Trump's Cook Case Looks Cooked

0:28Hello, welcome to another edition of Think You Like a Lawyer. Listen, the biggest story not illegal is the snowpocalypse. We did have a bit of a snowstorm. Yeah. Yeah. That's a lot. That's a lot of snow. The snow drifts are significantly larger than my child. Like to send her outside seems like a death sentence, to be honest. Like she will drown. It's not. It was like what? Like 13, 14 inches of all told. It wasn't that terrible. Listen, I don't know. I will tell you where it comes up to on my person, which is more than 13 inches, at least around my house. It's, you know, knee-ish height. Maybe you're shorter than we all think.

1:08I mean, I'm average height for a woman, I will have you know. I'm 5 '4 1⁄2", which is, again, slightly more than average. But I think I read pretty short. Yeah. But you know, like some people, like, you're like, oh, you're, no, I didn't realize that was your height. I think that people are like, oh, you're that tall? That's weird. It felt like you were going to be shorter. I think it's also because I have shorter arms. Oh, right, right, right, right. Yeah. Like, you know how your wingspan is supposed to be the same as your height? Right. My wingspan is five inches shorter than my height. Wow. So I'm missing.

1:38Listen, I donated my wingspan to Michael Phelps, and that's why we have a bunch of gold medals as a nation. But yeah, no, I can't. It's like I have like little T-Rex arms. Yeah. Yeah, no, lots of snow. as someone put it on social media Greenland hitting us with their weather was an unexpected first strike I mean kudos really kudos to them yeah we had a Greenland it appears the Greenland battle is over I don't know the battle for Greenland yeah the battle for Greenland appears to be over with the administration walking back having been offered the status quo and accepting it as a win listen if it wasn't so terrifying and dangerous, the sheer delusional powers of the Trump administration would be worth, you know, lauding because, wow, are they able to turn a loss into a win?

2:31I mean, this reminds me of, in the first term, the NAFTA situation where they like got rid of NAFTA, replaced it with a treaty that was almost word for word NAFTA. And then they called it some new accomplishment. Yeah, here seems though NATO talked to him about how you can have basis there, which we can already. And he was like, oh, awesome. Now I've got a major win. And here we are. Really, the delusion is noteworthy. Wild. Noteworthy. Anyway. So have you done a lot of the shoveling? Yeah, I've been I've been doing I've been working my way through the I mean, I, you know, I have a heart condition.

3:10I can't do too much, but I'm trying. I'll tell you, there's lots of reasons why I miss living in New York City. But one of them certainly is the not worrying about shoveling. Like, you know, I lived in Manhattan and or Brooklyn for decades and I was like, shovel? Who's that? Like, I never owned one. You know, it was quite nice to be like, yes, part of the tremendous amount of money you're paying is so that they hire people to do this for you. Yeah. And put out salt and it's all safe and wonderful. And yeah. All right. Well, let's move on to a reasonably action-packed week. Obviously, things got more tragic over the weekend, so we haven't really processed anything with the shootings there, but we have some stories from last week.

3:59That's a problem with where we are right now. Things are moving so fast, I feel like we aren't able to keep up with a weekly reminder show. Well, I mean, yeah, I think that's certainly a limitation, but I also would posit that there's some real benefit to it as well, because I think that one of the problems with the Trump 2 administration is that there's so much bonkers and terrible happening at all times. There's a real dangerous chance of just losing it and forgetting that they've done X terrible thing, Y terrible thing, et cetera. And I think that that's still relevant. And, you know, a lot of times people, when more of the minor stuff comes up, you know, you always see people on social media be like, remember when we had a week's worth of news stories that Obama wore a tan suit and look at this, they're not talking about this.

4:45I'm like, right, because other awful things are happening. Right. It's not like they're not talking about awful. And that's part of the Trump administration's real strategy. Right. We stopped talking about the Epstein files because he's like, we're going to invade Greenland. Like this is a feature, not a bug. So I think that sometimes taking a pause and being like, hey, this is the ways in which I think in particular for our podcast, the rule of law has been severely hampered because of the administration is worth it. So, you know, this is almost like an extended small talk on this front. You bring up the Epstein files, which, of course, were by statute required to have been released at this point, I think, a month ago.

