Luigi's Double Jeopardy Gamble And The DOJ's Complicity

0:11Hello, welcome to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by my colleague, as always, Kathy Sabino. Hey. And we, you know, recap the big stories from the week that was in legal. First, we begin with a little small talk. Small talk. Yeah. So, you know, what's on your mind? How are you doing? You know, dog days of summer, kind of. I went to Legoland with my daughter this weekend, and that was a whole vibe. You know, fun, super fun, smaller amusement park than Disney World, which, you know, regular listeners know is my jam. But, you know, significantly closer.

0:56So here we are. But my three-year-old did, in fact, go on her very first roller coaster. Ooh. Yeah. And, you know, I was texting, I took it to the group chat earlier today because, you know, you get a lot of like social media about like, oh, your kids are growing up so fast. You really have 18 summers with them. You got to make the most of it. And like, I feel like I've mostly been, you know, handling it just fine. You know, she's starting full day preschool in the fall and honestly cannot wait. like good for her like instead of having to like cobble together you know babysitters and relatives and all the programs and this one and that one it's gonna be great she's gonna be six hours at one location she's gonna have a great time i feel like this is the right decision i love it i love it i love it for her full day school in didn't cause me the tiniest bit of concern but my three year old on a roller coaster like so emotional about it absolutely i mean i i do really personally enjoy roller coasters.

1:54So like, you know, there's that moment where you're like, I don't know, like some people, kids included, don't aren't roller coaster people. And like, I don't know, like I could just imagine like the future of all my like Disney and or other amusement park trips and not being able to go on roller coasters because my kid hates them. And I mean, I'll do whatever she wants. She's my kid, but like. Well, but then you could take advantage of the single rider. Leave her at the end. Be like, here's my card. Don't spend more than X at the gift shop and have fun with all that. Yeah, maybe. I love that's your answer.

2:25You can just do single rider. Look, I'm all about efficiency. You know, listen, I do appreciate that that is the answer you're going with. I mean, I'm very glad. I'm happy. She seemed to really enjoy it. It was a little dragon-based roller coaster, and she keeps on talking about how she rode my dragon, rode my baby dragon, which is really cute. Right. So in that, like, heroin lingo, riding the dragon, let's be real clear. what she did was dry. It was like a roller coaster shaped like a drag. Correct. And I love that you went with heroin as opposed to, you know, like a fourth wing, much more pop culture related reference.

3:03But, you know, you do you, boo. Yeah, I don't know what those things are. You do. I mean, are you, listen, like there is pop culture that I don't personally partake in, but I am aware of and have like a general sense of what's going on, you know? And I'm certain you do too, because you are not a dumb man. And you know what? This is like that elf porn thing. Stop it. See, I knew. I was about to say, I know you know enough about it because you want to be able to make jokes about it. There's no elves in Fourth Wing, but they are, in fact, dragon riders. It's a squadron in a war college, people who ride dragons.

3:40Okay. Okay. And they're in war. It's a war college. It's a whole thing. It's good. It's good. I enjoy it. But the point is. I actually do know what it is, But for much. Well, I didn't when you first said it, but it now strikes me that I do remember it. And for a much more nerdy reason, which is last season, at some point, Oregon football was beating up on somebody. And the duck, the best mascot in football, was caught sitting by the goalposts reading fourth wing just because he was bored about how much they were winning. In what twisted world have you decided that your knowledge of college football is more nerdy?

4:20I guess. All right. Well, we can put an end to our. There, that's the sign of the Knights coming out to fight your little dragon there. And we will move on to discuss the big story of the week, which is that if you aren't part of a group chat of side chat, that means the side chat is about you. Yeah, I mean, obviously, like I said in the intro, you know, take it to the group chat. Yeah, and there is absolutely a signal group chat of Yale law alums that just talk shit about the Vances. That's fantastic. It is really, really, really fun, actually. It was a Vanity Fair profile earlier this week, which is about Usha Vance in general, and went back and talked to a bunch of her law school classmates.

