Joe and Kathryn break down the long-awaited John Durham indictment that tagged former Perkins Coie partner Michael Sussmann and find it… less than persuasive. Emory Law School has yet another racial slur in class incident, forcing the gang to ask if there’s something in the water down there. But given that the most recent incident involves the brother of another repeat offender on this score, maybe it’s just a family thing. And finally, Above the Law looks back at the day that launched an internet trend and renamed a law school forever.
Special thanks to our sponsors, Lexicon and Nota.
Joe Patrice: Hello and welcome to Thinking Like A —
Kathryn Rubino: Hello.
Joe Patrice: Hey. Welcome to Thinking Like A Lawyer. I’m Joe Patrice. That’s Kathryn Rubino. We are from Above the Law, which you may or may not be reading. But if you aren’t, welcome to this digest of the top news stories of the week in this little corner of the universe that we call law.
Kathryn Rubino: I mean, I think it’s more than just a digest, right? We add new perspectives. Sometimes the longer you sit on a story, the more annoyed you get it by it. You get a lot more saltiness from both. I think that is a fair assessment of where we are.
Joe Patrice: Yeah, that sounds about right. So cool, so how are you doing?
Kathryn Rubino: I’m doing okay. That is still annoying in case you look worried. Although it did seem sort of abortive.
Joe Patrice: Yeah, it didn’t sound quite right, did it?
Kathryn Rubino: It didn’t. It didn’t. You want to try again? It’s like premature sound effects or something.
Joe Patrice: Yeah, no, it’s got something wrong, but maybe I don’t know. We’ll figure it out.
Kathryn Rubino: It’s okay, it’s all right. I think our listeners still appreciate the efforts being made.
Joe Patrice: Welcome to small talk everybody.
Kathryn Rubino: How was your weekend, Joe Patrice?
Joe Patrice: Not great.
Kathryn Rubino: Not great? What’s up? What’s up?
Joe Patrice: Yeah, well, as the Joe heads out there now who listen to all of my appearances. If you were checking out the —
Kathryn Rubino: Joe heads? Is that what we’re calling your fans? Joe heads?
Joe Patrice: Right. Unless there’s a better name.
Kathryn Rubino: I mean, I think it’s very funny that you think that there should be a name. Let’s start there. Let’s start there.
Joe Patrice: It’s a decent fan club.
Kathryn Rubino: Is it? Is it?
Joe Patrice: I think so. Anyway –
Kathryn Rubino: So is there somebody besides your mom in said fan club?
Joe Patrice: No, I have robust fan base. Yeah. Anyway, so as the real hashtag Joe heads know, and listened to the Legaltech Week News Roundup that we do with the journalist.
Kathryn Rubino: Which, you know, points for them figuring out what podcast it is, since you can barely name it.
Joe Patrice: Listen, the point is, if people listen to that, they heard this tale already, but despite being vaccinated and everything have managed to acquire a COVID-19 breakthrough case. Yeah, so I only actually had symptoms for about 24 hours thankfully.
Kathryn Rubino: That doesn’t terrible at all. Yay science.
Joe Patrice: It wasn’t, though after a couple of days of being okay. I did lose my sense of smell, which plagued me for most of the weekend. It appears to have come back mid-day Sunday.
Kathryn Rubino: So, couple days, couple days without your sense of smell. That’s it?
Joe Patrice: Yeah, but that was real bad. It’s one of those things that you don’t think of needing until you don’t have it.
Kathryn Rubino: I mean, i think of it. Yeah. For those who may not realize in January of 2020. I was sick and then somehow lost my sense of smell for six, seven weeks really. So I mean, it was before technically anybody knew that COVID was in the United States and I had not traveled abroad or anything like that. But yeah, I didn’t have my sense of smell for a long time. The fact that you had a day and a half of unpleasantness seems relatively fine compared to the many weeks and the many doctors’ appointments I went to because back then, no one even knew that losing your sense of smell was a sign of COVID. I was like, “I can’t smell doctor.” I went to multiple specialists and they were all, “Yeah, that’s weird.” No one had any idea and then when it finally came out, that was like a sign of COVID-19, I had some follow-up telehealth appointment. One doctor was like, “Do you think that maybe you had COVID-19?” I was like, “I don’t know doctor. What do you think?” But anyway, I’m glad that you seem to be on the mend. Your voice does sound a little off.
