Wednesday, February 19, 2020

A Law Unto Himself

Oh, come on; you knew this would happen.

Trump on Tuesday used his sweeping presidential pardon powers to forgive the crimes of a list of boldface names, including disgraced politician Rod R. Blagojevich, convicted junk bond king Michael Milken and former New York police commissioner Bernard Kerik.

Trump pardoned or commuted the sentences of seven convicted white-collar criminals at the center of federal anti-corruption and tax fraud cases spanning decades, alongside four women whose cases were not as well known.

The action frees Blagojevich, the former Democratic governor of Illinois, from the federal correctional facility in Colorado where he was serving out his 14-year sentence. He was convicted on corruption charges in 2011 for trying in 2008 to sell President-elect Barack Obama’s vacated Senate seat.

“He’ll be able to go back home with his family after serving eight years in jail,” Trump told reporters. “That was a tremendously powerful, ridiculous sentence in my opinion and in the opinion of many others.”

[…]

The executive actions announced Tuesday fit a pattern of highly personal presidential justice that largely bypasses the traditional pardon process administered by the Justice Department. Most of the people who have received clemency under Trump have been well-connected offenders who had a line into the White House or currency with his political base.

The justice system isn’t supposed to work based on “my opinion and in the opinion of many others.”  It’s supposed to work based on the laws and the rules passed by Congress and the legislatures.  And it’s not supposed to work based on who paid the most money to your friends and contributors or as a neener-neener to your predecessor.

Charles P. Pierce:

The banana republic is a republic gone bananas.

Trump has also declared himself to be the “chief law enforcement officer of the country.”

Trump’s constant commentary and increasing willingness to flout traditional legal processes signal that the president feels emboldened and unrestrained after Republicans voted almost unanimously to acquit him on impeachment charges of abuse of power and obstruction of Congress, said Chris Whipple, author of “The Gatekeepers,” a history of White House chiefs of staff.

“It shows that Susan Collins was right — Trump has learned a lesson,” Whipple said, referring to a prediction by the Republican senator from Maine that Trump would be more cautious after impeachment. “The lesson he learned is that he’s unaccountable. He can do whatever he wants now with impunity.”

He’s also projecting what kind of treatment he’s hoping to get from the next Republican president when he’s rotting in jail in 2028.

It’s still not too late to impeach and convict the motherfucker.  And this time, do it right.

Thursday, February 13, 2020

Revenge Porn

From the Washington Post:

Trump is testing the rule of law one week after his acquittal in his Senate impeachment trial, seeking to bend the executive branch into an instrument for his personal and political vendetta against perceived enemies.

And Trump — simmering with rage, fixated on exacting revenge against those he feels betrayed him and insulated by a compliant Republican Party — is increasingly comfortable doing so to the point of feeling untouchable, according to the president’s advisers and allies.

In the span of 48 hours this week, the president has sought to protect his friends and punish his foes, even at the risk of compromising the Justice Department’s independence and integrity — a stance that his defenders see as entirely justified.

Trump complained publicly about federal prosecutors’ recommended prison sentence for one of his longtime friends and political advisers, Roger Stone. After senior Justice Department officials then overruled prosecutors to lighten Stone’s recommended sentence, the president congratulated Attorney General William P. Barr for “taking charge” with an extraordinary intervention.

This is what the House had in mind when they voted out an article of impeachment on abuse of power.  Now it’s “hold my beer.”

He’s settling all the scores now.  This is his way of moving on.  But unlike Michael Corleone, he’s flapping his gums and tweeting his thumbs, daring the House and the Democrats to come after him again.

His allies and sycophants are fine with what he’s doing.  Hey, if they do some shit, get arrested, go to trial, all they have to do is keep quiet and upon conviction know that Trump will call in his buddy Bill Barr and fix it, justice be damned because as we all know, justice has a liberal bias.

They also know that if they do anything that could be seen as weak or disloyal to him — forget what’s right or legal — he will come down on them and their family for seven generations.

If you think this is bad, just wait and see what happens if he gets re-elected.

Tuesday, January 21, 2020

Dumbing Down

As I noted below, the impeachment trial of Trump is a study in foregone conclusions to the point that, according to Paul Waldman in the Washington Post, his defense team isn’t even trying.

After the Democratic House managers released a 111-page indictment providing copious detail on the events that led to impeachment, the nature of Trump’s misconduct and the constitutional basis for his removal, Trump’s attorneys responded with a six-page document that would have been shocking were it not just the kind of thing we’ve come to expect from this White House.

Indeed, it reads as though it was written by a ninth-grader who saw an episode of “Law & Order” and learned just enough legal terms to throw them around incorrectly. It makes no attempt to contest the facts, instead just asserting over and over that the president is innocent and the entire impeachment is illegitimate, calling it “unlawful” and “constitutionally invalid,” with no apparent understanding of what those terms mean. The articles of impeachment, Trump’s lawyers say, “fail to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” They then repeat this argument multiple times throughout a screed seemingly pitched to the Fox News hosts who will spend the coming days repeating its absurd claims.

The trouble, as any historian or constitutional scholar will tell you, is that just as there are crimes the president could commit that would not be impeachable (say, shoplifting a candy bar), there has never been any requirement that impeachment can only be used for violations of criminal law. Not only were the Framers deeply concerned about the potential of the president abusing his office, at the time the Constitution was written, there was no such thing as a federal criminal code.

Trump has found the one constitutional “expert” who will take such a position, however: Harvard professor emeritus and frequent Fox News guest Alan Dershowitz, whom Trump added to his defense team last week. “Criminal-like conduct is required” in order for a president to be impeached, Dershowitz now claims, to the puzzlement of pretty much everyone who knows anything about this topic.

Since hypocrisy is something of a job requirement for working for Trump, Dershowitz is naturally on video making exactly the opposite argument in 1998. “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty,” he said at the time.

The defense wasn’t written for a law school review or to be submitted as a legal brief in a court of law.  It was written solely for the consumption by the audience of Fox News denizens and the lawyers who are sworn to mount a zealous defense of their client until the money runs out.  I am certain that if this brief, written like a homework assignment on the bus to school the day it was due, was submitted to a judge, it would be tossed, followed by charges of contempt and referral to the Bar Association for malpractice.  But they’ll get away with it because even though the United States Senate is comprised of many lawyers, they are not going to be held accountable to the canons of judicial ethics or peer review: it will be by Twitter.

