Author: TSA Press

[M]y initial reaction upon reading White House Counsel Pat Cipollone’s letter to the House is — adapting a line from the great legal scholar Tom Cruise (A Few Good Men) — to wonder whether the White House counsel was sick the day they taught law at law school.

Yes, it’s that bad. If one of my students made those arguments in a paper, I don’t think I could give that person a passing grade.

— Prominent libertarian legal scholar Ilya Somin, in some immediate thoughts given on Facebook after White House Counsel Pat Cipollone released his letter to Congressional Democrats, where he openly mocked the impeachment inquiry against Donald Trump, stating not only that the president could not “permit his administration to participate in this partisan inquiry under these circumstances,” but that it “lack[ed] any legitimate constitutional foundation” and violated “the Constitution, the rule of law, and every past precedent.” Somin isn’t the only prominent lawyer who found Cipollone’s letter absurd.

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

My Law Jobs for Humans colleague and program co-chair Bill Henderson made my day not long ago. He told me, not for the first time, that a blog post I’d written early last year perfectly summarized the zeitgeist of the modern legal innovation career. “You said it in that blog post, Dan,” Bill said. Then going on, quoting my post, he said, “In fact, “uncertainty” may be the best word to sum up the challenge of pursuing a career in legal tech.”

It’s pretty cool when someone that you look up to – and someone who’s pretty smart him or herself (he was on Malcolm Gladwell’s podcast!) – glowingly quotes you back to yourself. 

But this post isn’t just an extended humble brag – at least, it isn’t from now on – my point is that this emerging landscape of law jobs is incredibly uncertain. There’s no clear entry point, no established career path, and no promises of a brass ring at the end. 

Personally, the uncertainty is precisely why I love working in this space so much. I don’t want to follow the beaten path and I get excited by new and uncharted territory. That being said, I also freak out regularly because I live and die by my wits and there’s no clear map to follow or brass ring to seek.

Enter Law Jobs for Humans. While we know we can’t instantly create career paths that have been decades, if not a century plus, in development, we can provide both examples and community.

First, precisely because we know the path is unclear and uncertain, in organizing Law Jobs for Humans, we’ve invited the most interesting and innovative career renegades to the event. It’s nearly impossible to build a freeway where not even a path has existed previously, but at Law Jobs for Humans we’re creating a space for those who have explored the unknown territory to tell us what they’ve seen and learned.

Second, we can’t eliminate the uncertainty but we can lessen the fear by limiting the loneliness. Striking out into uncharted waters can seem overwhelming but you don’t have to do it totally alone. The Law Jobs for Humans audience is made up of others exploring the frontier of the 21st century legal career – and we’re creating the space for sharing stories about those experiences and giving encouragement to fellow travelers.  

So, if you’re down to embrace the uncertainty in exchange for some amazing stories and the chance to explore uncharted territory, Law Jobs for Humans is for you.

Join us in New York City on November 15th to bridge the uncertainty gap and build a legal career for the 21st century.

Donald Trump lost in court again in his fight to ignore Congressional subpoenas with the brazen surety of Charles I. The D.C. Circuit ruled that his accounting firm, Mazars USA, must comply with a Congressional subpoena, because of course they must comply with a Congressional subpoena, and Trump’s argument that they don’t have to comply with a Congressional subpoena is and always has been deeply stupid and flawed.

You can read the full opinion against Trump here. It’s not particularly interesting. Trump is making a bad argument, and Clinton appointee Judge David Tatel explains why his argument is bad. It takes many pages. I am not a circuit court judge, in part because my opinion would have been, in its entirety: “Mr. Trump, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent filings were you even close to anything that could be considered a rational legal thought. Everyone in this court is now dumber for having listened to it. It is so ordered, and may God have mercy on your soul.”

But will the bad, legally incoherent arguments Trump makes to defend himself matter to Republican judges or judges that Trump himself has appointed? The integrity of Trump judges is in serious doubt. Today, in dissent, Trump appointee and Clarence Thomas acolyte Neomi Rao did nothing to assuage the fears that Trump judges will rule for Trump, rule of law be damned.

