2026: A Rule Of Law Odyssey

Episode Notes

Transcript

Joe Patrice:

Well, here we are again.

Kathryn Rubino:

Hi.

Joe Patrice:

Welcome back to another edition of Think It Like a Lawyer. I’m Joe Patrice from Above Law. Hi, Joe

Kathryn Rubino:

Patrice.

Joe Patrice:

Thank you. Hi to you too, Kathryn Rubino. How are you?

Kathryn Rubino:

Yeah, we’re both from Above the Law.

Joe Patrice:

We are.

Kathryn Rubino:

Yeah. And this is a podcast as it turns out?

Joe Patrice:

Yes, where we discuss the big stories from the week that was in legal. Yeah.

Kathryn Rubino:

This is called Thinking Like Lawyer. Did we mention that yet? I don’t

Joe Patrice:

Think so. We did. We did. Well,

Kathryn Rubino:

It’s better when I say it.

Joe Patrice:

Fair enough. Anyway, so yeah, we talk about big stories of week in legal and we have a few of those to get into, but first, as always, we have a little small talk.

Kathryn Rubino:

You’re doing again, you’re doing the sad trumpet. What happened to your sound board?

Joe Patrice:

I don’t know. The system just stopped work.

Kathryn Rubino:

Your lack of curiosity about that is hilarious.

Joe Patrice:

No, I’m very curious about it. I’ve spent a lot of time trying to figure it out and I still don’t know. For whatever reason, the virtual device that’s supposed to take all of the inputs and put them into one sound file just won’t recognize them. That’s not

Kathryn Rubino:

Great.

Joe Patrice:

No. Yeah, I agree. So what’s going on with you?

Kathryn Rubino:

I saw The Odyssey this weekend.

Joe Patrice:

Have you seen it? Oh yeah, me too. Yep.

Kathryn Rubino:

Yeah.

Joe Patrice:

We should be clear because some listeners haven’t seen it, so no spoilers.

Kathryn Rubino:

It is a pretty old text to be fair. Well, what I was going to say about it is that obviously it’s getting a ton of great hype and all that kind of stuff. And I went because I wanted to see it and it was time away from my three-year-old.

Joe Patrice:

This is the new movie with the same cinematographer that Ligora used for their commercial, right?

Kathryn Rubino:

I believe that is an accurate fact and I believe that because you’ve previously told me that, but yes, I think that is accurate that the legal tech has gotten in on the Odyssey hype. But what I was going to say though is that I saw it because it’s time away from my three-year-old and also there’s a ton of hype around it and was interested in the cultural moment of it all and all that kind of good stuff. And I went in thinking I’d probably like it, but I don’t love a war movie. It’s very anxiety inducing for me. I had to shut off Saving Pride Ryan the first time I tried to watch it. That opening scene was not, I was not happy with it. I mean, I’m sure it’s great from cinema purposes, but it made me feel terrible, so I didn’t like it.

But it’s a war movie, so I don’t really love that. And I tend to not enjoy period pieces. So there was kind of two strikes against it, but I went to see it anyway and I thought it was fantastic. Literally one of the best movies I can remember seeing. Maybe there’s also a recency bias in the fact that I just watched it, and it also maybe outperformed my expectations. So that might be a part of it as well, but I cannot say enough great things about it. I think Anne Hathaway deserves every award for it. So does Goodwill Hunting. I though it was great all the way around.

Joe Patrice:

Met Damon.

Kathryn Rubino:

Yeah. Yeah. Well, Jason Bourne is married to Catwoman and their son Spider-Man with the help of The Punisher.

Joe Patrice:

So this was better than the live action Moana?

Kathryn Rubino:

Ooh, interesting. Yes, probably. It’s weird that I saw so many movies. I literally haven’t watched a movie in person in a year and a half and I saw it two weeks in a row. Probably. I mean, I though that the live action Moana was great for what it was, but this was like cinema. I felt like I was participating in the arts in a way that I don’t think that the money grab that is watching the rock in a wig was.

