Park Benches And Supreme Court Benches

Episode Notes

Transcript

Joe Patrice:
Welcome back to another edition of Thinking Like a Lawyer. I’m Joe Patrice from Above the Law. I’m joined by Kathryn Rubino. Hey, hey. Hey, who works with us here. And we are doing the thing that we do where we talk about the big stories from the week that was in legal. And first though, we have a little bit of small talk to break the ice.

Kathryn Rubino:
Well, to make it seem like we’re people and not, this

Joe Patrice:
Is not

Kathryn Rubino:
AI slop. Good news.

Joe Patrice:
So what’s new with you?

Kathryn Rubino:
I don’t know, man. I don’t remember sleeping, so I’m very exhausted. So I can’t tell you what I. I don’t know what I had for breakfast, probably because I had nothing.

Joe Patrice:
That’s a thing. We had a producer on this show back in the day who would always sound check with, “What’d you have for breakfast?” And the answer was nothing. Yeah. Well,

Kathryn Rubino:
We also

Joe Patrice:
Used to

Kathryn Rubino:
Record earlier in the day and I was like, “It’s 10:05.”

Joe Patrice:
I mean, when it was in the afternoon, I was always like – I’m awake.

Kathryn Rubino:
I

Joe Patrice:
Am

Kathryn Rubino:
Here. I don’t know what you want from my life.

Joe Patrice:
It’s like the odds that I had anything in this day and age are so bad. Anyway.

Kathryn Rubino:
I guess I watched the Grand Prix this weekend. Of course you did. The Garo ring because I’m a big F1 fan and my boy Lewis Hamilton keeps on getting hit with penalties and it is awful. I think unfair.

Joe Patrice:
I gather it was a 0.1 kilometer an hour.

Kathryn Rubino:
Horse hockey. This is all freaking horse hockey.

Joe Patrice:
He

Kathryn Rubino:
Got a five second penalty towards

Joe Patrice:
The end of the

Kathryn Rubino:
Race for speeding in the pit lane and it was 0.1 kilometer over the limit. And it was horseshit. Let’s get ourselves together and realize that I think that there’s been a recent change in leadership, and I think that they don’t like the seven-time undisputed

Joe Patrice:
Goat

Kathryn Rubino:
Of the sport.

Joe Patrice:
I don’t know if it’s been a change in leadership. It’s been these folks for a while, but still.

Kathryn Rubino:
Listen, he is already the subject of the number one greatest injustice in sport that I can think of, which is the 2021 championship, which is why I refer to him as the eight time world champion. You’re welcome to people who care about this. But that’s what I did, I guess. And then I was really annoyed for the rest of Sunday because I didn’t like it when he got a penalty. I didn’t like it. He actually got two penalties. Which actually is the whole reason why he even got that second penalty is because he got that first penalty, which was another. I mean, you care, I guess, but it was really upsetting. And listen, I enjoy sports and I am on the record, I think, repeatedly saying that I think that hate motivates and sustains sport better than fandom, pure fandom does. That hating a sport or feeling that there’s some injustice is actually what keeps people coming back and bonding, I think in an important way.
And I have several group chats after this weekend that I think prove that fact.

Joe Patrice:
You’re more motivated by hate than love is what you’re saying.

Kathryn Rubino:
Yes.

Joe Patrice:
Yeah. That isn’t disturbing at all.

Kathryn Rubino:
Well, I mean, not in life, but certainly in

Joe Patrice:
Sports. Are you sure not in life?

Kathryn Rubino:
Well, okay, that’s hurtful. But yeah, I mean, listen, I am a New York sports fan, a Giants fan. I love the fact that the only time that the Giants won the Super Bowl in recent memory is because they took out the damn Patriots. That makes it so much sweeter because I hate the Patriots.

Joe Patrice:
There you go.

Kathryn Rubino:
I do. Don’t you?

Joe Patrice:
Yeah. I mean, yeah.

Kathryn Rubino:
I mean, come on, you’re a good-hearted person. You must hate the Patriots. I think that’s how that goes.

