Um... 28 U.S.C. Section... Why Not?
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...
The Donald Trump warrant fight provides a scattershot of weird challenges to unravel for the non-lawyers in our lives. We’ve got collateral attacks and special masters and still no clear sense of how there’s any jurisdiction for any of it. But he’s found a judge seemingly willing to play along. As a reminder, the job of finding judges like these belongs to Leonard Leo, the guru behind the Federalist Society who now has a billion in shadowy money to play with. Speaking of right-wing law students, Yale Law grad J.D. Vance really understands the opioid crisis in Ohio… because his charity appears to have contributed to it!
Joe Patrice: Hey.
Kathryn Rubino: Hello.
Joe Patrice: Welcome to another edition of Thinking Like a Lawyer.
Kathryn Rubino: Hey there.
Joe Patrice: Hi.
Kathryn Rubino: How are you doing?
Joe Patrice: I’m good.
Kathryn Rubino: I’m glad.
Joe Patrice: Who are you?
Kathryn Rubino: I’m Kathryn Rubino.
Joe Patrice: How are you?
Kathryn Rubino: You know who I am?
Joe Patrice: It escapes me.
Kathryn Rubino: I’m a Senior Editor at Above the Law.
Joe Patrice: Oh, interesting. You know what’s weird?
Kathryn Rubino: How about you, who are you? Who are you?
Joe Patrice: I work there.
Kathryn Rubino: No way.
Joe Patrice: I am also a Senior Editor at Above the Law.
Kathryn Rubino: You know I thought your name seemed familiar.
Joe Patrice: And my name which hasn’t been mentioned yet is Joe Patrice and we’re here this week to host another episode of Thinking Like A Lawyer which is our Above the Law kind of round-up of the week’s top stories in all legal whatever.
Kathryn Rubino: Yeah, legal dot dot dot, whatever with that.
Joe Patrice: Yeah, I like that. I like that, yeah.
Kathryn Rubino: That seems accurate. But before we get there, we always like to have a segment where Joe likes to play some sound effects and we talked about, you know, small talk.
Joe Patrice: Sound effects? Oh, for small talk. Okay.
Kathryn Rubino: I’ve already said it. Just because you were slow on the button. So, Chris lives on. You’re a normal co-host. Chris Williams is out to speak but that is his voice turned into a sound effect.
Joe Patrice: Yeah, he’s not here.
Kathryn Rubino: So, he’s with us in spirit.
Joe Patrice: Yes. So, we’re able to go on with small talk.
Kathryn Rubino: Mm-hmm. You know what started this weekend which is pretty exciting?
Joe Patrice: What?
Kathryn Rubino: College football.
Joe Patrice: Oh, that’s fair. That’s fair.
Kathryn Rubino: I know you’re a fan. I did not expect Hawaii to lose by a what, 52 points? That was —
Joe Patrice: I think it was 53.
Kathryn Rubino: Okay.
Joe Patrice: I mean, they were supposed to lose but that was —
Kathryn Rubino: That seems excessive.
Joe Patrice: Well, to Vanderbilt it certainly seems excessive.
Kathryn Rubino: Yes, yes. I mean, what was the lines of then like 12 and a half or something like that?
Joe Patrice: I think it was nine and a half.
Kathryn Rubino: Yeah.
Joe Patrice: Yeah.
Kathryn Rubino: They almost seemed much more reasonable than 53.
Joe Patrice: I mean, I also got to watch Nebraska fail as usual.
Kathryn Rubino: Poor Scott Frost.
Joe Patrice: It’s — yeah.
Kathryn Rubino: He seems like he’s trying his darndest him and Clarence Thomas or just really big Nebraska fans and —
Joe Patrice: That’s true.
Kathryn Rubino: Yeah, which is kind of weird things people may not be aware of that kind of Venn diagram between college football and the Supreme Court is that Clarence Thomas is a big Nebraska fan and will write often in decisions something about like, well, with Nebraska was in a game or —
Joe Patrice: Not often but —
Kathryn Rubino: Not often but has written.
