A Bad Week For Trump's Fake U.S. Attorneys

0:11Welcome to December and welcome to thinking like a lawyer. Both of those things. Yeah, both of those things. Hi, I'm Joe Patrice from Above the Law. I'm joined by my colleagues, Catherine Rubino and Chris Williams. We are here, as we usually are, to talk about the big stories from the week that was in legal. That said, there weren't a lot of huge stories from the week that was in legal because a lot of people just took off on Wednesday. Peace. Yeah, they bailed. Yeah. Oh. We had ventured too much into small talk triggering the automatic small talk. Yeah, I don't think automatic means what you think it does.

0:50But in my continuing effort to make this a food podcast, I will say that I did want to share post-Thanksgiving, I hope everyone had a very joyful holiday, yada, yada, yada. But I think I maybe unlocked the key to Thanksgiving leftovers. Okay. Does this involve stuffing muffins? It does not. My stuffing muffins were not involved at all because they all went because they're delicious. It would involve those. The rest of your leftovers, I made a turkey pot pie. Okay. So, you know, I had the leftover turkey, all my leftover veg, I kind of chopped up, sauteed, made a sauce. And I had made a baked brie as one of the appetizers with like a cherry and pomegranate jelly situation.

1:35So I had, you know how puff pastry comes in packs of two? So I'd already defrosted a second one. So I kind of had it hanging out in the fridge. So I use that as kind of the top on my pot pie situation, which was amazing. But really the key that I really want to talk about that enough people are not talking about is I put some cranberry sauce in the sauce for the pot pie. And it was phenomenal. I mean, listen, I think I make a pretty good cranberry sauce, period. I add some figs. I add red wine. It's a little sour, complex, savory. I quite enjoy it. But adding like a heaping tablespoon of it into the hot pie before it bakes really just upped the complexity of the dish.

2:19Really, you know, you know, like Alex Gornichelli and all these chefs are always like, add red wine vinegar to everything. You're like, that seems like a weird addition. But they're like, it really adds complexity and this and that to it. I think it was that because there's all the sourness and acidity from the cranberry sauce in it. It was just, I wish I had more leftovers. because that pot pie was a 10 for me. I will add, coincidentally, I'm going to, if you want food hackery, not hackery, I mean, it is a food hack. Saying hackery makes it sound like more like a Clarence Thomas opinion or something.

2:55But no, to add a food hack to it, I am gonna join you in the cranberry sauce, love. You know where else it's useful is egg sandwich. I made like a bacon, egg, and cheese the other day and was like, oh, well, I've got this leftover stuff and put some of that on it, added a little bit of complexity and sweetness to the dish. I love that. And also cranberry sauce is my most favorite legal trivia question that I ask every year and will continue to do so. I have absolutely no shame about that. We do a trivia question of the day every day. But did you know, maybe you didn't, that it actually was an attorney who created canned cranberry sauce?

3:38I did not. Yeah, it's pretty cool. I mean, I think it's pretty cool anyway. Yeah, he was like trying to extend. Because you know how like back in like the early days of this country, like lawyer wasn't really like a full time job for most people. It was like they were a lawyer and also a cranberry farmer and stuff like that. So it's really trying to extend the life of his crop and trying to get more kind of into it like that. So, yeah, he put some cranberry sauce in cans and, you know, changed everything you know about your dinner. Well, there you go. Yeah, I think it's pretty cool. Little little factoid there.

4:16And his name is Marcus Uran. I don't know if I told you that part already. But this way you're ahead on next year's trivia question for Thanksgiving. Another factoid for anybody that's really enticed about Catherine's turkey pot pie shenanigans, go to Wawa, get a gobbler. That sounds like it's pretty much the same thing. It's like the, not to say that the pot pie isn't better. Of course it's better. But do all the, I was about to ask this as a legitimate question, but now I'm realizing because of the format it has to be rhetorical. I was going to say, do all the viewers know what a gobbler is?

