Adventures in impeachment linguistics!
Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a...
Kathryn Rubino is a member of the editorial staff at Above the Law. She has a degree...
What does the Constitution really say about impeachment? It’s not crystal clear, but what is obvious is that some people claiming to divine the “plain meaning” have already reversed themselves making you wonder just how “plain” these meanings can be. Meanwhile, the Biglaw revolving door or lack thereof continues to spin for former administration officials. Stepping away from the political scene, we have Biglaw partners attacking associates and a frank conversation about what it means to be an effective lawyer-manager.
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Above the Law – Thinking Like a Lawyer
Text Is Really Only Part Of Context
Joe Patrice: Hi!
Kathryn Rubino: Hi!
Joe Patrice: Welcome to Thinking Like a Lawyer. I’m Joe Patrice from Above the Law and I have Kathryn Rubino from Above the Law here. How are you?
Kathryn Rubino: I’m doing pretty good. It’s February. It’s our first episode in February 2021, which means that we did not actually get stuck in a time loop. After everything that happened in January, I was getting a little worried.
Joe Patrice: I think that we are moving forward. Obviously, I have moved —
Kathryn Rubino: You just think that?
Joe Patrice: Yeah, no. I moved my entire life savings into GameStop, so really hope —
Kathryn Rubino: So, you’re doing okay?
Joe Patrice: Yeah, no. I got it at 300, I feel like it’s going to only go up from here. Yeah, no. I did not do that. I certainly would have if I had been privy to the logic of it when it was at $3 but right now, I would not do that. There’s already been a class action filed over their decision to suspend trading briefly.
Kathryn Rubino: Yeah, I mean mandatory arbitration being what it is.
Joe Patrice: Well, you know, it’s interesting you mentioned that. I did write that mandatory arbitration, which the Supreme Court forces us all to suck up and take by these customer agreements. As it turns out, Robinhood’s agreement actually does have a carve out that says that if somebody makes a putative class action, they can’t force it into arbitration until that gets resolved basically.
So, there is a carve out. I gather a tipster sent that to me today. I hadn’t read that closely in the wall of boilerplate —
Kathryn Rubino: Yeah, like why would you?
Joe Patrice: But buried in the boilerplate, there’s some language like that. Apparently, according to this lawyer, there’s some sort of California law that requires you to have a carve out for that, so there is —
Kathryn Rubino: Yey, California!
Joe Patrice: — kind of a technical way around that but yeah —
Kathryn Rubino: Well, I mean, even if it eventually has to go to arbitration, if it’s after the class is certified.
Joe Patrice: Right or denied or whatever.
Kathryn Rubino: Right, sure.
Joe Patrice: But it is interesting.
Kathryn Rubino: Although it seems very ripe for class.
Joe Patrice: It seems a little bit, but yeah, although —
Kathryn Rubino: Definitional class action.
Joe Patrice: The more we learned about it, the more it appears as though Robinhood had been cut off by its banks because it just didn’t have enough to cover the kind of bets it was making. I think they’ll probably win that it wasn’t like they were trying to screw these people, it was —
Kathryn Rubino: That is a question of whether or not they’re liable, not a question of whether or not the class is a good class, right?
Joe Patrice: Yeah.
Kathryn Rubino: Those are two different questions whether class should be certified and whether or not the claims have any merit.
Joe Patrice: Yeah. Anyway, so, that was just a wild aside that we went on but —
Kathryn Rubino: That was just kind of a wild way to end January, right? Like as if insurrection, impeachment, inauguration wasn’t enough. We also had to end with sort of securities.
Joe Patrice: Yeah. Well, and as lawyers of certain age, while GameStop —
Kathryn Rubino: Excuse me?
Joe Patrice: Yeah, while GameStop has obviously been the most —
Kathryn Rubino: That was not okay.
Joe Patrice: Can you just —
Kathryn Rubino: No!
Joe Patrice: GameStop obviously has been getting all the headlines, but Blackberry is back. Blackberry also is seeing a surge based on Reddit involvement and what I mean by lawyers at a certain age is we’re the folks who used to have to have Blackberries that used to ding constantly.
Kathryn Rubino: Blackberries used to be a thing.
Joe Patrice: They still technically are but obviously most people have transitioned to smartphones.
Kathryn Rubino: Sure and I think I meant more specifically in the legal industry like it was like having your Blackberry was definitely a moment.
