn Rubino: Do you think it’s that craven?
Joe Patrice: Yeah.
Kathryn Rubino: Okay.
Joe Patrice: Yeah, and listen, I only think that Jonathan Turley is that craven because I’ve covered Jonathan Turley before which doing that helped — but yeah I mean it’s problematic. One of the academic argument is going around about it is the question and this has sparked a fight between a bunch of professors online but at what point does this become the school’s problem and an ethics problem. If have law professors utilizing their credibility as law professors and the school’s credibility as their employer to make public opinions that you can check the receipts and see they don’t really believe and their scholarship says that they have no basis to believe like at what point is that denigrating the institution.
Kathryn Rubino: And I think that is a problem that goes well beyond the legal sphere, right? there was in the beginning or middle of COVID who knows time was weird, right? there was that Stanford doctor who was saying a bunch of crazy stuff about the pandemic and was told by the school your services are no longer welcomed. So, I mean I think that that is a much larger society level issue as opposed to just something that lawyers have to grapple with.
Joe Patrice: But it also speaks to questions of tenure and academic freedom, right? like we don’t — we don’t fire people for saying stupid things because they should be have the freedom to you know, be scholars and that includes like saying you know letting their brain go different directions in order — but at what point is this beyond academic freedom and becomes an issue of them hurting the institution itself and this is a subject we’ve tackled in the past with regard to professors like Penn Amy Wax who goes out and –
Kathryn Rubino: That explicit argument right? She actually hurts the reputation of the school when it comes to Amy Wax.
Joe Patrice: Right and that it’s not academic freedom what she does because what she does not cite anythings, she is not using it as the basis of actualstudies or –
Kathryn Rubino: And just for people who may not be super familiar with Amy Wax’ Hoover I know you’ve written probably a dozen articles about her but if you were to kind of summarize what she’s written quickly what would you say?
Joe Patrice: She’s a Penn Law professor who writes a lot of public opinion pieces not scholarship in which she makes any number of largely white nationalist claims.
Kathryn Rubino: It sounds delightful.
Joe Patrice: Black people aren’t smart — she’s never known of any black people who’ve ever performed well at school.
Kathryn Rubino: She actually didn’t say that like even at her — she made it — it certainly implied that at her school no person of color did well.
Joe Patrice: Which we know is not true and it puts her in a weird place because there is blind grading so it’s like were you — do you know this because you were in breach of the grading policies or do you know that not know that not notice making this up.
Kathryn Rubino: The latter.
Joe Patrice: Right, and like look there’s problematic people along those lines in legal academia but look, that mismatch book that Alexander wrote out at UCLA is just academic garbage and people have poked holes through his thesis all over the place but at least that was an attempt to do something academic. This — what she does is not and I’ve said in the past at what point does this cross the line of tenure and protection of academic freedom and say like you’re leveraging the reputation of this university in a way or this law school in this university in a way that is detrimental and therefore a reason for us to take action for cause that you’re causing trouble.
Kathryn Rubino: But the other thing is I think that tenure gets a really bad rap primarily from the right because it’s kind of seen as protection of these crazy liberal — call me pinko liberals in academia, right? and so I’m very hesitant to make you know stances against things like tenure or anything that unions potentially are in favor of and to protect and you know I think that the kind of weakening of unions across America period across lots of different professions is problematic.
Joe Patrice: Absolutely and I don’t think and I actually would push back on the idea that this is — that this has a right left dynamic anymore. It seems like these days –
Kathryn Rubino: I think, it started there certainly.
Joe Patrice: Sure, yeah it seems like these days the argument about it is all about protecting Amy Wax’ ability to say whatever that she wants but it is true that there has to be some level of accountability for the sake of helping the institution which you know it’s tough but this is where we end up where somebody has written actual scholarship saying this is what happens and now that they get a chance to be on T.V. they’re saying the exact opposite. That is a level of hypocrisy without an explanation of how they’ve evolved either not like a — I looked at it and I’ve determined I’m wrong he’s just bald saying the opposite.
