Park Benches And Supreme Court Benches

7:56Elie Mystal:The people involved, they were actually Sam Altman's lawyers against Elon Musk in that Musk versus Altman case that happened. So high-profile work. And I guess that, I guess, crucible of fire kindled something. I don't know.

8:18Joe Patrice:Yeah. And obviously this situation is like the big law version of the Coldplay concert, which I think is the analogy everyone's making to the situation, which did result in people losing their jobs.

8:29Elie Mystal:Yeah. And much like that, in that Coldplay situation, if they didn't react to – Because it was a kiss cam, yeah. To the kiss cam, it never would have gone anywhere. Nobody would have shared that video. Nobody would have recognized it.

8:42Joe Patrice:If they just like smiled and were like, yeah, for sure, for sure. I mean, it's a weird time that we live in, like that that is reality just by going, you know, you have no expectation of privacy. But that also means you could easily go viral and have your image blasted everywhere. Yeah.

8:59Elie Mystal:Just wild as well. It's not great. And it is, you know, to the extent they might have had legal, any kind of a legal claim. Obviously, there's no expectation of privacy there. There's also – it's a one-party consent recording state that said that one party has to actually be involved in the conversation, which the person filming was not until they decided to engage him.

9:23Joe Patrice:Until after they filmed, yeah.

9:24Elie Mystal:Yeah. They could have just ignored him, and then he would not have been a part of that conversation.

9:27Joe Patrice:Yeah, but I also think that it's interesting or harmful in the sense that I think one of the best parts of living in New York City is the anonymity that a crowd and the bustle of the city gives you. I think that like all all my friends that I have all have stories about like, you know, crying, walking down the street or in a subway or something when no one cares or notices. And that's weirdly freeing. And like if you're having a moment, you're having a moment, whatever. And I feel like that's all. But listen, I think that, you know, smartphones are wonderful in their way. But I feel like that has also led to the end of that kind of blissful anonymity of a city, which I think was a real benefit to living in a metropolis.

10:12Elie Mystal:Yeah. It's a bad situation all around. I wish this could have stayed more contained. But it unfortunately is not the world that we live in, and we're kind of forced to address that.

10:25Joe Patrice:You know, also partners should not be staffed on things with somebody that they are making out with. And maybe it's useful in the sense that now they won't be because everyone knows about it. Although, you know, they might have also been very forthcoming already with the firm leadership and not made sure that they are not on future deal or cases. But, you know.

10:43Elie Mystal:But so that's been the big one. We do not link to the video in our stuff. So you'll have to find that on your own because we're not. Yeah. And it's everywhere. But yeah, we did not want to give. And that's the other aspect. Even though it's newsy, you don't want to reward the person doing this because it just incentivizes more of this kind of garbage. But all right. Well, let's take a break there and we'll be back in a moment. All right. So Todd Blanche is going through his confirmation hearings. What's going on with that?

11:18Joe Patrice:A lot. There's a lot been written about Todd Blanche. He's obviously the acting attorney general. He's trying to get the gig made permanent. And I think it's kind of an interesting situation because, you know, about a year and a half ago, he was confirmed by the same group of folks into the deputy role, which is also, you know, confirmation necessary role. So you would think this is a rinse and repeat situation. It is not. He's done a lot in that time to really make a lot of folks question whether or not he should continue to have the job. I mean, listen, if the Republican votes hold, it'll it'll be what it is.

11:50Joe Patrice:But he started by a Freudian slip saying that he was the president's lawyer, which is, I think, an interesting follow-up to what Pam Bondi had said. I think you had written about this right in the early days of Pam Bondi's tenure and the role when she said that the DOJ was the president's personal law firm. So, yeah, that was it. He was very aggressive with several of the senators about – Democratic senators, let's be real. but you know adam schiff i think famously asked him what's happened to you todd blanche because i think that that's also another big part of it that you know a year and a half ago people were happy to to not happy but you know this was a fine fine enough person to get the job but even you know we wrote about also that um for the deputy role something like a hundred former sdny folks had written in support of blanche's nomination to the deputy role and crickets this time and indeed when And when folks followed up with that crew, they were like, no, this is not somebody you want.