Joe Patrice: The company still does stuff. I actually spoke with some folks from that a few years ago at a tech conference and now what they’ve moved toward, which makes sense is under their branding, they sell stuff that basically allows you to take your smartphone and they firewall off your phone for phone’s sake and your phone for work’s sake. It’s a different phone number, all the stuff is stored differently, all the stuff is security, different —
Kathryn Rubino: But one device?
Joe Patrice: Yeah, which makes sense.
Kathryn Rubino: That also seems like it’s incredibly useful.
Joe Patrice: Yeah.
Kathryn Rubino: I mean, you do know there’s tons of lawyers out there who despite sort of whatever, still carry around two devices even if they’re both iPhones or whatever their device of choice is just because it’s easier to keep things separate from work —
Joe Patrice: Or worse, just have one and have to have clients texting you while you’re dealing with your kids and —
Kathryn Rubino: Right and then if you leave the firm who has your number and —
Joe Patrice: Exactly and apparently, what Blackberry does is they set up these numbers which these numbers are owned by the firm but they can be fired, so your own device can have this separate.
Kathryn Rubino: It’s actually surprisingly — yeah.
Joe Patrice: It was an interesting conversation. This is again an aside, although that conversation I had, if I recall it right, yeah, it was at Legal Tech New York or what used to be called Legal Tech New York, then became Legal Week. This year they’re calling it Legal Year, so it —
Kathryn Rubino: It needs to not get longer.
Joe Patrice: There’s been conference creep but yeah, one of the big legal technology shows of the year, that’s where I spoke with them last. That’s actually kicking off this week, so I’ll be reporting from the virtual legal tech world.
Kathryn Rubino: Yeah, I mean legal tech of all the sort of industries seems to have fared the best in pandemic world because we all realize all of a sudden, we need all of these things.
Joe Patrice: The most curmudgeony of lawyers is starting to realize that technology is important and the only way they can get some of this stuff done. Yeah, so legal tech has done reasonably well. You know, there have been struggles and everybody struggled but like more or less, it seems like the legal industry is —
Kathryn Rubino: Seems like it’s their moment to prove their value proposition at the very least. So, even in two years, they can still point to the pandemic as an example of why their product is so useful and such a good value for folks.
Joe Patrice: Yeah and you know, it’s all part of how everybody’s dealing with the economic fallout from the pandemic.
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I think the big story of last week for us and it’s going to be a big story going forward is there’s an impeachment trial happening.
Kathryn Rubino: There is.
Joe Patrice: Yeah, and we’re going to have —
Kathryn Rubino: Impeachment 2, Electric Boogaloo.
Joe Patrice: Yeah, and we’re going to have to talk about this a bit even though it’s not properly legal in some ways. It seems like a largely legalist show that results in a purely political decision but —
Kathryn Rubino: Sure.
Joe Patrice: Well, anyway, we had this and one of the interesting conversations from last week where we I wrote a story about Chief Justice Roberts has decided not to preside over the trial.
Kathryn Rubino: It seems like the constitution would suggest otherwise and maybe not suggest as opposed to explicitly state —
Joe Patrice: And that’s what became something of a firestorm issue. So, I wrote an article, which takes your stance that the plain language of the constitution seems to indicate that chief justice should be presiding. Others disagreed and it became an interesting back and forth on how to interpret language and my take away from it was not so much I’m right or they’re wrong as much as this gives lie to the whole concept of textualism and plain meaning because if plain meaning can be as perverted as having these two different takes on a simple sentence, then it’s pretty clear that it’s ridiculous to try and live under this obvious meanings exist logic.
Kathryn Rubino: Let’s back up for one quick second. Okay, so the text of the constitution says when the president’s impeached the chief justice presides over the trial, right?
Joe Patrice: Yes.
Kathryn Rubino: So, walk me through even if it’s kind of an acrobatic endeavor what the arguments that anybody but Roberts should be presiding?
Joe Patrice: The language is that the senate shall have sole power to try all impeachments. When sitting for that purpose, they shall blah, blah, blah. When the President of the United States is tried, the Chief Justice shall preside.
Kathryn Rubino: Cool.
Joe Patrice: What does that mean? The interpretation that Roberts seems to be taking and that his defenders and arguments with me have taken is that the line when the President of the United States is tried, the Chief Justice shall preside. Since there’s only one President of the United States at any given time, that means —
Kathryn Rubino: It is in fact Joe Biden?
Joe Patrice: That means that only if Biden were being tried would the Chief Justice preside, not if it’s any former president.