5:07and you know they had some things to say about the kind of trend to the right that she's made and her decisions to not really talk about a lot of issues despite the fact that she had previously talked about some of these issues and it's not really the MAGA profile anymore and she's not been silenced one classmate says this is a choice she made which is absolutely completely accurate. But for me, the CW drama of it all is actually where it's at, which is there's a group chat that is still talking about their law school classmate. I mean, listen, I guess if my law school classmate was the second lady and vice president, I would probably still be talking about my law school classmates as well.

5:49I guess, but I, I, I almost, I mean, I don't want to in any way inflate the ego of Yale law students, but I feel like that's par for the course at Yale. I like, like Like for a long time, I felt like we've said around here that Yale doesn't really teach lawyers. It teaches people to become strong men of smaller countries. It's basically just a little, I mean, you know, like a war college for dragon riders who move on to do all sorts of ridiculous stuff. Five points to Gryffindor. Yeah. Oh, that's it. I know that's a different one. did you see the legal battle going on overseas about that one i do not that there's a refer there's apparently some sort of some sort of building a pipeline or desalination plant or something like that that in britain is being forced to move because there was action over the fact that there's a dobby's grave is there and fans don't want them to build on it wow okay i I mean, okay.

6:52Yeah. I mean, that was a very traumatic death in my reading history. Fair. All right. Well, anyway. Dabi the house elf. Yeah. I would encourage those people to understand that, you know, he's not real. Fictional care. Yeah. And the place and the grave site is definitely not even real. One, there are no such thing as house elves. So. Now he's being naive. Anyway. So, okay. So let's go back. So what what all do we think is being discussed in this chat? Like, what is the average day of the chat? Oh, great question. Who's to say? I'm positive all of the bungles that J.D. Vance makes are being torn to pieces in this group chat.

7:39But but it is interesting that they're still talking about this. And one of the things that the Vanity Fair article also talked about is how did Usha become this drift to the right, further and further to the right. And there's speculation in the chat that it was because of her clerkship. Oh, okay. She clerked for Brett Kavanaugh. Of course she did because she was, you know, one of her mentors. Well, yeah, Amy Chua was one of her mentors, and Amy Chua got a lot of people into Brett Kavanaugh's chambers, including her daughter. But that when he had his confirmation battle, that that radicalized her to the right, which is horrifying, actually.

8:23Yeah. Now, I also saw that the – is it the London Review? One of the particularly scathing literary reviews released their review of JD's latest book, and it was less than kind. I guarantee that's being talked in this group chat. Listen, hillbilly elegy was bad enough, but at least it seemed like there was a point of view that wasn't pure ambition. And I'm not sure that that's true of any of his other works. Yeah, sloppy, unfocused. These are the sorts of words that were used in this. Is this the one about being a converted Catholic? Yeah. Listen, listen, as a birth Catholic, you know, cradle Catholic, I have feelings about J.D.

9:09Vance and his corruption of Catholicism into a personal form of Protestantism, which is what he has done. He turned into – he wants it to be like an American form of Protestantism. But that is – Pope Leo is pretty clear that J.D. Vance is not correct about a lot of Catholic principles. Well, that's the – I mean there's that infamously great tweet that gets sent around as a meme whenever this comes on that like Catholics from birth are like maybe we should help out and feed the poor. And Catholic convert or people who convert to Catholicism are like according to the epistle of blah, blah, blah, blah, blah, women shouldn't have driver's licenses.

9:48Yeah, I mean the cradle Catholic versus convert Catholic memes are elite. But yeah, and it's only, I think, gotten better since Pope Leo's ascension. It's been a real hell of a run as a Catholic who saw some pretty dark times for the institution. We're having a hell of a run now. The London Review of Books is James Butler's review. I've pulled it up here. Communion is a bad book. It is sloppy, unfocused, stylistically uneven, ethically vacuous, intellectually tundacious, and politically cynical. Yeah, that sounds accurate to me. Yeah. Good job. I would love to be in that group chat. There was I think it was one of the writers over at Jezebel that made me.

10:32Please put me in the group chat. Please, please, please make me. We don't do very often. We should do that more at our own publication. Tell people, please put us in these chats. Please make me Jeffrey Goldberg, but for. Yeah, right. Yeah. Oh, good. But that's a great reference. That's like a million scandals ago. In fairness, Katie Brower, who wrote the Vanity Fair profile, does make a Jeffrey Goldberg joke in there. So, you know. All right. Well, then I'm less impressed. OK. OK. OK. All right. Let's take a break here and we'll be back in a moment. Every legal professional wants to put their clients first.