Joe Patrice:
Yeah. No, that’s fair. Okay, cool. Well, now that we’ve alienated the entire audience –

Kathryn Rubino:
That’s not true. Boston’s a small portion of the country.

Joe Patrice:
I just meant with going off on sports for two and a half minutes, but – People like sports. I know what, true, true, true. We don’t really have market data on what our audience wants, but yeah. Listen –

Kathryn Rubino:
Well, we’ll see. Maybe

Joe Patrice:
People will talk. Just doesn’t care what I’m thinking

Kathryn Rubino:
About right now. That’s what I’m thinking about

Joe Patrice:
Right now. All right, that’s fair. Well, let’s end this small talk and transition into real conversation. So if you’ve been under a rock, there was a video that has gone around these days in recent days of what a couple making out on a park bench in New York City, and they get caught by a stranger who decides to film them and make an antagonizing video out of it. And then it quickly became clear as this video started going viral. Of course, it’s going viral because they fight back against, or not in a bad way, but they act embarrassed and say, stop filming, and all those sorts of things. And so that just makes it go viral because if you shrugged it off, it probably would go away, but they didn’t. And it started becoming clear as this went around that folks knew who they were and started letting us know that this was a partner and an associate at a fairly major law firm.
Our coverage did not want to get into naming who they were and talking about it on that front because, well, I mean –

Kathryn Rubino:
It’s a little icky.

Joe Patrice:
Yeah. Well, the nonsense that is, it’s just this content creation for. Content creation in that kind of way is a sign of the collapse of society in my mind. These people going around looking for folks they can bother so that they can hopefully get a reaction that they can turn into a video. It’s one thing when, what was it? Boiling point. That’s exactly what I was about to say. When MTB had Boiling Point, at the end of that, those people got some –

Kathryn Rubino:
They also had to agree. Signed

Joe Patrice:
Waivers

Kathryn Rubino:
And

Joe Patrice:
Stuff on the end

Kathryn Rubino:
Before it became television.

Joe Patrice:
But now it’s just kind of gorilla attacks on people. I don’t like it. I don’t want to reward it in any way. That said, at this point, I think we can talk about who they were because while we tried to keep a lid on that, no one else seemed to. And the New York Post, for instance, has talked about who they are. They are a partner and associate who work at Wachtel. I mean,

Kathryn Rubino:
Okay. You say that you didn’t want to spill the beans at which fur, but you have a couple of hints within your piece, which I actually thought was nice.

Joe Patrice:
I plant Easter eggs. That’s fair. Yeah,

Kathryn Rubino:
You can go back. You were not to kiss and star, star, star, star. Important number of stars

Joe Patrice:
Tell. Okay. But that doesn’t name who the people are or

Kathryn Rubino:
Anything upstairs. But I think it was actually good because it also gave a nod to folks who had. Because at the point which you’re writing this story, it’s already available on the internet generally if you’re in that corner of the internet. So it was useful to be like, see where we know what’s happening, but we’re not necessarily. You don’t want their Google footprint forever to be there. And I also really liked your reference to the second part of Wachtel’s name, which is that, what’d you write? I make a tea

Joe Patrice:
Spilling.

Kathryn Rubino:
They’re spelling that bestselling brand of teas, which is obviously a reference to Lipton, which is Wachtell Lipton. Yeah, no, I’m partner. Yeah. No, I did. I appreciated it. Thank you. If you know, you know, kind of stuff.

Joe Patrice:
Anyway, so it’s a partner associate situation. They were clearly not supposed to be making out in a park. I don’t presume to know their personal situations. I assume they were just embarrassed because they weren’t billing for a few seconds, and that’s the real scandal here. Yeah. So they have been hit with this. The people involved, they were actually Sam Altman’s lawyers against Elon Musk in that Musk versus Altman case that happened. So high profile work. And I guess that, I guess, crucible of fire kindled something. I don’t know.