4:51I don't think so. oh yeah so if you go to if you go to wawa they have like a you know it's like a hoagie hoagie bread but like they have like turkey stuffing cranberry sauce maybe even some mashed potatoes it's like the whole thanksgiving feast on a sandwich um so it's it's really it's nice it's seasonal delightful yeah it's nice little seasonal thing and it even gets that um cranberry sauce on sandwich that joe was getting at earlier at first i was like now i know i can't eat at everybody's house because when he said egg sandwich i thought like uh like deviled egg or something going on but as as as described i'm like you know that's fine that's good i actually appreciate i appreciate some nights yeah yeah yeah yeah i mean i wouldn't go to wawa because sheets exists but i hear i hear the logic i love that you have a really strong opinion about these things about pennsylvania convenience gas stations you do not in fact live in pennsylvania and i do not but i have a strong opinions about them is it because you hate native americans joe no not not not particularly okay for further context to my knowledge wawa is a native american greeting um i want to say it's the lenape it's a lenape way of saying i mean that would make sense geographically yeah yeah i don't know why there's a goose or a geese in the uh in the icon but i'm pretty sure wawa is hello it's uh the name comes from the town that it was found in really yeah it was always nice to be wrong no no no you're not you're not wrong uh the name of the town is derived from a native word okay and is it the Lenape people Ojibwe it looks like okay yeah and it and it's the you know how Wawa has the goose in it that's uh it's actually the word is not like a greeting it's it's the snow goose in that language.

6:41Okay. And that's kind of how the... I feel very educated now, you guys. Peace out. Good talking to you all. And see you next week. Yeah. While it sucks to be wrong on air, it is nice to also be corrected. I feel like I learned something. And also, now we figured out the goose situation. Yeah, you are more... That was kind of the hanging chat of the previous conversation. You are more correct than you were wrong. You know, speaking of not liking Native Americans, Uh, the, yeah, no, that brings us to a bit of a, the anti Gorsuch. Well, yeah, kind of the anti Gorsuch, uh, which is ice. Uh, we, uh, for those folks who are old enough to remember the TV show Northern Exposure, one of the indigenous actresses from that show was detained by ice because, uh, they're going around and rounding up people who don't belong here.

7:30And in their eyes, that includes the actual native people who were here first. Are they going to deport them to home? Uh, ultimately. ultimately appears they were let go but you know that's where we are we are now at the stage where ice is rounding up people who look different because they are in fact the people who are here first it's like america has turned into a caricature of what yes we are like the no not not not so much a caricature of what we are it's a caricature it is exactly what we are well that's what i'm saying it's we've turned into yeah what would have been a joke about america oh i see 20 years ago but now it's real life i remember this was like at this point it was like over a year ago but i had a question during a small talk i was like can a thing be its own metaphor this is the sort of thing that comes to mind like yeah like america is its own parody yeah that that's where we are all right well we should get going here with that let's uh we can talk about well this this is a decent decent transition of america becoming its own parody donald trump who is currently the president uh as we record this uh that's the joke that's it yeah yeah he he is on the hook for a million dollars worth of sanctions He won million dollars, million dollars, which he was jointly and severally like he and Alina Hava, who claims to be the U.S.

9:06attorney for New Jersey, which third circuit disagrees. The Third Circuit, we just learned, disagrees, which is accurate. But the two of them have this million-dollar sanction outstanding, if you didn't remember, from their Florida suit where they sued Hillary Clinton, James Comey, and basically everybody who lives in D.C. for executing a massive RICO conspiracy against Donald Trump. this rico conspiracy's damages were during the 2016 election were that he won i i don't i don't understand what that was something that was pulled over on the american people yeah i don't understand how that's the damage uh and neither did the judge and neither did the judge in the case who ultimately kicked the case but also determined that it was a level of frivolity as well as being time barred that warranted a million dollars worth of sanctions.

10:01They have appealed that to the 11th Circuit. And with a majority conservative panel, including one Trump judge and the famously conservative chief judge William Pryor, they determined that no, absolutely you owe a million dollars in sanctions. Yeah, I mean, getting William Pryor to write this decision is really just perfect, right? He is not a liberal judge. He is famously arch-conservative. I would even say that. No, I mean, we do have warm feelings about him here. He referred to me once as one of the great investigative journalists of our time. Yeah, I think tone matters there, Joe. Oh, I've just seen it in text, I assume.

10:50Interesting. No, but what Joe is referring to is a couple of years ago during the Federal Society annual convention, William Pryor was one of the speakers and went off on an extended jag talking about how all of the legal media is terrible. name checking specifically Joe, myself, former ATL editor, L.A. Mistal, a bunch of the people over at Slate, like name checking a bunch of the legal journalists and saying that we were all awful and our hatred or just, you know, distaste for Donald Trump was proved. Well, the Federalist Society in particular. Yes, and the Federalist Society proved that we were terrible people.

