If The DOJ Fails Another Time, They Win A Free Sandwich

0:11Welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I am joined by Catherine Urbino. Hey. And we're the only two here for now. It's kind of a crazy recording time. So we're going to move ahead for now. And maybe Chris will join us. Chris might or might not be able to join us based on how the crazy is going. But we can start. We do this every week to talk about kind of the big stories from the week that was here at Above the Law. But we begin with a little small talk. Oh, yeah. So how are things going? I'm really good. Good. Well, I mean, I'm getting over a cold, hence the little bit of a stuffy nose that I still got going on.

0:53But I took this past weekend to put up the majority of my Christmas trees. Not all. Okay. But a majority. Okay. Because three out of five is, I put up three Christmas trees. I have five. I have six technically, but I think I'm not going to put up one of them this year. Oh, wow. Yeah. What a exercise in restraint. Well, I have a toddler. I don't see how that's relevant. Well, that Christmas tree that I'm not going to put up is with all of our sort of heirloomy sorts of things. And I'd be just really sad if it broke and she's two. And that's just it's not going to happen for us this year. It's going to be fine.

1:31But the other trees are filled with ornaments that are either not particularly breakable or, you know, kind of mass produced and not a big deal one way or the other. So that's what I decided, I think. Like, I mean, who knows? Maybe, maybe like on Thanksgiving weekend, I'll get like a twinge of nostalgia and be like, we're putting up number six and like put it somewhere in a locked room where she can't get to it. That could happen. But for now, I think we're going to do five, five trees. Well, there you go. So I'm really excited, though. You're getting over a cold. I am. Because I'm certainly getting one.

2:05Well, I can tell. You know, that's, it is the time of year where everyone gets sick. It's the worst. Yeah. Yeah. No, but otherwise everything's fine for me, you know, just kind of. Feeling good. How are you doing without college football? Like, what do you mean without it? Well, I know that you have, well, yes, but I know that you have YouTube TV, so you can't access quite as many games as you normally do because ABC slash ESPN has a hefty trunk of good games. That's true. And in my field, getting to the name Thinking Like a Lawyer, going back to the show's original format, let's break down kind of the legal question there about how inconvenienced I am television-wise.

2:54This seems like an antitrust problem to me. I mean, yeah. I mean, there is some integration going on there that makes Disney's leverage position particularly owners. Because Disney's not letting YouTube TV customers see their product, claiming that – making basically bold demands for more money out of YouTube TV that are not matchable. And the purpose of this, of course, is to prevent those customers from having access to all of those channels. And the hope is that they would then leave YouTube TV and join Hulu's package, which just so happens to be – Also owned by Disney. Owned by Disney. That is exactly why we have antitrust laws.

3:35Well, do we anymore? Well, yeah. We don't have a government anymore. Yeah. And I don't even mean just the shutdown. We just don't really have a functional government in a ton of ways. And the thing that really gets me about that situation is not just the, okay, well, you don't have access to ESPN Ocho or whatever, but you don't also get the broadcast ABC like local channel. That seems really problematic to me. Yeah, no, not that, not ESPN, not any of their like. Which again, you know, that's like a private whatever. But like one of the main broadcast channels you should not be able to play leverage with.

4:11Yeah, no, it's a real problem. But YouTube, Google, who owns YouTube, so it's not like we're talking about. It's not like a little, it's not like an underdog here. Is giving out refunds to people for having to deal with this. Well, that's nice for you. Yeah, so. So and I suppose the Big Ten network is not part of the conglomerate. So you're OK in that sense. I do have that. And my game was on CBS this week. So it was it worked out for me. It was a very ugly game. The Oregon. Right. Because Iowa was involved. It is it is mathematically impossible for the game not to be ugly one way or the other.

4:52But if I was. I mean, when the safety happened, I was like, that's it. Call it like the safety happened. during an Iowa game, that was like mandatory. Check, check. I put that in every parlay. Did you really? No, I did not. I was going to say, that would be really cool. I actually made a lot of money a few years ago betting. I put in a bet that Oregon, no, that Iowa would, every Iowa game would be under on the over-under line in every single game of the season, and it was. That is amazing. Was it under this week? Because that was a pretty low scoring game, particularly for Oregon. I'm sure it was.