Joe Patrice: He did during a college football-related case. He did in oral argument, make a statement like, well, if you’re one of the elite programs in the country like an Alabama or a Nebraska and —
Kathryn Rubino: It’s like it is not 1983, friends.
Joe Patrice: It was cute that it was no longer — well, I think more mid-90s for them but still, yeah.
Kathryn Rubino: It’s been a while.
Joe Patrice: It’s been some time. Indeed, their current coach was playing for them the last time I really think of them being elite. But, yeah. So, college football started. That’s good. That’s what you did. I returned home from the ELTACon conference that we previewed a little bit of the last time.
Kathryn Rubino: We did preview that last time.
Joe Patrice: A little bit of small talk, yeah. It was great.
Kathryn Rubino: Great.
Joe Patrice: Yeah. I mean there were things I can complain about but the show itself —
Kathryn Rubino: Literally seems like the forum for it, but okay.
Joe Patrice: The show itself was very good. I learned a lot about some of the cool —
Kathryn Rubino: What makes for a good legal tech show?
Joe Patrice: I mean, from my perspective, the baseline is the good content. So I really like being able to talk to vendors, hear what they’ve got if they’ve got some cool new way of solving a legal problem. And that’s the thing, a lot of lawyers don’t want to think of law as everything that can be digitized. But it’s not really robot lawyers, it’s these new ways of making it more visual and easy to manipulate this piece of evidence goes on in this binder and this goes here and you can physically move stuff around and mark passages that say this is the question I’m asking here, you know, that’s talking about one of the products I looked at. There’s some good work being done that will make the job of being a lawyer a lot easier. And so I enjoy going to conferences to learn that.
Kathryn Rubino: To nerd out a little bit.
Joe Patrice: Yeah. I mean I’m not really a tech person but I was a lawyer.
Kathryn Rubino: That play went on TV.
Joe Patrice: Technically I still am a lawyer but I mean I was a hardcore practicing lawyer.
Kathryn Rubino: I have to write my check for my bar dues, you damn straight I am.
Joe Patrice: Yeah, right. But I was a practicing lawyer for a long time and I see these products and think this would make my life a lot easier had this been available.
Kathryn Rubino: Sure.
Joe Patrice: So that’s what I really enjoy. So, if you stick around Above the Law, we’re not going to talk deep about it here, but if you read Above the Law, which you should be, you can see a lot of my coverage over the next couple of weeks are going to be rounding up different products that I saw at this show.
So if you’re remotely interested in how to push your practice or your bosses and some cases to get better stuff for you to play around with, check them out.
Kathryn Rubino: That sounds fun.
Joe Patrice: Yeah. So, yeah, that’s the end of that. We can now move on to official topics.
Kathryn Rubino: Oh, there you go. We have to put on our serious faces now.
Joe Patrice: Mm-hmm.
Kathryn Rubino: It seems to me like there is a lot of lawyering in the news right now.
Joe Patrice: Really?
Kathryn Rubino: A lot of things but affidavits and discovery and privilege and special masters.
Joe Patrice: Oh, interesting. I’ve heard nothing about any of these terms. What could you possibly be talking about?
Kathryn Rubino: I’ve got nothing. I just thought I’d spit some random legal. I’m like a legal term generator right here.
Joe Patrice: And that’s fair. So the series of fallout from this search warrant of Donald Trump’s —
Kathryn Rubino: Mar-A-Lago.
Joe Patrice: Yes, that’s true. That’s the location. I was going to say of his fun time mementos of his top-secret documents.
Kathryn Rubino: Yeah, that he continues to refer to as “my documents” even though not actually his.
Joe Patrice: I think The Onion headline is something like Trump argues that these top-secret documents have been in his family for generations. But, yeah, this search of all that has now — it’s been in a lot of ways, it’s fun for those of you who are listening who are lawyers and I hope a lot of you I assume are. This is like our moment. We’re able to now field questions from all sorts of people about what these words mean, you know.
