Are There Any Adults Left At The Department Of Justice?

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like a Lawyer, everybody.

Kathryn Rubino:

Hey.

Joe Patrice:

Hi, Joe Patrice from Above the Law. I am joined by Kathryn Rubino, who is also with Above the Law.

Kathryn Rubino:

That is accurate.

Joe Patrice:

And we are here to do what we do every week, which is talk about some of the big stories from the week that has completed at ABove the Law.

Kathryn Rubino:

Yes. We have finished a week. Time has marched ever forward.

Joe Patrice:

But we will take … Oh, we will take a second to have some small talk conversation, which will be legal in nature. It’s actually

Kathryn Rubino:

The opposite of small talk. It’s pretty big talk

Joe Patrice:

To be fair. Yeah. But it’s small talk to the extent it’s not something that’s necessarily on our proper agenda because it’s not talking about the biggest stories of the week for us traffic wise, but it is something we want to acknowledge. The Supreme Court met last week, dropped an opinion. So the Voting Rights Act- Hardly

Kathryn Rubino:

Knew ye.

Joe Patrice:

… not really a thing anymore.

Kathryn Rubino:

Yeah. I mean, what I think is interesting about this, obviously section two of the Voting Rights Act was completely decimated by the court’s recent decision.

Joe Patrice:

But not struck down.

Kathryn Rubino:

Well, I do think that’s actually the really interesting part as you kind of compare and contrast it to the court’s decision in Dobbs, right? Right. And the kind of chatter right behind the scenes is that this kind of death by a thousand cuts is what John Roberts actually wanted to have happen. And then the Alito draft decision was leaked and all of a sudden these votes solidified for the more fire bombing version of the decision. And then after kind of the blowback that the court gets, we get a decision where they kind of go back to this while we will not overturn anything officially, we will make it incredibly difficult for this to be a real law.

Joe Patrice:

Yeah. I mean, I predicted a few years ago, I wrote a post where I said that Section two probably will never get fully taken away because John Roberts prefers to keep the law there so that he can be the arbiter of voting rights. Sure. One of the advantages from the perspective of this court of keeping section two technically there is now they still have the opportunity to parachute into anybody who attempts to give more voting rights to Black people and they can come in and say, “Oh no, we’ve decided that doesn’t count.”

Kathryn Rubino:

Yeah. I do think it’s interesting because the Dobbs decision obviously launched a thousand donations to all sorts of left wing causes, got people really excited about getting out and doing political stuff. And I wonder if this was a direct reaction to the fallout from Dobbs or getting more of the conservatives on board with this methodology, if that was part of it because Hakeem Jeffries is certainly campaigning on VRA is gone functionally. And we did write a story about that. It is interesting whether or not this will kind of, if the court has learned its lesson about taking on controversial issues face forward as opposed to doing what they do best, this was obviously not on the shadow docket, but similar to how they have the shadow docket to get things done without getting a lot of attention,

Joe Patrice:

Which

Kathryn Rubino:

Appears to be their preferred operating methodology.

Joe Patrice:

Yeah. But yeah, it now creates a situation that if you were wondering what the fallout long term of Shelby County to hear would be, it seems like we’ve reached that point. Multiple states in the South have now announced that they’re going to begin redistricting to eliminate all majority minority districts in the South, which will, I guess, net the Republicans another potentially 12 seats in the South by taking away, basically making New Orleans carving it up in a way such that there’s no area where black people have the majority of the vote, despite being the majority of the population of the biggest city there, that kind of thing.

Kathryn Rubino:

Yeah. I

Joe Patrice:

Mean,

Kathryn Rubino:

Really just terrible disenfranchising shit. And I know, Joe, you’re also a big fan of the Revolutions Podcast.

Joe Patrice:

Yes.

Kathryn Rubino:

And it’s terrifying when you’re like, modern day reminds me a lot of the Revolutions podcast. But one of the things when Mike Duncan was talking about the French Revolution, that really that one, for those who don’t listen, it was like two seasons worth of the Revolution’s podcast was all about the French Revolution. And the podcast, I would highly recommend, it talks about a bunch of different revolutions throughout the world. It’s really interesting, whatever. On the French one, and one of the things that was a constant refrain is that it was disenfranchisement, that all of a sudden people who were able to vote weren’t able to vote, or they were kind of constantly disenfranchising large swaths of the population, and that that is fundamentally untenable. And that historically when governments start doing this, you are building conditions for revolution, which is something that I was reminded of when this happened.