5:28I didn't even pay attention. Yeah. But yeah, no, that year I did. I just bet they would be under in every game. And then they were, which was scary because that year they had a game against, I think, Northwestern who was on the outs. And they set the over-under line at something like something absurd like 12. It was like really scary low. And I was like, hold. You shall not pass. And then it like ended 7-3 or something like that. And I was like, I did it. That actually, that checks out. And it's funny, though, too, because it was a low-scoring game, and you're used to kind of Oregon with that kind of reputation that Chip Kelly got for them of being this high-scoring.

6:07But that's just not them anymore. Despite being gone for— Yeah, but, you know, reputations hold, right? I guess, yeah. Iowa has had a similar style of play for 30, 40 years now, right? Well, I mean, they've had the same coach for 28, 29 of them, right? Like, that's different than Chip Kelly hasn't been at Oregon in over a decade at this point, right? That's fair. So anyway, well, so we've we've rambled on for a while, but we can safely safely move on to our actual topics of the day. All right. So you had a story this week about Kirkland. Kirkland has you know, there's lots of things to say about Kirkland.

6:50But what many of them? What do some of their clients say about them? That they're assholes. OK, so it's not not quite that. blunt, but, you know, not great either. So last year, at some point, there was a meeting of the Institutional Limited Partners Association, and they talked to the attendees about if you could wave a magic wand to change something in the private equity space, what would it be? And they kind of created a word cloud out of this, and, you know, people had different ideas. But prominently in the middle of the word cloud was fire K &E. Which doesn't sound great, apparently. They have a reputation in the PE space for being uncooperative and kind of rejecting out of hand all investor proposals.

7:35And they reject them in the same way, which is the phrase, we respectfully decline. And you would think the word respectfully was kind, except it really doesn't sound that way. So after getting a bunch of blowback over this incident, Katie took it to heart. They actually had some etiquette training for their PE associates to kind of be like, maybe we don't say we respectfully decline every single time as if by a bot. Yeah. So after visiting with Ms. Manners. Yeah. So listen, they're working on it. And listen, some people say that it's not really that they're uniquely assholes in this space. It's a cutthroat industry, right?

8:22There's a lot of sort of sharp elbows in the space, but they have a ton of the business. They are giant and they have a lot of the business. So I think that they get a lot of their lightning rod in that way for a lot of the ire that people have about the congeniality generally about the industry, which is fair. But, you know, they've really kind of doubled down. They actually hired one of the former managing directors of that organization, the ILPA, to strengthen the firm's relationship with investors. Yeah, I'll defend K &E here a little bit. I feel I don't know how often like I was a litigator and I don't know how often you interacted with transactional clients, which obviously I never had as clients.

9:03But I oh, that's not totally true. Some of them ended up in white collar trouble. But yeah, uniquely, I think white collar has that kind of crossover. But by then they're a little chastened. But when you talk to these people, like friends of mine who are in like the iBanking space and so on, like the clients on that side feel like lawyers are their servants. No matter how senior the lawyer is, some like 22-year-old at a bank feels like they can boss them around. So in the private equity space in particular, where Kirkland is the nine bazillion pound gorilla. Sure. I actually could see K &E being very justifiably shut up, kids.

9:48We're in charge here. Yeah. And so I give them a little bit more leeway than some people do, I think, to exercise a little bit of harshness. I don't know. Maybe that's just me. Maybe I'm a jerk. Yes. Okay, that's enough. Yes, that's a separate question. We can use next week's small talk to delve deeper into that question. I will be here next week. I think you will. All right, okay. I think you will. Or maybe Chris and I will just talk about it, which would be even funnier. That's what I thought you were about. I thought you were setting that up. No, you're right. Well, I'll be able to be here.

10:20But I do think that it's worth noting that, you know, reputations matter, right? And even if it's just because you're the largest person in this space or firm in this space, it still matters that there's kind of a grumbling with with K &E attorneys and these kinds of things. A lot of how you interact on deals is taught, not sort of in a direct way, like these kind of etiquette lessons were. But, you know, watching what partners do, watching what senior senior associates do and mimicking because that's that's what you do. And actually taking a second and saying it matters. It matters. and apparently they've banned the phrase we respectfully decline.