Joe Patrice:

Right, right, right, right. I did also see it. I also though it was good. I went grocery shopping, I guess. I didn’t really have – Well,

Kathryn Rubino:

Congratulations. You’re eating food.

Joe Patrice:

Yeah. So my local nice… I went to the nice grocery store, not like that. Fancy hands. Yeah, whatever. I saw something and I did not get it, but it’s haunted me ever since I saw it.

Kathryn Rubino:

Okay.

Joe Patrice:

But in the meat department, I saw they had ground kangaroo.

Kathryn Rubino:

Meat?

Joe Patrice:

Yes. I did not know that that was a meat that you could eat.

Kathryn Rubino:

Did not know that was an option.

Joe Patrice:

I was a little stunned by it.

Kathryn Rubino:

Particularly in New York, not in the land of bluey.

Joe Patrice:

Right. And I’ve been thinking about it ever since because it’s haunting me. The concept of ground kangaroo meat. I don’t know anything about… I assume it’s kind of game. I don’t know.

Kathryn Rubino:

Yeah. Yeah. I have not eaten it. If you’re looking to provide you with an answer to how does it taste, I

Joe Patrice:

Cannot

Kathryn Rubino:

Do that.

Joe Patrice:

I went down, I did a little bit of research. I don’t know. It’s apparently very lean and it has a kind of gamey, almost venison-y, whatever. I know that if you’re trying to have it and you want to pair it with something, you pair it with an IPA apparently.

Kathryn Rubino:

Okay.

Joe Patrice:

Because they’re both really hoppy. What

Kathryn Rubino:

The fuck is wrong with you? What the fuck is wrong with you?

Joe Patrice:

Okay.

Kathryn Rubino:

That was a long way to go for that.

Joe Patrice:

I mean, I wasn’t going there for that. I was going there for it. You too worth it. I was really telling you the story of the kegroom meat, and I just though I would throw in that at the end. But yeah, no, it is still something that I feel I’m going to have to investigate at some point.

Kathryn Rubino:

Okay. Well, you let me know if you actually take the plunge and eat the same thing that Louie and Bingo eat.

Joe Patrice:

Yeah. Anyway, I guess that’s what we’ve got going on. I think that’s it for small talk. That was

Kathryn Rubino:

Pretty small, that talk.

Joe Patrice:

Yeah. That’s

Kathryn Rubino:

So sad.

Joe Patrice:

I am sad. I don’t have my sound. Anyway, and we’re leading into a sad story. Unfortunately, we do have news of big law layoffs, which is never a great sign. Which firm? We are talking about K&L Gates and the layoffs are rather sweeping. They are on the staff side. There are some reports that lawyers are caught up in it. The firm denies that, which then puts you in a situation of you’re hearing tipsters say that no, no, associates really are leaving. And you’re wondering, is this stealth layoffs or is it accurate that they’re just people leaving on their own course and it’s being swept up into the perception? It could be either ultimately. I mean,

Kathryn Rubino:

People leave on their own accord, they usually send these nice goodbye emails and it’s not…

Joe Patrice:

I mean, when people get laid off, a lot of times they do too. I guess that’s fair. Because they want to maintain their relationships with their colleagues and all. So it does make it more difficult. It is also true that K&L Gates has had some fairly key departures. I went back looking through while we were investigating the story, some of the churn stories that have been out there lately. And in the last several months, a bunches of people have left Miami, a high profile departure in Pittsburgh. They do seem to be losing some lawyers and teams. So I could see how that might be perceived as part of it, but whatever. In any event, whether that’s related or not or the cause of it or not, there are roughly 10% of the staff is being sliced and it is across various practice groups. I saw a report that a senior marketing person, I saw some IT people.