11:31So this is not some libtard. Yes. That is fair to say. So you have this majority conservative panel who agreed with the lone Biden appointee that, yes, no, this is frivolous and time barred, and you deserve to be sanctioned for filing it, which, look, was pretty obvious. But there were, you know, as we've learned over the last few years, that if you're conservative and want to get Donald Trump out of legal trouble, there's many, many fake things you could invent, fake doctrines you can invent to get him out. Major questions. And this was a situation where they did not do that. So, yay. Somebody still cares about some aspects of the rule of law, if not all of them.

12:18So it's not going to matter, though, because I'm pretty sure Donald Trump is just going to bill the U.S. government for that million dollars if he has to pay it. Or if not, he'll just pardon some other financial criminal and they'll cover the tab. Do you see that we let out the drug trafficker the other day? We? Yeah, well, they— I called out that day. The blood is not on my hands. No, that Trump released the former president of Honduras, who was currently serving 45 years for running a narco, narco terrorist organization, basically. So he gets out, which is interesting, because the justification currently being used for why it is legal to extra judicially assassinate people on boats in the Caribbean is while they're dealing drugs.

13:09and we're letting go of somebody who is the kingpin of a or a major figure in a drug trafficking operation. It's almost as though drugs isn't the real issue here, but I don't know. Maybe it's a matter of scale. And this is also a very traditionally American thing. If you're a small-time drug dealer, you get locked up, you get killed. But if you're doing big time, you become friends with the president, you get to do whatever you want. Maybe there's a very popular show called Breaking Bad or You're the Hero kind of like you know some matter of scale. Yeah no that is true the go big or go home logic just applied to drugs so in this instance he went big and so he can go home apparently this is part of some also part of some broad theory that maybe if he gets to be pardoned and go home he can reclaim the government of Honduras which is currently in the hands of a, you know, not fascist regime.

14:04And so therefore, they're hoping to bring that back. I don't know. Regardless, we took an aside into the whole exjudicial killing and illegal orders question. But what we were really talking about is the sanctions. It is super hilarious that the judge called out a decided the judges decided to uphold this. Now, this probably puts an end to it unless the Supreme Court decides to, in its infinite wisdom, find some way that you can, you know, that if you have ever been president, you can file time barred claims. I can't imagine that's what they'll do, but we can see.

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15:22Well, let's break up the stuff thematically a little bit and talk about a big law story. Obviously, bonuses are still in season, but another story that it was just one of our quotes of the day, which usually isn't all that big, but this one was somewhat popular. I think it makes sense because of what the subject was. we have a law firm who has determined that they're going to shorten their summer associate class. The size of the class or the length of the class? I think this is interesting because that does not seem like it decreases my stress at all as a summer associate, right? Because most law students do not work during the school year.

16:06Law school's hard. You had a lot of things going on. It used to be not recommended by now at all for you to work your first year. So the summers were the time that you got to make money. Yeah. My summer associate job financed the next year and a half of my life without having to take out additional loans. So to me, this seems more like a penny pinching method or mechanism that would hurt me. I mean, nothing about my summer associateship was stressful. I went to Broadway shows. I went to Yankees games. I went out to fancy restaurants. I had delicious wine. It was a great time. making it shorter doesn't make it less stressful it just makes we have less money is that the case though are they are they paying out less to the associates i mean it's a weekly salary right yeah so if they're if so that so this is munger tolls is moving from a six week class six week program to a four week program uh allowing people to do public interest work or even work for another firm for the rest of that time now i don't know which other firms are going to uh be on board with two-week system to fill that out, but we'll see.

17:14But the argument that Munger-Tolls is making, which I think speaks to the other big problem going on, their argument is that if the status quo of summer programs right now is to hire people before they have any grades their first year for what will ultimately be a permanent job, that seems crazy. And so their position is, If that's the world that we're in, we are not going to ignore that we have to give out offers that early. But what we can do is start moving toward a shorter summer program that allows people to have more options, that allows us to see folks in action but not fully commit. So their argument is kind of that this is what they think might be the natural and long-term reaction to this bad process that exists.

18:06I mean the process is bad. It is broken. The problem is that there's no actor that can come in and and step in and make it better. But it's it's terrible for everyone. It's terrible for the firms. It's terrible for law school law schools. It's terrible for law students. No one is happy with the system. Zero people are happy. But there's this kind of prisoner's dilemma where no one can do anything as an individual to change the system. So they're all it's all just getting worse and worse and worse. Yeah, you know, it's not to expand this out to other legal issues, but there's an antitrust issue in that we have a we have a government and regime at this point.

