DOJ Has Egg On Its Face

Episode Notes

Transcript

Kathryn Rubino:

Hello and welcome to the latest episode of Thinking Like A Lawyer. My name is Kathryn Rubino. I am your host and my co-host today is as per usual, Chris Williams.

Chris Williams:

Here I am

Kathryn Rubino:

Not present as per usual these days is Joe Patrice, who is at another legal technology conference.

Chris Williams:

Yes,

Kathryn Rubino:

But we will soldier on without our Conrad.

Chris Williams:

Well, the good news is we know what next week’s small talk is going to be about.

Kathryn Rubino:

It will always already be about a legal technology conference, so that is very typical I suppose. But speaking of small talk, we can start the opening segment of our show. We don’t have the drum roll, but small talk. Yay. How was your Labor Day weekend, Chris?

Chris Williams:

It was not much labor. Made a lot of stuff work

Kathryn Rubino:

That seems like that’s what it’s meant to be.

Chris Williams:

Yeah, so I went gambling with the homies as what it does.

Kathryn Rubino:

Nice. Did you win big

Chris Williams:

I what wan is that the past tense of one? No, I made a phenomenal return on my investment, I’ll put it that way.

Kathryn Rubino:

Fantastic.

Chris Williams:

What had happened was I went there fully intending to use my money. I actually like gambling as a, I think of it as a philosophical enterprise enterprise. This book written by Good the, it’s called Nietzche and Philosophy, right? There’s a sectional about it where he just goes on and on about it essentially like Nietzsche’s metaphysics and the notion that chance and fate are actually two parts of the same coin. And the way that he talks about this concretely is he talks about the dice Throw And he is like when you throw the D, it is both an affirmation of chance not knowing how the result will lay out, but it is also an affirmation of fate that once the dye is cast, there will be some result and you are bound to it. And I find it to be a nice little philosophical poetic account of dealing with chance and where else do you see that? But at the craps table,

Kathryn Rubino:

I feel like you are very unique in the sense of that is why you decide to go gambling.

Chris Williams:

Yeah, it’s a philosophical encounter for me, so

Kathryn Rubino:

I love that for you.

Chris Williams:

Anyway, I had my money. I was prepared to use my money because again, you affirm the die throw. My friend is like, yo, I’ll front you 200 bucks. So I’m like, okay, sure. Not only with my winnings did I pay him back his 200, I walked away with 500 bucks, so I made 700 bucks for nothing.

Kathryn Rubino:

There you go. That’s fun. I will also say on the betting front from my weekends, it was the opening weekends of college football and noted sports commentator. Lee Corso was last weekend of college football and his picks went undefeated this weekend, which was you could get quite the return on your investments. I think if you put down $1, you would’ve gotten about 40 just paying on the Lee Corso bets of the weekend, which is quite a return on your investment, which had a bunch of really fun games in it as well. Ohio State beat Texas in a really terrible, messy, really sloppy, sloppy game. But also Miami beat Notre Dame is sort of one of the last games of the weekend, which is super fun and I dunno, it was really fun to get back in the whole football way to be

Chris Williams:

Good shit. Did you make any winnings or was it just watching?

Kathryn Rubino:

I just watched, but I was with several people who made those exact bets, which is why I know what they paid. Hell yeah, that’s what sucks. I didn’t just pull those numbers out of my butt, but I do not do it just because I feel like I like sports. I’ve been really clear about that before, but I believe the hate is what drives sport and that more than liking a team, really getting to hate a team is what brings people back week after week. So I don’t want to mess that up with betting against where my hatred truly lies.

Chris Williams:

Well, one day I hope there’s enough hate in your heart to enjoy a nice sports bet, a healthy one, one that you approach in a philosophical manner.

Kathryn Rubino:

Oh, there we go. Alright, well that was super fun, but we should probably stop this segment and get to the things we’re actually meant to talk about. The First set of stories, it’s actually two stories that really work hand in hand. We actually wrote them each of us on the same day, and that is the series of just embarrassments that are coming out of the Department of Justice, particularly as it relates to the federal government’s takeover of Washington dc. They really touted all those arrests that they made in charging federal crimes, the felony crimes. It’s sometimes quite laughable circumstances. Notably the former DOJ employee, Charles Dunn, who was arrested for throwing a sandwich, a subway sandwich at an officer and the dc we call ’em the DC sandwich thrower, and they not just us and lots of people, they were not indicted. That is obviously really surprising and shocking and spurred lots of ham sandwich puns and jokes because the joke obviously in the criminal law is that a prosecutor can indict a ham sandwich, right? Because only the prosecutor gets to present evidence, they have the full weight of the government behind them and most grand juries return indictments, but not when it comes to the DC takeover and that the sandwich thrower was not indicted. They can of course, file misdemeanor charges for those same things, which do not require an indictment. We’ll see what happens to Mr. Dunn, but it is quite embarrassing for the department and not the only case where it was something incredibly embarrassing.