Obviously the IT department is of note also because there’s a ongoing litigation involving a former IT manager who came back from leave and claims that they were discriminated against and fired. And that story we got several tips for at that time from staff who were reflecting that they felt very unhappy with the nature of how the firm was going. So against that backdrop, now we have a ton of people cut. We are in, especially with the IT group at a time when AI and cyber threats are on the rise,

Kathryn Rubino:

Not

Joe Patrice:

A great place to be in.

Kathryn Rubino:

Interesting. The other thing that I wanted to comment on, and I think you mentioned this in your story, but the 10% it’s literally decimated.

Joe Patrice:

Yeah. Yeah. No, for real pedantic people, that’s great. There is a species person who hears the word decimated and constantly goes, “Well, technically it’s not. ” Yeah,

Kathryn Rubino:

That’s

Joe Patrice:

You.

Kathryn Rubino:

You are that person. That diagram, that Venn diagram

Joe Patrice:

Is right in the middle. That is deeply unfair.

Kathryn Rubino:

That

Joe Patrice:

Is

Kathryn Rubino:

Completely accurate. I also think it’s true that the connotation of decimated has certainly changed from 10% to much more robust cuts. So there’s that.

Joe Patrice:

No. Anyway, but yeah, so we do unfortunately see this. What does this mean in a broader sense? Is this a K&L Gates problem or is this a portend of future? We’re talking about the Odyssey. Is this a bad omen for the industry as a whole? Well,

Kathryn Rubino:

I did hear that the IT department is a child of Zeus, so

Joe Patrice:

Probably. AI sprung from its head. But yeah, is this a sign of things to come?

Kathryn Rubino:

I mean, listen, things to come for K&L or things to come for the industry. Because I mean, frankly, for the last 10 or so years, we’ve been writing these stories where staff has been getting cut sometimes to the quick because the way that big law firms used to staff, not from a lawyerly perspective, but from a support staff perspective has changed dramatically because of all the technological changes. And

Joe Patrice:

It’s

Kathryn Rubino:

Not even necessarily that for some firms, not necessarily I’m talking about K&L Gates specifically, but it’s not even necessarily that they’re going to change the number of staff that they have, but the roles have changed dramatically. You don’t need a printing staff because people don’t print the same way because you can submit files electronically to most courts, right?

Joe Patrice:

Yeah. Word processing, printing, administrative assistance, those cuts have definitely been happening. This was different though. This was accounting people and marketing.

Kathryn Rubino:

That seems bad for the firm.

Joe Patrice:

Right. Well, so the question is, is this something because there’s tech taking over those roles too? Or is this a situation where the market is not in as rosy of position as people want to say? Or is this just a K&L problem because they’ve been losing books of business here and there? That’s going to be an interesting question. And

Kathryn Rubino:

That’s something we can’t answer until time goes by. I

Joe Patrice:

Have been saying for a while I am sort of bearish on the economy because I feel like it is being propped up. It’s like six AI companies in a trench coat and I think that they’re – I’d

Kathryn Rubino:

Actually trust the raccoons

Joe Patrice:

In a

Kathryn Rubino:

Trench coat more.

Joe Patrice:

And I think it’s going to hit a wall here pretty quickly and I think that’s going to trickle down to everyone. I worry about whether or not this is the beginning of that. And it’s an AI problem coming at you from both sides. On the one side, they’re propping up the economy largely artificially. And on the other side, they are creating the pressures that push you to reduce your human headcount. We’ve also talked a lot about how we think that the downsizing that comes with AI would likely be more gradual and attrition-based, just hiring fewer people, replacing fewer people when they leave naturally. But is there a possibility that this is going to set off a wave of affirmative cuts like this?

Kathryn Rubino:

Sure. Yeah.

Joe Patrice:

So it’s going to be something to keep an eye on whether or not this is an isolated incident or becomes more routine over the next eight to 10

Kathryn Rubino:

Months. I also think that firms that, as I said, this is not the first kind of change in staffing that a major law firm has had. And I wonder if firms are more aggressive about it in the last five or so years, if they’re in a better position now that AI has taken over more and more of the other roles as opposed to someone who is holding onto their full staffing model.