Joe Patrice:

So yeah, not great. And we’ll see how this all plays out. We should get back to our regularly scheduled agenda by closing off our little non-structured small talk and talk about the big structure of the week. These were a couple of our biggest stories of the week dealt with. The Department of Justice is an organization that always has adhered to kind of the highest standards of professionalism and the elite of the elite, and they seem unable to draft a motion competently.

Kathryn Rubino:

You know what? There’s a bunch of reasons why that’s true. The first of which is, I think we saw the statistic over the weekend that a solid third of DOJ attorneys are no longer at the DOJ,

Joe Patrice:

Right? I saw a quarter, but fair enough. Yeah. Okay,

Kathryn Rubino:

Fair enough.

Joe Patrice:

Yeah.

Kathryn Rubino:

It was a lot. I don’t have this stat in front of me. It is a shocking number, whatever it is, over the course of one year. So they are certainly short-staffed. So give them a bit of grace, at least with one of the stories, which is the funnier of them.

Joe Patrice:

Give them a bit of grace. My counter to that is no.

Kathryn Rubino:

Sure. I mean, I like that answer quite a bit.

Joe Patrice:

So the biggest story of the week for us, at least traffic-wise, is the less significant one in some ways, but it speaks to an important thing, even though this example of it wasn’t quite that. One of the aspects of this administration, since it’s taken over, the Trump administration has ordered the DOJ’s Civil Rights Division, which is now ironically named to go around and start lifting all of the consent decrees that it has with local police departments around the country for being police brutality and racist profiling and so on and so forth. So all of those decrees that were intended to keep federal monitors over those situations are being lifted because that’s a priority for this administration. One area where it was going to get lifted and to their credit, its time was up. In Springfield, Massachusetts, there was a four-year consent decree that put in in 2022 or late 2021, whatever.

So it’s now up to be lifted and they made their motion to do it, but they did so by filing a motion that had the words draft in big watermark splashed across all the pages, which … Yeah, you saved me from having to go to the soundboard.

Kathryn Rubino:

I do what I can. Yeah,

Joe Patrice:

No, look, document management systems exist so that you make sure that you’re only filing the final version. There’s a lot of hands touch emotion. You need to make sure. That’s why you always save it and it puts a new version number and you’ve changed the name to something like motion seriously. I’m not kidding. This time final. DOC. Sure. But putting draft across it and big bold, like gray watermark across the back is kind of the belt and suspenders approach to make sure that there’s no way you accidentally filed the draft rather than the final version.

Kathryn Rubino:

Yeah.

Joe Patrice:

They did.

Kathryn Rubino:

Yeah.

Joe Patrice:

Yeah. In the long grand scheme of things, this decree was going to get lifted anyway and they replaced it with a final version, although not by the time I wrote mine, but I had been informed that they intended to by that point. Sure.

Kathryn Rubino:

I mean, one certainly hopes that they intend to do a lot of things, like not file this.

Joe Patrice:

I mean, it was a simple perfunctory like, “Hey, we’re going to lift this well.”

Kathryn Rubino:

And I think that it’s interesting and why I kind of like the story the best because it’s the most relatable. Mistakes happen LOL. It almost reminds me of the past, the kind of Halcyon days when this was the biggest controversy in the DOJ as

Joe Patrice:

Opposed to

Kathryn Rubino:

A weird footnote.

Joe Patrice:

No, that’s true.This would be the sort of thing that would be the biggest crisis in the world in a past DOJ and it’s not one that it hardly bears. Yeah. Although it still generated a lot of attention and it speaks to a level of carelessness that by which people are looking at the situation. Civil rights division in particular has been hit very hard by those departures that you were talking about because it’s doing the opposite of what any of those lawyers joined to do. So it doesn’t really shock me that this is how that went down. The flip side though of a motion that was in final form, though it probably shouldn’t have been, is that the DOJ filed a motion in the ballroom case. As you know, they’re trying to build this ballroom. Presidents don’t own the White House, so they can’t actually rich down whole parts of it and rebuild new things without going to Congress.

