DOJ Has Egg On Its Face

0:11Hello and welcome to the latest episode of Thinking Like a Lawyer. My name is Katherine Rubino. I'm your host and my co-host today is, as per usual, Chris Williams. Here I am. Not present, as per usual these days, is Joe Patrice, who is at another legal technology conference. Yes. But we will soldier on without our comrade. Well, the good news is we know what next week's small talk is going to be about. 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 you know, small talk.

0:59Yay. How was your Labor Day weekend, Chris? It was not much labor, made a lot of stuff work. That seems like that's what it's meant to be. Yeah. So I went gambling with the homies, as we're with us. Did you win big? I went, what, wan? Is that the past tense of one? No. I made a phenomenal return on my investment. I'll put it that way. Fantastic. So what had happened was I went there fully intending to use my money. I actually like gambling. I think of it as a philosophical enterprise. Because there's this book written by Giddaliz called Nietzsche and Philosophy. right there's a section about it where he just goes on and on about 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's like when you throw the die it is 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 die is cast there will be some result and you are bound to it.

2:11And I find it to be like a nice little philosophical poetic account of dealing with chance. And where else do you see that? But at the craps table, I feel like you are very unique in the sense of that is why you decided to go gambling. Yeah, it's a philosophical encounter for me. So anyway, I had my money. I was prepared to use my money because again, you would, you would, you would affirm the die throw. My friend is like, yeah i'll front you 200 bucks so i'm like sure not only with my winnings did i pay him back his 200 i walked away with like 500 bucks so i made like 700 bucks there you go that's fun i will also say uh on the the betting front from from my weekend it was the opening weekend of college football and uh noted sports commentator lee corso's last weekend of of college football uh and his picks went undefeated this weekend, which was, you could get quite the return on your investment.

3:11I think if you put down$1, you would have 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 as sort of one of the last games the weekend which is super fun and uh i don't know it's really fun to get back in the whole football way to be you know good shit do you uh did you make any winnings or was it just watching i just watched but i was with several people who made those exact bets which is why I know what they paid.

3:57Hell 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, here's the, 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. Well, one day I hope there's enough hate in your heart to enjoy a nice sports bet, a healthy one, you know, one that you approach in a philosophical manner. There you go. All right.

4:36Well, 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, D.C. You know, they really touted all those arrests that they made in charging federal crimes, the felony crimes. You know, it's sometimes quite laughable circumstances.

5:20Notably, the former DOJ employee, Charles Dunn, who was arrested for throwing a sandwich, a subway sandwich at an officer and the D.C. We call them the D.C. sandwich thrower. And they, you know, not just us, lots of people, they were not indicted. that is you know obviously really surprising and shocking and spurred lots of ham sandwich puns and jokes because the the joke obviously in the criminal law is that it's 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 not when it comes to the D.C.

6:09takeover 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 it is quite embarrassing for the department and not the only case where it was something incredibly embarrassing. 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.

6:56Sure does. It sounds like the kind of thing that you would get an easy indictment for the federal government right from from a grand jury at least just one but she was placed in front of three grand juries and all of them 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. Fair. And I think with both of these cases and sort of the more interesting thing to talk about is, you know, one of the foundational aspects of our criminal justice system, right, is a jury of your peers.

7:43And when the federal government is famously and infamously, I guess, more accurately, you know, 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're arguing and defending when you're seeking these indictments. 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 it be Reagan or Trump, is that you occasionally have these moments where you have, you know, little sample sizes of the so-called majority.

8:30And they're just like, no, we don't. We don't actually. I mean, I think I don't think that this is a 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 on a Tuesday, a federal judge, 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 prior decision is not necessarily precedent for the other jurisdictions, but it is still part of what's going on.

9:17And I think it's going to be a big story for the rule of law going forward. 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 the news cycle. But still, like these aren't. There are certainly a lot of things going on and holiday begins. Do you have a tendency to to do that, to make big stories seem a little bit smaller? but yeah there's just you know people never somebody kind of just casually says oh how's work going to me i was like there's a lot going on there's a lot right now so uh that's kind of how i don't know that i don't know if your feeling has been the same but listen i've been working at atl for for a minute here and uh this feels this feels um like drinking water out of a fire hose.

10:17I'll just put it to you this way, giving your reaction. My friends did not burden me with that question.

10:27It was more like, can you believe that hand? You know, sort of thing. So, but yeah. You know, casual small talk, you know, still has this place, but yeah, it's a little different. Every legal professional wants to put their clients first, but billing, payments, and case management get in the way. 8AM is the professional business platform that helps law firms get paid faster, manage cases more easily, and grow with confidence. Trusted by over 260 ,000 legal professionals, 8AM integrated solutions like 8AM Law Pay and 8AM My Case help simplify the business of running your firm so you can actually put your clients first, first.

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11:17That's my impression of the hold music your callers hear right before they hang up. Smith AI pairs AI with real live agents to answer calls, qualify leads, book consultations, and even send retainers 24-7. Better intake, fewer missed opportunities. No more hold music solos. Try it free at smith.ai. Mention above the law or use code NOHOLD at sign up to claim 20 % off your first two months of service. So we'll get a little lighter in some ways in the sense that we're not talking about, you know, 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.

11:57So I will 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 like 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, you know, we need to, 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.