12:54Joe Patrice:I'm not going to put my name to that. And I thought that that was really interesting. And he also is calling Dick Durbin and Richard Blumenthal liars, which is interesting. Apparently, during closed-door conversations with each of those senators, he had said that the$1.8 billion anti-weaponization, the slush fund, the DOJ slush fund, that is no longer apparently on the table. but also maybe that was supposed to give money to basically Trump supporters, including January 6th rioters. He apologized. He said it was his fault and it was not, you know, something that it was a mistake. But then when asked to write, you know, part of his written answers to questions after the hearings, he contested the accuracy of the statement when Dick Jerbin was like, you said it was a mistake.

13:45Joe Patrice:Do you stand by this characterization? He's like, I don't I can test the accuracy of the statement. So he's he's just basically calling sitting senators liars. And yeah, I thought that Durbin's answer to that was like, well, it's not proper MAGA talk, so he can't be on the record for that.

14:01Elie Mystal:The issue of what happened to him, I think, ties into another story that we had of the week, which was that Maggie Haberman and Jonathan Swan's new book is coming out about this administration so far. And it includes, you know, the reporting says that Blanche in particular was uncomfortable, along with Bondi, about the idea of pursuing indictments against the president's political enemies who clearly had not committed any crimes, but just for the sake of pursuing indictments against them. he specifically said in and to quote that once if they were to do that they would spend the next several months getting quote skull by federal judges which so on the one side that suggests that you know it's a good thing to hear that some people in senior doj leadership are still concerned about making sure that they follow the you know court orders law yeah you know and we we We had, you know, reporting that Emile Boe, while he was in that job, was saying that they should just ignore federal court orders.

15:04Elie Mystal:It suggested that these folks did care that the flip side of that, of course, is Bondi is gone and Blanche is not. Yeah. Which should tell you that Blanche seems to have gotten over his skull. He's not on board. Yeah. He is OK with that. It's not my skull.

15:19Joe Patrice:Yeah.

15:20Elie Mystal:So that does seem to suggest that's where he is now. That would be a reason why people would not support him who did the first time around, who might say what happened to you. The drive to get this title seems to weigh more heavily than maintaining an ethical record, and that's where we are.

15:44Joe Patrice:Yeah, and it's – the whole notion of the DOJ going after political enemies is not over. I think that there's kind of a cabiting of some of the things that happened in the past. You know, the Letitia James thing seems to be over. But James Comey is still in the middle of it. And the House just referred Jack Smith to the DOJ to be investigated for utter lunacy. But this is a very – this is not over. This will not be over anytime soon as long as these folks are in charge. it will continue to be true that political enemies will be investigated and prosecuted or attempted to be prosecuted.

16:21Elie Mystal:I mean, another passage from that book, and I'm getting a lot of this from Roger Parloff of Lawfare, is putting up sections that are really relevant on social media. Another section of that book was that Trump apparently wanted someone to convey to Blanche that he's not concerned that the cases are born losers that will never succeed. He is fine just making sure that they get indicted and have to go through the process. He doesn't care that the cases might get dismissed or sanctions might come or something like that, which not to segue briefly into another story, but that's really indicative of the mindset of how these folks think of the Justice Department.

17:06Elie Mystal:We also had the story where John Yu of the torture memo use was on like he's being introduced to society.

17:15Joe Patrice:Yeah,

17:17Elie Mystal:resurfaced recently to try to suggest on the news that the DOJ should investigate Mayor Mondani for suggesting that it was worth referring to lawyers for their advice about whether or not they have to execute an ICC warrant. And that claim –

18:04Elie Mystal:by the DOJ. He should have FBI agents bothering him all the time. He uses these words. And what that really signaled was you is proposing that the proper use of the DOJ is to harass political enemies, knowing that there's no charge that's even remotely colorable. Use it to harass because it is annoying to have to deal with the FBI. It is obviously worrying for some people to have to go through that uh you know because and you know the fbi's this gets now into my long-standing marginal defense of comey uh when most people are mad are always mad at him about 2016 but the doj's official policy is not to tell you when you've been cleared basically uh they they let that hang over your head they'll interview you and be like you'll be hearing from us and then just ghost and And that's kind of how they operate, which is a form of an extra boys of the extra form of mental torture.