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12:14Fewer 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. All right. Well, the other big story that happened last week, and it happened very much at the end of the week, is Luigi Mangione has pleaded guilty to federal stalking charges. Can we just put a pause right here and just have a little aside between pleaded and pled? Yes. Love to. Yeah, because I think that like as somebody who just has, you know, an ear, I've always preferred pled. But really, I feel like law school and beyond really hammers pleaded into you.

13:02And I hate it. Oh, I do it because, again, I went to law school and I did all the things. And that is I feel like how you're meant to talk about it. But aesthetically, I truly dislike it. It is not what it should be. I understand that pled sounds better as a matter of the modern English language. But I prefer pleaded because it allows me to show superiority over other people who do it wrong. Well, again, it's not wrong because it sounds better. But listen, I do pleaded, but I hate it. But I hate it. Part of my soul dies every time I have to say it. I think you have too extreme of a reaction to it.

13:43So he has pleaded guilty to stalking charges. Of course, the stalking charges are the only charges that are at the federal level because the attempt to make murder charges got tossed by the judge already because federal murder charges are hard to get, and they did not make that threshold. The reason that this plea is of such interest is that as part of it, even though the elements of federal stalking do not require you to admit that you killed somebody. Sure. Because stalking is – Because then it wouldn't be a stalking charge. Right, right. That's not what stalking is. Yeah. But he did do so as part of his plea, the logic to it being that there is a sentencing enhancement in the guidelines for if it results in death.

14:34And so that can push this out of a term of years into a life term. And the reason that is significant is it allowed his team to go to the state proceeding where they actually are trying to try him for murder and claim that based on this plea and the fact that he admitted to killing the person, killing the victim. That means that based on the fact that the federal government has promised them, and we'll get to that in a second, has promised them that they will ask for the maximum, that then should trigger double jeopardy and end the state prosecution. Now, why is this such a big deal? The state prosecution, of course, at best ends in life in prison because New York doesn't have the death penalty.

15:23Right. The sentencing enhancement for stalking here can be life in prison. So what's the big deal? A few things, one of which is it's very likely that given the way sentencing operates, if the murder charges go away, the federal, no matter what the government asks for when they ask for life in prison, it won't be that. Meaning that if they can successfully use this double jeopardy argument to get rid of the state murder charges, a few analysts, experienced criminal law practitioners on social media, have suggested that he could be out as early as his like early to mid 40s if he were to successfully do that.

16:05So this would be a huge deal if he could get rid of the state charges. Sure. First of all, life begins in your 40s. uh but yeah that's one of my all-time favorite onion point counterpoints the life begins at conception counterpoint life begins at 40. Love it love that yeah I mean it it doesn't feel like it's super likely to work well yeah we'll get to that yeah so I mean like I guess points for effort I don't know you're lawyering listen this this is lawyer ball this is like a lawyerly whatever but I'm not sure that it's going to amount to a hill of beans here. Two things I want to get out of the way.

16:44One, right-wing talking points, I saw Jonathan Turley, of all people, making them very early on, have been very quick to push that this is not a deal. That is accurate to certain, on a certain superficial level, but on a real level, completely nonsense. This is absolutely a deal. Just because it is not a usual deal where prosecutors say we will charge you less so that you can plead guilty. At the point that the federal government had no murder charges to pursue, they could have gotten rid of these stalking charges. They could have taken steps to get out of the way to advance the state murder case.

17:25They are not doing that. Part of the reason they're not doing that and part of the reason that they're making procedural moves that allowed this deal to happen, that is some degree of cooperation, whether it's intentional or indirect, that is something they are doing. The fact that the state motion includes that we can represent that the government is going to seek the maximum, that proves there's communication going on between them about what to do in a way that sets up this claim. Now, why would the federal government want to set up a claim that allows him to not face murder charges? There doesn't seem to be any good reason for it, unless you remember that we have a Department of Justice that is running in lockstep with a president who wants to be able to say the Manhattan DA is terrible.