Kathryn Rubino: So next time my mom calls me with questions, I’m just going to give her your number and be like, “Hey, I got someone you should chat with that he thinks this is fun.”
Joe Patrice: I mean, it’s like a nice revisit of criminal procedure, you know? You get a warrant this way. This is how things get sealed. You have a bit of a procedure question because we have a weird collateral attack on the warrant through a different judge who now says, even without allowing the government to respond, that she’s inclined to send all the documents to a special master.
Kathryn Rubino: That’s the really wild bit to me is that I’m not even sure how this judge has jurisdiction over the matter since it’s actively another case in front of a different judge.
Joe Patrice: Oh, no. They have anomalous jurisdiction or something like that.
Kathryn Rubino: That’s not a thing.
Joe Patrice: Which is not a real thing.
Kathryn Rubino: That’s not a thing.
Joe Patrice: But that is what Trump’s lawyers said they had which I mean —
Kathryn Rubino: And they were not laughed out at court.
Joe Patrice: Yeah, it’s not far off of Rudy Giuliani saying that the level of scrutiny was normal scrutiny or whatever. So, it was made-up stuff. The judge decided to roll with it anyway.
Kathryn Rubino: Well, at least has indicated she will preliminary really roll with it.
Joe Patrice: Yeah, you know, let’s talk about that. A lot of the people out there are zeroing in on this and saying that this is because this is a —
Kathryn Rubino: Trump appointment.
Joe Patrice: Deeply partisan Trump judge who’s bending over backwards to help up this motion that really doesn’t make much sense on its face. I offer an alternative theory.
Kathryn Rubino: Okay.
Joe Patrice: Which is that this is a deeply partisan judge who just wants to pass the buck. It’s also a fairly inexperienced judge. It’s somebody who probably would put on the federal bench based on their resume. But, hey, that was —
Kathryn Rubino: Here we are.
Joe Patrice: Welcome to the last few years. And I think the issue here is I can say I intend to grant it if the government comes back and gives a good argument not to, I can then potentially say, “Oh, you know, my hands are tied.” If they do go forward with it, they can hand it over to a special master which is usually a lawyer, often a former federal judge but not always, who will look through it and determine what of the stuff he is privileged and what isn’t that way the decision can be, once again, shrugged off of her shoulders. So I actually think it might be more cowardice than malignancy, but —
Kathryn Rubino: I’m not sure either a great qualification for someone on the federal bench, but I will also say that, you know, over the weekend Lindsey Graham went on television saying that they will be riots in the street if Trump is indited which I think is not unrelated to what we’re seeing here. You know, he may have gotten your position, thanks to the Maga crowd but, you know, kind of be wary of what you’ve wished for and who your backers are, if those are your backers. You know, you’re potentially in a whole world of hurt if you make a ruling which is terrifying where it should be, I think is actually a worse assault on the American system of government and law than almost anything else that’s happened or at least as bad because if you can’t depend on judges to make decisions absent of fear for their lives, I don’t know what you have.
Joe Patrice: No, I think that’s true. Another reason why I focus on this cowardice angle is that a special master and I’m not going to say I’ve been a special Master.
Kathryn Rubino: You’ve worked on cases where the partner you are working for was the special master.
Joe Patrice: Was the special master and therefore I functionally did a lot of the decision-making obviously under supervision but I would propose the results and talk them through. So I’ve kind of deputized special master and yeah, the job is to look at everything and make the calls.
Kathryn Rubino: But probably didn’t have top-secret documents in that review.
Joe Patrice: No, we did not but make calls on whether or not things fall into privilege or not. Now the reason why that’s awkward here is there’s not any attorney-client privileged documents here. These are, as far as anybody can tell classified materials.
Kathryn Rubino: I think on Monday the government re-filed its preliminary response to the judge’s preliminary order saying that they’ve already completed their review. Their taint team has already completed the review. I think there’s some small number that they’ve pulled for potential attorney-client privilege and also like 84, I don’t remember the specific number, but it’s some very, very small number compared to the universe of documents. But the point is, they’ve already done their review. This motion is a day late and a dollar short. It is wild that anyone’s even considering this when the whole decision will be like, the ship has sailed my friends. This has already been completed.
