If The DOJ Fails Another Time, They Win A Free Sandwich

Episode Notes

Transcript

Joe Patrice:

Welcome to another edition of Thinking Like A Lawyer. I’m Joe Patrice from Above the Law. I’m joined by Kathryn Rubino.

Kathryn Rubino:

Hey.

Joe Patrice:

And we’re the only two here for now. It’s kind of a crazy recording time, so we’re going to move ahead for now,

Kathryn Rubino:

And maybe

Joe Patrice:

Chris will join us. Chris might or might not be able to join us based on how the Crazy’s going, but we can start. We do this every week to talk about the big stories from the week that was here at Above the Law, but we begin with a little small talk. Yeah. So how are things going?

Kathryn Rubino:

I’m really good. Good. Well, I mean, I’m getting over a cold, hence the little bit of a stuffy nose that I still got going on. But I took this past weekend to put up the majority of my Christmas trees. Not all, but a majority, because three out of five is I put up three Christmas trees. I have five. I have six technically, but I think I’m not going to put up one of them this year.

Joe Patrice:

Oh, wow.

Kathryn Rubino:

Yeah.

Joe Patrice:

What a exercise in restraint.

Kathryn Rubino:

Well, I have a toddler. I don’t see

Joe Patrice:

How that’s relevant.

Kathryn Rubino:

Well, that Christmas tree that I’m not going to put up is with all of our sort of heirloom me sort of things, and I’d be just really sad if it broke and she’s two, and it’s not going to happen for us this year. It’s going to be fine. But the other trees are filled with ornaments that are either not particularly breakable or kind of mass produced and not a big deal one way or the other. So that’s what I decided. I think, I mean, who knows? Maybe on Thanksgiving weekend I’ll get a twinge of nostalgia and be like, we’re booting up number six and put it somewhere in a locked room where she can’t get to it. That could happen. But for now, I think we’re going to do five trees.

Joe Patrice:

Well, there you go.

Kathryn Rubino:

So I’m really excited though.

Joe Patrice:

You’re getting over a cold. I’m certainly getting one.

Kathryn Rubino:

I

Joe Patrice:

Can

Kathryn Rubino:

Tell that’s it is the time of year where everyone gets sick. It’s the worst. Yeah,

Joe Patrice:

Yeah. No, but otherwise everything’s fine for me. Just kind of

Kathryn Rubino:

Feeling good. How are you doing without college football?

Joe Patrice:

What do you mean without

Kathryn Rubino:

It? You still know that you have, well, yes, but I know that you have YouTube tv, so you

Joe Patrice:

Can’t

Kathryn Rubino:

Access quite as many games as you normally do because ABC slash ESPN has a hefty trunk of good games.

Joe Patrice:

That’s true. Yeah. And in my field, getting to the name Thinking Like A Lawyer, which is going back to the show’s original format. Let’s break down kind of the legal question there about how inconvenienced I am, television wise. This seems like an antitrust problem

Kathryn Rubino:

To me. I mean, yeah, there is some going on there that makes their Disney’s leverage position particularly

Joe Patrice:

Onerous. Disney’s not letting YouTube TV customers see their product claiming that making basically bold demands for more money out of YouTube TV that are not matchable. And the purpose of this, of course, is to prevent those customers from having access to all of those channels. And the hope is that they would then leave YouTube TV and join Hulu’s package, which just so happens to be

Kathryn Rubino:

Also

Joe Patrice:

Owned by Disney. Owned by Disney. That is exactly why we have antitrust laws.

Kathryn Rubino:

Well, do we anymore? We don’t have a government anymore. And I don’t even mean just the shutdown. We just don’t really have a functional government in a ton of ways. And the thing that really gets me about that situation is not just the, okay, well, you don’t have access to ESPN OCHO or whatever, but you don’t also get the broadcast a B, C local channel.

Joe Patrice:

Oh yeah, no,

Kathryn Rubino:

That seems really problematic to me.

Joe Patrice:

Yeah. No, not that. Not ES ESP N, not, which

Kathryn Rubino:

Again, that’s a private whatever, but one of the main broadcast channels you should not be able to play leverage with.