Sunday, January 19, 2020

Sunday Reading

Spoiler Alert: No Justice for Trump — Susan B. Glasser in The New Yorker.

Shortly after 2 P.M. on Thursday, ninety-nine of the hundred members of the United States Senate raised their hands and swore en masse to do “impartial justice” in the impeachment trial of President Donald J. Trump. That, of course, is an impossibility in the political world they inhabit. Neither impartiality nor justice is on offer in this proceeding. Three years into Trump’s tenure, there is precisely no one in the U.S. Capitol who is undecided about the President, on the subject of his impeachment or any other. And yet there is real suspense, in the way that the Trump Presidency has conditioned us to expect: Will there be wild new revelations? (There already have been in the past twenty-four hours.) Will there be inappropriate tweeting by the defendant in the White House? (A given.) Will even a single senator break from the calcified partisan battle lines? (Who knows?)

This Senate trial is only the third such proceeding in American history, and, despite what appears to be its preordained acquittal of the President by his fellow-Republicans, it is starting out with such great uncertainty that it’s still not even clear if there will be witnesses called and evidence submitted. How can it be a trial without them? The Democrat-controlled House voted to impeach Trump in a party-line vote in December, and yet key facts about the President’s aborted scheme to pressure Ukraine for his personal political benefit remain unknown (although they are very much knowable), owing to an executive-branch information blockade ordered by Trump. Will those facts come out before the Chief Justice of the United States bangs down the gavel on the trial’s seemingly inevitable outcome?

In today’s brutally dysfunctional capital—in which institutions of government are controlled by feuding clans that communicate with each other almost exclusively via hostile tweets and cable-news sound bites—anything can turn into an exercise in raw power politics. Even the ministerial matter of transmitting the articles of impeachment from the House to the Senate and beginning the Senate trial became the subject of an entire holiday season of made-for-TV drama. For weeks, Speaker Nancy Pelosi refused to turn over the articles until she’d received assurances from Senate Majority Leader Mitch McConnell about what kind of trial he planned to run. No such assurances were forthcoming, although Pelosi arguably succeeded in one respect—turning the debate away from her side’s forthcoming defeat in the Senate to the matter of what would constitute a fair trial. Democrats have redefined victory to mean not necessarily winning the case but merely getting a proper hearing for it. For now, at least.

On Wednesday, after Pelosi finally ended her hold on the articles of impeachment, she named seven members of the House as managers who will prosecute the case in the Senate. On Thursday, at the stroke of noon, the House managers marched across the Capitol and physically presented the articles to the Senate in a self-consciously anachronistic twenty-first-century enactment of a process dreamed up by our eighteenth-century founders. There was gravitas, solemnity, talk of “high crimes and misdemeanors.” There were “wherefore”s and “hear ye, hear ye”s. Chief Justice John Roberts was summoned over from the Supreme Court to administer the senatorial oath and take up his duties as the trial’s presiding officer. The Senate Minority Leader, Chuck Schumer, later said that, as Roberts entered the chamber, “I saw members on both sides of the aisle visibly gulp.” “The weight of history,” as Schumer put it, was visibly upon the Senate. “God bless you,” Senator Chuck Grassley, the Iowa Republican, who was sitting in the chair, told Roberts after he swore him in.

But even now that the constitutional formalities have been dispensed with, McConnell has not revealed whether and how there will even be votes on requiring the testimony of new witnesses and the submission of documents that the White House refused to provide to the House, a stonewall more complete than any Administration’s in history. If such votes do happen, they are not likely to be until a week or more into the proceedings. Meanwhile, new revelations continue to spill out about Trump’s Ukraine machinations, including a series of sensational interviews this week by the indicted Trump contributor Lev Parnas, who said that Trump knew of Parnas’s efforts with Rudy Giuliani to pressure Ukraine into investigating former Vice-President Joe Biden. The suspense surrounding the trial mixes the dread certainty that today’s Senate is ill-equipped to handle its constitutionally dictated obligation with a lingering curiosity about whether a handful of Republican senators will force McConnell to hold a proceeding that is something other than a sham.

“The Senate is on trial as well as the President,” Jerry Nadler, the chairman of the House Judiciary Committee, said at the press conference where Pelosi introduced him and six others as the impeachment managers. It was a seemingly self-evident observation that nonetheless bears much repeating. The Senate trial could take between three and six weeks, according to one estimate, though Trump’s advisers are pushing Republicans for a much more abbreviated proceeding. However long it lasts, the trial will essentially consist of a hundred senators sitting silently at their desks, stripped of their cell phones and laptops and all the other accoutrements of modern political life, listening to the presentation of evidence in a case about which they have presumably already made up their minds. We listeners will have plenty of time to contemplate the Senate itself and what it has become in the Trump era.

“I understand that the politics of impeachment are difficult for many Senators,” Val Demings, one of the House managers, from Florida, tweeted soon after Pelosi appointed her to the job. “But I have not written off the Senate. Each Senator still has the power to do the right thing.” But this Senate is no closer to a real jury than the proceeding is to being a real trial. On Wednesday, Politico counted twenty-six Republican senators who had already put out statements or otherwise publicly indicated that they would vote against conviction and twenty-four more who probably would; Democrats were equally united around planned votes to convict. Republican sources have said that they don’t expect a single Republican defection on the final trial verdict, just as there was not a single Republican defection in the House on the impeachment itself.

For the past three years, the Senate has been one of the main arenas in which it has become clear just how totally and completely Trump has taken over the Republican Party. He has not only vanquished doubters; he has dominated them. Skeptics have been purged. Senators have abased themselves again and again. Those who stood up to Trump inside his own party have been exiled, silenced, or flipped. The President is on trial for holding hundreds of millions of dollars in congressionally appropriated aid to Ukraine hostage for his own personal political ends, and, indeed, the Government Accountability Office, a nonpartisan government watchdog, announced on Thursday, as the trial began, that the aid holdup was an illegal abuse of executive power. But Republican senators who claim an interest in national security have been loath even to acknowledge that there might be anything wrong with Trump’s behavior, even as an abstract matter of principle.