18:13He couldn't even put him in, try him for murder. And that is a horrible place to be that we have a DOJ operating in this way. That said, I also don't think this is going to work. And you highlighted this too. New York does have a stricter double jeopardy law than the federal baseline that most states have however uh even that broader double jeopardy protection has several explicit carve outs and at least two of them clearly apply here and you only need one uh but just as a matter of common sense it includes the carve out that if the if the second crime includes an element that is not in the first one or is clearly designed to address a different harm than the first conviction then it is not double jeopardy stalking which says you can't follow somebody in a way that if they knew about it would make them reasonably worried about their you know about their safety that is not the same as don't kill people sure uh that is absolutely different clearly different elements clearly a different harm it is kind of loony to assume that you would strap those together and strap them together on the idea that because there's a sentencing enhancement that won't actually get imposed but hypothetically could be imposed it means that it's the same like none of that is how this operates i see this as unlikely to succeed but i also think it's important that it needs to be fought because the alternative is the state go So, well, I mean, whatever.

19:54He's going to jail for a long time. We don't need to pursue this. I think that's a very bad idea, and I think it opens the door to a lot more corruption. I don't think a lot of states other than New York – I think New York might even be the only one that has something this broad on double jeopardy. So it can't – the federal government couldn't run this the exact same way that they're running here. But I do think that, like a lot of how I think about this administration and this Department of Justice, it's not about whether or not they have a legal claim. It's how much they can throw their weight around and bully people.

20:28And I think if we don't see the state vigorously defend its interests here, you're opening the door to more efforts by this administration and this Department of Justice to slide in, concoct some sort of a fake federal charge that isn't really all that important. Get double jeopardy attached. And then you can turn around and pardon them. I mean that's the other aspect of this too, the pardoning aspect. So a pardon doesn't cover – a federal presidential pardon does not cover state crime. Sure. But you could imagine a situation in which somebody is guilty of some sort of a state crime, not even necessarily murder, like it could be something much smaller.

21:14And the feds could, if they see this as a viable avenue, could roll in, prosecute them first for some minor thing, use that as a way to kill the state case, and then turn around and pardon them. And then you've just essentially backdoored a pardon for a state crime. That's a problem. Yeah, yeah, for sure. but I think that it'll be okay I think that this is this is a lawyer making his making his nut yeah her making her nut yeah fair enough but I I mean I I know you're you're a little trapped in the patriarchy I as a much more open person as we all are yeah uh you wrote about the story I did not so I was not really paying that close attention um lots of things were going on but the point remains I think this is you know a very lawyer ball kind of moment and I'm not sure that it matters All right.

22:04Well, let's take a break here and we'll be right back in a moment. Hey, Joe. Hey. You know how private equity ruined the endless shrimp that used to characterize Red Lobster? I definitely know how private equity had a huge role to play in the failure of bottomless shrimp. Did you ever wonder how it would ruin an industry that already bills you in six minute increments? I have not worried about that because, you know, law firms can't be owned by non-lawyers. You sweet summer child. We might be seeing the end of that reality. Financial Times did a report about a bunch of big law firms investigating the potential of taking some P.E.

22:45money. Paul Weiss, Quinn Emanuel, Proscauer, White and Case, McDermott are all have explored in some format. No one's signing in on the dotted line anytime soon, and it probably – analysts suggest that if it did happen, it probably wouldn't be in the top – the top 100 firms would probably be in the sort of the lower echelon of big law. But there's some talk about using an MSO structure to get around the problem, which is that the ABA's ethical rules mean that non-lawyers cannot own law firms. So an MSO structure would spin off the sort of lawyering from the back-end functionality and create two different organizations.

23:23And it's been done in a bunch of other industries, healthcare, vets, dentists, et cetera, to horrible effect for actual consumers. But it has been effective of avoiding some of these ethical rules that are in place to avoid not that profession owning those professional practices. It is worrying, right? The boom of private equity and what it has done to all sorts of industries is a problem. We know some people who cover that space. There are arguments that private equity is very efficient because it allows money to flow into these sorts of things in ways that publicly funded with all the strictures around that can't do it.