Joe Patrice:

And I’ll say from a nerd perspective about this –

Kathryn Rubino:

Is there any perspective but a

Joe Patrice:

Nerd perspective that you

Kathryn Rubino:

Bring to this conversation?

Joe Patrice:

See, now I don’t – It’s not

Kathryn Rubino:

Even a dig. It’s just an earnest assessment of who you are as a human.

Joe Patrice:

I just feel like on this AI front, we are also, to get a little in the weeds, we are now in the midst of both Moonshot and Quinn and a new Quinn model. So we now have two China-produced AI models that seem to be doing everything the best frontier American models do, but faster and cheaper. That strikes me as problematic when we have – That’s

Kathryn Rubino:

Not going to be great for –

Joe Patrice:

We have a crowded industry that is propping everything up with a series of fake IOUs being handed between Nvidia, those companies, and Oracle. And what does it trigger some sort of a regulatory response where we have the administration try to ban the better working China models? I don’t know. But I think we’re entering some, to keep the Odyssey references going, rough seas here. Okay. Okay. Yeah. I’ll

Kathryn Rubino:

Allow it.

Joe Patrice:

Yeah. Okay, good. I was waiting for your approval. All right. You should. Anyway, so that’s that story. We should probably take a break. We’ve been on this for a while, so we’ll be like Adicius will be right back. All right, we’re back. Let’s also talk about earlier we had a series of big law firms who signed agreements with the Trump administration in which they pledged a bunch of concessions to the administration in order to not be harassed and to stay on its good side. And how’s that working out for them?

Kathryn Rubino:

That’s actually literally part of the headline that I wrote for this particular story. And I actually want to start out this segment by congratulating you, JoA, because you were right and that’s not something I say. Oh, what a

Joe Patrice:

Shock.

Kathryn Rubino:

Well, I don’t say that that often. I

Joe Patrice:

Know you don’t say it that often, but it’s not shocking that I am in fact right.

Kathryn Rubino:

Okay. But the New York Times was able to confirm that the Trump administration has issued subpoenas to the nine firms that capitulated to it and signed deals. Why? You may ask. Well, the American Bar Association, the ABA is suing the Trump administration and they survived the standing question about suing the Trump administration over the policy of harassment of the legal industry that they allege, which is, listen, from an outsider’s perspective, very accurate. So the ABA has sued the Trump administration. Part of the discovery request that the ABA has sent to the administration is that they want the communications between Boris Epstein, who is Trump’s personal attorney, not the administration’s attorney, has no official role in the government. So

Joe Patrice:

To

Kathryn Rubino:

Be very clear from a privileged perspective, as well as other people like Steve Bannon, who very famously said that the purpose of the big law executive orders were to put them out of business, but sought those communications with the administration and a couple of key figures, including Epstein. And Boris is an interesting figure because there’s reporting that has been done that links him to connecting several of the firms that actually signed the deals with the Trump administration. The ABA has sued… The ABA has sued period, but part of their discovery is seeking those communications between the administration and Epstein. And so the administration has now, the DOJ has issued third-party subpoenas to the nine firms that have capitulated seeking their communications with Epstein.

Joe Patrice:

Which would not necessarily be the same communications as the ones the ABA was. Correct.

Kathryn Rubino:

And initially when the Times first reported it, there was some speculation from people inside of the firms and their consultants and attorneys and whatever. Why are they doing this? And they were saying, well, maybe they’re trying to put pressure on the ABA in order to drop the subpoenas against… Because the big law firms are members theoretically, or their attorneys are members of the ABA. This is part of who they represent. If there’s some conflict between the ABA and its members, this would put pressure on them to either drop the subpoenas or the lawsuit entirely, which seems very convoluted and not at all the majority of the members of the ABA are the nine firms, right? So that was interesting. But then we had some follow-up that happened a couple of days later where an actual DOJ spokesperson spoke about the subpoenas and the DOJ spokesperson said that they were sent to reinforce our argument that the ABA should obtain this information from its own members rather than a close presidential advisor.