The suspense surrounding the trial, then, is not about the possibility that Republicans might suddenly change their minds about Donald Trump and his misdeeds. Lindsey Graham is not going to revert to his 2016 Trump-bashing self. Mitch McConnell and Chuck Schumer are not miraculously going to start talking and produce a plan for the trial that everyone can get behind. The Senate that voted 100–0 on the rules governing the impeachment trial of Bill Clinton, twenty-one years ago, is a thing of the distant past. Today’s uncertainty is about the nature, shape, and contours of the trial that will result from this more intemperate political moment. Mitt Romney, of Utah, and a few other so-called moderates—Lamar Alexander, of Tennessee; Susan Collins, of Maine; Lisa Murkowski, of Alaska—may yet force their colleagues to vote on bringing in Administration witnesses, such as Trump’s former national-security adviser John Bolton, whom the White House does not want to testify. But it is doubtful that even a single one of them will ultimately vote to convict. This is why the real uncertainty remains what it has been since the day Pelosi and the House embarked upon this impeachment course, last September: it is an uncertainty about what comes after the trial—after Democrats have taken their shot at Trump and, in all likelihood, failed.

Soon after the day’s ceremonial start to the Senate trial had wrapped up, Trump appeared before the cameras to call the case against him a “big hoax,” “a witch-hunt hoax,” “a complete hoax,” and “a phony hoax.” What will he talk about when the trial is over and he is completely and totally vindicated in the greatest acquittal of all time? How will he govern then?

Did Virginia Amend the Constitution Last Week? — Russell Berman in The Atlantic.

The commonwealth of Virginia [on Wednesday] voted to amend the U.S. Constitution, becoming the 38th and final state needed to ratify the Equal Rights Amendment, which prohibits discrimination on the basis of sex. Virginia’s action could be a momentous day in the nation’s history, heralding far-reaching changes in the law and capping a nearly century-long fight to enshrine women’s equality in the Constitution.

Or it might mean nothing at all.

Whether the Constitution has actually been amended for the 28th time—and for the first time in more than a quarter century—is now officially in question and a matter for the courts to decide. Even before the two Democratic-led chambers of the Virginia legislature voted today, supporters and opponents of the ERA had filed dueling federal lawsuits, launching a legal battle that could wind up in the Supreme Court.

A deadline that Congress originally imposed (and later revised) for ratification of the amendment by the states has long since passed. ERA backers are trying to get the deadline invalidated, while foes want not only to keep the lapsed due date intact but to prevent Congress from retroactively eliminating it.

As a generation of American schoolchildren learned from Schoolhouse Rock, a bill becomes a law when the president signs it (or Congress overrides his veto). But the endpoint for affixing an amendment to the Constitution is a bit murkier. Congress, through a two-thirds majority vote in each chamber, proposes changes, and then three-quarters of the state legislatures must ratify them. But then what happens?

There is no assigned role for the president in constitutional amendments, nor one, directly, for the Supreme Court. Instead a relatively little-known federal official, the archivist of the United States, collects the documents from the states, certifies an amendment’s ratification, and publishes it in the Federal Register.

The current archivist is David Ferriero, an appointee of former President Barack Obama who has held the position since 2009. The bulk of Ferriero’s job is to oversee the National Archives and Records Administration, but he now finds himself caught in the middle of a rekindled fight over the Constitution as a named defendant in both federal lawsuits. Attorneys general for the states of Alabama, Louisiana, and South Dakota have asked a judge to prevent Ferriero from certifying the ERA’s ratification and to acknowledge that five states rescinded their ratifications and should not be counted among the 38. Two pro-ERA advocacy groups, meanwhile, are asking a different federal court to invalidate the 1979 deadline that Congress originally attached to the amendment, ignore the states that have tried to rescind their ratifications, and force Ferriero to certify the ERA as ratified once Virginia submits its paperwork.

In the past, Ferriero seems to have taken the position that the ERA is a viable amendment, the lapsed congressional deadline notwithstanding. He accepted the post-deadline ratifications of Illinois and Nevada and included both states on a list of those that had ratified the amendment. A National Archives and Records Administration spokesperson, Laura Sheehan, told me it was the archivist’s “responsibility to document the actions that have been taken by the states with respect to any proposed constitutional amendment. The [Office of Legal Counsel] opinion has separately determined that the recent state approvals cannot serve to cause the Equal Rights Amendment to be adopted.” (Ferriero was not available for an interview.)

Virginia was poised to become the 38th state to ratify the ERA in November once Democrats ousted Republicans from the majorities in the state House of Delegates and Senate. Party leaders immediately confirmed that they would make good on a campaign pledge to approve the amendment.

Facing a crucial decision and having already been sued preemptively by ERA foes, Ferriero asked the Department of Justice for legal guidance. Not surprisingly, the Trump administration came down on the side of the amendment’s opponents: In a 38-page opinion, the Office of Legal Counsel basically declared the ERA dead and said that in order to revive it, supporters would have to start from scratch. “Even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption,” the opinion states. “Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.”

In a statement last week, the National Archives and Records Administration said it would abide by the Justice Department’s opinion, “unless instructed otherwise by a final court order.”

Virginia Democrats knew that their votes today might be for naught, but they celebrated anyway. “We’ll see what happens, but from my perspective we have done what we needed to do to become the 38th state needed for ratification,” Delegate Charniele Herring, the majority leader of the Virginia House, told me by phone after the vote.

In addition to the courts, ERA backers are looking to Congress, where House Democrats hope to pass legislation that would remove the deadline for ratification altogether. Still, even action by Congress would provoke a certain legal challenge from ERA opponents who contend that lawmakers should not be able to remove a deadline long after it expired.

For now, however, Virginia Democrats are trying to tune out the obstacles, treating their votes today as a history-making moment. State Senator Jennifer McClellan told me she felt “a combination of joy and relief,” as well as the presence of a century’s worth of women activists “on my shoulders.” As for the possibility that the courts will block the ERA, leaving its adoption no closer than it was decades ago, McClellan sounded a note of optimism instead. “I don’t think that’s going to happen,” she told me. “I still have faith that this is going to happen sooner rather than later.”