5:20And they have not been. And weirdly, bunches of other things have kept happening, almost as though somebody is trying to distract us all from it. Literally what I said. Yes, I agree. I agree with that take. But the legal take and an additional legal take on it is, according to reports, the U.S. Attorney's Office for the Southern District of New York is basically making everybody who's not currently on trial review these documents, which can all be done. You know, like, you know, AI can do that. Yeah, I've worked on also even even OK, AI, whatever, take a pause, just like, you know, normal document review tools from like five years ago before the AI bubble could have handled it within a week.

6:01Yeah, I mean, those tools were AI, too. It just that in a lot of ways, in a lot of ways, what's happened with AI is we just have a better user interface, like the guts of it still the AI that was doing that five years ago, you know, refined and better. But like the revolutionary jump that a lot of people think generative AI is, it's really just a user interface. Like the AI itself is, you know. I mean, these are the reasons why all the AI commercials are things that Google does. Yeah, but that's stuff that you're right. We had tools that could do that in the past. There's no reason. Oh, we're not comfortable with these wild AI tools.

6:35No, this is just pretty standard document review stuff that's been around for at least a decade. Feels like maybe they're dragging this out because, I don't know, they want to juice what it is and make sure that— Also, they're not supposed to redact the documents. Yeah, well, to protect victims, theoretically. It seems as though the victims that they're more worried about might not be the actual victims. But yeah, but they're making highly, you know, high demand and highly skilled and decently well-paid U.S. attorneys, SEC U.S. attorneys do all this work apparently, which. Wild. And also, let's not forget that you can always see whether or not you can delete the redactions because they've already that up once.

7:22That's true. Once things come out with redactions, if you hit select all, copy and paste, see if it works. It's a glitch that everyone figured out how to not do several years ago, but it requires access to software that Elon Musk's Doge group made the government get rid of. So it's possible always that the redactions are not real. Anyway, we got off topic. But, you know, it's always good to have a quick conversation about the Epstein files since the government seems unwilling to have that conversation. Should we take a little break before we? That's not even our first story. We haven't even gotten to a story yet.

8:00No. So let's do a story before we get there. Let's talk about the Supreme Court had an oral argument last week. They talked about Lisa Cook, who's a governor of the Federal Reserve. They are – Trump is trying to fire her. The basis of this is that she – he alleges lied on some mortgage documents like a decade ago. There's not really any – it doesn't seem like what happened there was particularly illegal or bad. Indeed, it seems like it's exactly what on a much larger and worse scale Trump was accused of doing via the Trump organization. What we do know, though, is that the attempt to fire her is a challenge to the existing law that says that the Federal Reserve is an independent agency.

8:53And while the president is involved in nominating people to it, the president, a president cannot just fire them without like good cause as in an actual crime that they've committed because we want to keep that independent. That is the will of Congress passed and pretty clearly and signed by a president. It is the law of the land. This Supreme Court has been going out of their way to invalidate those statutes that exist in other areas because the other independent agencies that are designed to make the government work and to take care of – make sure that there are regulations that protect us and safety and rights and deal with the needs of America's workers.

9:37The Supreme Court has been openly hostile to them and claimed that those laws can't exist. And even though they were passed by Congress and signed, they don't get to exist because the line in the Constitution that literally nobody believed said this until the late 70s and early 80s says that actually a president controls 100 percent of how the executive works up to and including. They can choose if the laws don't actually get enforced. Yeah, and it seems like it's a weird interpretation of that particular line considering the rest of the words in the Constitution. Yes, the unitary executive theory as they articulate it would essentially make presidents a monarchical power.

10:19You would not be – they couldn't necessarily make laws on their own, but they could choose not to listen to any laws that were passed. You know what's funny though? Because the founding fathers, the original people – Heard of them. Yeah, you know, they had some pretty clear thoughts about monarchies. Seemed like they were against them. You know, if an originalist would think anything, he would say he'd be against this theory. But the Federal Reserve obviously is one of these organizations. Trump has made clear that he wants to get rid of a lot of the Federal Reserve and replace them with people who are willing to just crash the economy at his whim.