Neomi Rao is a problem. Everybody knew she’d be a problem when she was nominated to replace (wait for it) Brett Kavanaugh on the D.C. Circuit. Rao has been an open conservative troll since college, existing to surface the worst Republican talking points with a lacquer of legal jargon to make them sound somehow more acceptable. She’s what Tomi Lahren would sound like if Tomi Lahren got hooked on phonics.

But Rao has risen in Federalist Society circles precisely because she functions as a kind of legal Id for what the conservatives really want to do. She will “go there.” She will “say that.” Her arguments are facially laughable and need to be cleaned up by conservative brethren who are a little more devious and write with a little more polish, but Rao gives voice to the dark core of their thoughts.

And so it is in this dissent. Her critical point here is that Congress has the power to subpoena Mazars, but not under their oversight power, only under their impeachment power. Because Congress has failed to vote on a “formal impeachment investigation,” Rao argues that Trump and Mazars are free to treat Congressional subpoenas as if they don’t exist.

Here it is in her own words:

As explained below, allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. The House may impeach for “Treason, Bribery, or other high Crimes and Misdemeanors,” U.S. CONST. art. II, § 4, and has substantial discretion to define and pursue charges of impeachment. See The Federalist No. 65, at 338 (impeachable offenses “are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself”). While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold. Impeachment provides the exclusive method for Congress to investigate accusations of illegal conduct by impeachable officials, particularly with the aid of compulsory process. Thus, the key determination is whether this investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” To make this determination requires no search for hidden motives, but simply crediting the Committee’s consistently stated purpose to investigate “illegal conduct” of the President. Cummings Memorandum at 4; cf. Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (“[I]n determining the legitimacy of a congressional act we do not look to the motives alleged to have prompted it.”).

The Committee’s stated interest in remedial legislation may support any number of investigations, including into the conduct of agencies and how officials administer the laws. Yet a legislative purpose cannot whitewash this subpoena, which— by the Committee’s own description targets allegations of illegal conduct by the President. The most important question is not whether Congress has put forth some legitimate legislative purpose, but rather whether Congress is investigating suspicions of criminality or allegations that the President violated a law. Such investigations may be pursued exclusively through impeachment. The House may not use the legislative power to circumvent the protections and accountability that accompany the impeachment power.

None of the above is correct. None of it. Neomi Rao has here made up a standard that does not exist, to support the political opinion of the man who appointed her. Let’s do a close read of the first paragraph:

• [A]llegations of illegal conduct against the President cannot be investigated by Congress except through impeachment. — The Constitution doesn’t even talk about impeachment “investigations.” It simply identifies the process of impeachment as the only way to remove a president from office. From a Constitutional perspective, impeachment “inquiries” can happen however the hell Congress wants them to happen. There’s no Constitutional provision saying that the House has to formally vote to conduct an “inquiry.” The Constitution simply requires the House to vote to bring a formal impeachment CHARGE, which is then litigated in the Senate. At this point, “following Donald Trump on Twitter” counts as an “impeachment inquiry,” if Congress wants it to.
• While it is unnecessary here to determine the scope of impeachable offenses, Congress has frequently treated violations of statutes or the Constitution as meeting this threshold. — This is Rao teeing up a later lawsuit where Trump will say, “I cannot be impeached because I didn’t directly violate a statute, PRESIDENTIAL HARASSMENT!” And everybody saying “so,” but Rao saying, “Yes, my liege.” She’s right to say that a discussion of what constitutes impeachable offenses at this time is “unnecessary,” which is why her throwing this in there is so obviously partisan and hackey.
• Thus, the key determination is whether this investigation targets allegations Congress might treat as “high Crimes” or “Misdemeanors.” — It’s hard to emphasize enough how facially stupid this argument is. Under this logic, ANY oversight of the President of the United States MUST BE attendant to a formal vote of an impeachment inquiry. This is lunacy. Rao is arguing that the Constitution requires process (impeachment inquiry vote) that the Constitution does not specify, in order to access a power that the Constitution grants (oversight authority), if Congress is even thinking of maybe one day exercising a duty the Constitution charges to Congress (bringing impeachment charges).