Joe Patrice:

Yeah, no, it’s a real problem. But YouTube, Google, who owns YouTube, so it’s not like we’re talking

Kathryn Rubino:

About, it’s not like an underdog here. Startup here or

Joe Patrice:

Anything is giving out refunds to people for having to deal with this. Well,

Kathryn Rubino:

That’s nice for you.

Joe Patrice:

Yeah.

Kathryn Rubino:

And I suppose the Big 10 network is not part of the conglomerate, so you’re

Joe Patrice:

Okay in that sense. I do have that. And my game was on CBS this week, so it worked out for me.

Kathryn Rubino:

It was a very ugly game. The Oregon. Well, right.

Joe Patrice:

Iowa was involved.

Kathryn Rubino:

Yeah,

Joe Patrice:

It is. Is mathematically impossible for the game not to be ugly one way or the other. If I was

Kathryn Rubino:

Involved, I mean, when the safety happened, I was like, that’s it. Call it a safety happened during an Iowa game that was mandatory. That’s bingo.

Joe Patrice:

Check, check. I put that in every parlay.

Kathryn Rubino:

Did you really?

Joe Patrice:

No,

Kathryn Rubino:

I do not. I was going to say, that’d be really cool.

Joe Patrice:

I actually made a lot of money a few years ago betting, I put in a bet that Oregon, no, that Iowa, every Iowa game would be under on the underline in every single game of the season. And it was that

Kathryn Rubino:

Amazing. Was it under this week? That was a pretty low scoring game, particularly for I’m

Joe Patrice:

Sure it was. I didn’t even pay attention.

Kathryn Rubino:

Yeah.

Joe Patrice:

But yeah, no, that year I did. I just bet they would be under in every game. And then they were, which was scary because that year they had a game against I think Northwestern, who was on the outs and they set the over underline at something like something absurd, like 12. It was really scary low. And I was like, hold

Kathryn Rubino:

You shall not pass.

Joe Patrice:

And then it ended seven three or something like that, and I was like, I did it.

Kathryn Rubino:

That checks out. And it’s funny though too, because it was a low scoring game and you’re used to kind of Oregon with that kind of reputation that Chip Kelly got for them of being this high scoring. But that’s just not them anymore,

Joe Patrice:

Despite being gone for

Kathryn Rubino:

Yeah. But reputations hold. Iowa has had a similar style of play for 30, 40 years now, right?

Joe Patrice:

Well, I mean, they’ve had the same coach for 20, 29 of them. That’s different than Chip. Kelly hasn’t been at Oregon in over a decade at this point. Right.

Kathryn Rubino:

That’s fair.

Joe Patrice:

So anyway. Well, so we’ve rambled on for a while, but we can

Kathryn Rubino:

Safely

Joe Patrice:

Move on to our actual topics of the day. Alright, so you had a story this week about Kirkland. Kirkland has, there’s lots of things to say about Kirkland, but what

Kathryn Rubino:

Many of,

Joe Patrice:

What do some of their clients say about ’em

Kathryn Rubino:

That they’re assholes? So it’s not quite that blunt, but not great either. So last year at some point, there was a meeting of the Institutional Limited Partners Association, and they talked about to the attendees about if you could wave a magic wand and change something in the private equity space, what would it be? And they kind of created a word cloud out of this, and people had different ideas, but prominently in the middle of the word cloud was fire K and E, which not great, it doesn’t sound great. Apparently they have a reputation in the PE space for being uncooperative and kind of rejecting out of hand all investor proposals, and they reject them in the same way, which is the phrase we respectfully decline. And you would think the word respectfully was kind, except it really doesn’t sound that way. So after getting a bunch of blowback over this incident, Katie took it to heart. They actually had some etiquette training for their PE associates to kind of be like, maybe we don’t say we respectfully the client every single time as if by a bot.

Joe Patrice:

So after visiting with Ms. Manners,

Kathryn Rubino:

Yeah. So listen, they’re working on it and listen, some people say that it’s not really that they’re uniquely assholes in this space. It’s a cutthroat industry. There’s a lot sort of sharp elbows in the space, but they have a ton of the business. They are giant and they have a lot of the business. So I think that they get a lot of, they’re lightning rod in that way for a lot of the ire that people have about the congeniality generally about the industry, which is fair. But they’ve really kind of doubled down. They actually hired one of the former managing directors of that organization, the ILPA to strengthen the firm’s relationship with investors.