Chris Williams:

Yeah, maybe to what you were saying earlier, maybe the real flaw here is that the prosecutor didn’t point hard enough at the Dijon mustard on the officer’s shirt for the grand juries. When the story I wrote, there was a woman who was charged with, let’s see what the list is, assault, resisting, arrest, and impeding officers, which sounds very damning and

Kathryn Rubino:

Sure does. It sounds like the kind of thing that you would get an easy indictment for the federal government,

Chris Williams:

Right, from a grand jury, at least just one. But she was placed in front of three grand juries and all of ’em decided not to charge. See, what happened was she was recording an arrest and as she was being arrested, an officer’s hand brushed caressed, really a cement wall. And while that would make for a great architectural romance, it doesn’t make for the strongest criminal case. Fair.

Kathryn Rubino:

Fair. And I think what both of these cases and sort of the more interesting thing to talk about is one of the foundational aspects of our criminal justice system is a jury of your peers. And when the federal government is famously and infamously, I guess more accurately upcharging folks for what should be minor misdemeanors that are handled in lower courts charging with federal felonies and everyone sort of knows about and is very aware of the military takeover of their city, that is part of what you are arguing and defending when you’re seeking these indictments.

Chris Williams:

One of the things that makes it difficult against arguing against just the beautiful rhetoric of something like the silent majority agrees with us, whether be Reagan or Trump, Is That you occasionally have these moments where you have little sample sizes of the so-called majority and they’re just like, no, we don’t actually,

Kathryn Rubino:

I mean, I don’t think that this is something that will necessarily stop any time soon. There are obviously rumors that Donald Trump is going to announce a similar takeover in Chicago, and at the same time earlier today, we record on a Tuesday federal Judge Breyer ruled that the LA takeover was a violation of federal law. So there’s a lot of things in play in a lot of these cases and realities overlap in interesting ways, although obviously the Breyer decision is not necessarily precedent for the other jurisdictions, but it is still part of what’s going on and I think it’s going to be a big story for the rule of law going forward.

Chris Williams:

Speaking of judges overruling things, we didn’t write about this throughout the week, but I think over the weekend court came back saying that the tariffs were unconstitutional. So that’s another big loss for the president that’ll probably blow over in this news cycle, but still these aren’t,

Kathryn Rubino:

There are certainly a lot of things going on and holiday weekends do have a tendency to make big stories seem a little bit smaller. But yeah, there’s just, Pete would never, somebody kind of just casually says, oh, how’s work going to be? I was like, there’s a lot going on. There’s a lot right now. That’s kind of how, I dunno, I dunno if you are feeling has been the same, but I’ve been working at a TL for a minute here and this feels like drinking water out of a fire hose.

Chris Williams:

I’ll just put it to you this way, given your reaction. My friends did not burden me with that question this weekend. It was more like, can you believe that hand sort of thing. But yeah,

Kathryn Rubino:

Well, casual small talk still has its place, but yeah, it’s a little different. So we’ll get a little lighter in some ways in the sense that we’re not talking about the fall of democracy or our system of government, but I think that this is a story that Joe wrote and I think the headline is really funny, so I’ll give him a shout out on that front and read it. But lawyers hold newborn for ransom in scheduling dispute, and it’s not actually the start of a Liam Neeson movie. I need to say that. I need to preface that pretty much at the top. It’s really about professional courtesies. I think this story. But in a case a lawyer’s wife went into labor medically induced eight months into pregnancy or so earlier than expected when they said, we need an extension because my wife is going into labor. The response was, sure, but also I’d like you to only if you sign off on this other procedural demand that’s going on, which has a weird tit for tat when faced with the realities of someone, your opponent being an actual human being, I’d

Chris Williams:

Say I say it is just a childish way to respond to what’s going on in your opposing counsel’s life. But even that’s not mature enough. Even That’s who immature. That is nuts. I’m just imagining that’s one of those things that I feel like would happen in a AI generated drama. So cartoonishly goofy, no way that would actually happen. But

Kathryn Rubino:

I mean I guess I’m not surprised. Listen, it takes all types to bevo and including some that perhaps care about winning more than just being a normal person. But I think there are certainly ways to handle this that don’t make you seem like an absolute jerk, right? Be like, of course please take care of your wife. But while I have you and you’re going to be so busy over the next couple of days, can we just get a quick answer on this other procedural issue? I know you’re going to be crazy with newborn life pretty soon. There are ways to sort of make it more, not quite tit for tat and just kind of like, hey, but also there’s other things going on and that is very much not the way it was handled in this instance.