Well,

Kathryn Rubino:

They in fact did rip it

Joe Patrice:

Down

Kathryn Rubino:

And Judge Leon has been quite salty about a lot of the things that have gone on since then. Yes.

Joe Patrice:

With an exclamation mark as is his want. In the aftermath of the kind of failed shooting at the correspondence dinner, they have been attempting to get this built. They’ve been attempting to get the plaintiffs to drop the case so that they don’t have to deal with the fact that Judge Leon has incorrectly interpreted the law to prevent them from building it. They then filed a motion about this. They are demanding that this ballroom get built because that way they could have prevented an attack like this. By the way, one thing, and I put this in the article about this side issue, no one’s really talking about this in the mainstream media, but I cite in my piece that a friend of mine on BluSky made this point that the ballroom design that they have isn’t big enough for the White House correspondence dinner.

Kathryn Rubino:

Yeah, that is one of the funnier aspects, right?

Joe Patrice:

How is no one talking about this?

Kathryn Rubino:

I think the proposed ballroom is 900 seats and the Hilton where the correspondence dinner does take place is 2000 seats.

Joe Patrice:

I mean, yeah, the White House correspondence dinner has over 2,000 people at it. So this argument that we need to build this to prevent that, it doesn’t even make sense. Anyway, whatever. But they filed this motion, this is Blanche and Stanley Woodard and all those guys put in this motion, but it doesn’t read like lawyers wrote it. It reads as though perhaps the president dictated it and they just signed their names to it and put it in. Well, there

Kathryn Rubino:

Are a lot of random capitalizations.

Joe Patrice:

There’s random capitalizations, grammatical errors over and over and over again throughout the whole thing. It reads like the Truth Social Post. Now, question of course is, are these actual lawyers turning this over to their quote unquote client, which of course the president is not the DOJ’s client, the country is, but they view the president as their client. Are they turning it over to their client to write, which is, as any lawyer knows, a horrifyingly bad decision, or are they writing it in a style that he can comprehend because it’s just all for show? What is this?

Kathryn Rubino:

I don’t have an answer to that, Joe.

Joe Patrice:

I mean, none of this makes any sense. There’s capitalizations, there’s an all caps moment with an exclamation point, which is probably bad, but we’re going to let it go because it’s in front of Judge Leon who’s also going to put a bunch of capitalizations everywhere. They compare it to … They talk about Trump derangement syndrome throughout the whole thing, which already is a sign that we’re not dealing with seriously actors. They attempt to define that, by the way, by putting in parentheses that also called TDS, but they don’t do it like in the way that you would in a real brief where you put in parentheses and put your quotation marks, all that sort of thing. I mean, I don’t know quite … I went through kind of paragraph by paragraph. It is-

Kathryn Rubino:

Hilarious?

Joe Patrice:

It is an abysmal collapse of basic writing skills. The parts about the grammar that get me, the wrong … I know these people don’t like pronouns, but they get pronouns wrong constantly as far as putting there for things that are its and stuff like that. Somehow Barack Hussein and Obama is involved, Hussein being mentioned. I don’t know how that even shows up in this conversation, but it’s just the rantings of a … I mean, I encapsulated as dementia take the wheel. It’s real bad. Well, let’s take a break there and be right back.

Kathryn Rubino:

Good news. We have more to talk about with the DOJ.

Joe Patrice:

Yeah. So the Department of Justice attempted to … Made a big deal out of Jim Comey putting together some seashells by the seashore in the form of 8647, took a picture of it. They flipped out. He deleted that picture saying he had no idea that there was a violent connotation to it. There really isn’t a violent connotation to it, except in kind of an old timey mafia way in which you would refer to something that is very, very not violent as a code word for violence, but not something that-

Kathryn Rubino:

86 just means cancel,

Joe Patrice:

Right?

Kathryn Rubino:

Yeah. It’s

Joe Patrice:

Like being- In

Kathryn Rubino:

A diner when

Joe Patrice:

You- Ejected from a bar. Yeah.

Kathryn Rubino:

Yeah. When you inject it from a bar, oh, they didn’t want the fries with it. 86, the fries.