Joe Patrice:

Yeah. I’ll defend KE here a little bit. I feel, I don’t know how often I was a litigator and I don’t know how often you interacted with transactional clients, which obviously I never had as clients, but Well, that’s not totally true. Some of them ended up in white collar trouble.

Kathryn Rubino:

Yeah. Uniquely. I think white collar has that kind of crossover,

Joe Patrice:

But by then they, they’re a little chastened. But when you talk to these people, like friends of mine who are in the iBanking space and so on, the clients on that side feel like lawyers are their servants. No matter how senior the lawyer is, some 22-year-old at a bank feels like they can boss them around. So in the private equity space in particular where Kirkland is the nine bazillion pound gorilla, I actually could see K and e being very justifiably shut up. Kids we’re in charge here.

Kathryn Rubino:

So

Joe Patrice:

I give them a little bit more leeway than some people do. I think to exercise a little bit of harshness. I don’t know, maybe that’s just me. Maybe I’m a jerk.

Kathryn Rubino:

Yes.

Joe Patrice:

Okay. That’s enough.

Kathryn Rubino:

Yes. That’s a separate question. We can use next week’s small talk to delve deeper into that question.

Joe Patrice:

I won’t be here next week.

Kathryn Rubino:

I think you will.

Joe Patrice:

Alright. Okay.

Kathryn Rubino:

If you’ll Or maybe Chris and I’ll just talk about it, which would be even

Joe Patrice:

Funnier. That’s what I thought about. I thought you were setting that up. No, you’re right. Well, I’ll be able to be here,

Kathryn Rubino:

But I do think that it’s worth noting that reputations matter. And even if it’s just because you’re the largest person in this space or firm in this space, it still matters that there’s a grumbling with KE attorneys and these kinds of things. A lot of how you interact on deals is taught, not sort of in a direct way, these etiquette lessons were, but watching what partners do, watching what senior associates do and mimicking what you do and actually taking a second and saying it matters. It matters. And apparently they’ve banned the phrase, we respectfully decline, which probably isn’t necessary per se, but I think that maybe saying, oh, we’ve considered the terms, however, giving a rationale for the rejection would probably go a little ways. But it

Joe Patrice:

Sounds like you were about to make everyone should return to the office argument there when you were talking about how they learned by watching.

Kathryn Rubino:

Well, listen, most firms I think at this point are at three, if not four days a week. And that is probably the new normal. So I think that three to four days a week is probably plenty to get that kind of soft learning that we’ve talked a lot about on the show. But I do think is completely necessary. And this is part of it though, this kind of etiquette lesson.

Joe Patrice:

Yeah, no, it’s one of those awkward places for us to be as Above the Law because so many of our readers are we with the associates generally, and they’re very against being told to go back. But look, and we will fight with you on not having to go back five days a week because that’s absurd. But you got to be in the office some because

Kathryn Rubino:

Yeah. Did you

Joe Patrice:

See you got to train the next group.

Kathryn Rubino:

The new sort of variation on days in the week is a firm that’s requiring partners to come back four days a week and junior associates, once you hit that third year level, you’re a mid-level and you can scale back down to three days a week, which is fair. That really kind of hits the nail on the head.

Joe Patrice:

Yeah, I like that because those are the folks who definitely need that flexibility. The problem is, I also think those are the folks who do a lot of the training

Kathryn Rubino:

Well, and again, it’s not zero days in the office. Right?

Joe Patrice:

Sure, I know. Yeah, no, it’s a difficult question, which is why three and four. Love that. But yeah, five’s too much, but it’s got to be something.

Kathryn Rubino:

Yeah. Can’t be zero.

Joe Patrice:

Yeah. Alright, well we should take a break here and we’ll carry on the conversation after this. Alright. The Federalist Society’s annual convention happened last week.

Kathryn Rubino:

It sure did. It sure did. We wrote a story about one of the panels that was talking about district court judges.