11:02Which probably isn't necessary per se, but I think that maybe saying, oh, we've considered the terms, however, you know, giving a rationale for the rejection would probably go a little ways. But it is pretty funny. Sounds like you were about to make a everyone should return to the office argument there when you were talking about how they learn by watching. Well, listen, most firms I think at this point are at three, if not four days a week. And that is probably the new normal. So I think that three to four days a week is probably plenty to get that kind of soft learning that we've talked a lot about on the show.

11:38But I do think it's completely necessary. And this is part of it though, this kind of etiquette lesson. Yeah, no, it's one of those awkward places for us to be as above the law because so many of our readers are, we stand with the associates generally And they're very against being told to go back. But look, and we will fight with you on not having to go back five days a week because that's absurd. But you got to be in the office some because you got to train the next group. The new sort of variation on days in the week is a firm that's requiring partners to come back four days a week and junior associates.

12:17Once you hit that third year level, you're a mid-level and you can scale back down to three days a week, which is fair, right? That really kind of hits the nail on the head. Yeah, I like that. Well, because those are the folks who definitely need that flexibility. The problem is I also think those are the folks who do a lot of the training. So, you know. And again, it's not zero days in the office, right? Sure, I know. Yeah, no, it's a difficult question, which is why like three and four, love it. But yeah, five is too much, but it's got to be something. Yeah. Can't be zero. Yeah. All right. Well, we should take a break here and we'll carry on the conversation after this.

12:58You like legal podcasts because you're curious and want to be the best attorney you can be. I'm Dave Scriven-Young, host of Litigation Radio, produced by ABA's litigation section with Legal Talk Network. Searching your favorite podcast player for Litigation Radio to join me and my guests as we examine hot topics in litigation and topics that will help you to develop your litigation skills and build your practice. I hope you'll check out Litigation Radio and join the ABA Litigation section for access to all of the resources, relationships, and referrals you need to thrive as a litigator.

13:33All right. The Federalist Society's annual convention happened last week. It sure did. It sure did. We wrote a story about one of the panels that was talking about district court judges. So let's set the stage here for people who aren't who may be new to the show or above law or anything like that. So this year's version of this is where all the Federalist Society, all of the conservative law students and faculty all over come together in D.C. to ruminate on how they can, you know, further muck up further the MAGA movement. Yeah. So, well, but they're not political, they'll say. In a non-political way, they'll say.

14:17But this year, we can say one thing. As far as we know, the keynote address did not involve personally attacking you and me. That is accurate. Which in the past it has. It has. It has. So, you know, moved on to other targets. Right. And at least for this panel, it was judicial oversight of district courts post the Supreme courts ruling that there are no nationwide universal injunctions. And so, you know, there's lots of things to talk about, whatever. But Chad Mizell, formerly the chief of staff to the attorney general, a husband to district court judge, Catherine Mizell, was on the panel and was really angry about the speed bumps, for lack of a better term, that some district courts have put in the path of the MAGA agenda.

15:05And he really thinks that what we need to do is just impeach the judges who stand in the way of that policy. Yeah. So impeachment, it's going to be just as hard as it is to remove a president that way. Right. So 67 votes. So probably not a thing that's actually going to happen. But it is telling this. And I'm going to put this in conjunction with we had later remarks from Todd Blanche, who's deputy AG, claiming that they should be at war with the judges. Right. It's rhetoric wise, kind of disturbing. There are reasons. Look, the way the federal courts operate, and we talked about this when I was recounting Judge Ludig's remarks at the Rule of Society conference, which in many ways, the Rule of Law Society, yes, thank you.

15:57Rule of Law Society conference, which in many ways is kind of the spinoff of the Federalist Society. It's a bunch of Federalist Society people who think the Federalist Society has lost its mind. What the hell is happening right now? But the district courts have really been doing kind of a heroic job of applying the law as written. Now, one of the comments that goes along with this impeachment conversation is Trump keeps losing all of these district court cases, injunction cases, but keeps winning at the Supreme Court. Well, first of all, not actually winning at the Supreme Court because their shadow docket opinions, which means all they're really doing is the Supreme Court is technically just saying, we're going to freeze this until we get further briefing on it.