Kathryn Rubino:
Yeah. And obviously this situation is the big law version of the Coldplay concert,

Joe Patrice:
Which

Kathryn Rubino:
I think is the analogy everyone’s making to the situation, which did result in people losing their jobs.

Joe Patrice:
Yeah. And much like that, in that Coldplay situation, if they didn’t react to – Because it was a kiss

Kathryn Rubino:
Cam, yeah.

Joe Patrice:
To the kiss cam, it never would’ve gone anywhere. Nobody would’ve shared that video. Nobody would’ve recognized it. But

Kathryn Rubino:
They just smiled and were like, “Ha ha ha. Yeah, for sure. For sure. I mean, it’s a weird time that we live in that that is reality just by going. You have no expectation of privacy, but that also means you could easily go viral and have your image blasted everywhere. Just wild as well.

Joe Patrice:
It’s not great. And to the extent they might have had any kind of a legal claim, obviously there’s no expectation of privacy there. There’s also, it’s a one-party consent recording state that said that one party has to actually be involved in the conversation, which the person filming was not until they decided to engage in. Until after they filmed. Yeah. Yeah. They could have just ignored him and then he would not have been a party to that conversation.

Kathryn Rubino:
Yeah. But I also think that it’s interesting or harmful in the sense that I think one of the best parts of living in New York City is the anonymity that a crowd and the bustle of the city gives you. I think that all my friends that I have all have stories about crying, walking down the street or in a subway or something when no one cares or notices and that’s weirdly freeing. And if you’re having a moment, you’re having a moment, whatever. And I feel like that’s all. Listen, I think that smartphones are wonderful in their way, but I feel like that has also led to the end of that kind of blissful anonymity of a city, which I think was a real benefit to living in a metropolis.

Joe Patrice:
Yeah. It’s a bad situation all around. I wish this could have stayed more contained, but it unfortunately is not the world that we live in and we’re kind of forced to address that.

Kathryn Rubino:
Also, partners should not be staffed on things with somebody that they are making out with. And maybe it’s useful in the sense that now they won’t be because everyone knows about it. Although they might’ve also been very forthcoming already with the firm leadership and not made sure that

Joe Patrice:
They

Kathryn Rubino:
Are not on future deal or

Joe Patrice:
Cases together. So that’s been the big one. We do not link to the video in our stuff, so you’ll have to find that on your own. Yeah. And it’s everywhere. But yeah, we did not want to give. And that’s the other aspect. Even though it’s newsy, you don’t want to reward the person doing this because it just incentivizes more of this kind of garbage. All right. Well, let’s take a break there and we’ll be back in a moment. All right. So Todd Blanche is going through his confirmation hearings. What’s going on with that?

Kathryn Rubino:
A lot. There’s a lot been written about Todd Blanche. He’s obviously the acting attorney general. He’s trying to get the gig made permanent. And I think it’s kind of an interesting situation because about a year and a half ago, he was confirmed by the same group of folks into the deputy role, which is also a confirmation necessary role. So you would think this is a rinse and repeat situation. It is not. He’s done a lot in that time to really make a lot of folks question whether or not he should continue to have the job. I mean, listen, if the Republican votes hold, it’ll be what it is. But he started by a Freudian slip saying that he was the president’s lawyer, which okay. Which is I think an interesting follow-up to what Pam Bondi had said. I think you had written about this right in the early days of Pam Bondi’s tenure in the role when she said that the DOJ was the president’s personal law firm.
So yeah, no, that was it. He was very aggressive with several of the senators about democratic senators, let’s be real. But Adam Schiff, I think, famously asked him, “What’s happened to you, Todd Blanche?” Because I think that that’s also another big part of it that a year and a half ago, people were happy to, not happy, but this was a fine enough person to get the job. But even we wrote about also that for the deputy role, something like a hundred former SDNY folks had written in support of Blanche’s nomination to the deputy role and crickets this time. And indeed, when folks followed up with that crew, they were like, “No, this is not somebody you want. I’m not going to put my name to that.” And I thought that that was really interesting. And he also is calling Dick Durbin and Richard Blumenthal liars,