Joe Patrice: Also this is the issue of apparently these documents were being held kind of willy-nilly with a bunch of other stuff. So, the only attorney-client privilege claim is that there might be attorney-client privilege documents that were mixed in with the classified documents. That’s fair and the taint team has dealt with that. That taint team is where law enforcement officials who have otherwise nothing to do with the case look at everything, decide what’s privileged and not and then only give the clean stuff to the people who really do this investigation and then they are firewalled off from the rest of the case. Anyway, for those who are not in this practice area.
Kathryn Rubino: You did spend a lot of time in white-collar law.
Joe Patrice: So, yeah. So there is that sort of review. But it seems as though what the motion was seeking was a special master to go through everything including all the classified stuff and decide what really was classified which a is not a thing that special master has the ability to any special masters —
Kathryn Rubino: Capable like that’s not your area.
Joe Patrice: Yeah, but it’s just such a weird claim and I think like reading between the lines, it seems as though their argument was that there is a privilege here, it’s just not attorney-client privilege, it’s what executive privilege would apply to except the executive privilege belongs to Joe Biden so it’s kind of irrelevant. The whole thing is a loud mess.
Kathryn Rubino: I mean it’s not a well-written document, right?
Joe Patrice: Yeah. I mean, the opinion is only slightly better written than the motion asking for it. But no, this is an interesting opportunity for us all to explain law to anybody who’s curious because this is a much more formalistic challenge and messy procedural challenge than some other cases like talking about —
Kathryn Rubino: But don’t use this case as your sort of basis. If you’re taking criminal pro, don’t use what’s happening now as you’re sort of basis of understanding because listen —
Joe Patrice: I don’t know about that. You can use the DOJ’s responses, that’s a pretty good basis.
Kathryn Rubino: Sure, sure. But there’s a lot of anomalous jurisdictions here. No, but there’s a lot of weirdness going on that was not going to be on the test. And listen, I passed evidence almost entirely because I watched too much law and order, 100% accurate. That is true sometimes law-based TV actually is useful for folks in law school. I won’t deny that but this, this is not the lesson to take away.
Joe Patrice: Yeah. All right, well, I’m done with talking about this today. I’m sure we are going to be talking about this for months to go so why even keep going with this? So, it’s been a busy time.
Kathryn Rubino: Yeah, yeah. You know how I know it’s busy?
Joe Patrice: How?
Kathryn Rubino: Because we’ve had the phone ringing off the hook.
Joe Patrice: Off the hook, it is really on a hook?
Kathryn Rubino: Well, and, you know I think that it’s one of those phraseologies that —
Joe Patrice: The idioms that you’re just not going to let go of?
Kathryn Rubino: I’m not going to, but you know what I will let go of, my need to actually answer the telephone.
Joe Patrice: Okay, okay. And how will you do that?
Kathryn Rubino: Virtual receptionist services.
Joe Patrice: Al right, that make some sense.
Kathryn Rubino: Yeah, it really does.
Joe Patrice: So, let’s hear from Posh about that.
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Joe Patrice: All right, so now we’re back. So, speaking of judges who write opinions that don’t make sense like that, the judge in question got their job in large part by being on a list compiled by a certain individual.
Kathryn Rubino: Fed Soc.
Joe Patrice: Yeah, the Federalist Society which is the conservative think tank group. They call themselves a law student debating society, most law students.
Kathryn Rubino: They’re liars.
Joe Patrice: Most law student debating societies don’t have billions in dark money, but you know.
Kathryn Rubino: Yeah, no, it was recently revealed that Leonard Leo, he’s one of the, not founders, but one of the directors of Fed Soc.
Joe Patrice: He’s the person who runs it. It’s one of those organizations, you see this a lot and kind of a nonprofit world where there’s a chair and president and those people are rotating kind of honorary jobs and the person who actually runs it is like executive vice president. That’s like the full-time person who makes all the decisions. That’s the job that we’re talking about here.