Doonesbury — Jiminy Cricket!

Tuesday, December 17, 2019

A Dire Threat

William Webster was the director of the FBI, the CIA, and a federal judge.  And [full disclosure], a friend of my family in St. Louis.  He wrote the op-ed below yesterday for the New York Times.

The privilege of being the only American in our history to serve as the director of both the F.B.I. and the C.I.A. gives me a unique perspective and a responsibility to speak out about a dire threat to the rule of law in the country I love. Order protects liberty, and liberty protects order. Today, the integrity of the institutions that protect our civil order is, tragically, under assault from too many people whose job it should be to protect them.

The rule of law is the bedrock of American democracy, the principle that protects every American from the abuse of monarchs, despots and tyrants. Every American should demand that our leaders put the rule of law above politics.

I am deeply disturbed by the assertion of President Trump that our “current director” — as he refers to the man he selected for the job of running the F.B.I. — cannot fix what the president calls a broken agency. The 10-year term given to all directors following J. Edgar Hoover’s 48-year tenure was created to provide independence for the director and for the bureau. The president’s thinly veiled suggestion that the director, Christopher Wray, like his banished predecessor, James Comey, could be on the chopping block, disturbs me greatly. The independence of both the F.B.I. and its director is critical and should be fiercely protected by each branch of government.

Over my nine-plus years as F.B.I. director, I reported to four honorable attorneys general. Each clearly understood the importance of the rule of law in our democracy and the critical role the F.B.I. plays in the enforcement of our laws. They fought to protect both, knowing how important it was that our F.B.I. remain independent of political influence of any kind.

As F.B.I. director, I served two presidents, one a Democrat, Jimmy Carter, who selected me in part because I was a Republican, and one a Republican, Ronald Reagan, whom I revered. Both of these presidents so respected the bureau’s independence that they went out of their way not to interfere with or sway our activities. I never once felt political pressure.

I know firsthand the professionalism of the men and women of the F.B.I. The aspersions cast upon them by the president and my longtime friend, Attorney General William P. Barr, are troubling in the extreme. Calling F.B.I. professionals “scum,” as the president did, is a slur against people who risk their lives to keep us safe. Mr. Barr’s charges of bias within the F.B.I., made without providing any evidence and in direct dispute of the findings of the nonpartisan inspector general, risk inflicting enduring damage on this critically important institution.

The country can ill afford to have a chief law enforcement officer dispute the Justice Department’s own independent inspector general’s report and claim that an F.B.I. investigation was based on “a completely bogus narrative.” In fact, the report conclusively found that the evidence to initiate the Russia investigation was unassailable. There were more than 100 contacts between members of the Trump campaign and Russian agents during the 2016 campaign, and Russian efforts to undermine our democracy continue to this day. I’m glad the F.B.I. took the threat seriously. It is important, Mr. Wray said last week, that the inspector general found that “the investigation was opened with appropriate predication and authorization.”

As a lawyer and a former federal judge, I made it clear when I headed both the F.B.I. and the C.I.A. that the rule of law would be paramount in all we did. While both agencies are staffed by imperfect human beings, the American people should understand that both agencies are composed of some of the most law-abiding, patriotic and dedicated people I have ever met. While their faces and actions are not seen by most Americans, rest assured that they are serving our country well.

I have complete confidence in Mr. Wray, and I know that the F.B.I. is not a broken institution. It is a professional agency worthy of respect and support. The derision and aspersions are dangerous and unwarranted.

I’m profoundly disappointed in another longtime, respected friend, Rudy Giuliani, who had spent his life defending our people from those who would do us harm. His activities of late concerning Ukraine have, at a minimum, failed the smell test of propriety. I hope he, like all of us, will redirect to our North Star, the rule of law, something so precious it is greater than any man or administration.

This difficult moment demands the restoration of the proper place of the Department of Justice and the F.B.I. as bulwarks of law and order in America. This is not about politics. This is about the rule of law. Republicans and Democrats alike should defend it above all else.

In my nearly 96 years, I have seen our country rise above extraordinary challenges — the Great Depression, World War II, the Korean War, the Vietnam War, segregation, assassinations, the resignation of a president and 9/11, to name just a few.

I continue to believe in and pray for the ability of all Americans to overcome our differences and pursue the common good. Order protects liberty, and liberty protects order.

Judge Webster may be old-school conservative, but right now that seems like a breath of fresh air compared to the right-wing nutsery foisted upon us by this anything-but-rational crowd.

Thursday, December 5, 2019

Law Schooling

Yesterday’s House Judiciary Committee hearing was as expected: boisterous and boorish on the part of the Republican shills, who displayed not only their fealty to Trump; they also showed how little they paid attention in law school.  They got schooled by one of the witnesses.  And how.

Charles P. Pierce:

I don’t mean to diminish the gold-standard, A-level Founders porn with which the nation was gifted on Wednesday. I am a ridiculous nerd for such stuff, and not even the woebegone visage of Jonathan Turley, who’s seeing all those juicy Clinton impeachment TV appearances coming back for him like the visitation of the spirits at Scrooge’s place, can take the smile off my face.

But the best practical argument made in the context of 2019 politics came from Professor Pamela Karlan, who announced her presence with authority by clapping back ferociously on Rep. Doug Collins, the bellowing bullshit auctioneer from Georgia. Because he apparently believes that everyone is as deeply afflicted by deliberate ignorance as he is, Collins snarked about how none of the expert witnesses possibly could have read all 300 pages of the House Intelligence Committee’s damning report by the time they came to testify. To which Professor Karlan replied:

Here, Mr. Collins I would like to say to you, sir, that I read transcripts of every one of the witnesses who appeared in the live hearing because I would not speak about these things without reviewing the facts. So I’m insulted by the suggestion that as a law professor I don’t care about those facts.

I do not envy those of Professor Karlan’s students who show up unprepared for class.

I didn’t stick around for the whole mess yesterday, but last evening as I was driving I heard one nitwit — Rep. Stubey, I think was his name — carry on about how Trump was denied his Sixth Amendment rights to confront his witness and how unfair it all was because he was being railroaded and tried and convicted. Well, A) the hearing was not a trial, and B) the Sixth Amendment applies only to criminal trials. Impeachment and removal is not a criminal trial. Trump may well have committed criminal acts, but he’s not going to be tried for those; he’s being removed from office. The criminal cases will come after, and no, double jeopardy will not be attached because a conviction in the Senate is the outcome of being voted out of office based on the articles of impeachment, not the actual criminal act itself. That’s for the Southern District of New York to do.

