2026: A Rule Of Law Odyssey

0:10Well, here we are again. Hi. Welcome back to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. Hi, Joe Patrice. Thank you. Hi to you too, Catherine Vino. How are you? Yeah, we're both from Above the Law. We are. Yeah, and this is a podcast, as it turns out. Yes, where we discuss the big stories from the week that was in legal. Yeah. This is called Thinking Like a Lawyer. Did we mention that yet? I don't think so. We did. We did. Well, it's better when I say it. Fair enough. Anyway, so yeah, we talk about big stories of the week in legal, And we have a few of those to get into.

0:44But first, as always, we have a little small talk. You're doing again, you're doing the sad trumpet. What happened to your soundboard? I don't know. The system just stopped. Your lack of curiosity about that is hilarious. I'm very curious about it. I've spent a lot of time trying to figure it out, and I still don't know. So 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 great. Yeah, I agree. So what's going on with you? I saw The Odyssey this weekend. Oh, yeah, me too. Yeah, yeah. We should be clear, you know, because some listeners haven't seen it.

1:26So no spoilers. 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. This is the new movie with the same cinematographer that Lagora used for their commercial, right? 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.

1:59and also there's a ton of hype around it and was interested in sort of the cultural moment of it all and all that kind of good stuff. But, and I went in thinking I'd probably like it, but like, you know, 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. Like that opening scene was not, I was not happy with it. I mean, I'm sure it's great for like 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.

2:34Like 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 Good Will Hunting. I thought it was great all the way around. I met Damon. Yeah. I mean, yeah, well, you know, Jason Bourne is married to Catwoman and their son Spider-Man. That's right. With the help of the Punisher. So this was better than the live action Moana. Ooh, interesting.

3:12Yes, probably. It's weird that I saw so many movies. I like literally haven't watched a movie in person in like a year and a half. I just watched two weeks in a row. Probably. I mean, I thought that the live action Moana was great for what it was. But this was like cinema. This was, you felt, I felt good. 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. Right, right, right, right. I did also see it. I also thought it was good. I went grocery shopping, I guess. I didn't really have it. Congratulations, you're eating food.

3:45Yeah. So my local like nice – I went to the nice grocery store. Fancy pants. Yeah, you know, whatever. I saw something and I did not get it, but it's haunted me ever since I saw it. Okay. But in the meat department, I saw they had ground kangaroo. Meat? Yes. I did not know that that was a meat that you could eat. Did not know that was an option. I was a little stunned by it. Particularly, you know, in New York, not in the land of Bluey. Right. And I've been thinking about it ever since because it's haunting me. Sure. Like the concept of ground kangaroo meat. I don't know anything about, like, I assume it's kind of game.

4:26I don't know. Yeah, I have not eaten it. If you're looking to me to provide you with an answer to how does it taste, I cannot do that. 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, like 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. Okay. Because they're both really hoppy. What the f*** is wrong with you? What the f*** is wrong with you? Okay. That was a long way to go for that. I mean, I wasn't going there for that. I was going there for that.

5:05Low-key worth it. I was really telling you the story of the kangaroo meat, and I just thought 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. Okay, well, you let me know if you actually take the plunge and eat the same thing that Bluey and Bingo eat. Yeah. Anyway, I guess that's what we've got going on. I think that's it for small talk. That was pretty small, that talk. Yeah. That's so sad. 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.

5:45Which 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 leave on their own accord. They usually send these like nice goodbye emails and it's not. I mean, when people get laid out, a lot of times they do too because they're still – they want to maintain their relationships with their colleagues and all.

6:31So 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, you know, in the last several months, like a bunch of people have left Miami, a bunch of, you know, a high profile departure in Pittsburgh. Like they 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 percent of the staff is being sliced.

7:13And 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 an 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.

8:07You know, not a great place to be in. Interesting. You know, 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. Yeah. Yeah, no, well, for real pedantic people, that's great. There is a species of person who hears the word decimated and constantly goes, well, technically it's not. Yeah, that's you. You are that person. That diagram. That Venn diagram is right in the middle. That is deeply unfair. That is completely accurate. I also think it's true that the connotation of decimated has certainly changed from 10 % to much more robust cuts.

8:51So there's that. 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 portend of future? You know, we're talking about the Odyssey. Is this a bad omen for the industry as a whole? I did hear that the IT department is a child of Zeus, so probably. The AI sprung from his head. Yeah, no, they – so – but yeah, is this a sign of things to come? 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.

9:49And it's not even necessarily that they're – 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. Yeah. Like 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? Yeah. Word processing, printing, administrative assistance, those cuts have definitely been happening. This was different though. This was accounting people and marketing. That seems bad for the firm.

10:21Right. 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 a 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 that's something we can't answer until time goes by. I 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 actually trust the raccoons in a trench coat more.

11:04And I think it's going to hit a wall here pretty quickly, and I think that 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 on both, you know, 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 head count. 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.

11:46But is there a possibility that this is going to set off a wave of affirmative cuts like this? Sure. Yeah. 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 ten 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 kind of holding on to their full staffing model.