16:40So they haven't won, quote unquote. That said, both Kavanaugh and Gorsuch have made claims that the lower courts should, you know, act like our shadow docket opinions do carry some vibe precedent, which is really disturbing when you consider that those cases are not fully briefed or argued or anything like that have and shouldn't have any precedential value. The I went to an event that I will have an article about later this week that justice former Justice Breyer was at and he he referred to the term that they had for the shadow docket internally, he said, before the term shadow docket was coined was the windowsill docket that, you know, these are the things we have to address right now you know the people just kind of came up and yeah it's supposed to be equitable relief that is temporary and not really thought through so it's not supposed to be precedent anyway back to this uh so we now have people who have had or continue to have senior government positions saying that we should be impeaching going to war all sorts of power you know, really negative rhetoric toward judges for following the law as written.

17:55Yeah. And I think that the rhetoric aspect of this is also really important because Mizell told this weird story during the panel as well that basically said that his dad would kill stray cats. Yes. Which is relevant because he said that Donald J. Trump should say, judges, I know how to deal with stray cats, which basically is a pretty violent imagery that you're getting when you're talking about killing stray cats. And that is really problematic in a world where the threat rate for judges has gone up 327 percent during Trump's second term. Yeah. That is wildly violent, similar to the Todd Blanche comments that we need to go to war.

18:32They are they are stirring the pot here in a way that I don't even necessarily think they intend or maybe they do. I don't know. Maybe I'm being too kind to their motivations here. But it's really worrying the rhetoric that they continuously use and multiple folks are using. Yeah. You know, it just struck me that it's interesting that Catherine Mizell, his wife's judicial landmark, if there is one, is a national injunction in which she said that the word sanitation has to mean garbage trucks and therefore sanitation masks don't count as sanitation. They just the dumbest of dumb, but but a national injunction nonetheless.

19:10Like it anyway, it's it's really just there's zero, zero shame. This is this is an organization that spends a lot of its time defending, running every major case through Amarillo, Texas, so that they can have that loon decided. And now that they have been blocked in a few places, it's the world's worst thing. But again, it keeps coming back to I think they are really trying with this, especially the shadow docket. I think what they're really trying to do is kick the can down the road without actually changing the rule of law as much as possible so that they can turn around in a future administration and go, whoa, whoa, whoa, we didn't really change anything.

19:54And I think that you're probably right about what the intention is, but that is actually more harmful, I think. Oh, yeah. No, I agree with that. Right. Like it means nothing. If that's true, then the rule of law means nothing. And it's just this kind of blanket that they throw over whatever they currently believe. And I think that is how the far right of the judicial movement or the legal movement generally is currently thinking about the rule of law. And I think that that is going to have long term negative impacts on the way the legal system works in this country. Yeah. No, absolutely. I mean, it is telling, you know, just kind of leave it on this note that it is telling that the some of the judges who have at the lower court level who have been the most aggressively pushing back against these Trump incursions and most aggressive and criticizing the Supreme Court in rubber stamping them are bunches of Reagan judges.

20:47Right. Yeah. Like Reagan judges are leading the way. Again, Judge Ludig, I would have said when I started this job was the most conservative person on the court, probably, or one of the two. Close, yeah. Yeah. And here now, because there was a day, those of you younger listeners, you may not believe it. There was a day when the conservative legal movement, while something I may have disagreed with, had principles. That's gone. They were fixed. Yeah, they were fixed. You know, like they believed in something and they didn't like. And it didn't change based on the ramblings of a man who likely has dementia.

21:20Yeah, so crazy. Anyway, well, let's take a break and talk about a judicial system success on the other end. Well, so last week we had the trial in the D.C. sandwich thrower case. This is the case of a DOJ, a former DOJ paralegal who threw a subway sandwich at a geared up Customs and Border Patrol agent doing riot patrol duty or whatever they were doing over the summer in D.C. where they just threw a bunch of goons into the middle of D.C. and called it a thing. So we should walk through kind of, no, let's go to the end and then work backwards. So what's the result of this trial? He was charged ultimately with a misdemeanor and not guilty.

22:15Yes. So not guilty. The trial itself was comical to say the least. It involved, but, you know, I give the prosecutors some credit. They did what they could to try to make this sound like it was a thing. They used terms like the sandwich exploded, you know, to make it sound like it was scary, even though they were talking about a sandwich. I like that you gave the prosecutor credit for that because I think that was actually their undoing. Because, listen, if this – if you divorced it from the political reality that this event happened in, throwing something, even a sandwich, at a law enforcement officer, probably at least a misdemeanor.