Kathryn Rubino: Yeah. I think I have referred to him repeatedly as the mastermind behind Fed Soc which seems as more accurate than any other title. Anyway, it was recently revealed that Leo has an organization called the Marble Freedom Trust and that trust has received over $1.6 billion from billionaire Barre Seid and the way that the donation was made actually saved about $400 million in taxes which is apparently a legal scheme, but you know, feels, it doesn’t feel great. But what we’ve learned is that this dark money was exclusively under the control of Leo and now is what is he about to spend all of this money on Rick Hassen and Dalia Lithwick’s slate talk about the Fed Soc and Leo has already taken over the federal judiciary. Any candidate that is going to be nominated to the federal court by a republican has to basically be vetted by Fed Soc before they can get anywhere. And now they have turned their attention to State Courts. The only person who’s to turn their attention to State Court, I think you wrote a thing about Selina Meyer. Julia Louis-Dreyfus has efforts to also have more attention paid to State Court races which is frankly a good response I think to what we know about Leo’s plans for the State Judiciary and I also think, I’m hopeful at least that this increased scrutiny over what Leo’s doing. I mean part of the reason why I think Fed Soc has a chokehold on the judiciary in so many ways is because it was largely able to operate quietly as it was building its power. Anyone outside of Niche Law Groups barely knew what it was. You could even have gone to law school in the early 90s, 2000s with kind of knowing what it is but not really. So, you know, as it was building its power, it largely avoided scrutiny and now we have a situation where most — I won’t go so far and say most folks but lots of people are learning what Fed Soc is and what it’s done and how it’s radically reshaped this country. It’s a small minority of wealthy people that are dedicated to changing all of our country. So, we also wrote a story not too long ago about a Fed Soc event being barraged by protesters. So, you know, it’s definitely kind of increasing its — people are starting to know about it. But, yeah, so they’re also using the money to get more folks in all sorts of right-wing positions. Yeah, it’s not great. It’s not great. It’s a lot of money. It’s all dark money and you know, they’re also likely to use this money to — and in part of what it is is preparing us for Moore v. Harper that the Supreme Court is going to hear next year where they’re taking up the independent state legislature theory which just creates more of a loophole where minority parties with more bigger pocketbooks are able to and control of the State Judiciary is able to undo the democratically-elected results, not great.
Joe Patrice: My takeaway of this because I don’t necessarily fault organizations like the Federalist Society for existing per se like if you wanted to have a right-wing lobbying group that pushes for conservative traditional causes, fine. I have this problem beyond politics. I think it’s a problem with the NFL to like these organizations that are clearly business organizations advancing causes, taking stances trying to play the loophole game and claim that they’re non-profit entities for the purposes of getting out of taxes and there are liberal groups who do this too and as I shared there are business organizations that do it like people like the NFL bring in billions and claim that they’re nonprofit because only the franchisees are making a profit not the central. This stuff is a real —
Kathryn Rubino: It’s laughable, yeah.
Joe Patrice: Yeah, and nobody wants to tackle this because it is a problem that is more toward one side but both sides have and both sides donors have and so nobody wants to pull this trigger. But that’s one of those causes that should be getting more universal anger around it that these sorts of organizations can take in big bucks and then leverage it in ways that can be very damaging without having to pay taxes on it. And as you said, the donors themselves are avoiding taxes too because they’re claiming, I gave it to what’s functionally a charity even though it is not. It is just a lobbying group but anyway. Your clients are expecting you to know a lot of things about a lot of things, even topics like domain names.
Kathryn Rubino: Domains that are heavily not covered in my law school classes.
Joe Patrice: Worse yet, your client might want a domain name to protect their brand or support a product launch that’s already taken.
Kathryn Rubino: Fortunately, GoDaddy’s domain broker service can help. Expert brokers will help you securely and confidentially get that perfect domain.
Joe Patrice: To learn more, visit godaddy.com/DBS. All right, we’re back. Instead of shots, did you take some opioids because that’s what our next topic?
