Are There Any Adults Left At The Department Of Justice?

0:11Welcome to another edition of Thinking Like a Lawyer everybody. Hey, I'm Joe Patrice from Above the law i am joined by katherine bino who is also with above law that is accurate and we are here to do what we do every week which is talk about some of the big stories from the week that has completed at above the law yes we we have finished a week time has marched ever forward but we will take oh we will take a second to have some small talk conversation uh which will be legal in nature It's actually the opposite of small talk. It's pretty big talk, to be fair. Yeah, but it's small talk to the extent it's not something that's necessarily on our proper agenda because it's not talking about the biggest stories of the week for us traffic-wise, but it is something we want to acknowledge.

1:03The Supreme Court met last week, dropped an opinion. So the Voting Rights Act— We hardly knew ye. —not really a thing anymore. Yeah, I mean, what I think is interesting about this, obviously, Section 2 of the Voting Rights Act was completely decimated by the court's recent decision. But not struck down. Well, I do think that's actually the really interesting part as you kind of compare and contrast it to the court's decision in Dobbs, right? And the kind of chatter right behind the scenes is that this is this kind of death by a thousand cuts is what John Roberts actually wanted to have happen.

1:40And then the Alito draft decision was leaked. And all of a sudden these votes solidified for the more firebomby version of the decision. And then after kind of the blowback that the court gets, we get a decision where they kind of go back to this. while we will not overturn anything officially, we will make it incredibly difficult for this to be a real law. Yeah. I predicted a few years ago, I made a, I made an argument, I wrote a post where I said that section two probably will never get fully taken away because John Roberts prefers to keep the law there so that he can be the arbiter of voting rights.

2:23One of the advantages from the perspective of this court of keeping Section 2 technically there is now they still have the opportunity to parachute into anybody who attempts to give more voting rights to black people and they can come in and say, oh, no, we've decided that doesn't count. Yeah, I do think it's interesting because the Dobbs decision obviously launched a thousand donations to all sorts of left-wing causes, got people really excited about getting out and doing political stuff. And I wonder if this was a direct reaction to the fallout from Dobbs, keeping or getting more of the conservatives on board with this methodology, if that was part of it.

3:11Because, you know, Hakeem Jeffries is certainly campaigning on VRA is gone functionally. And we did write a story about that it is interesting whether or not this it will kind of if the court has learned its lesson about taking on controversial issues uh face forward as opposed to doing what they do best you know kind of a this was obviously not on the shadow docket but similar to how they have the shadow docket to to get things done without getting a lot of attention yeah which appears to be their preferred operating methodology yeah but uh yeah it now creates a situation that If you were wondering what the fallout long term of Shelby County to here would be, it seems like we've reached that point.

3:55Multiple states in the South have now announced that they're going to begin redistricting to eliminate all majority minority districts in the South, which will, I guess, net the Republicans another potentially 12 seats in the South by taking away, you know, basically making New Orleans, carving it up in a way such that there's no area where black people have the majority of the vote, despite being the majority of the population of the biggest city there. You know, that kind of thing. I mean, really just terrible disenfranchising shit. And, you know, I know, Joe, you're also a big fan of the Revolutions podcast.

4:37Yes. And this, you know, it's terrifying when you're like modern day reminds me a lot of the Revolutions podcast. But one of the things when Mike Duncan was talking about the French Revolution that really that one, for those who don't listen, it was like two seasons worth of the Revolutions podcast was all about the French Revolution. And the podcast, I would highly recommend it talks about a bunch of different revolutions throughout the world. It's really interesting, whatever. On the French one. And one of the things that was a constant refrain is that that was disenfranchisement, that all of a sudden people who were able to vote weren't able to vote or, you know, they were kind of constantly disenfranchising large swaths of the population.

5:18And that that is fundamentally untenable and that historically when governments start doing this, you are building conditions for revolution, which is something that I was reminded of when this happened. So, yeah, not great. you know we'll see how this all plays out uh we should get back to our regular regularly scheduled agenda by closing off our little you know non-structured small talk and talk about uh the big structure of the week these were our a couple of our biggest stories of the week dealt with uh the department of justice uh is an organization that always has adhered to kind of the highest standards of professionalism and you know the the elite of the elite and they seem unable to draft a motion competently.

6:05You know what? There's a bunch of reasons why that's true. The first of which is, I think we saw the statistic over the weekend that a solid third of DOJ attorneys are no longer at the DOJ, right? I saw a quarter, but fair enough. Yeah. Okay, fair enough. It was a lot. I don't have the stat in front of me. It is a shocking number, whatever it is, over the course of one year. Yeah. So they are certainly short-staffed. So give them a bit of grace, at least with one of the stories, which is the funnier of them. Give them a bit of grace. My counter to that is no. Sure. I mean, I like that answer quite a bit.