Joe Patrice: Oh, interesting.
Kathryn Rubino: Yeah, sounds a little — I mean, it sounds like you have a cold or allergy or something like that. Nothing like crazy.
Joe Patrice: Yeah, I mean, maybe. Who knows I probably have everything right now, but we’ll see. But so, it was a less than ideal weekend for that reason, but otherwise, everything was fine.
Kathryn Rubino: Got you. That’s good, but I guess you were mostly resting and all that kind of stuff.
Joe Patrice: Yeah, so cool. Yeah, anything else?
Kathryn Rubino: You want to ask me how my weekend was?
Joe Patrice: I did actually and then you just kind of like charged into turning it in all about me which I understand that —
Kathryn Rubino: Well, it was my birthday this weekend. It was my birthday.
Joe Patrice: Oh, well Happy Birthday.
Kathryn Rubino: Thank you, thank you. Second full COVID birthday. Not my favorite, not my favorite. I am officially over as if anybody isn’t’ but I am. I am well in good done with this pandemic. This is too much, too much. Just get vaccinated folks and let’s get to the other side of this as quickly as humanly possible.
Joe Patrice: Yeah, well all right. So, do you want to talk about something like do our job here?
Kathryn Rubino: Interesting, I thought maybe there was something you wanted to say.
Joe Patrice: So, let’s talk about some the top stories that we had of the week.
Kathryn Rubino: My “favorite” story and I use that that word way the way I said it. If you couldn’t tell I was using air quotes with my voice.
Joe Patrice: Well, yeah, no, I don’t think people could tell that.
Kathryn Rubino: Well, my least favorite story maybe. What maybe the most notorious story maybe something like that is the proper way to say it but there was another incident of a law professor using a slur in a classroom at Emory Law School.
Joe Patrice: Yeah, congratulations, Emory, where you can reset that clock of days without slurs in your classrooms to zero. It had gotten all the way up to like ten or something like that.
Kathryn Rubino: You know, I laugh and it is a little bit funny, but it is remarkable. The number of incidents that take place at Emory Law School where professors have been saying various slurs. Mostly the N word, which is, you know, awful, but the most recent was a variation, I guess. There are more slurs that certain professors are willing to say and it was a slur for homosexuality in the most recent case.
Joe Patrice: Yeah.
Kathryn Rubino: Yeah, it’s not great. It’s not great. And, you know, there’s a follow-up to the story that has more recently come out. But a number of full-time faculty have had signed a letter pledging not to say slurs in their classroom. Things that you don’t necessarily think you need until you absolutely need it.
Joe Patrice: Yeah.
Kathryn Rubino: Yeah. Go on.
Joe Patrice: So this has been a frustration that happened a lot at Emory but it’s not exclusive to everybody by any stretch. In fact, members of this professor’s own family do it at different law schools.
Kathryn Rubino: Right. So, yeah, this case was Sasha (00:07:24) and his brother, Eugene, professor at UCLA and has – I’ve also read about for using other slurs in the classroom.
Joe Patrice: What gets me about all this and we’ve talked about this a lot at Above the Law because it keeps coming up, but I just don’t understand. I’ve never understood the logic of it and every time I hear someone tried to defend the logic of it, it only raises further questions to me. These people who are like, “Well, these students if they can’t handle this. Like, how are they going to handle being real lawyer?” I’m like, “Well, they are prepared to handle things as a real lawyer. They don’t need to be ambushed with completely unnecessary gratuitous racial slurs in class.” How about that?
Kathryn Rubino: It’s really the gratuitousness of it that gets me because they’re in a classroom setting. There is zero need for slur, right? Like there are euphemisms one can use. You know what word folks are talking about. It’s not hard, it’s not hard.
Joe Patrice: Is there anything in the fact pattern that says at this point speaker used these racial slurs like racial slurs for African Americans and you don’t know what that is? Of course, you know what that is because you’re an adult in law school.