Joe Patrice:

Right. Which one, they’re not presidential advisors. They’re advisors to the person who occupies that role, but that is different. Correct. And by the way, that is also exactly kind of the flip side problem of that sort of mental bracketing is important. And it went the other way last week for the administration in the IRS case where Trump personally sued the federal government that he is able to give orders to in order to make them settle with him and give him a release and arguably money. Well, a slush fund for his followers. In that instance, we said there’s clearly no… The fiction that he is an individual who also controls that defeats the adversarial aspect of it. That said, the fiction still matters when you’re talking about whether or not privileges exist. And here, clearly they should not. You are communicating with somebody outside of Steve Bannon is not a lawyer.

It is not an attorney-client privileged issue. The attempt to make this executive privileged would be an extraordinarily broad – Yeah.

Kathryn Rubino:

I think a few things about this. I think you’re 100% right about this. But even if they were right that this gets to some of the documents, it is not all of the documents. And I actually think, first of all, it already concedes relevancy of those documents. If they’re issuing third-party subpoenas about the communications that Epstein participated in, it says that those communications are relevant to the question. Right.

Joe Patrice:

Well, yeah. And moreover, it concedes if you think those communications with the firm are responsive, then the communications being had with the… Well, not with the administration, with the president as a person are therefore also responsive. Correct. Because they can only possibly be the other side of that combo.

Kathryn Rubino:

Okay, so assume there’s a communication… We don’t even know if these documents exist as such because these are all requests by or whatever. But let’s say something exists between Epstein and one of the firms, one of the capitulating nine firms. The fact that that exists when Epstein has no official role in the government supercharges the relevancy of the communications between Epstein and the administration in any capacity to figure out why he’s doing these things.

Joe Patrice:

Right.Because the lawsuit is this is a coordinated attempt to abuse government power to chill speech. 100%.

Kathryn Rubino:

This I think is an unforced error on the part of the administration to concede the relevancy of the documents. I think this makes this the fundamental issue of the entire case, not just a discovery question.

Joe Patrice:

Obviously the DOJ has lost a lot of competent career attorneys and all, but it also seems that even beyond that, it operates in such a Keystone Cops manner these days. This just amateur hour screw-ups.

Kathryn Rubino:

I mean, even the fact that there’s a spokesperson who’s talking about an ongoing litigation just is kind of wild to me. I mean the whole we don’t make comments about ongoing litigation is a canned response for a reason.

Joe Patrice:

Yeah. And while the government does talk about things has a bit more transparency than a lot of corporations. This is a

Kathryn Rubino:

Strategy level question.

Joe Patrice:

Well, and it’s a comment that can easily be cited back at a future motion about proving the level of bad faith that’s on display here. It’s just so embarrassing from a lawyer perspective to watch this DOJ operate. The fact that they occasionally get away with it is more embarrassing, but nonetheless. All right, so the point is the big firms made a deal to get their peace of mind and they have ended up instead being asked to take a bunch of depositions. Sit

Kathryn Rubino:

For a bunch of depositions. That’s actually a big part of it as well. It’s not just a document request. It is also that they want the firm leaders who signed the deals to sit for a deposition, which is wild. The other part of it that the Times reporting talked about was that the firms who capitulated are even unsure to what extent they can or will even oppose the subpoenas because they don’t want to get on the bad side of the administration because the whole, like you originally wrote, and I do quote you for this, “Pray I don’t alter these deals any further.” It is the Darth Vader, the Darth Trump, if you will, moment of the whole thing. Because if they step out of line, it could absolutely get worse for them. They could find themselves on the receiving end of another EO, which is what the Times reporting talks about is that that’s what they’re worried about if they oppose these subpoenas.