Joe Patrice:

So let’s set the stage here for people who may be new to this show or above law or anything like that. So this year’s version of this is where all the Federalist Society, all of the conservative law students and faculty all over come together in DC to ruminate on how they can

Kathryn Rubino:

Further muck up the

Joe Patrice:

Further the MAGA movement. But they’re not political. They’ll say in a nonpolitical way, they’ll say, but this year we can say one thing as far as we know, the keynote address did not involve personally attacking you and me.

Kathryn Rubino:

That is accurate.

Joe Patrice:

Which in the past it has

Kathryn Rubino:

So moved on to other targets, and at least for this panel, it was judicial oversight of district courts post the Supreme Court’s ruling that there are no nationwide universal

Joe Patrice:

Injunctions.

Kathryn Rubino:

And so there’s lots of things to talk about, whatever. But Chad Misel, formerly the chief of staff to the attorney general husband to district court Judge Kathryn Misel, was on the panel and was really angry about the speed bumps, for lack of a better term, that some district courts have put in the path of the MAGA agenda. And he really thinks that what we need to do is just impeach the judges who stand in the way of that policy.

Joe Patrice:

So impeachment, it’s, it’s going to be just as hard as it is to remove a president that way.

Kathryn Rubino:

Right? So 67 votes

Joe Patrice:

Probably not a thing that’s actually going to happen, but it is telling this, and I going to put this in conjunction with, we had later remarks from Todd Blanche who’s Deputy Ag claiming that they should be at war with the judges. It’s rhetoric wise kind of disturbing. There are, look, the way the federal courts operate, and we talked about this when I was recounting Judge Ludwig’s remarks at the Rule of Society conference, which in many

Kathryn Rubino:

Ways,

Joe Patrice:

Rule of law society, the rule of law society, yes, thank you. Rule of law Society conference, which in many ways is kind of the spinoff of the Federalist Society. It’s a bunch of Federalist society people who think the Federalist Society has lost

Kathryn Rubino:

What the hell? Hell is happening right now.

Joe Patrice:

But the district courts have really been doing kind of a heroic job of applying the law as written. Now, one of the comments that goes along with this impeachment conversation is Trump keeps losing all of these district court cases, injunction cases, but keeps winning at the Supreme Court. Well, first of all, not actually winning at the Supreme Court because their shadow docket opinions, which means that all they’re really doing is the Supreme Court is technically just saying, we’re going to freeze this until we get further briefing on it. So they haven’t won. That said, both Kavanaugh and Gorsuch have made claims that the lower courts should act like our shadow docket opinions do carry some vibe precedent, which is really disturbing when you consider that those cases are not fully briefed

Or argued or anything like that and shouldn’t have any presidential value. I went to an event that I will have an article about later this week that former Justice Breyer was at, and he referred to the term that they had for the shadow docket internally. He said before the term shadow docket was coined, was the window sill docket that these are the things we have to address right now that people just came up and yeah, it’s supposed to be equitable relief that is temporary and not really thought through. So it’s not supposed to be precedent. Anyway, back to this. So we now have people who have had or continue to have senior government positions saying that we should be impeaching going to war, all sorts of power, really negative rhetoric toward judges for following the law as written.

Kathryn Rubino:

And I think that the rhetoric aspect of this is also really important because Misel told this weird story during the panel as well that basically said that his dad would kill stray cats, which is relevant because he said that Donald J. Trump should say judges, I know how to deal with stray cats, which basically is a pretty violent imagery that you’re getting when you’re talking about killing stray cats. And that is really problematic in a world where the threat rate for judges has gone up 327% during Trump’s second term that is wildly violent. Similar to the Todd Lange comments that we need to go to war. They are stirring the pot here in a way that I don’t even necessarily think they intend, or maybe they do, I don’t know. Maybe I’m being too kind to their motivations here, but it’s really worrying the rhetoric that they continuously use and multiple folks are

Joe Patrice:

Using. Yeah, it just struck me that it’s interesting that Kathryn Meel, his wife’s judicial landmark, if there is one, is a national injunction in which she said that the word sanitation has to mean garbage trucks and therefore sanitation masks don’t count as sanitation. They’re just the dumbest of dumb, but a national injunction nonetheless. Anyway, it’s really just there’s zero shame. This is an organization that spends a lot of its time defending, running every major case through Amarillo, Texas so that they can have that loon decided and,

Kathryn Rubino:

And now that they have

Joe Patrice:

Been blocked in a few places, it’s the world’s worst thing. But again, it keeps coming back to, I think they are really trying with this, especially with the shadow docket. I think what they’re really trying to do is kick the can down the road without actually changing the rule of law as much as possible so that they can turn around in a future administration, go, whoa, whoa, whoa. We didn’t really change anything.

Kathryn Rubino:

And I think that you’re probably right about what the intention is, but that is actually more harmful, I think, to the

Joe Patrice:

Rule of law. No, I agree with that.

Kathryn Rubino:

Right. It means nothing. If that’s true, then the rule of law means nothing, and it’s just this kind of blanket that they throw over whatever they currently believe. And I think that is how the far right of the judicial movement or the legal movement generally is currently thinking about the rule of law. And I think that that is going to have long-term negative impacts on the way the legal system works in this country. Yeah,

Joe Patrice:

No, absolutely. I mean, it is telling, just kind of leave it on this note that it is telling that some of the judges who have at the lower court level, who have been the most aggressively pushing back against these Trump incursions and most aggressive in criticizing the Supreme Court in rubber stamping them are bunches of Reagan judges,

Kathryn Rubino:

Right? Yep. Reagan judges are leading the way.

Joe Patrice:

Again, judge lut, I would’ve said when I started this job, was the most conservative person on the court, probably, or one of the two close. And here now because there was a day, those of you younger listeners, you may not believe it, there was a day when the conservative legal movement, while something I may have disagreed with, had principles that’s gone.

Kathryn Rubino:

They were fixed.

Joe Patrice:

They were fixed. They believed in something, and it

Kathryn Rubino:

Didn’t, and it didn’t change based on the S of a man who likely has dementia.

Joe Patrice:

Yeah. So crazy. Anyway, well, let’s take a break and talk about a judicial system success on the other end. Well, so last week we had the trial in the DC sandwich thrower case. This is the case of A-D-O-J-A former DOJ paralegal who threw a subway sandwich at a geared up customs and border patrol agent doing riot patrol duty or whatever they were doing over the summer in DC where they

Kathryn Rubino:

Just

Joe Patrice:

Threw a bunch of goons into the middle of DC and called it it a thing. So we should walk through kind of, no, let’s go to the end and then work backwards. So what’s the result of this trial?

Kathryn Rubino:

He was charged ultimately with a misdemeanor and not guilty.

Joe Patrice:

So not guilty. The trial itself was comical, to say the least it involved, but I give the prosecutors some credit. They did what they could to try to make this sound like it was a thing. They used terms like the sandwich exploded to make it sound like it was scary, even though they were talking about a sandwich.

Kathryn Rubino:

I like that you gave the prosecutor credit for that because I think that was actually their undoing because listen, if you divorced it from the political reality that this event happened in throwing something, even a sandwich at a law enforcement officer, probably at least a misdemeanor.

Joe Patrice:

Yeah,

Kathryn Rubino:

Probably is.

Joe Patrice:

Sure.

Kathryn Rubino:

But it exists in the context that it has and trying to say things like, oh, it exploded. I can still smell the onions and mustard.

Joe Patrice:

Oh yeah. Mean,

Kathryn Rubino:

I mean, that kind of overly wrought rhetoric, I think actually hurt their credibility with the jury. The jury is able to say, that’s some bullshit right there.

Joe Patrice:

The reason I don’t necessarily go there is that the factual predicate didn’t really hinge on it being because it was a misdemeanor. It didn’t hinge on how violent the attack was. So from the jury’s perspective, what all they were really trying to do is make it seem like this was serious enough that they should not nullify it. And

Kathryn Rubino:

I think when they went too far, it also, I think reinforces that this is a political witch hunt as opposed to really an effort to impose law and order. And I think that’s why the jury returned to not

Joe Patrice:

Guilty verdict. Well, I think it went too far when they said explode and no, and the defense was able to turn around and say, here’s a picture of the sandwich. Did it explode? Because it doesn’t look like it exploded.