Kathryn Rubino: Yeah. I believe in the current case, the most recent case. It wasn’t even necessarily I don’t think part of a quote that was going around, but they were talking about a case about the Westboro Baptist Church and the professor referred to it, as you know them, they’re the ones who think that gay people are whatever or something along those lines, that’s not an exact quote. But needless to say, you absolutely could have gotten that across by saying F word. I think we all know which F word you’re talking about in that particular context. Yeah, but it seems super gratuitous and I don’t know, I think that sort of the notoriety that certain folks and I don’t want to scribe motivations to any particular person but it seems as if right wingers are the ones who continue to do this and it seems as if there’s a certain notoriety that they get for doing this and that, I don’t know what else the point would be.
Joe Patrice: Yeah, it just is so bizarrely unnecessary. It is always cast in the terms that students are somehow to blame for not wanting to hear racial slurs in their classrooms. It really just keeps coming back to the gratuitousness of it. It’s this presumption on the part of these professors that students have never encountered any of this language before “they” the exalted professor decides to expose them to it for the first time in their lives, when their college graduates already. It’s just so ludicrous and it’s time to put an end to it at these schools and I’m glad that professors at Emory are starting to think that maybe they should stop.
Kathryn Rubino: Or maybe I think and maybe this kind of goes to the notoriety that’s coming from folks who willingly use slurs in the classroom is that folks want to kind of draw the lines around themselves. You know like, “Yeah, I know there’s lots of stories about Emory law professors, but this is not us.” And this is the group of them that don’t want to be associated with it and I think that’s really what it is. It makes sense, particularly, for upper-class students who are able to select which professors they get. I would not want to take a class with somebody who continues to use slurs and I don’t think that that’s like a weird standard, right?
Joe Patrice: Yeah, like look. There are points where sometimes things can be taken too far and we have that story that you wrote about of a professor who actually took the step of censoring the slurs that were used in a case. And then he got blamed for even talking about the case that that was too far obviously. You do have to teach —
Kathryn Rubino: And I believe that case was eventually settle. There were negotiations involved.
Joe Patrice: Which is good because that professor was doing what you actually want. At a certain point, you do have to cover these sorts of fighting words cases and so on but you don’t have to — I always go back to there’s a scene in Old School where Vince Vaughn is saying that you can tell the kid to put ear muffs on and then you can say all sorts of swear words and Will Ferrell starts doing that and he goes, “You don’t have to celebrate it.” You know, like you don’t have to go too far. These cases need to be talked about, but that doesn’t mean you get to, or should, you know, revel in it which is what appears to be happening with some of these professors and professors that do the work of censoring the cases and saying, like, “Here’s what happened. We are not going to revel in it but, you’ve got to grapple with the legal issue.” That’s what you want to see. So I guess at that point, we can move on from this law school story. Speaking of law school, you went to law school.
Kathryn Rubino: Why did you go to law school?
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Kathryn Rubino: Well, I will tell you maybe not the biggest story, but certainly the most navel-gazing and enjoyable for that reason story was, I think something you covered and Ken Jennings was asked about one of Above the Laws’ all-time greatest moments in the history of website.
Joe Patrice: Yes, for those who are big into trivia. You are familiar with Ken Jennings.
Kathryn Rubino: Listen, I’m the one who does a trivia question of the day on Above the Law, so trust me. I feel you, I feel you.
Joe Patrice: Yeah. So, Ken Jennings, Jeopardy greatest of all time also is on an ABC Primetime show called The Chase which is a trivia competition that has some, you know, it so it’s an interesting format, whatever we don’t need to get into it. But one of the questions that was asked on a recent episode few weeks ago was, in 2016, George Mason University gave its law school, what name until Twitter users pointed out. It’s unfortunate acronym. And longtime Above the Law folks are well aware that they named themselves the Antonin Scalia School of Law, which is known affectionately as ASSLaw, which we still call it, even though they have now tried to backpedal and call themselves Antonin Scalia Law School to try and get around that but everybody in the legal space refers to them as ASSLaw and that’s why.