Joe Patrice:

So they accepted these deals thinking that it was a gift that they were getting and instead it’s turned out to be really bad for them, like they brought a horse into

Kathryn Rubino:

Their – Oh, okay. Listen, it is a classic piece of literature, and so there’s lots of opportunities for it to be relevant, but I think perhaps you are pushing it a bit too far.

Joe Patrice:

All right. Well, we’ll take a break here and be right back. All right. Well, speaking of the Department of Justice, as we unfortunately do most of the time these days, I long for the days when DOJ screw-up stories are a rare instance we talk about. Oh,

Kathryn Rubino:

The days.

Joe Patrice:

Last week, the Western District of Washington got a new US attorney sworn in that US Attorney held the job for roughly 54 minutes before being fired.

Kathryn Rubino:

That’s got to be a record, right? I don’t know that we’ve written it. People have kept records for the shortest time ever being held in that position, but the 54 minutes under an hour has got to be it.

Joe Patrice:

I assume there was probably a market on polymarket for this that a series of bets coming from inside the DOJ building paid off. It’s

Kathryn Rubino:

So corrupt the way

Joe Patrice:

That the

Kathryn Rubino:

Future’s market works.

Joe Patrice:

Yeah. So the issue here for people who aren’t familiar with how this process works, in a normal world, the US attorneys are a job that is vested with a lot of executive power. And pursuant to the way we have a constitutional order, the way that operates is the president nominates someone for that job and then the Senate confirms that person and then that person has the job. In this instance, the president has not even nominated anyone for that job. He’s just installed someone who he says is the interim and that person has just got to do the job. That is not how the constitution operates.

Kathryn Rubino:

Nor are laws, right? An interim is only allowed to serve for 120 days.

Joe Patrice:

There is a law that allows you to put somebody in that job for 120 days after which they need a real person. They need a real boy to

Kathryn Rubino:

Do the job. Where’s Jopeto?

Joe Patrice:

The administration has not nominated anybody. And what they did was, and we’ve seen this a couple of times, what they do is take their interim person, tell them that in addition to being the interim person, they are officially the first assistant in that office too. So they’re their own right-hand person. And the reason for that is that then they argue – Do they get two

Kathryn Rubino:

Paychecks though?

Joe Patrice:

That’s the question. That’s a great question. I don’t know. But then what they will do is when the interim role collapses as it is by law because you can’t put somebody there for more than 120 days, they will then say, “Well, that person’s gone. Who takes over? The first assistant.” So the same person keeps doing the job because of this shell game. If this sounds familiar, it’s because the administration has tried this in multiple districts. And

Kathryn Rubino:

Routinely been slapped down.

Joe Patrice:

And in multiple districts failed. This has failed because the courts… It does violate the Vacancies Act and all that, but it’s more that the courts say if you do this, then this person is not legally in that job, which means all of the indictments that you’re sending out are now invalid. So criminals, defendants, alleged criminals, alleged criminals are able to say, “I can’t really be prosecuted because this is a phony indictment.” Th

Kathryn Rubino:

Is how the law works.

Joe Patrice:

Yes. So this is very anti-law and order to operate this way, but here we are. So that’s the game. There’s another provision, which is what is supposed to happen if you can’t come to an agreement with the Senate? It is not to – The

Kathryn Rubino:

Law has contemplated that

Joe Patrice:

Possibility. It is not to perform an end run with this first assistant. What is supposed to happen is the district court judges themselves get together and they choose a person to act as the US Attorney until the President and Senate get their act together. Sounds

Kathryn Rubino:

Legit.

Joe Patrice:

Right. Now the problem is the statute includes language that says the president can fire whoever’s in that role even if they’re court appointed, which in some ways makes sense because you would think if the president and Senate did subsequently get somebody there, they should fire the court person and put in their person that’s legal. So that’s why it reads this way. The administration takes a stance that that means they can fire whoever the courts choose and they did that within an hour and tried to go back to this first assistant. But there’s

Kathryn Rubino:

Nobody

Joe Patrice:

Who

Kathryn Rubino:

Technically holds the role currently.