19:07Elie Mystal:So one of my defenses of Comey with the Hillary email server conversation was always that, you know, he'd already done kind of a solid by coming out in the summer and being we're closing this investigation. Like he that's what he was trying to do. Unfortunately, I always say that's what burned him because then when new emails surfaced, instead of just ignoring them, he now suddenly was placed in the position of having lied to Congress. And so now he has to answer. Like I feel like he walked himself into a corner by trying to kind of do the right thing. Almost nobody agrees with me with this assessment.

19:42Elie Mystal:But I say it from somebody who's been in that white collar world and had clients who call you months after the fact being like, have you heard anything? I'm still scared. And they are still scared. They clearly have been cleared because they didn't do anything and nothing was ever going to come with it. But that's the torture the DOJ put most people through.

20:01Joe Patrice:Right.

20:01Elie Mystal:And so that's why I was always sensitive to that one. But anyway, we've now gone a little off topic. I mean, it's still legal.

20:09Joe Patrice:Oh, yeah. It should count it.

20:10Elie Mystal:Sure. All right. Well, let's take a break and talk courts in a minute.

20:14Joe Patrice:Not just courts generally.

20:15Elie Mystal:The Supreme. Ooh, yeah. A court supreme. So I'm a little irritated with Elena Kagan.

20:24Joe Patrice:Yeah. I'm frustrated.

20:27Elie Mystal:So Kagan's frustrating me because I actually really like Elena Kagan, generally speaking. I think that her writing in particular, I love. I feel like it's straightforward and devastating all at once. Yeah, there's a dryness to it.

20:40Joe Patrice:I think that appeals to your writerly style.

20:44Elie Mystal:I don't even think it's dry. Like, because I actually don't find it dry. I think there is a lot of personality to the kind of quips that she could put in there. But, so I really like her, which is why I'm always frustrated when she pulls the kind of strategic concession thing. And I'm not -

21:00Joe Patrice:So she labors under the misimpression that she's dealing with, you know - Good faith actors. Good faith actors, exactly. She is very much not.

21:07Elie Mystal:And I've made this point in the past that she will sign on to opinions that are horrific. But it seems as though it's for some strategic reason that if I do this, then they're going to pay me back later or they're going to be bound to, I've created this new standard and now when the tables turn, they're going to be forced to do the right thing because we all agreed to the standard in this case. And then what will happen is fast forward a couple of years and that won't happen. And she'll be writing some dissent where the reading between the lines is, yo, I thought we had a deal because she makes these concessions and they never, ever, ever pay off.

21:47Elie Mystal:And the reason this is annoying right now is that she made some comments, Ninth Circuit event, where she said that she thinks that the court gets a bad rap as being bending over backwards for the administration. Obviously, there were a few outliers they did not ultimately agree with the tariffs or birthright on in the birthright citizenship case now note that those were highly contentious even amongst the conservative side and you know the a lot of them were willing to bend over backwards which seems to be glossed over by what she said uh the fact that not they didn't get a hundred percent solidarity on it seems like it's more of not really solving the problem doesn't do the work she thinks it is But the real problem I have with it is not only is it nonsensical if you are really following what the court does.

22:38Elie Mystal:These exceptions proving the rule are not a reason why the court has a bad rap. But what bugs me is she understands that she's a public figure who gets quoted. She understands that what she's doing with these sorts of statements, or she should, or she's recklessly indifferent to not knowing, that what she does with these sorts of statements is just fuel a narrative where headlines come around saying, oh, look, even Elena Kagan says that there's nothing wrong here. And I catalog in my article that different outlets who did write those headlines.