The second paragraph repeats the faulty logic of the first, but more stridently for people who are easily impressionable.

Now, one might ask why I’m spending so much time dissecting a bad dissent from a troll in a robe. Rao lost; who cares how she came up with the wrong answer? Well, I care because the bad argument laid out in this dissent is precisely the bad argument Chief Justice John Roberts will be pressured to adopt in a majority opinion if the Supreme Court grants cert on this coming appeal.

If Roberts, along with the other conservatives — two of whom owe their positions to Donald Trump and one of whom was credibly accused of attempted rape — decides they want to try to save the president, some version of Rao’s argument is what they’re going to go with. They’ll try to find a way to preserve the Congressional subpoena power (because Jesus Christ, the separation of powers DEMANDS that they preserve the Congressional subpoena power), but create, whole cloth, a new Constitutional process for Congress to exercise that subpoena power. “Originialism” generally and easily cedes to the Republican agenda when the rubber meets the road. I imagine at least three justices (Thomas, Alito, and Kavanaugh) will have no problem just making up a new Constitutional requirement if it helps Republicans. Rao’s dissent was primarily written to Neil Gorsuch — though she’s bad at this, so I don’t know if it will actually work. And then there’s Roberts who will be in a tough spot because he’ll have to preside over the impeachment trial at the Senate — a trial that he must know is coming regardless of whether Mazars turns over information or not — because he can read about the president admitting to high crimes and misdemeanors on camera just as easily as anybody else.

Having just explained how Rao, and the conservatives who are inclined to agree with her, are wrong on every level, if I were a House Democrat, I might well be inclined to give baby its bottle. Rao cannot dictate to Congress how they conduct an impeachment investigation, but if some pro-forma vote on an “inquiry” is the legally wrong hill they want to die on, I might just say: Fine, here’s your formal vote you intellectually dishonest assholes. Every day the Democrats spend fighting over parliamentary procedure instead of the crimes committed by the president in plain sight feels like a wasted day to me.

But, like, when my kid was four he kept pulling the dog’s tail, and I told him to stop but he didn’t listen so instead of breaking it up, I just let him keep doing it until the dog nipped him. And when he cried I just said, “I think you’ve learned an important lesson,” and walked away. Which is to say: Maybe I’m not the guy to talk to about “strategy.”

Rao’s argument is legal bollocks. There’s a decent chance at least one of the five Republican Supreme Court justices isn’t able to swallow it.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

In February of 2018, Andy Sandler retired from the practice of law, leaving the firm he co-founded, Buckley LLP, which used to be known as Buckley Sandler, to serve as chairman of the financial services industry consulting firm  Treliant Risk Advisors, and be CEO of compliance software provider Asurity, and to run the private investment company, Temerity Capital Partners. But according to a statement by Buckley’s managing partner, Benjamin Klubes, the retirement came amidst an investigation into Sandler’s misconduct.

As reported by Law360, the firm says that allegations against Sandler were made in 2017 and they promptly launched an investigation into his behavior. Klubes also said that Sandler refused to participate in the investigation, and instead, retired:

Klubes said the initial allegation against Sandler came to their attention in late 2017 and, “consistent with firm policy,” management quickly hired Latham & Watkins LLP partner Kathryn Ruemmler “to conduct a fair and confidential investigation into the allegations in a manner that respected the privacy and confidentiality of the individuals who raised concerns.”

“Mr. Sandler refused to cooperate with the investigation, or to answer any questions from Ms. Ruemmler, and instead chose to retire from the firm,” Klubes said. “Buckley acted swiftly to address the allegations while protecting the privacy and confidentiality requested by each of the individuals who had raised concerns about Mr. Sandler’s conduct. While we promised that confidentiality to those individuals, we never sought or required confidentiality from them.”