18:46And it extends with the exception of a brief shining moment during bits of the Biden administration that has been in place largely for the last 40 years that sees antitrust as something you shrug about when it's a corporation exerting economic power to screw people over. But there's a real fear, I think, on the part of the firms, the law schools, everybody else who could – like sanctioning bodies like the ABA to take any action here without seeming like they may be taking an illegal, collusive action. And it is unfortunate that they have genuine fear that the government would consider that to be an antitrust violation when it's not, you know, colluding over setting rent.

19:35I guess I appreciate that Munger Tolls isn't so married to the way they've always done it, to think that maybe this is a way to change it to make it better. But I query if this makes any difference in the short term. I think there's potential downsides to it for the students involved. And this problem is bigger than that two weeks free. Yeah, one of the quotes from the firm's director of legal recruiting is the market has sort of pushed this timeline, but it doesn't seem like it's aligning with any of the goals of the constituencies. So this is our attempt to shift some of those dynamics. Yes, sure.

20:11I hear that. I'm not sure that this is what does what that does. But yes, something needs to be done for sure. You know, TBD. I mean, and it's all right. And we're talking around the fact that now used to have a set of guidelines that said what firms can and cannot do when they can contact students, when they can start interviewing students, how long they have to keep offers open for, etc. et cetera, that kind of dictated how the recruitment of your 2L summer job went down about five or seven years ago that now pulled those regulations. It's basically the Wild West out there. There are no guidelines, no guideposts anymore.

20:50It took a few years for everyone to say, are we really doing this? Are we really doing this? And all of a sudden the timeline shifted. There are no, there's no guidelines anymore. So everyone's literally walking in the door with authors. And we saw this in the past with clerkships and then there was some regulation there. and now they're, you know, a slot backslide there. Like, it's bad. But it is useful to have these sorts of no contact periods and signing days and stuff like that. It does, you know, lead to a situation where your dean might leave your school before the playoffs and good just to take a job at another place so that they can get ahead of recruiting.

21:28Oh, wait, we changed topics there kind of briefly. I'll be honest. This quickly ramping up war of who gets to recruit earlier doesn't make sense to me. Because from my understanding of it is like, yes, you get that the summer associate program, you're basically paying for 20-somethings to get drunk or to baseball games. It's wasteful. But on some level, you are investing into the firm, right? Like you think that generally the person that gets the offer, they'll come back, end up working for you. and I would imagine that law firms as rational actors, they do want to be able to be able to get first dibs, but they also want to make sure that whoever they're investing in actually will be a good investment.

22:13So I'm surprised that, again, there isn't some concerted effort individually, some individual effort that looks concerted for firms to say, you know what, let's wait, let's actually see the scores, because it doesn't really matter that much if you get the first pull of the crop and it's all bottom of the barrel. Yeah, I think that's very true. But I think the counter to that is that the big firms have gotten two things have happened. One, they've gotten very efficient at the pyramid scheme that forces out people that you don't want to keep. They are very efficient at getting somebody to leave the firm of their own volition after a couple of years if you don't see a path forward for them into partnership.

22:54And the other one working in conjunction with it is the law schools themselves are pretty efficient about finding candidates who are going to be good enough for these firms to go get. if you are in Harvard and NYU and Yale and Chicago. I'm trying to think of the good law schools, whatever. I named – I think I got them. Mass law. Whatever. Columbia, I guess. If you're in these firms, these law schools, the firms have enough faith that you are going to be a good enough performer, that it's okay to roll the dice on you before your grades. and then if you aren't, they can filter you out on the back.

23:39I think that that's really true and they're very much pushing the responsibility of recruitment onto the law schools in the first instance, which I think is gonna have a weird next couple of years as the amount of loans available for things like law school has really been diminished by the Trump administration. And so there used to be a, oh, well, go to the law school that you can afford, get really good grades and somebody will find you as sort of that diamond in the rough. There was that kind of mythology out there. And this it's increasingly unlikely. Right. And at the same time, your ability to pay for these elite law schools has also been diminished.

24:13So it's really putting an intense amount of pressure on young people to take out tremendously large loans. Yeah. Private loans in this. Yeah. Well, in some ways, the that elite signaling is more important now because we don't even wait for your grades. Right. You just get it. That's what I'm saying. But it's putting more pressure on these students. You can't even say to them anymore. Well, if you're the number one kid at your tier two law school, you're still going to get a big law job because you won't. No, no, no. Because all those spots are teething. Sorry. Yeah. No, absolutely. That is exactly what it is.