6:42So the biggest story of the week for us, at least traffic wise, is the less significant one in some ways. But it speaks to an important thing, even though this example of it wasn't quite that. One of the aspects of this administration, since it's taken over, the Trump administration has ordered the DOJ's Civil Rights Division, which is now ironically named, to go around and start lifting all of the consent decrees that it has with local police departments around the country for being police brutality and racist profiling and so on and so forth. So all of those decrees that were intended to keep federal monitors over those situations are being lifted because that's a priority for this administration.

7:30One area where it was going to get lifted, and to their credit, its time was up. In Springfield, Massachusetts, there was a four-year consent decree that put in in 2022 or late 2021, whatever. So it's now up to be lifted, and they made their motion to do it. But they did so by filing a motion that had the words draft in big watermark splashed across all the pages, which, you know, quite the – yeah, you saved me from having to go to the soundboard. I do what I can. Yeah, no, look, document management systems exist so that you make sure that you're only filing the final version. You know, there's a lot of a lot of hands touch emotion.

8:17You need to make sure that's why you always save it and it puts a new version number and you've changed the name to something like motion. Seriously, I'm not kidding. This time, final.doc. Sure. But putting draft across it and big, big, bold, like gray watermark across the back is kind of the belt and suspenders approach to make sure that there's no way you accidentally file the draft rather than the final version. Yeah. But they did. Yeah. Yeah. Yeah. In the grand scheme of things, this decree was going to get lifted anyway, and they replaced it with a final version, although not by the time I wrote mine, but I had been informed that they intended to by that point.

9:02Sure. I mean, one certainly hopes that they intend to do a lot of things, like not file this. I mean, it was a simple perfunctory, like, hey, we're going to lift it. Yeah, yeah, yeah. And I think that it's interesting and why I kind of like this story the best because it's the most relatable. Like, you know, mistakes happen. LOL. It almost reminds me of like the past, the kind of halcyon days when like, you know, this was the biggest controversy in the DOJ as opposed to a weird footnote. No, that's true. Like this would be the sort of thing that would be the biggest crisis in the world in a past DOJ.

9:39And it's not one that it hardly merits. Tracks a list, yeah. Although, you know, it still generated a lot of attention and it speaks to a level of carelessness that – For sure. By which people are looking at the situation. The Civil Rights Division in particular has been hit very hard by those departures that you were talking about because it's doing the opposite of what any of those lawyers joined to do. Yeah. So it doesn't really shock me that this is how that went down. The flip side, though, of a motion that was in final form, though it probably shouldn't have been, is that the DOJ filed a motion in the ballroom case.

10:18As you know, they're trying to build this ballroom. Presidents don't own the White House, so they can't actually rip down whole parts of it and rebuild new things without going to Congress. Well, they, in fact, did rip it down. and Judge Leon has been quite salty about a lot of the things that have gone on since then. Yes, with an exclamation mark, as is his want. In the aftermath of the kind of failed shooting at the correspondence dinner, they have been attempting to get this built. They've been attempting to get the plaintiffs to drop the case so that they don't have to deal with the fact that Judge Leon has correctly interpreted the law to prevent them from building it.

10:58They then filed a motion about this. They are demanding that this ballroom get built because that way they could have prevented an attack like this. By the way, one thing, and I put this in the article about this side issue. No one's really talking about this in the mainstream media. But, you know, I on I cited my piece that a friend of mine on Blue Sky made this point that, you know, the ballroom design that they have isn't big enough for the White House Correspondents Dinner. Yeah, yeah, that is one of the funnier aspects, right? How is no one talking about this? I think the proposed ballroom is 900 seats, and the Hilton where the correspondence dinner does take place is 2 ,000 seats.

11:41I mean, yeah, the White House correspondence dinner has over 2 ,000 people. So this argument that we need to build this to prevent that, like, it doesn't even make sense. Anyway, whatever. But they filed this motion. This is Blanche and Stanley Wood and all those guys put in this motion. But it doesn't read like lawyers wrote it. It reads as though perhaps the president dictated it and they just signed their names to it and put it in. There are a lot of random capitalizations. There's random capitalizations, grammatical errors over and over and over again throughout the whole thing. It reads like the truth social post.

12:20Now, question, of course, is are these actual lawyers turning this over to their quote unquote client, which, of course, the president is not the DOJ's client, the country is, but they view the president as their client. Are they turning it over to their client to write, which is, as any lawyer knows, a horrifyingly bad decision? Or are they writing it in a style that he can comprehend because it's just all for show? I like what what is this? I don't have an answer to that, Joe. I mean, none of this. None of this makes any sense. Like there's capitalizations. There's there's an all caps moment.