Kathryn Rubino: No, I didn’t.
Joe Patrice: Oh, good. Well, I have some questions about Yale Law School.
Kathryn Rubino: Yale Law School grad J. D. Vance running for Senate in Ohio is in the news again. Again, because he’s running for Senate but now the focus is on his now shuddered charity, our Ohio renewal which was supposed to be an organization that dealt with the opioid crisis in Ohio. The AP when they reported on it said that the charity had a dearth of tangible success. Just never, never great way from AP not taking sudden opinion poll here.
Joe Patrice: Is dearth a mortal word? What is that?
Kathryn Rubino: I think it is too many letters.
Joe Patrice: It is too many letters. Yes, I know, yeah.
Kathryn Rubino: But the one sort of tangible thing that the organization was able to do was send a doctor to a year along residency in Ohio’s Appalachian region. However, the doctor that they picked is Dr. Sally Satel, and her employer has connections to the Purdue Pharma who makes OxyContin and additionally, she’s on record as saying all sorts of questionable things like OxyContin is a godsend and saying that prescribing opioids is not at all related to the increase in addiction issues that people are seeing. So kind of an opioid denier if you will.
Joe Patrice: So the guy whose entire career is based around throwing Appalachia under the bus.
Kathryn Rubino: Continued.
Joe Patrice: Put together an organization to send a doctor there to get everybody hooked on, that resulted in getting people more people hooked on, okay, cool.
Kathryn Rubino: It’s not great.
Joe Patrice: That that all checks.
Kathryn Rubino: It’s not great. His campaign says that he didn’t know about it, the connection between her employer and Purdue Pharma at the time. However, her comments about — yeah, that sums up my feelings on that statement. But regardless, her comments about the relationship between prescription opioids and drug addiction are she’s been writing like this for years, so either he doesn’t know research was aware of it and didn’t care.
Joe Patrice: Wait. He went to Yale Law School. There is a chance he does not know how to research.
Kathryn Rubino: Or anybody in the organization as well as is also bad at it. Yeah. She denies that she was directly paid to mimic big pharma’s talking points but you know, whatever she did it. But more to the point, maybe not more to the point, I guess it’s really terrible in and of itself but it’s also father for political ads, Tim Ryan has come out with an ad saying, you know, J.D. Vance said he was going to help the opioid crisis but he made it worse so it’s not great.
Joe Patrice: Who among has not accidentally —
Kathryn Rubino: Increased addiction in the area that you know, it’s not great, look for him but it is increasingly tight Senatorial race and so the GOP has pulled a bunch of money from other races to back Vance. And so, we’ll see whether or not Tim Ryan’s ad on this actually moves the needle that increases donations and potentially gets him elected. We’ll see.
Joe Patrice: Okay, cool. Anyway, so with that I think we’re done. You should listen to this show. You have listened to the show that doesn’t really make any sense. You should be subscribing.
Kathryn Rubino: Listen again. You should subscribe to it and have it downloaded to your device.
Joe Patrice: Yeah, that way you hear it when it comes out. Yeah, all that sort of thing.
Kathryn Rubino: Yeah, this way you know, yeah.
Joe Patrice: Give reviews, stars, write something. That helps better just putting a star there. You should be listening to the JABO which Kathryn also hosts. I’m a panelist on the Legal Tech Week Journalists Roundtable. You should be listening to other shows on the Legal Talk Network. You should be reading Above the Law to hear more of these stories.
Kathryn Rubino: Or read, you won’t hear them.
Joe Patrice: It depends on — I assume our listeners are the sort of folks who are affluent enough that they have a hired reader to dramatically perform everything that they consume.
Kathryn Rubino: Fair.
Joe Patrice: Yeah, anyway, so you should be following us on social media. I’m @josephpatrice, she’s @kathryn1. The Above the Law proper is @atlblog. There are other social media things whatever.
Kathryn Rubino: Yeah. I think that’s it. Peace.
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|Published:||August 31, 2022|
|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.