In my non-law-school way of thinking, the closest comparison impeachment comes to is a really drawn-out job termination hearing. If you suck at your job, you get evaluated, and then they fire you. If the reason for your termination was embezzlement or giving trade secrets to your competitor, you lose your job. If the company decides to report you to the authorities for your criminal act, that’s another matter. That’s pretty much what happens with impeachment. Trump’s life and liberty are not at stake; his job is in jeopardy, and there’s no constitutional guarantee to protect that.

If I were the law schools where some of these Republican minions got their degree, I’d take a close look at the poor examples of jurisprudence they turned out and think about getting their diplomas back.

Thursday, September 26, 2019

Thursday, June 20, 2019

Hope Floats

I didn’t go to law school, but I’m pretty sure you cannot make up something like “absolute immunity” as an excuse not to answer questions before Congress.

“Because of this constitutional immunity, and in order to protect the prerogatives of the Office of President, the President has directed Ms. Hicks not to answer questions before the Committee relating to the time of her services as a senior adviser to the President,” Cipollone wrote, adding that Hicks previously testified before the House and Senate Intelligence committees under similar circumstances.

The administration’s position that she does not need to answer questions about her time in the administration is unlikely to satisfy the committee’s Democrats, who could try to go to court to force her to answer their questions.

Unless you’re eight years old and “neener, neener” sounds too silly.

But there is such a thing as “contempt of Congress.”

Thursday, May 16, 2019

More Equal Than You

Earlier this week the White House told a judge that the judiciary branch of the government has no right to rule on what the executive branch does.  And now they’re telling Congress what they can and cannot do.

The White House’s top lawyer told the House Judiciary Committee chairman Wednesday that Congress has no right to a “do-over” of the special counsel’s investigation of President Trump and refused a broad demand for records and testimony from dozens of current and former White House staffers.

White House counsel Pat Cipollone’s letter to Chairman Jerrold Nadler (D-N.Y.) constitutes a sweeping rejection — not just of Nadler’s request for White House records but of Congress’s standing to investigate Trump for possible obstruction of justice. In his letter, Cipollone repeated a claim the White House and Trump’s business have begun making — that Congress is not a law enforcement body and does not have a legitimate purpose to investigate the questions it is pursuing.

But Cipollone stopped short of asserting executive privilege. Instead, he told Nadler he would consider a narrowed request if the chairman spelled out the legislative purpose and legal support for the information he is seeking.

“Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice,” Cipollone wrote.

In an interview, Nadler called the White House argument “preposterous.”

“The White House is making the outrageous claim that a president cannot be held accountable in any way to the American people,” he said, adding: “This is ridiculous, it would make the president above the law, and of course we totally reject it. We will subpoena whoever we have to subpoena.”

Do you remember what the “legislative purpose” was for investigating Bill Clinton’s sex life?  Or the ten investigations of Benghazi?  I must have been out that day.

Unless there’s some clause in the Constitution that’s been dormant since 1789 that says only the Republicans can investigate the peccadilloes or failed rescue missions of Democrats along with their stated duties of oversight, the law school where attorney Cipollone got his degree should have him back for his own “do-over” of federal case law study.

I get it that a lawyer has a duty to zealously defend his client in court and use every means and arguments available to ensure that he gets a fair hearing.  But even I know that you can’t either make shit up or come up with some cockamamie interpretation of the Constitution to pull it off.

Friday, March 8, 2019

Run-On Sentence

According to the folks who know the law and were following the trial of Paul Manafort, Trump’s former campaign manager and one-time lobbyist for unsavory people, the sentence handed down yesterday for his conviction last summer was far too lenient and came from a judge who demonstrated apparent sympathy for the defendant during the trial.  Mr. Manafort was given 47 months when the sentencing guidelines called for twenty years.

But it’s not over,  He also faces sentencing in a Washington, DC courtroom and this judge isn’t likely to be so friendly.

Chances are very good that he will be in prison for the rest of his life.

Tuesday, February 19, 2019

Civics Lesson

Learning about the Constitution in practical ways.

A Florida student is facing misdemeanor charges after a confrontation with his teacher that began with his refusal to recite the Pledge of Allegiance and escalated into what officials described as disruptive behavior.

The student, a sixth-grader at Lawton Chiles Middle Academy in Lakeland, Fla., east of Tampa, refused to stand for the pledge in the Feb. 4 incident, telling the teacher that he thinks the flag and the national anthem are “racist” against black people, according to an affidavit. The teacher then had what appeared to be a contentious exchange with the boy.

If living in the United States is “so bad,” why not go to another place to live? substitute teacher Ana Alvarez asked the student, according to a handwritten statement from her.

“They brought me here,” the boy replied.

Alvarez responded by saying, “Well you can always go back, because I came here from Cuba, and the day I feel I’m not welcome here anymore, I would find another place to live.” She then called the school office, as she did not want to keep dealing with the student, according to the statement.

Officials said the situation escalated. The student yelled at the administrative dean and a school resource officer with the Lakeland Police Department after they came to the classroom, accusing them of being racist and repeatedly refusing to leave the room.

“Suspend me! I don’t care. This school is racist,” the student, who is black, told the dean as he walked out of the classroom with his backpack, according to the affidavit.

According to a statement from the Lakeland Police Department, the boy then “created another disturbance and made threats while he was escorted to the office.” He was later charged by police with disruption of a school facility and resisting an officer without violence.

I am sure there are plenty of people who think the teacher and the cops were right to bust this kid for being unpatriotic and refusing to give in to the demands that he salute the flag and recite the pledge.  Fortunately they are in flagrant disagreement with the United States Supreme Court that ruled in 1943 that no state official can compel anyone to be patriotic.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

This would also apply to those who think that football players showing their feelings in a non-disruptive and silent way should be fired.  The Constitution has your number, too.

Monday, December 31, 2018

Looking Back/Looking Forward

Time for my annual recap and predictions for this year and next.  Let’s look back at how I did a year ago.