13:01There's with an exclamation point, which is probably bad, but we're going to let it go because it's in front of Judge Leon, who's also going to put a bunch of capitalizations everywhere. they compare it to they talk about trump derangement syndrome throughout the whole thing which already is a sign that we're not dealing with you know serious people they they attempt to define that by the way by putting in parentheses that also called tds but they don't do it like in the way that you would in a in a real brief where you like put in parentheses and i'd put your you know quotation marks all that sort of thing you know i mean i don't know quite I went through kind of paragraph by paragraph.

13:40It is an abysmal collapse of basic writing skills. The parts about the grammar that get me, like the wrong, I know these people don't like pronouns, but they get pronouns wrong constantly as far as putting there for things that are its and stuff like that. Somehow Barack Hussein and Obama is involved, Hussein being mentioned. And I don't know how that even shows up in this conversation. But it's just the rantings of a – I mean I encapsulate it as dementia take the wheel. It's real bad. Yeah. Well, let's take a break there and be right back.

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15:00Good news. We have more to talk about with the DOJ. Yeah. So the Department of Justice attempted to – made a big deal out of Jim Comey putting together some seashells by the seashore in the form of 8647, took a picture of it. They flipped out. He deleted that picture saying he had no idea that there was a violent connotation to it. there really isn't a violent connotation to it except in kind of an old-timey mafia way in which you would refer to something that is very very not violent as a code word for violence but not something that 86 just means cancel right yeah like you know like it's like being in a diner when you're ejected from a bar yeah yeah when you're ejected from a bar if you oh they don't they didn't want the fries with it 86 the fries yeah you know uh it is not really a violent threat But that said, they threw a fit about this when it happened.

15:55Kash Patel went on TV to say that it was real dangerous. Then he was pulling agents off of child sex predator cases in order to go after people talking about it. Real statement about the priorities of the DOJ. Yeah, it struck me at the time that that was a problematic thing to be saying. But, you know, hey, maybe he was drunk at the time. Point is, this case then moves forward and gets kind of lost as people within the DOJ, as incompetent as they may be, decide that there's no way we can really bring this case against Jim Comey because it's stupid. And so they attempt to bring this case about lying to Congress.

16:37We saw what happened with that. Longtime listeners know that by putting an insurance lawyer in charge of that prosecution, she failed to actually get an indictment in time. And that case collapsed as well. That seemed to be the end of it for several months. And then now we are back to the 8647 bit because it is within the statute of limitations, I suppose. And they are trying to go after Jim Comey for having put these seashells together. Which, I mean, he says that he didn't actually put the seashells there, right, that he found them like this. He just stumbled upon somebody else's work and took a picture of it and posted it, which whatever.

17:14But not super relevant. My favorite part, though, about this indictment is the way in which lots of senior people in MAGA lands keep on undermining the prosecution. You know, Todd Blanche went on TV and was like, well, of course, we're not going to prosecute everybody who says 8647. And, you know, Alina Habba said something similar where it makes it very clear. Like, this is just there's lots of shirts that are sold on Etsy and Amazon that have this phrase. Are they going to go after everybody? They're like, of course, we're not going to do that. Yeah. Which very much undermines how impactful this phrase is.

17:53Yeah. I mean, there are, I mean, several of the administration's fellow travelers had done 86, 46 about Biden. So they can't. It's hard to argue. So they're going to make real clear that they don't intend to treat this as anything but a selective prosecution, which is good news for Comey and his lawyers, I suppose. Not so great for the administration. Also, to claim that political violence is something that these folks are worried about is a little weird as they're currently attempting to purge the conviction to the people who wanted to hang Mike Pence. So seems like maybe maybe we don't really care about this as much as we're trying to make out.

18:33But it does look like the DOJ is trying to do something. The prosecutor who signed off on this is the U.S. turning down in North Carolina. He is – I saw Ben Penn from Bloomberg has a good piece about how he is so enamored of the ideas of currying favor with Trump that he has taken to dressing like him and talking like him in an attempt to just kind of mirror and get favor. which psychologically that tends to be a very successful strategy so you know he's read some psych books i guess so you know yay yeah he's uh but he's also uh they they put they have the indictment the indictment uh as noted by folks pretty quickly cites the wrong legal standard for a threat uh so it is pretty much doomed on its face if there's uh a judge paying attention into the situation.

19:31So we've got that problem. We've got the selective prosecution problem. You know, we are seeing all of these folks prosecuted Trump officials who are prosecuted for the crimes they committed the first time around are now suing to get money. Like people like Mike Flynn are getting big payouts, despite the fact that they, you know, active actually did the things and confessed to them. But they're getting big payouts on the back end. Seems as though, Jim Comey is probably going to get a big payout on the other end of this administration for a real thing that he did not do, where he was actually persecuted as opposed to those cases.