Kathryn Rubino: And maybe I kind of come at it from a little bit of a different perspective sort of you know, I was a journalism major but I think that onus is really on the journalists that or having these folks on their show or on you know, in their paper or whatever to say, “I have a great follow-up question” how is this different than your 1999 paper which you say the exact opposite, I think that and if there isn’t a good answer they’re not booking folks, right? there’s no God-given right to have anybody on television right or Twitter but you know, I think that there’s a an important role for journalism and I think that journalists need to take a much better stance at poking holes and these sort of obvious attempts to just become famous for the sake of being famous. Everyone likes to make fun of you know, reality T.V. stars for their craven desire to just be famous without any skills but at least they are very clear and honest about what they’re trying to do.
Joe Patrice: Right, and I don’t think there are credible journalists involved in this discussion unfortunately. The one other aspect of impeachment that’s come up is — early on, Giuliani appears to have been lining himself up to be Trump’s defense lawyers.
Kathryn Rubino: Which is weird, right? because wasn’t there a whole story about how he wasn’t getting paid?
Joe Patrice: Yes. He is not getting — apparently getting his fees paid by trump which you would think –
Kathryn Rubino: On surprising.
Joe Patrice: Would think it would shut down the work? but you know I think at this point he’s pot committed I don’t know if there’s anywhere else.
Kathryn Rubino: I guess that’s fair you know, if Trump needs to be exonerated in order for Rudy to have some sort of credible post career.
Joe Patrice: The argument that he seemed to be making in interviews was that he was going to utilize the defense to be solely about the voter fraud allegations that have been debunked all over the place with the argument being it couldn’t have been incitement if those things were true. Not really how that works and it doesn’t really make sense but whatever. If that was where he was going it turns out though there was the other ethical issue which has now come full circle he’s now said that he cannot be the lawyer in the impeachment trial to the extent that he is a fact witness which was obvious to anybody who understood what was going on.
Kathryn Rubino: Yeah, can we just — just kind of take a second to recognize that the lead of the story is not he has a terrible understanding of the underlying law. I mean he’s only — he’s famous for being a lawyer first and he does not seem to have a great understanding of any of the things that he’s supposed to be lawyering about.
Joe Patrice: Well yeah because this isn’t some unique impeachment, it’s a weird animal thing. The fact witnesses can’t be lawyers is a real thing and it’s a thing that can be abused too I mean we’ve written in the past there’s a case that Alan Dershowitz also somebody being discussed in this impeachment — impeachment trial Alan Dershowitz’ case revolving around Jeffrey Epstein and those allegations. One of the tactics he deployed in that case was to suggest that this is all a crime that the lawyers for the other side are using against me to extort me and therefore he made a motion saying that means their lawyers are fact witnesses to my counter claim. So, they can’t be the lawyers anymore which seems like –
Kathryn Rubino: Trying to do an (00:16:07).
Joe Patrice: Yes, it seems like an end-ran and anything that a judge would say no you don’t get to circumvent the choice of counsel that the other side has by making largely baseless allegations as it turns out the judge said that was okay, that’s what led to another lawyer getting involved but that is a tactic that can be abused but because it’s something — we all know all sorts of context.
Kathryn Rubino: If not being abused, right? he was there — he’s in –
Joe Patrice: In this instance, yes.
Kathryn Rubino: Trial by combat.
Joe Patrice: Right, my point was it’s a tactic that exists beyond the impeachment world it is a common litigation point to say.
Kathryn Rubino: This is this is basic lawyering — this isn’t like “Oh I don’t know, you haven’t been in the courtroom in 15 years” this is kind of 101 level of stuff.
Joe Patrice: And if you haven’t been in the courtroom for 15 years, you might not know how the legal industry has developed but if you’re interested how have law firms whether in previous economic downturns have come out stronger on the other side. LexisNexis interaction has released an in-depth global research report confronting the 2020 downturn lessons learned during previous economic crises. Download your free copy at interaction.com/likealawyer to see tips, strategies, plans, and statistics from leaders who have been through this before and how they’ve reached success again. One thing that has come up a lot over the last week is the United States which is more or less not deployed the death penalty over the last several decades has been on a tear of executing people driven largely by the Bill Bar run Department of Justice on his way out the door. These cases are coming up to the supreme court and the supreme court is punting repeatedly. In fact, going to the point where it’s procedurally weird some of the stuff they’re doing to bend over backwards, to ensure that these executions happen.