Kathryn Rubino: But it also seems pretty clear especially from like an originalist point of view that there were contemporaneous documents that said that former presidents can be tried for actions they took while in office.
Joe Patrice: And this brings — yeah.
Kathryn Rubino: And so, once that’s true, it seems to me pretty clear that the still refers to the presidential action.
Joe Patrice: Well, and this gets to that question. So, more people Ross Guberman from Legal Writing Pro had put out actually after my story, used my story as a jumping off point to ask some of his followers who are legal writing obsessed what does this mean. And, the majority, a super majority said obviously that means the current president when it says “the president is.”
The problem with it is that if you take into account all the sentences in a row here and the history of impeachments going back to English tradition, the argument is that people aren’t being tried, the office is being tried, and that was how in the past when we’ve had all of these impeachment trials of people who’ve left office, the justification for it is, no, you can’t impeach Bill Smith, but Bill Smith took actions while Secretary of State and so, you are impeaching the office of Secretary of State even though that person has since left it, and that’s how the history of this works.
It’s always about the office. Given that there is only one Office of the President of the United States, you would not say when presidents of the United States are tried, you would only communicate when the President of the United States is tried.
Kathryn Rubino: I also refuse to believe that any founding father thought that this would happen this way that that somehow the things that happened right before a president left office were high crimes and misdemeanors according to the House, were about to go on trial in the Senate but the Chief Justice would not be presiding.
Joe Patrice: Right. So, the argument is that if you were trying to write down as a framer approaching this sentence and you wanted to communicate the message there will be trials and if the presidential misconduct is involved, it is important enough that it requires the Chief Justice, how would you write that and the answer is you would write literally the sentence “when the President of the United States is tried, the Chief Justice shall preside.” Because it’s about the misconduct of the office, not who’s sitting there right now.
Kathryn Rubino: If you want to get like super kind of technical bitchy about it, then I don’t know why Lahey should take over as the person who presides. Shouldn’t it be then a former chief justice? I mean, none that they are alive but like a chief justice.
Joe Patrice: No, I think it’s clear that it’d be the Chief Justice.
Kathryn Rubino: No. I mean I agree but I think that that kind of goes to the point.
Joe Patrice: No, I think the thing that really goes to the point when I have these arguments with folks saying, “Oh, no. It says is tried, it means present, it’s about the disruption that happens when the sitting president is involved,” which first of all, there’s not really any disruption that happens when a sitting president’s involved. It’s not like they show up —
Kathryn Rubino: As our lifetime has proven.
Joe Patrice: As our lifetime has proven a couple of times, but the argument that it’s about that, it kind of causes problems with the history of this argument as a whole, which the same people who are making the argument, “no, no,” what this means is about the current president and they intended this language to only refer to the current president are the same people who a week earlier had been making the argument that the framers never intended anybody but current office holders to be tried anyway, which means they went from saying, “Well, clearly, this means you can’t try any former officers,” to once that was proven wrong they said this sentence clearly not only was it true that former officers could be done despite what they’d said earlier but they felt so strongly that former officers could be done that they wrote this sentence intending only to apply to current officers, right?
Like the whole concept that this sentence is time-based requires believing that their earlier claim that it was so obvious that they couldn’t do any formers couldn’t be real.
Kathryn Rubino: Yes, I mean I think what is clear is that the purpose of all these arguments is to cast the entire process with illegitimacy.
Joe Patrice: To undermine the whole process. At first was that they couldn’t do it at all, once that was proven untrue, they said, “Oh, not only do they think it was possible they wrote this sentence to mean this, which doesn’t make any sense but does remove the Chief Justice from it, which undermines the legitimacy of the whole process,” but yeah, it’s a series of disingenuous arguments built on top of each other.
Kathryn Rubino: Yes and it’s only intended to extend a political goal.
Joe Patrice: But again, this is the problem. When the President of the United States is tried, if you slice that out from any context, you could easily see how that means the current one but when you look at it within the full context of the paragraph and the history behind it and tried to define what anybody writing this, one of the best tipsters who was reacting to it wrote me was that the true test of this is if you put a gun to somebody’s head a year ago and said if the President does XYZ, what happens? They would have told you, well then the Chief Justice shall preside. This only became an interpretation a week and a half ago.
This was something that nobody would have thought the sentence meant until a week and a half ago when suddenly it became something that they had a political bent towards. But anyway, it was very interesting to me, not one way or the other, but kind of prove that this textualism and this like worshiping of this as a concept falls apart because you can’t divorce meaning. You can’t parse it this much from context without suffering some sort of problems. It’s just how important it is to take language and understand like exactly what language does because it has power.