10:55By that, I mean slash interest rates while we have high unemployment, which could help with the unemployment part of it. But it would also when we have high inflation still, it would juice the inflation, which could make the conditions much worse, create kind of a stagflation situation if we aren't already in one. So he wants to do that. That would be bad for the economy. And so what the Supreme Court has done thus far is say maybe the Federal Reserve doesn't count in our little theory. They have no basis for this. They've made up a sweeping theory, and now they're trying to create a carve-out for their own made-up theory that allows the Federal Reserve to be protected.

11:36They had oral argument, and it seems as though the justices were leaning towards they're going to try to find some way to make the Fed special. Sure. It's not any different than all the other organizations that they've already granted Trump the ability to to with. But, you know, I guess there's a line for some of the justices and we know exactly where the line is. And it's there for a bank account. Yeah. Their personal bank account seems to be the line where we're all it's all fun and games until that point. Yeah. I mean, listen, obviously, I don't want Trump to be able to fire Lisa Cook. Right.

12:13Obviously. But it's more corrupt, right, to say that there's like this weird carve out that because the justices, the conservative justices care more about this issue than every other one. It's it's more troubling, I think, in a this is how the law should work kind of way. Now, the concern that I think is some folks are worried about is with the Supreme Court, they have and we've talked about this with the way in which they've utilized the shadow docket up until now. They they want to put brakes on certain Trump policies, but not actually stop them so that they can then do the opposite later when some other administration is in charge.

12:53There's some inkling that they may try to punt this case by saying that, you know, the notice that she was given was defective. And so maybe he could still fire her, but not based on this note. It was something that would leave in place, leave her in place and push back against Trump's ability to unilaterally fire people. But without saying that Trump does not have an ability to unilaterally fire people from independent agencies. so that's what we based on that oral argument that seems to be what we're going to look for when we get to a decision are they going to hold a line and that line be kind of a disingenuous carve out or are they going to find a way to punt so that they can kick this down the road and hopefully not have to ever which flavor of disingenuous are we going to get find out later and as the Supreme Court turns well let's take a break and be back in a moment Let's face it, you didn't become a lawyer to stress over summaries and analysis.

13:53You could hand it off, but you need an assistant you can trust. Co-counsel handles those important but tedious tasks that keep you from being a lawyer. And because it's trained only on expert legal content from Thomson Reuters, it's as precise as you are, which means less stress and more confidence to focus on what matters. Head to tr.com slash co-counsel to discover AI that lawyers swear by. All right. Well, the other speaking disingenuous, we had a Fifth Circuit en banc hearing the other day. This was related to whether or not the DOJ can know whether or not Department of Homeland Security can arbitrarily start deporting people under the Alien Enemies Act.

14:36Now, there's a lot of deportation and immigration issues going on. This is a very specific aspect, which is that the Alien Enemies Act, a 18th century law that was created so that we could kick people out of the country. If, you know, England invaded us, we could get rid of everybody who's English, you know, which is a thing that happened in the War of 1812. This law was invoked. It's a law that gives a president the power to quickly remove people, foreign nationals from the country if that country is engaged in an invasion. Uh, Trump has utilized the invoke this as an opportunity to kick a large swath of folks who are have South American ties from the country, arguing that they're part of a gang that was sent here by Nicholas Maduro, uh, as part of a drug bait fueled invasion of the country.

15:31Uh, that's not really what the word invasion means. Certainly not when the law was passed. Certainly seems as though since the government has already stepped back from the and quietly deleted the claim in their original Maduro indictment that he was the head of a drug cartel. So it seems like maybe all of it is nonsense, but the Fifth Circuit is hearing whether or not the administration can do that. And there was a telling and weird moment where the chief judge of the Fifth Circuit asked the Department of Justice if indeed the government says that they would have the ability to have deported the Beatles in the 60s because people called it the British invasion.

16:14And that was, of course. That's obviously just a way to kind of give them a softball question, be like, of course, that's not, you know, just the mere use of the word in popular culture can't possibly mean, you know, military invasion. Yes. As an oral advocate, that is your invitation. You have a sympathetic judge who's looking for you to set up. Hey, here's the bright line. Here's where we're going to be drawing it. This is great. This is not ridiculous. So here, here's a spoiler. The DOJ did not take that softball. They decided to go instead that, of course, that would have been within the president's power and within the president's power to have deported the Beatles because it was being called a British invasion.