Kathryn Rubino: Yeah.
Joe Patrice: Anyway, so this question was on there, which was great because it reminded us of the day that this happened both of us were working here at the time and it I was a wild wild day. It was March 31. So the first thing that happened when we first saw, they renamed the law school. We weren’t even on the acronym yet but just the mere idea that they would rename the law school that was so shocking, that we immediately thought it was an April Fool’s joke, which is going to be the next day.
Kathryn Rubino: And as I recall, it wasn’t an announcement. It was a leak, about a future coming announcement so it added to the “Oh, is this real is this not real” kind of vibe that we were living through.
Joe Patrice: Yeah. So, Nina Totenberg reported on it but at the time nobody was confirming anything. So we just were assuming that she’d been trolled by some opportunistic person for April Fool’s Day which seemed even more logical too because you would think, maybe they planted the seed that that’s what this was on March 31st, assuming she’d report it on the first that’s when the official thing was and it was all got to be a big — anyway, so we started going off on this and thinking about it and as it turns out, someone starts writing the draft of it and I can’t remember who it was. I think it was Elie Mystal but whoever started writing the draft, then types out an acronym and realizes for the first time uh-oh which I guess that’s the quibble we have with this question that the Chase did is, it wasn’t really that they have this name until Twitter users pointed it out. It was they have this name until Above the Law pointed out. But just didn’t work although we did in fact do that on Twitter, but we were not the first person. I actually did a deep dive into the archives of Twitter and we were not the first person to use this acronym. There was a Twitter user who has, you know, under a hundred followers, when he saw the news, he immediately called it as ASSLaw and he tweeted it several times to his few followers. It didn’t really take off a couple people replied to him about how that was funny, but no one with more than 150 followers as of today. So probably even fewer back then. But yeah, then we jumped on it, and it became a massive phenomenon, utilizing our Twitter account to do that. So, whether or not — yeah.
Kathryn Rubino: Well, the other thing I thought was interesting that I was almost — I know our others colleagues (00:17:10) back in the day had tweeted about this but the nickname was almost ASSall(ph).
Joe Patrice: Well, yes, so I actually kind of preferred the ASS of Law because it technically is A-S-S of Law so I kind of liked ASS of Law or ASSall and we tested that one out. But ultimately brevity wins out always.
Kathryn Rubino: Sure, sure.
Joe Patrice: And that’s why it ultimately became ASSLaw but yeah, i was an interesting time. It’s one of those moments where you don’t quite realize the extent to which you’re at the epicenter of a cultural moment until after the fact. But, you know, it was seeing this question on a Primetime national television show that reminded me, I was part of a core group of four of us who — five of us I guess, who were at the epicenter of this particular cultural moment. So, very interesting.
Kathryn Rubino: Yeah, that’s pretty fun.
Joe Patrice: And retracing it to see like who else was talking about it at the time was interesting too. It was a fun trip down memory lane brought on by this story. So that is a little navel-gazing but it’s a testament to what Above the Law does and has been doing for the last several years.
Kathryn Rubino: We will always make fun of whatever breaking legal story is happening.
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Joe Patrice: All right, well, since you called an audible on the story you wanted to discuss. I think we probably then need to shift gears and talk about one of the more serious stories of the week, which is that the long-awaited Durham investigation that Trump kept saying, was going to bring down the entire Democratic party has actually issued an indictment and it is yeah, a Perkins Coie partner.
Kathryn Rubino: That’s not great.
Joe Patrice: Yeah, just a Perkins Coie partner who apparently gave information to the FBI saying he wasn’t doing it on behalf of a client but Perkins Coie represented the Clinton campaign, even though he didn’t necessarily but he did bill time to them. But that’s also because the campaign had a flat monthly retainer so billing time to them was kind of like a placeholder place for things to go. So that’s the ultimate culmination of this entire drawn out unnecessary waste of taxpayer money.
Kathryn Rubino: Well, it’s unfortunate for the partner involved.
Joe Patrice: Yeah, who now has had resigned obviously this case that there are people out there like Jonathan Turley, who are really trying to pretend that this case is remotely interesting. Unfortunately, as evidence by the fact that Jonathan Turley believes that it really isn’t.