20:10At what point does our government really just become an ATM for people who get maliciously prosecuted by the previous administration? I mean, yes, that is happening. There's not a lot more to say as opposed to just being horrified that this is the world. That's it. I mean, the The attempt by Trump himself to get paid from the government for being prosecuted in the past has hit the rocks as the judge asked, how can you sue the IRS? Because which he's trying to do, he's trying to get$10 billion from the taxpayers to pay him back for having had his documents leaked in the past. He claims that is stalled as the judge was like, well, you know, if you believe in a unitary executive theory, seems to me as though you can't sue yourself and the defendant.

21:05So that is currently been handed over to a committee of outside counsel. The judge wants once, you know, comment from them about what to do in this case. So we'll see what happens there. All right. Well, let's take a break and finally be able to talk about something else. So we are back. Scadden is a very prestigious law firm. By shoes all around. Yeah, you know, and if you're a partner there, that's a pretty big deal. But a 20-year vet of Scadden has now bolted to go to OnlyFans as the new GC. Yeah, I was going to say, he's going in-house. I mean, at least. I'm not going to speak for - That is what we know.

21:53We know that there were. Listen, the partnership to in-house pipeline is a tried and true legal career path. It makes a lot of sense. You know a lot about clients that you've had from your role as outside counsel. So, you know, you take it in, take it inside and yeah, maybe have a little bit of a different lifestyle. there's some logic to it i mean obviously this is a very big business uh it is a growing business right now uh it needs legal representation that you know they have they have some deals that are uh in at a crossroads right now their see their yeah their founder died unexpectedly recently so not found did i say founder not founder but the owner uh he wasn't the original founder but had bought the company several years ago uh died and so that's triggering a lot of issues with the deal And so they do need a deal maker to do this.

22:46The current CEO is from Oric, actually, who moved up having been running the legal stuff before then. It's also, you know, it's a model that is not too dissimilar from Big Love, right? I mean, you get a lot of money from skimming the talents and exploiting the talents of younger people. Of much younger people, yeah. So in some ways it works out. But it's actually a little bit – it's a little bit the opposite, I think, of the big law model because in this, the company only takes like 20 percent and the creators are keeping 80, which is the opposite of how revenue per lawyer works where – Sure. Yeah, where they get paid 20 and the firm keeps 80.

23:32It speaks to an interesting idea that we quoted a post by Jane Genova, who's an executive coach who does a lot of legal work. She'd written a piece about this that I put in mind about how she's hearing a lot from folks in the legal profession talking about trying to get out of traditional career paths. They just don't see them as lucrative or as reliable as they once were. These new industries are the industries that have much more growth potential. There's probably a pun that double entendre. I didn't mean that. This one. Not in this instance. But yeah, this industry is growing a lot right now.

24:14This is going to be a lot of money. It is an industry that has a lot of legal issues surrounding it. Not the least, you know, like you would think the fact that it's an amateur porn site, which it says it isn't. But anyway, the fact that it's an amateur porn site is obviously an issue. in a lot of jurisdictions, but that might not even be the biggest legal hurdle coming up for them. I think it seems to me as though AI could start to become a problem for them. Sure. If you get to a point where hyper-realistic AI prompts can do things like, does that hurt the ultimate underlying business model of a site like this?

24:54That is a regulatory and lobbying battle that I think OnlyFans is going to need to fight if it hopes to survive. And it's in a weird position because they are not the sort of industry that Congress likes to listen to historically about these sorts of things. It's the reason why you go with somebody who comes from the kind of gilded world of big law. Yeah. And going from Skadden, famously one of the firms that made a deal with Trump earlier, so to a slightly less whorish business, is no. No. You know, you went there. I did. You went there. I'm sorry. But. Okay. I have very little follow-up that doesn't make me look worse.

25:44So let's just keep it moving. Oh, but I'm here for that. Yeah, I'm sure you are. Like the you looking worse is kind of what I'm depending on right now. I prefer to let you flounder. I need to get out of this. Anyway, does that bring us to the end of our schedule stuff. All right. Well, thanks everybody for listening. You should subscribe to the show to get new episodes when they come out, you know, leave reviews, stars, all that sort of thing helps out. You should check out other shows. Catherine's the host of the show. I'm the guest on the Legal Tech Week Journalist Roundtable. We have the other shows on the Legal Talk Network to listen to.

26:24You should read above the law to read these and other stories before we talk about them here because we have many more stories that we don't get to on this show every week. You should be following on social media at abovelaw.com. I'm at Joe Patrice. She's at Catherine1, the numeral one. And yeah, that's it. Bye.