Joe Patrice:

Yeah. It is not really a violent threat. That said, they threw a fit about this when it happened. Cash Patel went on TV to say that it was real dangerous. Then he was pulling agents off of child sex predator cases in order to go after people talking about it. Real

Kathryn Rubino:

Statement about the priorities of the DOJ.

Joe Patrice:

Yeah. It struck me at the time that that was a problematic thing to be saying, but hey, maybe he was drunk at the time. Point is this case then moves forward and gets kind of lost as people within the DOJ, as incompetent as they be, decide that there’s no way we can really bring this case against Jim Comey because it’s stupid. And so they attempt to bring this case about lying to Congress. We saw what happened with that. Longtime listeners know that by putting an insurance lawyer in charge of that prosecution, she failed to actually get an indictment in time, and that case collapsed as well. That seemed to be the end of it for several months. And then now we are back to the 8647 bit because it is within the statute of limitations, I suppose. And they are trying to go after Jim Comey for having put these seashells together.

Kathryn Rubino:

Which, I mean, he says that he didn’t actually put the seashells there, that he found them like this. He just stumbled upon somebody else’s work and took a picture of it and posted it, which whatever, but not super relevant. My favorite part though about this indictment is the way in which lots of senior people in MAGA lands keep on undermining the prosecution. Todd Blanche went on TV and was like, “Well, of course we’re not going to prosecute everybody who says 8647.” And Alina Haba said something similar where it makes it very clear, there’s lots of shirts that are sold on Etsy and Amazon that have this phrase. Are they going to go after everybody? They’re like, “Of course we’re not going to do that. ” Which very much undermines how impactful this phrase is.

Joe Patrice:

Yeah. I mean, I mean, several of the administration’s fellow travelers had done 8646 about Biden, so they are-

Kathryn Rubino:

It’s hard to argue.

Joe Patrice:

So they’re going to make real clear that they don’t intend to treat this as anything but a selective prosecution, which is good news for Comey and his lawyers, I suppose, not so great for the administration. Also, look, to claim that political violence is something that these folks are worried about is a little weird as they’re currently attempting to purge the conviction to the people who wanted to hang Mike Pence. So seems like maybe we don’t really care about this as much as we’re trying to make out, but it does look like the DOJ is trying to do something. The prosecutor who signed off on this is the US turning down in North Carolina. I saw Ben Penn from Bloomberg has a good piece about how he is so enamored of the ideas of currying favor with Trump that he has taken to dressing like him and talking like him in an attempt to just kind of mirror and get favor,

Kathryn Rubino:

Which always- Psychologically, that tends to be a very successful strategy. So he’s read some psych books, I guess. So yay,

Joe Patrice:

Maybe.

They have the indictment. The indictment, as noted by folks pretty quickly, cites the wrong legal standard for a threat. So it is pretty much doomed on its face if there’s a judge paying attention to the situation. So we’ve got that problem. We’ve got the selected prosecution problem. We are seeing all of these folks prosecuted Trump officials who are prosecuted for the crimes they committed the first time around are now suing to get money, like people like Mike Flynn are getting big payouts, despite the fact that they actually did the things and confessed to them, but they’re getting big payouts on the back end. Seems as though Jim Comey’s probably going to get a big payout on the other end of this administration for a real thing that he did not do where he was actually persecuted as opposed to those cases. At what point does our government really just become an ATM for people who get maliciously prosecuted by the previous administration?

Kathryn Rubino:

I mean, yes, that is happening. There’s not a lot more to say as opposed to just being horrified that this is the world.

Joe Patrice:

That’s it. I mean, the attempt by Trump himself to get paid from the government for being prosecuted in the past has hit the rocks as the judge asked, “How can you sue the IRS?” Because which he’s trying to do, he’s trying to get $10 billion from the taxpayers to pay him back for having had his documents leaked in the past, he claims that is stalled as the judge was like, “Well, if you believe in a unitary executive theory, seems to me as though you can’t sue yourself.”

Kathryn Rubino:

The plaintiff and the defendant.

Joe Patrice:

So that has currently been handed over to a committee of outside counsel. The judge wants comment from them about what to do in this case. So we’ll see what happens there. All right. Well, let’s take a break and finally be able to talk about something else. So we are back. Skadden is a very prestigious law firm. I choose

Kathryn Rubino:

All around.