Kathryn Rubino:

Right. And I

Joe Patrice:

Think because the good people at Subway had wrapped that sandwich sufficiently tightly that it did not come apart even when thrown

Kathryn Rubino:

That is actually key into a bulletproof vest, a bit of an ad for subway, which fair enough, they’re

Joe Patrice:

Fresh.

Kathryn Rubino:

But again, I think that’s another part of the way prosecution was reaching on this case, and we could talk about the things that led up to the trial, which also showed their wild overreach as well. But I think that it was obvious that what was happening and using terms like exploded, trying to talk about the impact of, oh, the smell of onions I will never forget. I think that kind of stuff really hurt their credibility long term.

Joe Patrice:

Yeah. I mean, I don’t know. I pushed back just because I don’t think they had any credibility or chance here. Their only chance

Kathryn Rubino:

That might be

Joe Patrice:

Their only chance here was to make it seem way more important than it was, and it was only a misdemeanor because they attempted to get the felony past the grand jury, and the grand jury thought that this was ridiculous and said no, which at that point I thought it was actually odd that they chose to pursue it. Any further discretion is the better part of valor. They could have dropped this and it gone away.

Kathryn Rubino:

Well, again, I mean, I think that a misdemeanor for the thing is not the craziest sort of charge for what actually happened. So I kind of understand the prosecutorial, okay, well it’s a misdemeanor and blah, blah, blah. But I think the point at which it has gotten the amount of publicity that it’s gotten, he’s kind of become a social media hero sandwich guy. He doesn’t wear a cape, but throws a sandwich. I think that at that point you have to know, I think you’re right, that you have to know you’ve already lost.

Joe Patrice:

Yeah. No, I don’t know if they’re trying some sort of hope that they can set up that this suggests that future matters won’t get a fair hearing for the government in DC and try to argue for venue issues. I don’t

Kathryn Rubino:

Know. That would be an uphill battle.

Joe Patrice:

I think it would be too. I really think this was a waste of resources on their part given the climate that was clearly in place. But so nonetheless, the sandwich person is free. The officer will continue to

Kathryn Rubino:

Be haunted by the smell of

Joe Patrice:

Mustard of mustard and onions, which yeah, it created some great memes. It’s a lot of Apocalypse

Kathryn Rubino:

Now memes. So really, really the Trump administration’s giving.

Joe Patrice:

Yeah. They are never accuse them of not being givers. They’re going to give us $2,000. Well, no wait. No, they won’t. That was the thing over the weekend. They said that Trump personally said he was going to give everybody $2,000 in tariff revenue, which is weird since they’re out of the other side of their mouth saying they need that tariff revenue in order to prevent the economy, the deficit from exploding, but better than a sandwich. But this was instantly met by the administration. Backtracking like, well, but maybe the, you better listen to the crazy orange guy. Maybe the $2,000 was really the friends we made along the way. Yeah. So anyway, that is where we sit this week. We had a few other stories, but it was a busy week I

Kathryn Rubino:

Think.

Joe Patrice:

But those are our three biggies. We will talk to you all next week. Thanks for listening. Thanks for subscribing to the show. If you haven’t done it already, you should. That way you get the new episodes as soon as they come out, give stars and reviews. Really, it helps so that it moves up the rankings of legal podcasts that more people then can hear it. You should be listening to Kathryn’s other show that Jabot. I’m also a guest on the Legal Tech Week Journalist Round table. You should be listening to other shows by the Legal Talk Network. You should read Above the Law. You read these and other stories before we talk about them here, you should follow on social media above law.com. On Blue Sky, I’m at Joe Patrice Kathryn’s at Kathryn one. Chris is at Writes for Rent. We have some limited presence on Twitter still too because it’s so easy to retweet what crazy people say over there. Over there. I’m at Joseph Patrice, though I don’t have my shortened name there. Yeah, tragic story. Anyway, so that is everything from us this week. We’ll talk to you later. Peace. Bye.