Joe Patrice:

Correct. There’s nobody who legally holds this role now. What the administration claims – Bang up job. Bang up job. That the first assistant has the job because that’s how they do it. And their argument is that they are in the right to do this because the courts should have consulted them and accepted who they wanted to nominate.

Kathryn Rubino:

That would be an end run against the whole Senate confirmation process, right? Yes. Because if you just said, “Well, we’re going to ask you and whoever you say is who we’re going to put in, then why did you ever need to go to the Senate?”

Joe Patrice:

Exactly. The constitution does not say the president – Because there’s

Kathryn Rubino:

No time limit on the one that’s appointed by the courts,

Joe Patrice:

Correct?

Kathryn Rubino:

That

Joe Patrice:

Would

Kathryn Rubino:

Be the ultimate end run.

Joe Patrice:

Yeah, it does not say the president with the advice and consent of the courts, the local courts, right? Yeah, that’s not at all

Kathryn Rubino:

What it says.

Joe Patrice:

The separation of powers, what’s weird is this move is being defended by a lot of the president’s fans as a separation of powers issue that, oh, the courts are seizing. The Constitution doesn’t give the courts the rights to do this. And it’s like, no. The separation of powers issue is that you’re supposed to agree with the Senate come to an agreement with the Senate on who this person is. And when you fail to do that, the courts do it. And not only do the courts have no obligation to listen to what the president wants, it’s arguably inappropriate for them to because that would disrupt the separation of powers balance between the executive and legislature that was contemplated by designating the Senate to advise and consent. The courts do it on their own in this temporary way because nobody has nominated anybody who can get confirmed yet.

And there’s a simple answer if the president wants somebody of their choosing, it’s – Get your

Kathryn Rubino:

Senators together.

Joe Patrice:

Choose somebody a senator would nominate who would confirm. And

Kathryn Rubino:

That’s the thing of it too. It just I think proves how lazy they are because the Republicans have a majority in the Senate.

Joe Patrice:

Well, so that is the other wrinkle here. So the issue here is that the nominee they have, theoretically, they could muster 51 votes to get this person through. They are unable to because of the blue slip process that we respect with regard to these jobs and the Washington senators do not approve of who Trump wants to install in Washington. And it is true that the blue slip process is not a constitutional rule. And so theoretically the Senate could get rid of – The

Kathryn Rubino:

Senate leadership, which again is Republican, could get rid of it, and they

Joe Patrice:

Have

Kathryn Rubino:

In the past.

Joe Patrice:

Rigt. For different positions. Sure. For the appellate courts in particular. Which

Kathryn Rubino:

Are probably worse.

Joe Patrice:

Yeah. Oh, definitely. And that is the real issue. There was a robust social media argument where some right-wingers are like, “Well, there’s nothing about blue slips being of the constitution.” It’s like true. It says the Senate and the Senate has chosen in its wisdom for better or worse to respect this process. If they chose to change it, then yes, this current Senate could confirm whoever he picks probably, but they would have to do it. The blue slip process though for now is what the senators as a deliberative constitutional body has chosen to make their process. And so you live by it. And if he wants to put somebody of his choosing, he needs to find somebody those senators like. That’s just how it goes. It’s not a situation where there’s this whole, “Well, the president needs US attorneys to execute their agenda.” It’s like, “Well, that’s not what The Constitution says.

The Constitution says the president gets to choose people that the Senate agrees to. For what it’s worth, Joe Biden never nominated anybody to that job either. Joe Biden did not nominate anybody, waited for the interim to go away and allowed the courts to put somebody in there, as I recall, and just lived with who they chose. And so it’s not crazy. Which

Kathryn Rubino:

Is probably a career prosecutor, which is what you probably actually need because what actually… Well, because of everything that’s going on, but from a Biden perspective, as long as somebody who makes sure that the process is going forward, it’ll be okay.