Joe Patrice:

Yeah. And if you are a partner there, that’s a pretty big deal. But a 20-year vet of Skadon has now bolted to go to OnlyFans as the new GC.

Kathryn Rubino:

Yeah. I was going to say, he’s going in- house.

Joe Patrice:

I mean, at least. I’m not going to

Kathryn Rubino:

Speak for her. That is what we know. We know that there were … Listen, the partnership to in- house pipeline is a tried and true legal career path. It makes a lot of sense. You know a lot about clients that you’ve had from your role as outside counsel, so you take it inside and yeah, maybe have a little bit of a different lifestyle.

Joe Patrice:

There’s some logic to it. I mean, obviously this is a very big business. It is a growing business right now. It needs legal representation. They have some deals that are at a crossroads right now, their founder died unexpectedly recently. So not found, did I say founder? Not founder, but the owner, he wasn’t the original founder, but had bought the company several years ago, died. And so that’s triggering a lot of issues with the deal. And so they do need a deal maker to do this. The current CEO is from Orik actually who moved up having been running the legal stuff before then. It’s a model that is not too dissimilar from big law, right? I mean, you get a lot of money from skimming the talents and exploiting the talents of younger people. Oh, much younger people. Yeah. Yeah. So in some ways it works out.

It’s actually a little bit the opposite, I think, of the big law model because in this, the company only takes like 20% and the creators are keeping 80, which is the opposite of how revenue per lawyer works where-

Kathryn Rubino:

Sure.

Joe Patrice:

Yeah. Where they get paid 20 and the firm keeps 80. It speaks to an interesting idea that we quoted a post by Jane Genova who’s an executive coach who does a lot of legal work. She’d written a piece about this that I put in mind about how she’s hearing a lot from folks in the legal profession talking about trying to get out of traditional career paths. They just don’t see them as lucrative or as reliable as they once were. These new industries are the industries that have much more growth potential. There’s probably a pun that double entendre. I didn’t mean that, but this

Kathryn Rubino:

One.

Joe Patrice:

Not in this instance. But yeah, this industry is growing a lot right now. This is going to be a lot of money. It is an industry that has a lot of legal issues surrounding it, not the least … You would think the fact that it’s an amateur porn site, which it says it isn’t, but … Sure. Anyway, the fact that it’s an amazure porn site is obviously an issue in a lot of jurisdictions, but that might not even be the biggest legal hurdle coming up for them. I think it seems to me as though AI could start to become a problem for them. Sure. If you get to a point where hyper-realistic AI prompts can do things like, does that hurt the ultimate business underlying business model of a site like this? That is a regulatory and lobbying battle that I think OnlyFans is going to need to fight if it hopes to survive.

And it’s in a weird position because that’s a fight. They are not the sort of industry that Congress likes to listen to historically about these sorts of things. It’s the reason why you go with somebody who comes from the kind of gilded world of big law. And going from Skadden, famously one of the firms that made a deal with Trump earlier, so to a slightly less hoarish business is … No, no.

Kathryn Rubino:

You know, you went there.

Joe Patrice:

I did. You went there. I’m sorry.

Kathryn Rubino:

Okay. I got very little follow up that doesn’t make me look worse, so let’s just keep

Joe Patrice:

It moving. Oh, oh, but I’m here for that.

Kathryn Rubino:

Yeah, I’m sure you

Joe Patrice:

Are. The you looking worse is kind of what I’m depending on right now as I need to- I prefer to

Kathryn Rubino:

All let you flounder.

Joe Patrice:

I need to get out of this. Anyway, just have to bring us to the end of our-

Kathryn Rubino:

I think it

Joe Patrice:

Does. … schedule stuff. All right. Well, thanks everybody for listening. You should subscribe to the show to get new episodes when they come out, leave reviews, stars, all that sort of thing helps out. You should check out other shows. Cathryn’s the host of The Jabot. I’m the guest on the Legal Tech Week Journalist Roundtable. We have the other shows on the Legal Talk Network to listen to. You should read above the law or read these and other stories before we talk about them here because we have many more stories that we don’t get to on this show every week. You should be following on social media at abovelaw.com. I’m at Joe Patrice. She’s at Cathryn One, the numeral one. And yeah, that’s it. Bye.