12:45I'd say that's a, I'd say it's just like a childish way to respond to what's going on in your opposing counsel's life. But even that's not mature enough yeah that's too immature you know like that is that is nuts like i'm just imagining like that's that's one of those things that like i feel like what happened in like a like a ai generated drama like it's just like so it's so cartoonishly goofy like no way that would actually happen but you know i mean i'm i guess i'm not surprised listen it takes all types all types to be lawyers and including some that perhaps care about winning uh more than just being a normal person.

13:24But, you know, I think there are certainly ways to handle this that don't make you seem like an absolute jerk, right? Like, of course, please take care of your wife while I have you. And, you know, 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? Because I know you're going to be crazy with newborn life pretty soon. You know, there are ways to kind of 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.

13:58Yeah, I don't remember this being discussed in How to Win Friends and Influence People. Might have been like one of those back chapters or like the new additions. But yeah, baby bargaining chip. One sounds like a bad driveway band. What is it? Garage band. Garage band. Yeah. Yeah. Like a metal band or a hair band. Welcome baby bargaining chip. What? You know? But yeah, 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 that make it more humane.

14:39And and for every time you're a jerk like this, you know, karma is not just a cat sitting in Taylor Swift lap lap. It's real, you know, 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. You know, this baby is good news, but the month early is not great, obviously. But, you know, there's lots of real things that require your attention. And, you know, being a decent human is not, doesn't make you a bad lawyer. It doesn't. And to the extent you think that, you're probably wrong and you're probably being a jerk. 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 like a good thought or like just the Republican propaganda working on some level.

15:29but there are some times I miss being able to talk about virtue as a meaningful thing and not get eye rolls because like because I hear you saying like professional courtesy but yes yeah definitely that but also like being a good person like not just being a good lawyer but the grounding thing should not be the the type of career you have the type of person that you are like what type of person would use this as a opportunity for career development and that that gets me 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.

16:11Sure, definitely. Right, because there are people - What I'm saying is it not making sense is part of the discussion. 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. Yes. And so and so but so you have to make it not just about virtue, but it get, you know, 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, you know, I heard about the story where they did this. I'm not going to extend professional courtesy to them.

16:46And it also impacts your reputation. You know, 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. You know, let me get this filed. Let me get the stamp for you. You know, there's lots of sort of, you know, 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, you know, are you going to go to the good place or the bad place?

17:30Or are we all we're all in the bad place? Let's not. I mean, they're on above the law. the bad place is where they're at right not to spoil uh an old tv show but we're all in the bad place uh but you know it's true and i think i still want my chidi royalties by the way i still want my chidi royalties i mean it is a it is a very well constructed character that you believe has some some striking similarities to your life i will say this you are alive you are alive that is a that is clear difference for now but like i will say this not that earlier shit and small talk was not scripted. Say that doesn't sound like a reason Chidi would give for gambling.

18:08It absolutely does. I'm not making it up, people. You are not incorrect about that. There are some striking similarities, I guess, between you and a fictional character. Okay, well, that'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.

18:59But Amy Wax'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 a amounted to a pretty small slap on the wrist from the 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.

19:51And 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. the legal arguments i've heard this lady make are so bad how bad are they i generally wonder how well she does at assessing the legal claims her students have to make in their papers yeah because if she thought the stuff that she was saying flew i mean she she quite certainly found out that wasn't the case but right you know like right i was having a conversation with some of my friends who's a professor at Rutgers.

20:51And 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 Carey Law, you know? But reality is sometimes it's like when you're deadlifting. The weight doesn't care about how right you feel you are. If you can't lift 350, You can't lift 350. And sometimes the law hits like that, too. 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.

21:43Palestine. And as, you know, Judge Savage pointed out, like this, this, this, this, 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, you know, the length of all, there's a million reasons why these were not 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 slink off into the sunset? You know, some questions are rhetorical. Do I know what a rhetorical question is? Other ones are like, come on.

22:22That was a come on. What I will say, this is an occasion to say, boo-hoo, bozo. And when the next dumbass claims comes, like, oh, you're ready to get spanked again. You know, like, 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. 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.

23:07But I also think that in the year 2025, this maybe only emboldens an Amy Wax or another Amy Wax-like figure who gets some publicity out of making questionable but super far right claims. Well, I guess in like six months when the Supreme Court decides that the 14th Amendment actually protects racism, the claim will be stronger. But it will certainly be stronger in that eventuality or world. But, you know, I think that I think these kinds of stories and kind of 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.

24:07And sometimes it's even been given the green light by the Supreme Court. So when the system works like 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 uh yeah so again sorry that joe couldn't be here i'm sure he has many more memories about all the wild things that amy wax has done over the years and you can certainly check out our amy wax uh compendiums out about the law to kind of get to get a sense of all the all the shit she's pulled over the years yeah i haven't written about amy wax often but there was one point i think this was earlier on uh in my time here i had an article title it was like amy wax pulled an amy wax like none of this has been surprising none of it's like it's it's straight up it's like reporting on the sun rising at this point it's like oh you look oh it's warm you know it's like yeah well i think that's all we have for this particular week but uh please remember to follow Follow us on social media.

25:15It's at ATL blog. I'm at Catherine one. Joe's at Joe and or Joseph Patrice. Chris is at Rights 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 Jabot podcast. Joe is a panelist on the Legal Tech Journalists Roundtable. I'm sure they'll have very interesting things to say about the latest and greatest legal technology conference. Anything else from you, Chris? Go birds. There you go. Peace.