24:44It does make me wonder how firms then would differentiate between students applying from the same school. I wonder if it's like a – Personality. Whoever applied – yeah. Yeah. They're a good fit. You need pizza with them late night. I wouldn't mind asking them to do this. We talked about this a few weeks ago, I think on the show, but we definitely wrote about it. Catherine, you wrote about it. We have we have confirmed that there are big law firms who are giving people they've already given offers to but are still in school walking around money to wine and dine their friends. So they're going down the road of thinking, hey, this person who already worked for us for a little bit, we trust them.

25:24Their friends are probably also great. So they should go recruit their friends. All of which, you know, under a different administration, it would be incredibly problematic because you'd be worried about that sort of silent discrimination, right? That like people like me is a way is a OK way to say it just have discriminatory intent, right? Or to have inadvertent discrimination, all that kind of stuff. But now that we no longer care about DEI and there's no the EUC doesn't exist in a real fundamental way as a pushback against this, there's no downside for firms to be like, well, they were a good fit.

25:57Yeah. If it's minorities like women, what have you, then they were just, you know, charismatic company hires just to keep morale high. But if they're, you know, good personality, it happened to be white. Then, you know, you find a way to sneak in merit, even if you don't have grades. You know, they worked hard to be social sort of thing. all right back to the trump administration who we swear we don't want to talk about all the time it's just that they keep giving a lot they do a lot they give legal hypos that that a 1l professor would really uh really feel you know like it shames them so what we had last week was uh lindsey halligan uh who we were making fun of on last week's show for her inability to get the grand jury to actually sign off on the Comey indictment.

26:47That Comey indictment then almost immediately after we wrapped on the show got tossed, as did the Letitia James case, because Lindsey Halligan also isn't legally the U.S. attorney and can't do any of the stuff that she's been doing, even if she had done it correctly, which again, she had not. In this instance, it was that Halligan had is sitting in this role as theoretically an interim. However, the statute doesn't allow you to keep putting people in in an interim role indefinitely. You get one crack at an interim that lasts 120 days. And by the end of that, the executive is supposed to have nominated somebody who gets confirmed by the Senate and then moves on with that job permanently.

27:31The Trump administration has no interest in getting people confirmed by the Senate because especially when those people are their most controversial options. And so they have been pulling this trick, which they did with Alina Hava, who we just explained the Third Circuit has agreed doesn't legally hold that role. In this instance, it was Lindsey Halligan, the insurance lawyer that they put into the Eastern District of Virginia because they needed somebody who would sign off on going after James Comey and Letitia James. No actual lawyer who understood how things work had agreed to that. I mean, there were, in fact, multiple career prosecutors that investigated each of these cases and said there's nothing there.

28:12Right. And so instead they put an insurance lawyer in this job. But the problem is the interim role that she was replacing already a person appointed through the interim role. And that 120 day deadline passed. Is gone. And therefore they can't be in there. There's a lot of conservative hand-wringing about, oh, the courts are stealing the president's power. How dare they say that they get to choose who has that job? Well, Congress did. You said it. You said it. Congress said it. Congress said it, and there is a statute that says that you have 120 days. And of course there's a limit on that because otherwise you could, as the judge points out in the decision, You could have a situation where they keep relieving the interim U.S.

29:00attorney after 119 days and putting a new one in and just calling it good. That would defeat the purpose of the Constitution, which says that the Senate has to be involved in this conversation. Anyway, she is not legally in that role, and therefore all of her work is void, so they toss those cases. Now, they toss those cases without prejudice. so the Letitia James case could come back. However, the James Comey case Tick tock opens a new wrinkle because, of course, the reason why, and we talked about this last week, the reason why the grand jury indict wasn't around to actually sign the indictment was because it was about to be time barred the next day and so she needed to get it signed immediately so she just had the foreman do it and call it good enough.

29:47That means that that case is now time barred, which kicked off a secondary argument, which is, can you ignore the statute of limitations? There were some law professors and then picked up by right-wing legal voices on social media claiming that you could. There is a statute that says that if an indictment is dismissed for any reason, it gives the government a freebie, extra six months to fix that problem. The flip side of this, which the judge actually had flagged in a footnote to the opinion in the Comey case. Always read the footnotes. Always read the footnotes. As the judge flagged, that – we have precedent, as it turns out, on this specific question.

30:30When you say for any – dismissed for any reason, that is referring to something that is dismissed because there's a problem with the indictment. In this instance, though, there was no indictment. The indictment itself is void because they didn't have the authorization to do it. And this is, by the way, again, we're tabling the whole it wasn't actually signed by a grand jury, which is another reason it would be void. But that's the kind of mistake that potentially could be overcome by this statute. This voidness for them not having the job absolutely is not. And so this should be over. But again, we're probably going to get more litigation on this.