  • There will be indictments at a very high level in the administration as the Mueller investigation rumbles on.  Plea bargains and deals will be made and revelations will come forth, and by summer there will be genuine questions about whether or not the administration will survive.  But there won’t be a move to impeach Trump as long as there are Republican majorities in the Congress, and invoking the 25th Amendment is a non-starter.

I’ll give myself a B on that since it was pretty much that way a year ago and the gears of justice grind slowly but irresistibly.  No high-level members of the administration were indicted, but shame and scandal did bring down an impressive number of folks who had hard passes to the West Wing.

  • The Democrats will make great gains in the mid-term elections in November.  This is a safe bet because the party out of power usually does in the first mid-term of new president.  The Democrats will take back the Senate and narrow the gap in the House to the point that Speaker Paul Ryan with either quit or be so powerless that he’s just hanging around to collect pension points.  (No, he will not lose his re-election bid.)

I’ll go with a C on that since I hit the nail on the head in the first sentence; I should have just left it there.  But no; I had it backwards: the House flipped but the GOP still has the Senate, and who knew that Paul Ryan would decide to quit?

  • There will be a vacancy on the Supreme Court, but it won’t happen until after the mid-terms and Trump’s appointment will flail as the Democrats in the Senate block the confirmation on the grounds that the next president gets to choose the replacement.

I’ll take an A- on that since I got the timing wrong, but I think Brett Kavanaugh did a great job of flailing (“I like beer!”) before the Senate Judiciary Committee.  The predator still got on the court, though, and we all hold RBG in the Light for at least another two years.

  • There will be irrefutable proof that the Russians not only meddled in the 2016 U.S. election, but they’ve had a hand in elections in Europe as well and will be a factor in the U.S. mid-terms.  Vladimir Putin will be re-elected, of course.

A+ Duh.

  • Raul Castro will figure out a way to still run Cuba even if he steps down as president, and there will be no lessening of the authoritarian rule.

Another A+, but what did anyone expect?  Trump’s half-assed attempts to restrain trade with Cuba, along with Marco Rubio doing his yapping perrito act, only make it more ironic when it’s the administration’s policy to cozy up to dictators like Putin and the Saudis.  If Trump owned a hotel in Havana he’d be down there in a second sucking up to the regime with video to prove it.

  • The U.S. economy will continue to grow, but there will be dark clouds on the horizon as the deficit grows thanks to the giveaways in the GOP tax bill.  If the GOP engineers cuts to entitlement programs and the number of uninsured for healthcare increases, the strain on the economy will be too much.

I’ll take a B on this since I didn’t factor in tariffs and the trade war(s) he’s launched that led to wild uncertainty in the markets, not to mention Trump’s bashing of the Fed chair that he appointed and told him to do what he’s doing.

  • This “America First” foreign policy will backfire.  All it does is tell our allies “You’re on your own.”  If we ever need them, they’re more likely to turn their backs on us.

I get an A on this because it has and they are.

  • The white supremacist movement will not abate.  Count on seeing more violence against minorities and more mass shootings.

Sadly, a very predictable A on that.

  • A viable Democratic candidate will emerge as a major contender for the 2020 election, and it will most likely be a woman.  Sen. Elizabeth Warren is considered to be the default, but I wouldn’t rule out Sen. Kamala Harris of California or Sen. Kristen Gillibrand of New York just yet.  (Sen. Gillibrand would drive Trump even further around the bend.  She was appointed to the Senate to fill Hillary Clinton’s seat when she became Secretary of State in 2009.)

I get a B on this because it was rather easy to spot and I’m already getting begging e-mails from Ms. Harris.

  • On a personal level, this will be a busy year for my work in theatre with a full production of “All Together Now” opening in March and several other works out there for consideration.  I will also be entering my last full year of employment in my present job (retirement happens in August 2019) but I’ll keep working.

This was a great year for my playwriting with a lot of new friends and opportunities out there and more to come in 2019 (see below).

  • People and fads we never heard about will have their fifteen minutes.

Yep.  I’ve already blocked them out.

Okay, on to the predictions.

  • Barring natural causes or intervention from an outside force, Trump will still be in office on December 31, 2019.  There is no way he will leave voluntarily and even with the House of Representatives in Democratic control and articles of impeachment being drafted they will not get to the Senate floor because the Republicans are either too afraid to rile up the base or they’re too enamored of their own grip on power to care about the government being headed by a poor imitation of a tin-pot banana republic authoritarian douche-canoe.
  • The Mueller Report will be released to Congress and even though it’s supposed to be classified it will be leaked with great fanfare and pundit predictions of the end of the Trump administration with calls for frog-marching him and his minions out of the West Wing.  Despite that, see above.
  • There will be no wall.  There never will be.  Immigration will still be a triggering issue as even more refugees die in U.S. custody.
  • There will be no meaningful changes to gun laws even if the NRA goes broke.  There will be more mass shootings, thoughts and prayers will be offered, and we’ll be told yet again that now is not the time to talk about it.
  • Obamacare will survive its latest challenge because the ruling by the judge in Texas declaring the entire law unconstitutional will be tossed and turned into a case study in law schools everywhere on the topic of exasperatingly stupid reasoning.
  • Roe vs. Wade will still stand.
  • With the Democrats in control of the House, the government will be in permanent gridlock even after they work out some sort of deal to end the current shutdown over the mythological wall.  House Speaker Nancy Pelosi will become the Willie Horton for the GOP base and blamed for everything from budget deficits to the toast falling butter-side down.
  • We will have a pretty good idea who the Democratic front-runner will be in 2020.  I think Sen. Elizabeth Warren’s chances are still good (she announced her exploratory committee as I was writing this), as are Sen. Kamala Harris’s, and don’t count out Sen. Sherrod Brown of Ohio, but who knew that Beto O’Rourke, a charismatic loser in the Texas senate race, would raise a lot of hopes?  That said, fifteen years ago when I started this blog, Howard Dean looked like the guy who was going to beat George W. Bush.
  • The economy will continue with its wild gyrations, pretty much following the gyrations of the mood of Trump and his thumb-driven Twitter-fed economic exhortations.  The tax cuts and the tariffs will land on the backs of the people who provide the income to the government and the deficit will soon be out there beyond the Tesla in outer space.  But unlike that Martian-bound convertible, the economy will come crashing back to Earth (probably about the time I retire in August) and Trump will blame everyone else.
  • There will be a natural event that will convince even skeptics that climate change and sea level rise is real and happening.  Unfortunately, nothing will be done about it even if lots of lives are lost because [spoiler alert] nothing ever is done.
  • I’m going out on a limb here with foreign affairs predictions, but I have a feeling that Brexit will end up in the dustbin of history.
  • Personally, this will be a transition year.  My retirement from Miami-Dade County Public Schools occurs officially on August 31, 2019, and I’m already actively looking for something both meaningful and income-producing to do after that.  (E-mail me for a copy of my resume; nothing ventured, nothing sprained.)  My play “Can’t Live Without You” opens at the Willow Theatre in Boca Raton, Florida, for a two-week run on March 30, and I’m planning on returning to the William Inge Theatre Festival for the 28th time, either with a play or most assuredly with a scholarly paper.  I have my bid in for a variety of other theatre events and productions; I think I’m getting the hang of this playwriting thing.
  • I will do this again next year.  I hope.  As Bobby says, “Hope is my greatest weakness.”