22:56Yeah. Probably is. Sure. Right? But it exists in the context that it has. Right. And trying to say things like, oh, it exploded. I can still smell the onions and mustard. Oh, yeah. I mean, that kind of overly wrought rhetoric, I think, actually hurt their credibility with the jury. Right. The jury is able to say, like, that's some bullshit right there. The reason I don't necessarily go there is that the the factual predicate didn't really hinge on it being because it was a misdemeanor. It didn't hinge on how violent the attack was. So from the jury's perspective, what they were all they were really trying to do is make it seem like this was serious enough that they should not nullify it.

23:39And I think when they went too far, it also, I think, reinforces that this is a political witch hunt as opposed to really an effort to impose law and order. And I think that's why the jury returned to not guilty. Well, I think it went too far when they said explode. And they were no. And they were in the defense was able to turn around and say, here's a picture of the sandwich. Did it explode? Because it doesn't look like it exploded. Right. And I think because the good people at Subway had wrapped that sandwich sufficiently tightly that it did not come apart, even when thrown. That is actually a bit of a bit of an ad for Subway, which fair enough.

24:17their sub - Fresh. But again, I think that's another part of the way the prosecution was reaching on this case. And we could talk about sort of the things that led up to the trial, which also showed their wild overreach as well. But I think that it was obvious that what they what was happening and using terms like exploded, trying to talk about like the impact of the smell of onions. I will never forget. I think that kind of stuff really hurt their credibility long term. Yeah. I mean, I don't know. I pushed back just because I don't think they had any credibility or chance here. That might be.

24:54Their only chance here was to make it seem way more important than it was. And it was only a misdemeanor because they attempted to get the felony past the grand jury. And the grand jury thought that this was ridiculous and said no. Which at that point, I thought it was actually odd that they chose to pursue it any further. They could have, you know, discretion is the better part of valor. They could have dropped this and it gone away. Well, again, I mean, I think that a misdemeanor for the thing is not the craziest sort of charge for what actually happened. So I kind of understand the prosecutorial, you know, OK, well, it's a misdemeanor and blah, blah, blah.

25:32But I think the point at which it has gotten the amount of publicity that it's gotten, he's kind of become a social media hero, you know, sandwich guy. He doesn't wear a cape, but throws a sandwich. You know, I think that at that point you have to know. I think you're right that you have to know you've already lost. Yeah. No, I don't know if they're trying to if there's some sort of hope that they can set up that, you know, this suggests that future matters won't get a fair hearing for the government in D.C. and like try to get some venue, like try to argue for venue issues. I don't know. That would be an uphill battle.

26:08I think it would be, too. I really think this was a waste of resources on their part, given the climate that was clearly in place. But so, nonetheless, the sandwich person is free. The officer will, you know, continue to be haunted by the smell of mustard and onions, which, yeah, it created some great memes. It's a lot of apocalypse now memes. So really, really, the Trump administration's giving. Yeah, they are. You know, never accuse them of not being givers. They're going to give us$2 ,000. Well, no, wait. No, they won't. That was the thing over the weekend. They said that Trump personally said he was going to give everybody$2 ,000 in tariff revenue, which is weird since they're out of the other side of their mouth saying they need that tariff revenue in order to prevent the economy, the deficit from exploding.

27:07But better than a sandwich. But this was instantly met by the administration backtracking like, well, maybe listen to the crazy orange guy. Maybe the two thousand dollars was really the friends we made along the way. Yeah. So anyway, we that is where we sit this week. We had a few other stories, but it was a busy week. I think. But those are the those are our three biggies. we will talk to you all next week thanks for listening thanks for subscribing to the show if you haven't done it already you should that way you get the new episodes as soon as they come out give stars and reviews really like it helps so that it moves up the rankings of legal podcasts that more people then can hear it you should be listening to Catherine's other show The Jabot I'm also a guest on the Legal Tech Week Journalist Roundtable you should be listening to other shows by the Legal Talk Network you should read above the law also read these and other stories before we talk about them here.

28:07You should follow on social media, abovelaw.com on Blue Sky. I'm at JoePatrice, Catherine's at Catherine1, Chris is at Rights for Rent. We have some limited presence on Twitter still too, because it's so easy to retweet what crazy people say over there. Over there, I'm at JosephPatrice though, because I don't have my shortened name there. Yeah. Tragic story. Anyway, so that is everything from us this week. We'll talk to you later. Peace. Bye.