12:30I'll say from a nerd perspective about this. Is there any perspective but a nerd perspective that you bring to this conversation? It's not even a dig. It's just an earnest assessment of who you are as a human. 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 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 a crowded industry that is propping everything up with a series of fake IOUs being handed between NVIDIA, those companies and Oracle.

13:21What happens if that 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 But I think we're entering some, to keep the Odyssey references going, rough seas here. Okay, okay. Yeah. I'll allow it. Yeah, okay, good. I was waiting for your approval. All right, so. 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 Odysseus, we'll be right back. All right, we're back. Let's also talk about earlier we had the 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.

14:18And how's that working out for them? 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. No, because you were right. And that's not something I say. What a shock. Well, I don't say that that often. I know you don't say it that often, but it's not shocking that I am in fact right. OK, 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, you know, listen, from an outsider's perspective, very accurate.

15:13So they are – 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, is no official role in the government. So to 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.

15:46And 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. So the ABA has sued – the ABA has sued, period, but they have – 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. Which would not necessarily be the same communications as the ones the ABA was. Correct.

16:19And 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, you know, very convoluted and not at all the majority of the members of the ABA are the nine firms, right?

16:53Right. 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. Right. Which one, they're not presidential advisors to their advisors to the person who occupies that role. But that is different. And by the way, that is also exactly kind of the flip side problem of the that 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 bunch of release and arguably money.

17:47well, 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. This is not even the attempt to make this executive privileged is would be an extraordinarily broad. I mean, I think a couple I think a few things about this. I think you're 100 percent right about this.

18:30And 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 it kind of first of all, it already concedes the 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. Well, yeah. And moreover, it concedes if you think those communications with the firm are responsive, then the communications being had with the administration, well, not with the administration, with the president as a person are therefore also responsive.

19:06Correct. Because they can only possibly be the other side of that. Because otherwise, because, okay, so assume there's a communication. We don't even know if these documents exist as such, right? Because these are all requests, whatever, whatever. But like, let's say something exists between Epstein and one of the firms, that 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. Right. Because that's because the lawsuit is this is a coordinated attempt to abuse government power to chill speech.

19:45100 percent 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 obviously the doj has lost a lot of competent career attorneys uh and and all but it it also seems that even beyond that it it operates in such a keystone cops manner these days like this is this is just amateur hour screw-ups 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 yeah and while the government does talk about things uh has a bit more transparency than a lot of corporations but strategy level question well and and it's a comment that that can easily be cited back at a future motion about proving the level of bad faith that's on display here.

20:44It's just so embarrassing from a lawyer perspective to watch this DOJ operate. Yeah. The fact that they occasionally get away with it is more embarrassing, but nonetheless. So, 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. Yeah, 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. And 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.

21:32Because the whole, like you originally wrote, and I do quote you for this, you know, pray I don't alter these deals any further, right? 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. 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.

22:08Okay. Listen, it is a classic piece of literature, so there's lots of opportunities for it to be relevant. But I think, mayhaps, you are pushing it a bit too far. 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, You know, I long for the days when DOJ screw up stories are, you know, a rare instance to talk about. Oh, the days. Last week, the Western District of Washington got a new U.S. attorney sworn in. That U.S. attorney held the job for roughly 54 minutes before being fired.

22:54That's got to be a record, right? I don't know that we've written it. People have, like, kept records for the shortest time ever being held in that position. But 54 minutes, under an hour, has got to be it. I assume there was probably a market on Polymarket for this. A series of bets coming from inside the DOJ building paid off. It's so corrupt the way that the futures market works. Yeah. So the issue here, for people who aren't familiar with how this process works, in a normal world, the U.S. 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 names someone to that job, nominates someone for that job, and then the Senate confirms that person, and then that person has the job.

23:43In 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 is just going to do the job. That is not how the Constitution operates. Ignore our laws, right? An interim is only allowed to serve for 120 days. 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 do the job. Where's Geppetto? 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.

24:29So they're their own right-hand person. And the reason for that is that then they argue – Do they get two paychecks though? 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 routinely been slapped down.

25:04And in multiple districts failed. this has failed uh because the courts it's not even some it does violate the the vacancies act and all that but 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 uh alleged criminals uh alleged criminals are able to say i can't really be prosecuted because this is a phony a phony indictment that is how the law works yes so 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?

25:48It is not to – The law has contemplated that 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 U.S. attorney until the president and Senate get their act together. Sounds legit. 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.

26:25So that's why it reads this way. The administration takes the 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 nobody who technically holds the role currently. Correct. There's nobody who legally holds this role now. What the administration claims is 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. That would be an end run against the whole Senate confirmation process, right?

27:01Because 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? Exactly. The Constitution does not say the president. There's no time limit on the one that's appointed by the courts. Right. So that would be the ultimate end run. Yeah, it does not. It does not say the president with the advice and consent of the courts, the local courts. Right. Yeah. That's not at all what it says. The separation of powers – what's weird is it's being – this move is being defended by a lot of the president's fans as a separation of powers issue that all the courts are seized.

27:33The constitution doesn't give the courts the rights to do this. 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 balance, the separation of powers balance between the executive and legislature that was contemplated by making 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.