Joe Patrice:
Which

Kathryn Rubino:
Is interesting. Apparently during closed door conversations with each of those senators, he had said that the $1.8 billion anti-weaponization, the slush fund, the DOJ slush fund that is no longer apparently on the table, but also maybe that was supposed to give money to basically Trump supporters, including January 6th rioters. He apologized, said it was his fault and it was not something that it was a mistake. But then when asked to write part of his written answers to questions after the hearings, he contested the accuracy of the statement when Dick Durbin was like, “You said it was a mistake. Do you stand by this characterization?” He’s like, “I can test the accuracy of this statement.” So he’s just basically calling sitting senators liars. And yeah, I though that Durbin’s answer to that was like, “Well, it’s not proper MAGA talk, so he can’t be on the record for that.”

Joe Patrice:
The issue of what happened to him, I think ties into another story that we had of the week, which was that Maggie Haberman and Jonathan Swan’s new book is coming out about this administration so far. And it includes the reporting says that Blanche in particular was uncomfortable along with Bondi about the idea of pursuing indictments against the president’s political enemies who clearly had not committed any crimes, but just for the sake of pursuing indictments against them. He specifically said, and to quote that if they were to do that, they would spend the next several months getting skulfed by federal judges. So on the one side, that suggests that it’s a good thing to hear that some people in senior DOJ leadership are still concerned about making sure that they follow the court orders. Rule

Kathryn Rubino:
Of

Joe Patrice:
Law. Yeah. And we had reporting that Emil Bov, while he was in that job, was saying that they should just ignore federal court orders. It suggested that these folks did care. That the flip side of that, of course, is Bondi is gone and Blanche is not, which should tell you that Blanche seems to have gotten over his skull file. Got on

Kathryn Rubino:
Board.

Joe Patrice:
Yeah. Yeah. He is okay with that now. It’s not my skull. Yeah. So that does seem to suggest that’s where he is now. That would be a reason why people would not support him who did the first time around, who might say what happened to you. The drive to get this title seems to weigh more heavily than maintaining an ethical record. And that’s where we are.

Kathryn Rubino:
Yeah. And the whole notion of the DOJ going after political enemies is not over. I think that there’s kind of a habiting of some of the things that happened in the past. The Leticia James thing seems to be over, but James Comey’s still in the middle of it. And the House just referred Jack Smith to the DOJ to be investigated for utter lunacy. But this is not over. This will not be over anytime soon. As long as these folks are in charge, it’ll continue to be true that political enemies will be investigated and prosecuted or attempted to be prosecuted.

Joe Patrice:
I mean, another passage from that book, and I’m getting a lot of this from Roger Parloff of Lawfare, is putting up sections that are really relevant on social media. Another section of that book was that Trump apparently wanted someone to convey to Blanche that he’s not concerned that the cases are born losers that will never succeed. He is fine just making sure that they get indicted and have to go through the process. He doesn’t care that the cases might get dismissed or sanctions might come or something like that, which not to segue briefly into another story, but that’s really indicative of the mindset of how these folks think of the Justice Department. We also had the story where John Yu of the torture memo use was on TV. Like he’s being

Kathryn Rubino:
Introduced to society.

Joe Patrice:
Yeah. Resurfaced recently to try to suggest on the news that the DOJ should investigate Mayor Mondani for suggesting that it was worth referring to lawyers for their advice about whether or not they have to execute an ICC warrant. And that claim – Asking your

Kathryn Rubino:
Lawyers a question is not actually a predicate act for a conspiracy.