24:05On the other hand, there's just as much proof that things don't really end up much better than they would do would if nothing happened at all. Lots of inefficiencies happen. Lots of bankruptcy trickery ends up happening on the back end. Yeah. One of the potential benefits, though, that is being floated in sort of this very moment in 2026 that I think might be a little bit different than some of the previous PE stories in other industries is the sort of AI boom that's happening. You've written a bunch of stories about firms investing millions and millions of dollars into creating their own AI solutions.

24:44And PE investment is a pretty efficient way to get to that point. Yeah. That is part of what would be spun off in these sort of structures, right, because IT would be part of what's that back end stuff. And that clearly is the big part of this. We have the capital expenditure required to really build out serious AI tools is a new capital expenditure that is big. It puts a lot of strain on the bottom line. It has the potential to replace human lawyers, I suppose, which would then make it worth it. But I think it's much more likely that it doesn't do that. Right. So, yeah, a fresh hell is awaiting us.

25:29Good news for people who write about the industry, which is us personally, but maybe not great for people who are trying to start their career in said industry. Yeah. I mean, the other thing that it really benefits firms for in this moment is the sort of hot lateral market that we've talked a bunch about, Ray, is that lawyers, partners that have a book of business are being dangled literally up to hundreds of thousands of millions of dollars in order to move firms. That's why Wachtell has had a bunch of partners leave recently, right? And this provides that kind of flexibility to get that best talent and the most expensive talent out there.

26:04But I'm not sure that increasing the volatility of the partner big law market is great. That – yeah. I mean, we're in some real interesting times. My kingdom for some precedented times. I do worry about these sorts of financial arrangements. Now, again, they haven't really gone down that road. But the problem with them is so much of it is contingent on the economy not having the bottom fall out of it. And I am continuing to be deeply concerned that the bottom is about to fall out of this. I ask you once again, have you considered the economics of these AI companies? Right. I mean, look, I enjoy AI as a tech as much as the next person.

26:53I see value to it in a number of applications, including law. But if you just look at the numbers, they are not making a lot of IOUs floating around. They're not making any revenue. They're all trading like IOUs to each other. NVIDIA, the only one who supposedly is making money, just had to take$500 billion from a bunch of banks. I would actually also point to last week, was it last week or the week before, OpenAI lost both its chief operating officer and its chief revenue officer, which joined a list of like 10 or 12 senior people who've left over the last couple months. And like, I don't know, it seems to me as though if you're sitting on an asset that's going to go public for a trillion dollars or two, you don't jettison before that happens unless you see something wrong.

27:46And I feel like that. Or more equity and a bigger fish. But yeah, no. Yeah. And even if some of these AI companies, I think, are going to end up surviving and being successful, like it only takes one of them. It's like hurt that'll happen before that. Only takes one of them falling for the whole market to really crash and have some severe. Take lots of pension funds with it. Yeah, right. And I mean, I was a lawyer during the Great Recession. Like, I saw what happened. I represented funds who lost money. And like, that is, you know, it's real bad when that happens. And I feel as though I'm seeing a lot of the behaviors that led to that collapse being mimicked surrounding this technology.

28:34And just like housing. Congratulations, all you bankruptcy attorneys. You're about to be real busy. Maybe, yeah. Hopefully there's some sort of a solution here that gets around it. But I mean, I don't know. Especially now that you can have Quinn on a laptop, which I do. I downloaded. I told you, you like AI more than most people. That's accurate. I test it, you know. Okay. All right. Well, whatever. Are you done? I, yes. Great. I am too. So let's finish. Thanks. No, no, no. We have to do our traditional, as we have in every episode, ending. Thanks, everybody, for listening. You should be subscribed to the show so you get new episodes when they come out.

29:18You should leave reviews, stars. Obviously, it's great writing something even better. The act of writing, just a few nice words, helps that algorithm figure out that we're a legal podcast people might want to listen to. So do that. You should be listening to the Jabot, Catherine's other podcast. Also, there are a number of shows on the Legal Talk network to list, too. I'm a guest on the Legal Tech Week Journalist Roundtable, too. And we are going to do a live version of that at ILTA next week. So prepare for more AI conversation. Yeah, well, probably. You should be reading Above the Law. So you read these and other stories before they come out.

29:56You should follow on social media, abovelaw.com. I'm at Joe Patrice. She's at Catherine1. And I think with all of that done, we can now say goodbye and see you soon. Peace.