23:15Joe Patrice:Sure. Yeah. And I do think part of what's motivating her, and I don't think you really get into this, But, you know, the Supreme Court is really in a legitimacy crisis right now. And that's certainly Kagan has spoken about. And John Roberts has responded to her like, no, there's no problem here. And there is that, though, legitimacy crisis going on right now with the court. Public opinion is the worst it's ever been. People, including a high percentage of Republicans, think that the court is politically motivated. So I think that part of the work she's trying to do here is to further insulate the court from these allegations of political actors, which is not to forgive or to excuse what she's doing, but I think it's to provide a little bit more context because I think it's problematic what she's doing.

24:05Elie Mystal:But this goes to the too strategic by half kind of worldview, right? Like if there's a legitimacy crisis, it's not because there aren't enough people saying pay no attention to what's behind the curtain here. If it's that everyone sees what's behind the curtain and denying it only reduces that faith even more.

24:25Joe Patrice:Yeah.

24:25Elie Mystal:You know, I mean, Professor Rick Hassan responded on social media to this story, making the point that, you know, she's she's considered, you know, so deeply strategic. Maybe that's what this is. You know, he's kind of making the point you were you are about like maybe it's part of an institutional strategy. and I just have to keep coming back to the scoreboard. Like she does this over and over and it never works. You know, several years ago, Slate had a podcast where Dahlia and Mark like talked about like how she keeps doing this and it never pays off. Like it's a known thing that, you know, like and I make this point in the article too that she's, you know, she's famously a poker player and I think she thinks that way and this is just not a game that she's winning and her strategy continues to be a losing one.

25:15Elie Mystal:And if I can, the segue I want to make to another serious point.

25:19Joe Patrice:Well, I think I was going to set you up for that because I thought that your best point in there is what it does to her colleagues on the left, which I thought was very astute on your part.

25:28Elie Mystal:We deal in a world where we've had, you know, dingbat right-wing FedSoc law professors say that Sotomayor is a third-rate intellect and stuff. We have we have a fed suck people talking about how Justice Jackson's DEI hire. They always are talking about how they don't understand what's going on. They are attacking their their intelligence and credentials all the time. Now, they never do that to Kagan, mind you, who often is agreeing with them. Not always, but often. But they are very quick to attack the women of color who are making the sounding these alarms. And when, especially given that Justice Kagan is the one who wrote the Calvin Ball point referring to the way in which this court shadow docket rubber stamped a series of administration decisions that they knew they weren't going to be able to merits-wise back up, but they just did it so the administration could get what it wanted right away.

26:27Elie Mystal:And we have Justice Sotomayor pointing out the Kavanaugh stops problems. They are the ones sounding the alarm that this court is operating this way. And when Kagan says this and lends her credibility to news outlets to say, see, even she thinks there's no problem. All she's doing is validating those attacks on her colleagues that they are hyperbolic and don't really understand.

26:52Joe Patrice:That's what even Kagan says. Right.

26:54Elie Mystal:That's what comes across when you do that. And like maybe she doesn't I don't think she intends to throw them under the bus, but like get your head in the game. Like that's what's going on. That's what happens when you do this. You get quoted that way. Then it becomes a story that way. Figure it out. I don't know. And I really do think it's frustrating to me because I do like her so much. And I do think it's peak strategy brain. When you see the world as something that you can strategery around, you make these mistakes. All right.

27:29Joe Patrice:Well, I'm done ranting.

27:32Elie Mystal:So thanks, everybody, for listening. You should subscribe to the show to see these, you know, hear these and other episodes as soon as they drop. You should be listening to the Jabot, Catherine's other podcasts. I'm a guest on Legal Tech Week Journalist Roundtable. For now, I'm a recurring guest every couple of weeks on Legal AF, which you can check out on YouTube as well. You should be listening to other shows by the Legal Talk Network. You should be reading Above the Law. So you read these and other stories before we talk about them. Follow on social media, bubblah.com. I'm at Joe Patrice. Catherine's at Catherine1, the numeral one.

28:10Elie Mystal:And with all of that, we'll talk to you later.

28:13Joe Patrice:Peace.