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Kathryn Rubino: Well, it doesn’t seem like we’re actually done with impeachment issues though, right? Because who’s even at this point representing the President?
Joe Patrice: I don’t know. No, I actually do know, David Schoen and Castor.
Kathryn Rubino: Well, that was the whole thing, right? There was a whole list of other folks at one point that have all since run far, far away from the entire issue.
Joe Patrice: Yeah, but the issue is yes, they put together a trial team based around Butch Bowers from South Carolina, who Lindsey Graham had set him up with. That trial team included other folks who had been hauled in front of South Carolina’s Court for racist activity before.
Kathryn Rubino: That seems like a thing.
Joe Patrice: It was but don’t worry, those folks are all gone. All of those folks left apparently over a mutual disagreement Trump wants to not argue this argument about whether or not former officers can be impeached and instead use the impeachment trial to just make every argument that the election was fraudulent and that dominion machines were illegal and stuff.
Kathryn Rubino: That seems like a bunch of —
Joe Patrice: It seems like a bad — yes.
Kathryn Rubino: It’s also a bad legal strategy.
Joe Patrice: It’s a bad legal strategy. I mean —
Kathryn Rubino: Because even in a world where we’re true, which is not the current world we live in, right? Even if there was some problem, the question is whether or not he incited a riot, right?
Joe Patrice: Well, yeah. His argument would be that all of those things are true, so they can’t be bad speech.
Kathryn Rubino: They’re not.
Joe Patrice: Anyway, so the real problem though from the party’s perspective is they don’t want their senators to have to take a stance on these claims because they view them as somewhat toxic and they don’t want to be on record doing that. They want to have a simple discussion that former officers can’t be impeached and then walk away. They’ve already held vote to that effect in which 45 of them already have made clear that that’s what they want to do, so this seems like a bad decision strategically but he managed to find a few people willing to take this on.
Kathryn Rubino: Is it Tiffany Trump? She passed the bar?
Joe Patrice: No. But as I said, David Schoen and a former Pennsylvania solicitor General Bruce Castor. Bruce Castor obviously is most famous for not charging Bill Cosby with sexual assault back in the day, so that’s his deal. Schoen is well-known for representing Russian mobsters and so on. He was actually in talks to represent Jeffrey Epstein before his death. He believes that Jeffrey Epstein was murdered. These are the caliber of attorneys who have now shown up on this team.
Kathryn Rubino: So, it’s just going to continue to get worse.
Joe Patrice: Should be exciting, yeah.
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Joe Patrice: All right. So, now let’s talk about the second biggest story of the week. What’s going on with over-the-top emails?
Kathryn Rubino: Yeah. I got a story from across the pond, a UK website put up an internal email that a partner at a firm sent and he was pretty annoyed that folks hadn’t entered their time and like listen, entering your time on a regular basis is an incredibly important thing when you’re a time keeper, right? Like that’s how the firm gets paid. It’s how a firm decides their staffing needs, there’s lots of good things for it, but of course, I mean I have sympathy for the attorneys because I was awful at keeping my time, entering my time on a timely basis when I was a practicing attorney. It was like the bane of my existence.
I mean, I have sympathy kind of on both sides but regardless, this is obviously something important that does in fact need to be done, but this partner’s reaction was not just to tell folks, “Hey, you should do something about your time. Your time hasn’t been entered.” It was to send a firm wide email with the express purpose, like it says, like, “So, because you haven’t entered your time, I’m going to now embarrass you.” And it was fellow partners, it was junior attorneys, it was associates at the firm and kind of going like, “I can’t believe you only billed one hour for the junior’s attorney,” he said to them, “maybe you should research how your employer can get that on your employment contract because obviously you’re useless.”
It was a lot and the thing that really got me, it wasn’t like, “Oh, you haven’t entered time for the month.” It was like a week or two ago. It wasn’t even the most ridiculous example of delayed time entry that you’ve ever heard of. It’s usually at the end of the month that all the time gets processed, this isn’t crazy, it was only a couple weeks late, but it just kind of goes more to the sort of larger point that we see in big law firms on both sides of the pond, which is that lawyers are frequently terrible managers.
Joe Patrice: Yes.
Kathryn Rubino: Like fear and embarrassment are not a way to conduct business.
Joe Patrice: Well, they are a way.
Kathryn Rubino: They’re not a good way.