Kathryn Rubino: Wow, that is a dig.
Joe Patrice: I don’t know whatever happened to that dude. But one of my favorite things to do is grab the legal analysis that he writes and use it as an issue spotter. Be like, all right kids, what’s wrong with the logic here? Because it’s just real broken. Anyway, in this instance, the problem with this indictment for them and we already saw this with the Greg, Craig case that happened where he was ultimately acquitted because there was no materiality to a false statement. The problem with this is materiality, which, you can make a materially false statement without actually misleading people. For instance, an undercover officer may know that you’re lying to them that still can constitute a materially misleading statement. That’s kind of the Michael Flynn situation, which actually that case was also dropped because the Department of Justice decided it was not material because no one was really misled. But in that case, at least it was an attempt to find somebody making a misleading statement. Here, the argument that he wasn’t actually doing this on behalf of the campaign, which he probably wasn’t. And the reason I assume that is if you honestly think that he brought something to their campaign and they said, “We order you to turn that over to the FBI” as opposed to “Whoa, that seems like a serious allegation that you should probably take to authorities,” then you’ve never met a lawyer before because we are is what absolutely we’re going to not try to get involved in claiming that they were behind it.
Kathryn Rubino: So just to back up for a second. What was the stuff that they found that he was researching?
Joe Patrice: A tech executive says that he had found some link between the Trump campaign and a Russian bank. This dates way back to the 2016 and you know, Russia influence issue. He claimed that he had some tech evidence suggesting that there was a link that was given to his lawyer, Michael Sussman. Michael Sussman who works for a firm that also represented the campaign but was working with this other guy, had some meetings where they talked about like look this stuff out there and then ultimately went and delivered it to the FBI saying I’m not doing this on behalf of a client but this information exists and you should have it.
Kathryn Rubino: Got you.
Joe Patrice: It is bizarre how this becomes material when the person he handed it to from the FBI has already testified under oath, the question of whether or not he was representing anybody was never considered and it had no bearing on the investigation seems like that would be a problem because —
Kathryn Rubino: Yeah, seems like it’s not material at all then.
Joe Patrice: Yeah, if in no way put aside misleading. If in no way, it was going to impact the way in which you investigate. It is hard to claim that it’s misleading or that’s it material but I’ll ask. And of course that statement was made under oath because the Republicans in the house had tried to grill this guy, the FBI on the opposite logic, on the logic that they were willing participants in at all. So they managed to elicit all this testimony that didn’t help their original theory, but only now proves why this wouldn’t be material under this —
Kathryn Rubino: The opposite, right, yeah.
Joe Patrice: Yeah. So just real Keystone Cops, kind of operation, but the key to it is it’s unfortunate that a lawyer is now out of a job because of what appear on the face of it to be some fairly weak sauce claims, but, you know, here we are. And this was, of course, brought within days of the statute of limitations closing seemingly, because this guy’s just wasted so much money that he needed to do something to kind of justify that he existed.
Kathryn Rubino: Like we had an indictment and that’s a truth of it, right? We’ve talked to the past that people only remember the first time they hear about a story and when they inevitably have to drop out or gets it gets dropped by a judge in six-week who even is going to remember. They’re just going to say, “Oh, yeah, there was an indictment.”
Joe Patrice: Yeah. It really is weird just as somebody who’s done white-collar crime before it’s just years.
Kathryn Rubino: No. No. No. You have not engaged in white-collar crime. You represented.
Joe Patrice: That is correct. As somebody who has represent — that’s a good clarification for people who are not lawyers.
Kathryn Rubino: You are not admitting. Once again, do not admit.
Joe Patrice: That is fair. Yeah, we talk about it differently I guess. As somebody who has done that practice before. The idea that the government would go forward with something this flimsy is really really telling like just of a breakdown along the path. Because part of a challenge of doing that kind of work is that the government is usually sufficiently careful about what they do and make sure that they don’t bring things that are going to embarrass them down the road. I have a hard time seeing how this one doesn’t go the distance. I can’t see based on these allegations, this guy trying to take any kind of deal. I think that he’s got a good enough case to just run this all the way to the end but whatever.