16:54They say that he could that the LBJ could have done that. They also say that the courts could not have intervened to stop it. And they said only Congress could have. And by Congress could have, they mean by overturning this law, because there's actually no avenue according to the government that Congress could have stopped it other than to take away this statute. That seems ridiculous, right? It's not just the Beatles, right? It would be anybody that. I mean, it would have been the Stones. It would have been that. Yeah. But yes. Uh, yeah, no, the argument of the DOJ is that the word - Beach Boys is the only people we should be listening to, apparently.

17:32I mean, hey, listen, there's an argument. But, uh, well, we would have also had the monkeys. I was thinking of that. Hey, hey. I don't think that that's - All of Motown, you know, you could - I'm just saying you're allowed to have both. Yeah. No, that is true. And, yeah, so the - Their argument is that the rule gives them sweeping power to do whatever they want. They say that because invasion is not defined, it means that it's the president's sole discretion what constitutes an invasion. I think as we're seeing – It's not terrifying at all. Yeah, I think as we're seeing with this claim of trying to get rid of Venezuelan quote-unquote gang members as part of an invasion, that is an amount of power that seems to be far outside of the original will of anything Congress was after.

18:21Yeah. And this is just another way in which I don't know how what the future looks like, assuming that there's not a fifth, you know, Trump administration in the future. But, you know, if how do we come back from this except for sort of overturning all these laws, making like I don't know how much more explicit we can do it. I don't know how many votes, how you know, it's it's wild to think what we're going to have to do to make sure this kind of wild grabs for power don't happen in the future. No, what it reminds me of, of course, is the could the president send SEAL Team 6 to assassinate a political rival by claiming its national security?

19:02When that question was asked, the government's response to that was also, of course they can. That's a reminder of where we are, which is that they are going to take maximalist positions on everything. And I think hopefully it reminds folks when the Supreme Court ultimately agreed with that interpretation of SEAL Team 6, they didn't mention any of the SEAL Team 6 stuff. They downplayed the ridiculous examples of it. But, you know, we have at least editorially and I think other people have to kind of stuck the line that that's what they endorsed in that decision, because this ridiculous answer, no matter how much they didn't want to explicitly mention it.

19:48Now that that's in the record, if you agree with it, you agree with all of it. And I would like to think that we will look forward to when the Fifth Circuit inevitably says, sure, this is fine. We continue to refer to this as the Beatles deportation decision because that's what they've done. I mean, we should certainly editorially do that above the law. All right. Well, so that's, you know, that's part of what's going on today. Let's take a break and have a refreshing conversation that doesn't mostly involve the government. All right, so the biggest story of the week, though, and it's only the last story on our rundown because there's not a lot to talk about here at this juncture.

20:33But Wilkie Farr, a large law firm that we all know of, they are being sued for$735 million, jointly and severally, but regarding one of their clients. The case is a little convoluted, but basically the person who ran the company that owned Pet Supplies Plus was involved in a criminal case for some stuff involving a head fund management that he ultimately pleaded guilty to. But this also corresponded with another group taking over this company. There were some allegations that they got defrauded because the seller was hiding the state of the situation to get money to pay for the other case. And that left kind of a turkey for the people who bought it.

21:28There had been a fight in Delaware court over whether or not Wilkie could represent them. in the deal because of past work for them in this other stuff. At the end of the day, the allegation is that the firm was involved in aiding and abetting the fraud that that they alleged took place against them, which, of course, is distinct from the fraud he's already pleaded guilty to. They're seeking disgorgement. And of course, you know, they really want the money from the guy. But the bookie is part of me. You know, that's that is how the joint and several liability works. But I mean, I don't know. We haven't seen the rest of the filings, et cetera, et cetera.

22:11But, you know, my only takeaway with it was, you know, that sometimes clients are more trouble than they're like. And, you know, we've had this issue and usually it's about more political questions. But there is this, I think, dumb mantra that lawyers tell themselves that like everybody deserves the counsel, their choice. And it's like, no, you're like criminal defendants because of the nature of how criminal law works. You aren't really trying to prove innocence, just not guilt, stuff like that. Sure. You people have an lawyers have an obligation to help out in those sort of situations. And taking on those cases does not mean that you endorse the underlying alleged behavior.