The sordid background of Sandler’s departure from the firm became public because of an insurance battle. The firm’s insurer is trying to avoid paying the firm a $6 million payment for “loss of a key employee” over Sandler’s retirement. The insurer, Oxford Insurance, said in a court filing that during their investigation, Sandler said his departure was actually involuntary, and that the allegations of misconduct predated the effective date of the policy:

An independent claim adjuster hired by Oxford found that by December 2017 — before the policy went into effect — three Buckley partners were aware of allegations of misconduct against Sandler “from years earlier,” “which could lead to Mr. Sandler being terminated by Buckley,” according to the complaint. Oxford did not detail the nature of the allegations, and Buckley’s managing partner, Benjamin Klubes, declined to elaborate.

According to Oxford, despite having knowledge of the allegations, neither Sandler nor any of his colleagues disclosed them when applying for the insurance policy.

Klubes’s statement also said the firm is “confident that the full factual and legal record will demonstrate that it handled the matter appropriately and that it is entitled to payment under its ‘key person’ insurance claim.”

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

In order to adapt to heightened client expectations, today’s innovative legal departments are exploring self-service technologies in order to provide efficient service at a lower cost and without compromising on quality. To that end, check out our free webinar, Why Self-Service Is Critical To The Future Of Legal Departments, brought to you in partnership with our friends at Everlaw and moderated by legal technology maven Bob Ambrogi.  The webinar will take place at 1 p.m. EST on October 24th and is designed for in-house counsel and corporate legal departments of all sizes. Among the areas to be explored:

• NDAs
• Compliance
• Transactional: Pre- and Post-Execution 
• Tools to provide non-legal executives, HR, and sales personnel with answers to common and routine legal questions

Our webinar will examine use cases, opportunities, and best practices for enabling legal self-service in an enterprise environment.  Which aspects of legal practice lend themselves to a self-service model? What are the challenges inherent in setting up new processes? Drawing on deep subject matter expertise and concrete real-world examples, our program will start you on the path toward automated processes that are predictable, fast, secure, free, and errorless. 

Register Here Today! 

Yesterday was World Mental Health Day, and instead of being able to take time to appropriately raise awareness about mental health issues, one law school was thrust into an emergency situation.

We have some alarming news from the Philadelphia area, where a law student posted messages so “disturbing” on social media that campus police were put on “high alert” and the administration decided to ban the student from campus.

The school in question is the Rutgers University School of Law, where a student from the Camden campus “wrote a number of posts that have been characterized as disturbing and placed them on a closed Facebook page for Rutgers Law students.” What the Facebook posts specifically said is unclear. According to the Philly Voice, the school has declined to discuss the content of the student’s posts.

According to Mike Sepanic, associate chancellor for external relations at the school, “What emerged from the investigation is that no one felt a credible, immediate threat to the safety of the campus. We were taking steps out of concern for the student.” Per Sepanic, Rutgers police investigated not just the incident but also the student’s interactions with others on campus.

The Camden County Prosecutor’s Office is assisting Rutgers with the investigation, but no charges have been filed or arrests made. “Our student affairs folks are talking to the student and hoping to connect the student with the appropriate help,” Sepanic said.

Best of luck to Rutgers Law-Camden as they deal with the outcome of this situation. We hope the law student in question gets the help that’s needed.

Rutgers—Camden bans law student from campus over ‘disturbing’ Facebook posts [Courier Post]

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

Earlier this week, White House Counsel Pat Cipollone wrote an eight-page letter to Congressional Democrats, where he openly mocked the impeachment inquiry against Donald Trump, stating not only that the president could not “permit his administration to participate in this partisan inquiry under these circumstances,” but that it “lack[ed] any legitimate constitutional foundation” and violated “the Constitution, the rule of law, and every past precedent.”

Cipollone’s classmates from the University of Chicago Law School, one of the top law schools in the country, would beg to disagree with his assertions.

In a letter sent yesterday to Cipollone, 21 lawyers who graduated alongside him in 1991 and “hold a range of political views” expressed their disappointment with his interpretation of the laws they first learned about nearly 30 years ago. “We are sorry to see how your letter to the congressional leadership flouts the traditions of rigor and intellectual honesty that we learned together,” they wrote.