Joe Patrice:
It is not. I think

Kathryn Rubino:
You point this out in that article too, but that would be the opposite of what any law would want to encourage. Yeah, you should ask your lawyer

Joe Patrice:
Before
You do things. You do not want people to hide things from their lawyers beforehand and just go ahead and wing it. But the idea that they should, you presented that merely by saying this, he should be investigated by the DOJ. He should have FBI agents bothering him all the time. He uses these words. And what that really signaled was you is proposing that the proper use of the DOJ is to harass political enemies. Knowing that there’s no charge that’s even remotely colorable, use it to harass because it is annoying to have to deal with the FBI. It is worrying for some people to have to go through that. And the FBI’s, this gets now into my longstanding marginal defense of Comey when most people are always mad at him about 2016. But the DOJ’s official policy is not to tell you when you’ve been cleared basically.
They let that hang over your head. They’ll interview you and be like, “You’ll be hearing from us,” and then just ghost. And that’s kind of how they operate, which is a form of mental – Yeah, extra form of mental torture. So one of my defenses of Comey with the Hillary email server conversation was always that he’d already done kind of a solid by coming out in the summer and being, “We’re closing this investigation.” That’s what he was trying to do. Unfortunately, I always say that’s what burned him because then when new emails surfaced, instead of just ignoring them, he now suddenly was placed in the position of having lied to Congress. And so now he has to answer. I feel like he walked himself into a corner by trying to do the right thing. Almost nobody agrees with me with this assessment, but I say it from somebody who’s been in that white collar world and had clients who call you months after the fact being like, “Have you heard anything?
I’m still scared.” And they are still scared. They clearly have been cleared because they didn’t do anything and nothing was ever going to come with it, but that’s the torture the DOJ put most people through. And so that’s why I was always sensitive to that one. But anyway, we’ve now gone a little off topic. I mean it’s

Kathryn Rubino:
Still legal.

Joe Patrice:
Yeah, sure. All right. Well, let’s take a break and talk courts in a minute.

Kathryn Rubino:
Not just courts generally, the Supreme

Joe Patrice:
Courts. Yeah. Court Supreme. So I’m a little irritated with Elena Kagan. I’m frustrated. So Kagan’s frustrating me because I actually really like Elena Kagan, generally speaking. I think that her writing in particular I love. I feel like it’s straightforward and devastating all at once. Yeah, there’s a

Kathryn Rubino:
Dryness to it I think that appeals to you, your writerly style.

Joe Patrice:
I don’t even think it’s dry because I actually don’t find it dry. I think there is a lot of personality to the kind of quips that she could put in there. So I really like her, which is why I’m always frustrated when she pulls the kind of strategic concession thing. So she

Kathryn Rubino:
Labors under the misimpression that she’s dealing with – Good faith actors.

Joe Patrice:
Good faith actors. Exactly. She’s

Kathryn Rubino:
Very much not.

Joe Patrice:
And I’ve made this point in the past that she will sign on to opinions that are horrific, but it seems as though it’s for some strategic reason that if I do this, then they’re going to pay me back later or they’re going to be bound to, I’ve created this new standard and now when the tables turn, they’re going to be forced to do the right thing because we all agreed to the standard in this case. And then what will happen is fast-forward a couple of years and that won’t happen. And she’ll be writing some dissent where the reading between the lines is, yo, I though we had a deal. Because she makes these concessions and they never ever, ever pay off. And the reason this is annoying right now is that she made some comments Ninth Circuit defense where she said that she thinks that the court gets a bad rap as being bending over backwards for the administration.
Obviously there were a few outliers. They did not ultimately agree with the tariffs in the birthright citizenship case. Now note that those were highly contentious even amongst the conservative side. And a lot of them were willing to bend over backwards, which seems to be glossed over by what she said. The fact that they didn’t get 100% solidarity on it seems like it’s more of not really solving the problem.

Kathryn Rubino:
Doesn’t do the work she thinks it is.

Joe Patrice:
But the real problem I have with it is not only is it nonsensical if you are really following what the court does, these exceptions proving the rule are not a reason why the court has a bad rap. But what bugs me is she understands that she’s a public figure who gets quoted. And she understands that what she’s doing with these sorts of statements, or she should, or she’s recklessly indifferent to not knowing, that what she does with these sorts of statements is just fuel a narrative where headlines come around saying, “Oh look, even Elena Kagan says that there’s nothing wrong here.” And I catalog in my article that different outlets who did write those headlines. Sure.