Kathryn Rubino: That is the difference though, when there is a political and public relations aspect to investigations that are different when it’s just an unknown or if it doesn’t get covered by the media, it’s like below the fold on page, you know, D-17 kind of cases.
Joe Patrice: The crazy thing is folks like Turley trying to turn this into something and suggesting, “Well, maybe they’ll be more indictments to come” and I was like, “The statute was almost gone before we got to this one.” If they’re pulling the trigger on the bottom person on the totem pole now, then they’re not going to get very far. Really weird. The whole theory seems kind of cofacta(ph) like there’s nothing about —
Kathryn Rubino: Did you just cofacta?
Joe Patrice: Yeah.
Kathryn Rubino: Amazing. Go for it. Go for it. Continue, I’m sorry.
Joe Patrice: Yeah, no, the whole logic of it is he misled with this. But the issue is the misleading statement was not the evidence which whether it’s true or not everyone agrees at least according to his indictment. Everyone agrees that folks thought was genuine. It’s that he misled by saying he wasn’t doing it on behalf of a client which seems like who cares.
Kathryn Rubino: Right, it’s a bookkeeping and bonus inducing query if anything, it has nothing to do —
Joe Patrice: The allegation and the indictment is, well, if they knew that they might have other questions and I’m like, “might have.” If you can’t write the indictment as this meant they did not ask other question, then you have a real problem. You’re the government. The FBI is your people. You should know whether they did or did not do something throwing in that potential abuse, that’s not going to fly anywhere. Yeah. I don’t know. As somebody who has, and I’m not saying the phrase “done white collar crime,” but done the white collar crime practice before.
Kathryn Rubino: Practice in white collar crime.
Joe Patrice: Practice in that niche area before. I was just so taken aback by this indictment. I read it and just could not believe that this is something that the government is signing its name to. Weird.
Kathryn Rubino: We live unprecedented times. What I wouldn’t give for some ordinary precedented times.
Joe Patrice: You got Turley doing his thing. The Wall Street Journal op-ed board, like, went off on how this is a damning indictment. I was like, “Tell me you didn’t consult any lawyers without telling me you didn’t consult any lawyers,” if that’s your opinion.
Kathryn Rubino: Yeah, that’s your taste.
Joe Patrice: Yeah, it’s weird. Yeah. Who knows obviously prosecutions enjoy tremendous built-in advantages when going in front of juries, but yeah, it certainly does not seem like anything that would scare me and I’m not exactly the world’s greatest leader at this and, you know, the lawyers that Sussmann has are very good at this. But yeah anyway, cool. I think that’s it.
Kathryn Rubino: Well, you know, this is why we have insurance, right?
Joe Patrice: Yeah. Well, thanks everybody —
Kathryn Rubino: That’s all I have for the week.
Joe Patrice: Yeah. I know. That’s why I was beginning my wrap up there.
Kathryn Rubino: Okay, you don’t have to get salty with me.
Joe Patrice: I didn’t get salty with you.
Kathryn Rubino: Testy.
Joe Patrice: I in no way. Anyway, thank you all for listening. You should be subscribed to the show so you get new episodes when they come out. You should give it reviews and I know everybody always says that and it always seems like, “oh, yeah, that’s a thing I’ll do” and then nobody actually does it, but it really is easy enough to just hit the stars. And if you are so inclined, write like a sentence in there, just shows that you cared enough to write any sentence, which means that the algorithm see it as important and that helps more people here, the show. You should be checking out Above the Law as always to lead these stories as they happen.
You should be following us on social media. I’m @Josephpatrice. She’s @Kathryn1, the numeral one there in that particular handle. You should check out our other shows. She’s the hosts of The Jabot. I am a guest on the Legaltech Week Journalists Roundtable. You should be listening to the other shows by the Legal Talk Network that we do not host but that we listen to. Thank you to Lexicon and Nota powered by MT Bank for sponsoring the show and with all of that, I think we are now done.
Kathryn Rubino: Peace.
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Podcast transcription by Tech-Synergy.com