Joe Patrice:

Yeah. Well, in this instance, it was a former judge who the courts want to put in this job. I believe the first assistant/interim whatever that the administration wants is an immigration judge that they like, I guess. I don’t know. But point is there’s a process and it needs to be respected and it’s –

Kathryn Rubino:

Very much not being.

Joe Patrice:

A testament to just how incompetent this all is. It’s just power grab for the sake of power grab. There wasn’t even an attempt to nominate this person. And it will fail the same way all of these have failed all over the place, which is ultimately it’s not that the courts kick the fake person out so much as the courts put their foot down and say, “Well, these indictments just don’t count then.” So you choose between letting every federally charged defendant go or you find somebody who actually fills this job legally. And that’s what leads to say the Alina Havas, Lindsey Halligans leaving their jobs is when those fail like that. But here we are again and this is not an isolated instant. We’re probably going to get more of it. All right. Well, I think that’s everything.

Kathryn Rubino:

That is time.

Joe Patrice:

For the week. Yes. So thanks everybody for listening to subscribe to the show. Listen, get new episodes when they come down. Leave us reviews are always useful. I know every podcast in the world tells you to do that, but it really is useful, especially because the way algorithms have taken over our lives. This is the

Kathryn Rubino:

Least of it, but yes.

Joe Patrice:

Yeah. So yeah. Oh, I could have made a suitors joke about the first assistant, the people who are in an Odyssey, the suit, whatever, trying to fill the job that they don’t really get to have.

Kathryn Rubino:

Sure, sure.

Joe Patrice:

Because it’s not really vacant. Oh. Yeah. Yeah. Anyway.

Kathryn Rubino:

Who’s going to be the centric diggery of it all and lead them?

Joe Patrice:

I love how you only refer to the characters in the Odyssey by other roles they’ve played.

Kathryn Rubino:

It is a hell of a cast, right? Yeah. It is noteworthy for that.

Joe Patrice:

Yeah. When the bad guy from Violent Night said… Anyway, I wish I remembered that character’s name. Anyway, so with that, what else? I

Kathryn Rubino:

Would’ve said Bruno.

Joe Patrice:

Oh yeah. Bruno from Encanto. Yeah, that’s fair. All right. Anyway, so moving on. You should subscribe to show, get new episodes that come out, leave reviews, all that sort of thing. Listen to the Jabo, Katherine’s other podcast. I’m a guest of Legal Tech Week Journalist Roundtable. You should be listening to other shows by the Legal Talk Network. Read above the laws who read these and other stories. Before we talk about them here, social medias, abovelaw.com, Joe Patrice, KatherineOne. It’s

Kathryn Rubino:

ATL Blog.

Joe Patrice:

What ATL Blog on Twitter. On social

Kathryn Rubino:

Media.

Joe Patrice:

Blue Sky doesn’t work that way. It’s abovethelaw.com on BlueSky and it’s Joe Patrice and Katherine One, which that’s our primaries. To the extent we have Twitter presences still, it is ATLBlog there. Joseph Patrice and KatherineBlone. Instagram is

Kathryn Rubino:

Also ATL Blog.

Joe Patrice:

Instagram. Yeah, I guess that’s right. It’s too bad we aren’t a visual medium. We

Kathryn Rubino:

Post on Instagram all the time. You should all check out our Instagram account. Make a comment said, Katherine told me to check

Joe Patrice:

This out. Oh, there we go. Yeah. There

Kathryn Rubino:

You go.

Joe Patrice:

Do that.

Kathryn Rubino:

Prove that I’m right, friends.

Joe Patrice:

There we go. So maybe then we’ll have – We know it’s

Kathryn Rubino:

Listening. After you start speed talking at the intro, I’m sure people have all shut it

Joe Patrice:

Off. No, this is like the post-credit scene of a superhero movie. Everybody should be waiting till the very end. Joe and Katherine will return on next week’s episode. All right.

Kathryn Rubino:

Peace, y’all.

Joe Patrice:

All right, bye. Bye.

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