Kathryn Rubino:
Yeah. And I do think part of what’s motivating her, and I don’t think you really get into this, but the Supreme Court is really in a legitimacy crisis right now. And that’s certainly Kagan has spoken about, and John Roberts has responded to her like, “No, there’s no problem here.” And there is that though legitimacy crisis going on right now with the court. Public opinion is the worst it’s ever been. People, including a high percentage of Republicans, think that the court is politically motivated. So I think that part of the work she’s trying to do here is to further insulate the court from these allegations of political actors, which it’s not to forgive or to excuse what she’s doing, but I think it’s to provide a little bit more context because I think it’s problematic what she’s doing.

Joe Patrice:
Well, but this goes to the two strategic by half kind of worldview. If there’s a legitimacy crisis, it’s not because there aren’t enough people saying pay no attention to what’s behind the curtain here. It’s that everyone sees what’s behind the curtain and denying it only reduces that faith even more. I mean, Professor Rick Hassan responded on social media to this story making the point that she’s considered so deeply strategic. Maybe that’s what this is. He’s kind of making the point you are about maybe it’s part of an institutional strategy. And I just have to keep coming back to the scoreboard. She does this over and over and it never works. Several years ago, Slate had a podcast where Dalia and Mark talked about how she keeps doing this and it never pays off. It’s a known thing that. And I make this point in the article too, that she’s famously a poker player.
And I think she thinks that way. And this is just not a game that she’s winning and her strategy continues to be a losing one. And if I can, the segue I want to make to another serious point. Well,

Kathryn Rubino:
I think I was going to

Joe Patrice:
Set you up for

Kathryn Rubino:
That because I thought that your best point in there is what it does to her colleagues on the left, which I though was very astute on your part.

Joe Patrice:
We deal in a world where we’ve had dingbat, right-wing FedSoc law professors say that Sodomayor is a third rate intellect and stuff. We have FedSoc people talking about how Justice Jackson’s DEI hire, they always are talking about how they don’t understand what’s going on. They’re attacking their intelligence and credentials all the time. Now they never do that to Kagan, mind you, who often is agreeing with them. Not always, but often. But they are very quick to attack the women of color who are sounding these alarms. And when, especially given that Justice Kagan’s the one who wrote the Calvin Ball point referring to the way in which this court shadowed docket, rubber stamped a series of administration decisions that they knew they weren’t going to be able to merits-wise back up, but they just did it so the administration could get what it wanted right away.
And we have Justice Sotomayor pointing out the Kavanaugh stops problems. They are the ones sounding the alarm that this court is operating this way. And when Kagan says this and lends her credibility to news outlets to say, see even she thinks there’s no problem, all she’s doing is validating those attacks on her colleagues that they are hyperbolic and don’t really understand. Because look,

Kathryn Rubino:
Even

Joe Patrice:
Kagan says – Right. That’s what comes across when you do that. And maybe she doesn’t. I don’t think she intends to throw them under the bus, but get your head in the game. That’s what happens when you do this. You get quoted that way. Then it becomes a story that way. Figure it out. I don’t know. And I really do think it’s frustrating me because I do like her so much. And I do think it’s peak strategy brain. When you see the world as something that you can strategery around, you – It doesn’t always work out. You make these mistakes. All right. Well,

Kathryn Rubino:
All

Joe Patrice:
Right. I’m done ranting. So thanks everybody for listening. You should subscribe to the show to see these. Don’t hear these and other episodes as soon as they drop. You should be, what, listening to the Jabo, Kathryn’s other podcast. I’m guest on Legal Tech Week Journalist Roundtable. For now, I’m a recurring guest every couple of weeks on Legal AF, which you can check out on YouTube as well. You should be listening to other shows by the Legal Talk Network. You should be reading above the law, so you read these and other stories before we talk about them. Follow on social media, boblaw.com. I’m at JoePatrice. Kathryn’s at Kathryn1, the numeral one. And with all of that, we’ll talk to you later.

Kathryn Rubino:
Peace.

 

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