Here’s another relevant excerpt from the letter (available in full on the next page):

When any president openly invites the help of foreign powers for partisan political purposes, Congress in the exercise of its constitutional powers should conduct an inquiry and the White House should cooperate. Fair-minded lawyers can easily agree on this regardless of their politics. Your letter instead distorts the law and the Constitution for other purposes, including cable news consumption.

They want Cipollone to retract his letter. We’ll see if he’s willing to listen.

(Flip to the next page to read the University of Chicago Law School alumni’s letter.)

Law classmates tell Trump lawyer Cipollone he distorts Constitution by blocking impeachment witnesses [NBC News]

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

As I reflect on my practice, I have started to realize that sometimes you have to go outside of your comfort zone. In a perfect world, we all would love to have cases related to legal topics that we understand or have experience in. It would also be great for the cases to be in jurisdictions and courts that we have already practiced in. But, in reality, you never know what clients are going to walk through your office doors and where the client will need to file their case. Sometimes the client will request that you file an action in a jurisdiction that you have never practiced in, or never even been to. This situation creates considerable anxiety amongst lawyers. Recently, I was asked by client to file an action in state court in Upstate New York. Although I am barred in New York State, at first, I hesitated to take the case because I was not sure about the local practices and rules. Then I realized that with a little studying and planning, I could get it done. So, I decided to write this article on how to prepare for an out-of-jurisdiction appearance or filing.

The first lesson is to know the local rules. Usually, these can be found on the court’s website. These rules typically will tell you the basics of how to file a new matter and other pertinent rules of the jurisdiction.

Next, if you know the judge that you will be appearing in before, always check if that judge has his or her own rules. These rules are probably the most important because they will outline the judge’s preferences on how to file particular papers. These rules will tell you everything you need to know, down to font sizes and margins.

The next suggestion is to call the local clerk’s office to see if there is anything you can find out about the court’s practices that were not included in the local rules or judge’s rules. I find that if you are polite, most clerks will reciprocate and are willing to give information on how to file a case or correctly submit papers.

Once you have completed all the background work you can before heading the new jurisdiction, and are ready to go to court, then you should be as well-prepared as possible. You also must be ready for anything. I like to bring my laptop with me and numerous extra copies of the documents. Inevitably, there will be issues with a filing or a court appearance. Especially with filings, if you are prepared with extra copies then you can make any necessary corrections to the documents. In a worst-case scenario, you can also find a FedEx store or something similar to print out revised documents, if you have your laptop with you.

In these situations, it’s all about planning. My firm really emphasizes this aspect of legal practice. As much as you think you know about practicing law, there are always going to be things that come up that you don’t know. You should plan to deal with any of the likely issues that may arise.

Last, if you have an extensive network of lawyer friends, then give them a call to see if there is any advice that can be given to you. The best source of information are the lawyers who practice in the jurisdiction which you are going to for the first time. It’s also a good excuse to network and catch up with friends.

Although these are very simple suggestions to follow, I hope they will help you prepare for an appearance or filing in a jurisdiction that you are not too familiar with. In the end, if you are able to pick up some good information, then it may save you a trip or two back and forth while you prepare the documents to the court’s liking.

Peter S. Garnett is an attorney at Balestriere Fariello who represents clients in trials, arbitrations, and appeals. He focuses his practice on complex commercial litigation and contract disputes from pre-filing investigations to trial and appeals. You can reach Peter at peter.s.garnett@balestrierefariello.com.

A law school grad, most recently working as a pretrial supervisor, has died after attempting to slide down a third-floor bannister at the Brooklyn Museum.

Kirkland Dawson, 34, reportedly lost his balance at the First Saturday celebration while trying to perform the light-hearted slide and fell to the ground floor. He was rushed to the New York-Presbyterian New York Methodist Hospital, but ultimately died of his injuries.

Kirkland had worked as a deputy clerk and probation officer before taking the NY bar exam a month ago.

NYC lawyer dies in freak accident after trying to slide down third-floor banister inside Brooklyn Museum [NY Daily News]

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.