Kathryn Rubino: Yeah it’s kind of unsurprising I guess but still deeply upsetting that this is sort of the last thing that the Trump administration wants to be known for but I suppose in their mind killing people is better than insurrection? I don’t know.
Joe Patrice: It forms a weird counterbalance with the mass commutation and pardonings, right? like on this one hand, there’s this image of clemency coming out of one side of their mouth and this we need to just like no modest delay can happen we have to kill all these people within a week.
Kathryn Rubino: Yeah, I mean there are two Americas, right? we know that this is another way that this — this is true there’s — there’s things that people of means and people of privilege get to you have and that’s sort of the clemency pardoning side of his mouth.
Joe Patrice: I mean, I don’t think that all those people — obviously if we haven’t seen that but a lot of those people are not going to be people of means but he’s pardoning but yeah. It’s an interesting juxtaposition Justice Sotomayor of course written some scathing defends to these cases about how this is getting out of hand and seems to be entirely politically motivated which I’m sympathetic toward but it’s also one of those unfortunate places where I feel like your hands are more or less tied. If you begin from the premise that the death penalty is okay, putting aside whether or not that should be where you begin but it’s clearly where the majority of this court is. At that point, it’s hard to imagine what procedural roadblocks you can throw up here like it’s the only real way to slow this stuff down as if you’re coming at it from the perspective — there’s an actual eighth amendment problem with it.
Kathryn Rubino: We just don’t have the votes for that, right?
Joe Patrice: Right and it’s unfortunate and we shouldn’t – people in the past have written about it. How we shouldn’t push this as quickly. This is the sort of thing that you don’t want to make a knee-jerk decision on, but unfortunately, I think the courts are in a place where if you’re not going the whole yard of this is not okay, then I don’t know what they can do to slow it down.
Kathryn Rubino: Yeah, I mean, I guess I don’t know the sort of the ins and outs of several of the cases but it does seem to me that there are potential procedural issues with the rush to do it. As if there’s some time — because there’s a literal date that they have to be executed by in order for it to happen and then, I think that that does create quite a few. I think the procedural and constitutional issues that probably should be litigated and heard out and argued but we’re not getting any of that.
Joe Patrice: Yeah. I do think there could be an argument that like the idea and Sotomayor makes this point in one of the pieces. The idea that after four years, everything has to be done in the last couple of weeks is indicative of ill-intent. But yeah –
Kathryn Rubino: I mean, listen I’ve said it before I’ll say it again, I love Justice Sotomayor but that’s right to me. It’s hard for me to argue against it. I think she’s right.
Joe Patrice: We’re going to transition now out of some of these weightier subjects to have a quick conversation about the state of the legal industry and business side stuff for law firms but a lot of it is going to deal with people and jobs and administration so I think this is an excellent point to hear from our friends at Lexicon who are going to talk about administrative tasks.
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Joe Patrice: Thomson Reuters came out with a report in conjunction with Georgetown, last week about what the state of the legal industry and what it showed, and we’ve talked a little bit about this with other various guests over the last year. What it showed was that there was a significant slowdown COVID related in the couple of months immediately after that it really caught fire in the United States but that was largely followed by a recovery. And that the second half of the year was not all that far off.
Kathryn Rubino: Yeah, I mean, I think for the legal industry was not hit particularly hard. Certainly, not comparative to other American industries. Yeah, and that’s sort of been the underlying tone of most of what we’ve written in 2020. And we had that kind of our year-end wrap-up shows talking about how it wasn’t just about sort of the COVID austerity measures that happened in the very beginning of 2020 or even some of the layoffs or furloughs, but by the end of the year, the story was COVID bonuses.
So you’re seeing more money at the end of this year, which look listen folks are working harder. It’s a terrible thing to have to live through if companies have the means to give the money to their workers they should do that. But that’s the story is how much more money are you getting year over year from last year. We’ve seen the legal industry has bounced back and what we’re hearing sort of more anecdotally there haven’t been a ton of studies about the number of hours yet the people build in 2020. But people or certain groups are talking about really high hours depending sort of about your specialty and whatnot. So that that is the thing that we are seeing.
Joe Patrice: Other than bankruptcy, most groups took a step back over the course of the whole year. That said, it was a more modest cutback than I think a lot of us would have expected by the time all of a sudden done. Revenue was more or less on track but what was really interesting was the level to which the expenses are just non-existent.