Joe Patrice: Yeah, it’s problematic. I mean look, I’m used to a management style that relied a lot more on passive-aggressiveness than on active aggressiveness like I remember, it was my years in BigLaw were marked mostly by partners calling and just kind of saying, “God, you know, I just really had hoped you’d be able to do XYZ.” Like it was that kind of thing over and over again.
Kathryn Rubino: I’m not mad, I’m just disappointed.
Joe Patrice: It really was.
Kathryn Rubino: Did they know you were Catholic? Was that part of it that is kind of —
Joe Patrice: This wasn’t directed at me largely. I mean, this was the whole firm kind of operated on this sort of thing, which has its advantages and disadvantages. Obviously, it’s not as harsh as being yelled at but in some ways, it felt okay with — it was of a kind with the fact that the firm prided itself on collegiality and if your colleague’s passive-aggression I guess is how you get things done, but, yeah. So, I’ve never really dealt with the harsh —
Kathryn Rubino: I think there’s a tremendous difference though between being screamed at and passive-aggressive. There are other options in there like being straightforward and saying, “Hey, I need the following to get done.” I don’t know, there’s kind of this assumption in law firms that you just spend enough years at the firm, then you must be ready for management. There’s rarely, if ever, any management training, any sort of sense of, “Hey, now that you’re in charge of a team, this is how you get stuff done.” It’s just kind of like, “Well, you’ve been here a while. You must have pieced it all together.” We don’t do anything else in law firms based on just the figure it out without training and research. That’s kind of the basis of the legal profession except when it comes to management. It’s like, “Well, you’ll figure it out.”
Joe Patrice: Right. It’s true.
Kathryn Rubino: Instead, what people do is they wind up mirroring what they’ve been shown, which is often terrible, so it just continues. I mean, if you’ve never had a good manager and the only sort of manager you’ve ever had is a partner who likes to scream or send embarrassing emails or whatever, that’s what you are going — either you’re going to go this is the only effective way to manage or do the polar opposite and be too permissive and lenient and not set any sort of benchmarks or standards for your team. Neither is a particularly effective way to manage or lead, but there’s rarely management training for law firms.
Joe Patrice: I’ve never understood why CLE doesn’t force a lien in basically to have you take the sorts of management courses that corporate America has. I think that one of the skills should absolutely be you should be much as you have to do the couple hours of ethics, at least a couple hours of the practice of stuff should be —
Kathryn Rubino: Yeah, diversity inclusion now for a lot of jurisdictions are required.
Joe Patrice: Yeah, tech requirements in some, jurisdictions, somewhere along the line, we should just haul in a corporate level management person to have the Dr. Rick Style explanation of how to avoid becoming your partners.
Kathryn Rubino: Yeah. This is how you effectively manage. This is how to manage people and the truth is, if you’re leading a team, if you are a good manager, you are more likely to get team members who will go to the wall for you. If you’re a good manager, you can ask folks to do the tough, “Listen, I know this is the worst but this has to get done,” and like, “Let’s be a team together,” and that kind of inspiring management is actually the most effective way to get it done and lawyers rarely have any concept of how to build the team where folks are loyal to it.
Joe Patrice: This is the sort of thing that you need to start learning kind of earlier in your career like around the mid-level period.
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That’s pretty much all that we had happened this week.
Kathryn Rubino: It was a lot.
Joe Patrice: Yeah. It really was a busy week like there were days where it just never stopped.
Kathryn Rubino: Yeah, I think there’s a day where you wrote five or six stories. That is a lot.
Joe Patrice: It’s a deluge. Anyway, so we will be back again next week. You should be reading Above the Law as always. You should be subscribed to this show, so that you get new episodes directly delivered to you. You should be letting people know about the show, writing reviews, giving us stars, writing some things about it, all of these help. You should follow us on social media. She’s @kathryn1. I’m @josephpatrice. You should be listening to the Jabot, her other show. You should listen to Legal Tech Week, the journalist’s roundtable that I do on Fridays. You should be listening to the other offerings of the Legal Talk Network and with all of that said, we will be back next week.
Kathryn Rubino: Peace!
Joe Patrice: Yes!
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|Published:||February 3, 2021|
|Podcast:||Above the Law - Thinking Like a Lawyer|
|Category:||Legal Entertainment , News & Current Events|
Above the Law - Thinking Like a Lawyer
Above the Law's Joe Patrice and Kathryn Rubino examine everyday topics through the prism of a legal framework.