Okay, your turn.  Meanwhile, I wish continued good health and a long life to all of you and hope you make it through 2019 none the worse for wear.

Friday, November 9, 2018

A Good Fit

Matthew Whitaker, the acting attorney general, seems like a perfect fit for the Trump administration.

Before Whitaker joined the Trump administration as a political appointee, the Republican lawyer and legal commentator complained that special counsel Robert S. Mueller III’s investigation of Russian interference in the election and of the Trump campaign was dangerously close to overreaching. He suggested ways it could be stopped or curtailed and urged his followers on Twitter to read a story that dubbed the investigators “Mueller’s lynch mob.”

Now — at least on an interim basis — Whitaker will assume authority over that investigation, an arrangement that has triggered calls by Democrats for him to recuse himself.

He also harbors interesting views on the role of the Supreme Court in the scheme of things, arguing that the landmark 1803 Marbury v. Madison case that affirmed the court’s role as the final arbiter of interpreting the Constitution was one of the worst decisions the court has rendered.

“There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

He also seems to think that our laws descend from a higher power.

During a 2014 Senate debate sponsored by a conservative Christian organization, he said that in helping confirm judges, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? — which I think is very important.”

At that point, the moderator interjected: “Levitical or New Testament?”

“New Testament,” Whitaker affirmed. “And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”

Religious tests for judges are barred by the Constitution, but I think we already know where he stands on interpreting it.

To round out the rest of the portfolio, as an attorney he’s been accused of defrauding clients.

When federal investigators were digging into an invention-promotion company accused of fraud by customers, they sought information in 2017 from a prominent member of the company’s advisory board, according to two people familiar with the probe: Matthew G. Whitaker, a former U.S. attorney in Iowa.

It is unclear how Whitaker — who was appointed acting attorney general by President Trump on Wednesday — responded to a Federal Trade Commission subpoena to his law firm.

In the end, the FTC filed a complaint against Miami-based World Patent Marketing, accusing it of misleading investors and falsely promising that it would help them patent and profit from their inventions, according to court filings.

In May of this year, a federal court in Florida ordered the company to pay a settlement of more than $25 million and close up shop, records show. The company did not admit or deny wrongdoing.

Whitaker’s sudden elevation this week to replace fired Attorney General Jeff Sessions has put new scrutiny on his involvement with the shuttered company, whose advisory board he joined in 2014, shortly after making a failed run for U.S. Senate in Iowa.

At the time, he was also running a conservative watchdog group with ties to other powerful nonprofits on the right and was beginning to develop a career as a Trump-friendly cable television commentator.

So, he’s got authoritarian-executive views of the basic laws of the country, he wants religious tests for judges, and he’s provided legal counsel to a fraudulent get-rich-quick scheme here in Florida.

My only question is why wasn’t he the first pick for Trump’s attorney general before Jefferson Beauregard Sessions III?

Bonus Track: According to two highly-respected legal scholars, Neal K. Katyal and George T. Conway III, Trump’s appointment of Mr. Whitaker as acting attorney general is unconstitutional.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.

It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

I heard one conservative commentator suggest that the Federal Vacancies Reform Act of 1998 allows such appointments in the case of a vacancy or incapacity, but it is for a relatively short period, and besides, the Constitution has supremacy.  So if Mr. Whitaker tries to fire Robert Mueller, he may face a legal challenge.

PS: Karma strikes again: George T. Conway III, the co-author of the op-ed, is married to Kellyanne Conway.

Tuesday, August 21, 2018

Thursday, August 2, 2018

Twelve People

I heard a commenter on NPR last night say that if Paul Manafort is acquitted, it will be a big setback for the Mueller investigation.  Trump and his minions will crow that it proves the whole thing is a rigged witch hunt and that if the prosecution can’t make the case against the former campaign manager, they won’t be able to prove anything against anybody else.  Trump will go on with his rallies and his bloviation, Fox News will carry on as if he’s been totally vindicated, and the imagination shies away from speculating as to what comes next.  And it’s all up to twelve people on a jury.

I have no doubt whatsoever that no matter what the outcome of the Manafort trial, Mr. Mueller and his team will press on.  The case against Manafort has nothing to do with the election of 2016 other than he was the campaign manager when the Russians came calling, and Trump’s obstruction of justice has been solely about keeping Mueller and law enforcement away from him and his activities.  But the optics of a Manafort acquittal mean that the next trial — either in court or in front of the cameras on the courthouse steps — will be that much harder to win.

Monday, June 4, 2018

It’s Not Good To Be The King

When the Constitution was written, the folks who wrote it did everything they possibly could to get away from a monarchic form of government.  They made all the people with power subject to election and to the rule of law, and they split the powers of the government between three branches: executive, legislative, and judicial.  That seemed like a good way to do it; no one branch could overtake the other, and there was accountability so that if one got out of hand, the others could deal with them until order was restored.  The few executive powers that resembled those held by a monarch were limited to benign or even restorative abilities, such as the power of the pardon.  The Founders probably thought this would be sufficient; they had the optimistic yet cautionary view that we were inherently good but that firm control via common sense and the ballot box would be enough.