Chris Williams:

Yeah, I don’t remember this being discussed in how to win Friends and Influence People might’ve been one of those back chapters or the new editions. But yeah, baby bargaining chip one sounds like a bad driveway band. What is it? Garage band.

Kathryn Rubino:

Garage band, yeah. Like a metal bands or hairbands.

Chris Williams:

Yeah, welcome baby bargaining chip. But yeah,

Kathryn Rubino:

It’s worth remembering that things like professional courtesies exist for a reason, right? It’s because it’s not just winning or losing. It’s actually a profession that’s supposed to have these sorts of rules and ways of being that make it more humane. And for every time you are a jerk like this, karma is not just a cat sitting in Taylor Swift lap. It’s real. And you never know when you’re going to ask somebody for an extension because you have some family and or life trauma going on or joy. This baby is good news, but the month early is not great obviously. But there’s lots of real things that require your attention and being decent human doesn’t make you a bad lawyer. No, it

Chris Williams:

Doesn’t.

Kathryn Rubino:

And to the extent you think that you’re probably wrong and you’re probably being a jerk.

Chris Williams:

I think one of the times I feel like you ever get those inklings and you’re like, wait, is this, I don’t know if this is a good thought of just the Republican propaganda working on some level, but there are sometimes I miss being able to talk about virtue as a meaningful thing and not get eye rolls. I hear you saying professional courtesy, but yes, definitely that. But also being a good person, not just being a good lawyer, but the grounding thing should not be the type of career you have, the type of person that you are. What type of person would use this as an opportunity for career development? And that gets to me.

Kathryn Rubino:

Yeah, I think that that’s fair, but I think that couching it in terms of professional responsibility and professional courtesies to me also makes it more transactional for the people to whom appealing to virtue doesn’t make sense. Sure, definitely. Right there are people,

Chris Williams:

What I’m saying is it not making sense as part of the discussion?

Kathryn Rubino:

Sure, sure. But the people who strive to virtuousness are not the people that this story would ever be about. Right? Or some similar thing.

Chris Williams:

Yes.

Kathryn Rubino:

So you have to make it not just about virtue, but again about real other, there are other consequences as well, such as somebody in the future being like, no, that person’s been a jerk to my colleague. Or I heard about the story where they did this. I’m not going to extend professional courtesy to them. And it also impacts your reputation. A lot of things are done in especially trial lawyers and in courthouses. There’s lots of, not improper in any way but favors. You get, oh yes, let me get this filed. Let me get this stamped for you. There’s lots of sort of just niceties that happen and make your job better and easier. And if you’re the kind of person that doesn’t naturally extend them because of your sort of, just because of who you are as a person, you should also recognize that there’s a real professional cost as well. If you’re known as somebody who doesn’t do these kind of basic decency things, it’s more than just are you going to go to the good place or the bad place or we are all in the bad place. Let’s not educate

Chris Williams:

Ourselves. They’re on Above the Law. The bad place is where they’re at.

Kathryn Rubino:

Not to spoil an old TV show, but we’re all in the bad place. But it’s true. And I think

Chris Williams:

I still want my cheaty royalties, by the way. I still want my chey royalties.

Kathryn Rubino:

I mean, it is a very well constructed character that you believe has some striking similarities to your

Chris Williams:

Life. I will say this, but you

Kathryn Rubino:

Are alive. You are alive. That is a clear difference

Chris Williams:

For now. But I’ll say this, that earlier shit in small talk was not scripted. Say that doesn’t sound like a reason Cheaty would give for gambling.

Kathryn Rubino:

It absolutely does. You’re not

Chris Williams:

Making it up

Kathryn Rubino:

People, you are not incorrect about that. There are some striking similarities, I guess between you and a fictional character. Okay, well, it’s kind of the end of this segment. We’ll take a quick break and come back with our last one. So our last segment of today is about perennial Above the Law punching bag Professor Amy Wax. And it’s actually pretty sad that Joe’s not here with us this week. Again, he’s not dead. He’s at a legal tech conference, but his sort of beat has been covering the Amy Wax shenanigans. So there is a little bit of sadness that he’s not here sharing this story with us. But Amy W’s lawsuit got officially laughed out of court. The Penn law professor has been in our pages for doing a lot of unprofessional behavior. She’s insulted black graduates invited white nationals to campus to name, but a few of her sort of antics over the years and when she was at long last after years of begging the law school and university to do something about them, she got amounted to a pretty small slap on the wrist from the institution. And she responded by filing a lawsuit, which has now been left out of court. She made a bunch of interesting arguments. First of all, she said that the First Amendment should protect her speech, which the university said was discriminatory, which did not fly. And then it’s interesting because when I try to talk about this, sometimes it just doesn’t make sense because her argument is that poor.