22:55But in other situations, especially like taking part in deals that help like a deal lawyer. Like, look, if you assess a situation, it's a bad business move. That's OK. It's OK to say no. Yeah. It's OK to say I'm not going to collect this money because it's going to bite us later. You know, and we've argued in the past. There are several episodes dating back to, you know, we've had this conversation dating back to when Ellie was the co-host here, like about whether or not that phrase is misused. because it often comes up when people are accusing big law firms of not properly representing enough January 6th defendants or something like that.

23:34And it's like, you know, you don't necessarily have to take on every client. Even in that instance, which were criminal cases, you have some reason to say like you have a right to a lawyer. You don't have a right to us as a lawyer, especially if we're a business. And of course, right, that that that makes true. And certainly setting your price tag is a way of also keeping certain people out of your out of your client roster. But of course, you can't you don't have to take certain clients the same way, you know, any as long as it's not, you know, discriminatory, discriminatory intent. Like, yeah, you can create your book of business.

24:14You can create it. It doesn't have to be a certain – it doesn't have to have certain clients on it. I'll say to tie back to another conversation that we've been having a lot over the last few weeks even. Wilkie was – it's been a while, like three or four years or so, but I can't remember, maybe five at this point. But Wilkie is a firm that was a single-tier partnership and moved to not being like a lot of firms have. That seems to be dominoes that are falling all over the place. And, you know, there's something to be said for in a single tier universe. There's a little bit less of a, hey, I need to go out and build my book and a little bit more of the worrying about what the firm, what's in the best interest of the firm as a whole.

25:03And I worry that to some extent, and obviously the people really going out and making that money are not the not the income partners or anything like that. But single tier did not necessarily mean lockstep, but lockstep was a practice that existed in the olden days. It's basically lockstep disappeared first, then the single tier. As these firms have become more collection of mercenary businesses as opposed to what used to be collegial equal partnerships. Partnerships, yeah, in the true sense. It's just part of a long, slow road of moving towards a situation where maybe the whole firm itself doesn't know what each individual part is doing and can put them in bad situations.

25:49And that's not saying that Wilkie even did anything wrong here, but there's a possibility that in an older world, folks might have been involved in the question of, hey, even if you aren't doing anything wrong, this could expose us to an annoying lawsuit eventually. Maybe we don't need this revenue. Maybe this revenue we can leave on the table or farm out to somebody else because a lot of the argument is conflicts of interest and stuff like that. Like, we can farm this out. We don't need that extra cash just to shield ourselves from even the appearance that we could end up in this lawsuit. But when the partnership is very much dependent on what they're able to check off as having brought in, of course, those fights get a lot more vicious.

26:35Yeah. Oh, well. I think that that brings us to the end of our weekly conversation. Yeah. Although I have a PTI moment. Oh, okay. I guess, does PTI still do the errors in a mission sort of situation? I want to pull back. I did throw the monkeys in there, but I was like, but Davy Jones would have been English. Right. So he would have, yeah. And he was the most famous, I think, of them. Yeah, I guess. You know what, one of my favorite trivia questions, who is it, Michael Nesmith? You know what his, the trivia about him? No. How he had money before being part of the monkeys is that his, I believe this is accurate, his mother invented liquid paper.

27:20Like Whiteout? Yeah. That's a random little trivia fact I've learned once reading. Anyway, so that all aside, we are done. Thanks everybody for listening. You should check out, you should subscribe to the show, get new episodes before they come out, leave reviews, all of that sort of thing. Good beginning of the year practice to leave a review if you haven't done it before. You should be checking out the Jabot, Catherine's other podcast. I'm a guest on the Legal Tech Week, Journalist Roundtable, list of other shows in the Legal Talk Network family. You should be reading about the law, so you read these and other stories before we talk about them here.

27:58Follow us on social media, abovelaw.com, over at Blue Sky. I'm at Joe Patrice, Catherine's at Catherine1. And peace. We'll talk to you later.

28:13Thank you.