They didn’t take into account the possibility that we would get Trump.

The 20-page memo from Trump’s lawyers to Robert Mueller, written in January and leaked by the New York Times on Saturday asserts that the president has the power to do whatever he wants in terms of controlling the Department of Justice; fire the director of the FBI, terminate an investigation, pardon himself for anything he might have done while in office, and basically assume the powers of an authoritarian without worrying that anyone in the executive branch can stop him.

Indeed, the President not only has unfettered statutory and Constitutional authority to terminate the FBI Director, he also has Constitutional authority to direct the Justice Department to open or close an investigation, and, of course, the power to pardon any person before, during, or after an investigation and/or conviction. Put simply, the Constitution leaves no question that the President has exclusive authority over the ultimate conduct and disposition of all criminal investigations and over those executive branch officials responsible for conducting those investigations.

People who have been to law school and have read this memo say that it is deeply flawed in both legal and logical terms.  The attorneys cite outdated statutes and take positions that stretch reason beyond the absurd.  But it is an insight into the defense strategy that will be mounted on behalf of Trump and sold to the GOP base at rallies as black-letter law: Trump is above the law and it’s good to be the Trump.

The only people who can bring an action against the president for violating the law or the Constitution is Congress.  They have done so twice in living memory: the articles of impeachment against Richard Nixon and the actual impeachment of Bill Clinton.  At those times — 1974 and 1998 — the Congress was held by the opposition party to the president, which means that their desire to prosecute the president was inherently a political one.  This time it’s different.  Trump is nominally a Republican, as is the House and Senate.  So the question then becomes do the people who have the power over the term of the current president believe more in the rule of law than they do in the integrity of their own party, their re-election, and their conscience that speaks to them when they’re outside of the glare of TV cameras and soundbites.

We decided over 200 years ago that we didn’t want a monarch any more (even if we do watch their royal weddings on TV) and gave ourselves and our elected representatives the power to control those who assume they have powers beyond those granted by law.  Whether or not Congress decides to do anything about that tells us more about the future of this country and our path forward as a constitutional democracy than the results of an election.

Friday, May 4, 2018

Legal Notes

Trump has hired Emmet Flood, the lawyer that represented Bill Clinton during his impeachment and also defended Hillary Clinton during the e-mail kerfuffle.  That must be going over really well with the wingnuts who attacked Mr. Flood for his previous work, not to mention the fact that when you start shopping for a lawyer who knows all about impeachment, there’s got to be a reason.

And with Rudy Giuliani shooting his mouth off on Hannity, it’s refreshing to see that now Trump the client is probably wishing that his lawyer would shut up instead of the other way around.

Tuesday, April 17, 2018

It’s A Privilege

You don’t have to be a lawyer to understand the concept of attorney-client privilege.  Watching a few episodes of “Law & Order” reruns will give you the basics: what you communicate to your attorney is secret, and your attorney can be disbarred for breaking it.  There are exceptions, of course, but by and large it’s pretty sacrosanct.

There is one important caveat: the privilege can only be invoked if the attorney is actually representing you.  So I don’t know how Sean Hannity, the blowtorch blowhard on Fox News and the Wormtongue to Trump, can claim attorney-client privilege with Michael Cohen out of one side of his mouth and vehemently deny that Michael Cohen is his lawyer out of the other.

The fact that Mr. Cohen is also Trump’s lawyer makes it interesting because of the “Law & Order”-style dramatic reveal in the courtroom.  But in the overall scheme of things, it makes you wonder what the big deal is all about; lots of lawyers have a wide spectrum of clients and they aren’t all connected to each other.  Heck, my own attorney represented Tony Bosch, the Dr. Feel-Good who juiced up A-Rod, and you don’t see me running around with 19-inch biceps and playing for the Yankees.  So why is Sean Hannity so freaked out by this reveal and claiming a privilege?

Maybe it’s because Michael Cohen only has three clients; the other one besides Trump is Elliott Broidy, the recently-resigned RNC finance chair.  And maybe there’s more to this relationship between Hannity and Trump and Cohen than just sharing a lawyer.  Which brings up the fact that attorney-client privilege goes out the window if the attorney is actively engaged with the client in the furtherance of a crime.

Friday, April 13, 2018

Former GOP Rep Convicted

Ah, justice.

Steve Stockman, a Republican former congressman from Texas, has been convicted of defrauding two conservative mega-donors and funneling their $1.25 million into personal and campaign expenses as part of what prosecutors have described as a “white collar crime spree.”

A jury in federal court in Houston ruled Thursday afternoon that Stockman is guilty of all but one of the 24 felonies he was charged with last March. After about 16 hours of deliberations over three days, the 12-person panel only declined to convict on one of four counts of wire fraud.

Stockman will appeal the verdict, his defense team said.

This may become a pattern.  One could only hope.

Tuesday, February 6, 2018

Do You Solemnly Swear

Via the New York Times:

Lawyers for President Trump have advised him against sitting down for a wide-ranging interview with the special counsel, Robert S. Mueller III, according to four people briefed on the matter, raising the specter of a monthslong court battle over whether the president must answer questions under oath.

His lawyers are concerned that the president, who has a history of making false statements and contradicting himself, could be charged with lying to investigators. Their stance puts them at odds with Mr. Trump, who has said publicly and privately that he is eager to speak with Mr. Mueller as part of the investigation into possible ties between his associates and Russia’s election interference, and whether he obstructed justice.

Yeah, if I were Trump’s lawyers I wouldn’t want him to testify under oath either.  He can’t order lunch without lying or contradicting himself, and while that may make him liable to be charged with perjury, the lawyers could be disbarred for suborning perjury by the mere act of advising him to testify.  They have to be thinking of their own careers, too.  (Of course, if you allowed yourself to take on Trump as a client, you have to wonder about your own fealty to the canon of ethics.)

Mueller could subpoena Trump in order to force him to testify, and he would fight it, but chances are very good that he’d lose.  And while that might guarantee you years of billable hours, there’s no good outcome for your client, and with his track record with people who’ve worked for him, you’d end up getting stiffed.