She also said that she had a federal discrimination claim because the speech that she was talking about talks about race, therefore it should be covered under discrimination law. And the question mark at the end of my voice was intentional because that is not how the law works.

Chris Williams:

The legal arguments I’ve heard this lady make are so bad, how bad are they?

Kathryn Rubino:

Okay, fair.

Chris Williams:

I generally wonder how well she does at assessing the legal claims her students have to make in their papers. If she thought the stuff that she was saying flu, I mean she quite certain, mostly found out that wasn’t the case. But I was having a conversation with one of my friends who’s a professor at Rutgers, and there’s this thing that can happen as teachers teach and professors profess, you just kind of get really used to the smell of your own farts. So when you say a thing, you’re like, of course this makes sense. I’m a legal professor at Penn Carry Law.

Kathryn Rubino:

Sure.

Chris Williams:

Reality is sometimes is like when you’re deadlift, the weight doesn’t care about how right you feel you are, if you can’t lift three 50, you can’t lift three 50. And sometime the law hits like that too.

Kathryn Rubino:

That is certainly fair. Her other argument as to how she tried to shoehorn her claims into discrimination claims was that the university was discriminating against her as a white Jewish woman and tried to compare her sanctions against her, against how the university dealt with some folks who spoke out against Palestine. And as Judge Savage pointed out, this dog won’t hunt. This is not the same for the following series of reasons, including the number of times and the things that were said and what was said and the length of, there’s a million reasons why these were not about the analogy to make. The real question is do we think this puts the end to our Amy Wax chapter? Will she be sufficiently chagrined and just sort of sl off into the sunset?

Chris Williams:

Some questions are rhetorical.

Kathryn Rubino:

Do I know what a rhetorical question is?

Chris Williams:

Other ones are like, come on, that was a come on. What I will say, this is an occasion to say boohoo bozo, when the next dumbass claims comes like, oh, you ready to get spanked again? It’s not nothing good will come of this outside of the good of a judge being like, you’re wrong. It’s like everyone else has been saying, you’re wrong. Hopefully it registers.

Kathryn Rubino:

To be fair, these were her federal claims. She still has state law claims that I suppose she could go forward with that were initially folded into this lawsuit. But when the judge dismissed the federal discrimination claims, they declined to exercise supplemental jurisdiction over those state claims as well. But I also think that in the year 2025, this may be only emboldens Amy Wax or another Amy Wax like figure who gets some publicity out of making questionable. But super far right claims,

Chris Williams:

Well, I guess in six months when the Supreme Court decides that the 14th Amendment actually protects racism, the claim will be stronger. But

Kathryn Rubino:

Until then it will certainly be stronger

In that eventuality or world. But I think these kinds of stories and linking this back to the first story that we talked about today, make you feel better about the state of the law. There’s a lot of things that this administration are doing that don’t have a real basis in precedent or the law. And sometimes that’s even been given the green light by the Supreme Court. So when the system works it’s meant to, that I think has an outsized sort of positive effect on lawyers who are kind of doing their job and going through the motions still. But yeah, so again, sorry that Joe couldn’t be here. I’m sure he has many more memories about all of the wild things that Amy Wax has done over the years, and you can certainly check out our Amy Wax compendium out Above the Law to get a sense of all the shit she’s pulled over the years.

Chris Williams:

Yeah, I haven’t written about Amy Wax often, but there was one point, I think this was earlier on in my time here, I had an article titled it was like Amy Wax pulled in, Amy Wax. None of this has been surprising. None of it. It’s straight up. It’s like reporting on the sun rising at this point. Like, oh, you look, oh, it’s warm.

Kathryn Rubino:

Yeah. Well, I think that’s all we have for this particular week, but please remember to follow us on social medias at ATL blog. I’m at Kathryn, one, Joes at Joe and or Joseph Patrice. Chris is at Writes for Rent. You should be reading Above the Law, you should be listening to the other offerings of the Legal Talk network. I’m also the host of the Gibo podcast. Joe is a panelist on the legal tech journalists round table. I’m sure they’ll have very interesting things to say about the latest and greatest legal technology conference. Anything else from you, Chris?

Chris Williams:

Go Birds.

Kathryn Rubino:

There you go. Peace.

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