Kathryn Rubino: Well, that’s true.
Joe Patrice: I like the level to which they –
Kathryn Rubino: No one had a travel budget.
Joe Patrice: Right. Travel, recruiting all giant line items that just didn’t really get exercised. That is where we ended up with profits per equity partner being so much higher this year, and hence, bonuses.
Kathryn Rubino: Yeah, and that’s even considering the fact that they are paying their associates more money. If you think about COVID bonuses or special bonuses. Even if you count that, you’re still seeing above to the –
Joe Patrice: Yeah, still high.
Kathryn Rubino: — to the partner numbers.
Joe Patrice: Yeah, now the unfortunate thing is some of this was driven by cutbacks in staff, which we’ve talked about before is super unfortunate because obviously as technology and the needs of the profession have evolved, staff has been not as necessary in the numbers that has been in the past, where brute force was so important to get the legal industry job done. That said –
Kathryn Rubino: Right, sort of kind of the (00:24:52) conservative nature of the legal industry has meant that for years. Even though the same services they needed to change their sort of model because of technology and other differences they sort of delayed that and only because of COVID that they actually — a lot of firms take the step of actually making the changes.
Joe Patrice: Well, as we’ve said on the show before it’s more of the unfortunate nice guy effect of law firms that they feel they’re doing a favor by saying, we probably should cut back this segment but we can afford it, we can keep going and keep these people on the payroll for a while longer when times are good, and then when times are bad they drop that hammer and it’s unfortunate because when times were good that was the times when those folks could easily go out and get a new job. Instead they do it out of the worst possible time when things are back and it just exacerbates the pain, which is problematic. Most firms though as the report outlined came out of the end of the year in prime position to take off as things get better. Basically, operating at close to where they were at the end of the year, before and of course with a bunch of money in their pockets. That’s not true of everybody. I mean, we did see that Norton Rose made some significant cutbacks of both staff and attorneys. These weren’t U.S based jobs, but for global law firms.
Kathryn Rubino: Yeah, I believe that they were under the reorganization umbrella of sort of cuts.
Joe Patrice: Yeah, but I mean, a global law firms are global law firms, and the idea that they had to cut in Europe and Asia was a suggestion that not every firm has come out of this as well as others. Now question, was that something where an issue with how they weathered the storm or a question of they were already a little bloated their series of mergers has we’ve had rumblings in the past from partners who have left that firm that the organization was in trouble because of redundancies and the way in which they kind of have grown. But it’s a testament due to the fact that there are still some firms as much as we have a rosy picture generally speaking of how we’re coming out of this, not every firm is in that position.
Kathryn Rubino: Yeah and I mean, I don’t want to kind of take the blush off the rose there but I think that the good fortunes of the law firm are often on the backs of the bottom of the totem pole.
Joe Patrice: Yeah. Well, I think that’s more or less everything we had to talk about. Thanks everybody for listening. You should be subscribed to the show. Give it reviews, stars as well as write something because that helps out the algorithm. Know that you’re an engaged member of the audience. You should be reading Above the Law as always. You should follow us. I’m @josephpatrice, she’s @kathryn1. You should be listening to the Jabot, which is a show that she hosts. You can listen to the Legaltech Journalist Roundtable is like what we call it internally, but that’s not what it’s called on your podcast subscription services where they call it Legaltech week, so listen to that because that’s what I’m on.
You should be checking out all of our sponsors, Contract Tools by Paper Software, Lexicon as well as LexisNexis Interaction and their new report. You should do some other thing, I’m sure but Kathryn is looking away right now and not really engaged in the conversation so I don’t know.
Kathryn Rubino: Sorry, this is usually your moment to shine. The end credits.
Joe Patrice: Oh, this is shining. Is your theory? Okay, I mean, I’m shining for 30 minutes non-stop.
Kathryn Rubino: Maximum effort.
Joe Patrice: Non-stop. There is no pause, no off switch here. I’m just –
Kathryn Rubino: There is no off switch, that is correct.
Joe Patrice: Anyway, so with all that said, we will check you out next week. Happy short week everybody and I mean, not that lawyers get short weeks. There was a holiday. You still probably had to work, unfortunately. All right talk next week.
Kathryn Rubino: Peace.