A NIGHT AT THE OOLISEUM

A NIGHT AT THE COLISEUM, I.E., BREAD AND CIRCUSES, DEMOCRATIC STYLE

In ancient Rome, the government had a problem: how to keep the poor and unemployed entertained and occupied. No Tik-Tock, no Facebook, no Tucker Carlson.

Ah, the solution: bread and circuses. The former was easy, the latter involved some originality.

The were several possibilities for a Roman Circus, and, as the demand increased, the government provided a variety of events with greater frequency. Blood and gore was much in demand. Unarmed slave vs. lion was a guaranteed sell-out. So too was bull vs. bear, or, when available, elephant vs. tiger. You get the picture.

So last night we had another Circus, this time on CBS. The network went all out for as much blood and unintelligent chaos as possible. Like the Roman ones, this Circus had a format designed to sate the crowd's demand for slashing attacks that left the stage littered with wounded warriors at the end.

This "debate" was allegedly designed fairly to inform the public about the political views of the gladiators. Duh, how could we do that? For openers one could hire a mathematician to assure that each participant had a fair opportunity to actually explain his or her views. Tools like slide rules, abacuses, computers, could be employed. Let's see:120 minutes of air time, subtract 15 minutes for commercials, that leaves 105 minutes for intelligent discourse, divided by 7 yields 15 minutes for each candidate to express his plans, proposals, and philosophies in an effort  to persuade the coliseum patrons.

Instead, CBS just threw some food in the center of the ring, and let the mob scratch, kick, and bite to get at it. Nice.

The CBS plan: ask a question, and give the contestant one minute and fifteen seconds to answer it. There was nothing in the plan to deal with a contestant who went past, or even way past the time limit, so the pushy ones like Sanders and Warren got more time than the others. Also part of the plan was to give response time to anybody who was attacked. Again, no discipline. So if a candidate said something,--- anything at all-- hands went up like third graders who needed to pee. Mention your mother and Elizabeth Warren insisted on telling a story about her time as a pregnant school teacher. Mention health, and Bernie had to give a lecture we've all heard before about single payer government insurance and the literacy program installed by Fidel Castro. No clock, no restraint, people shouting over each other, ignoring the moderators' pallid efforts to control the elephants.

Duh, this is not hard. Did you know that in the Supreme Court of the United States, litigants must stop speaking when their allotted time is up even if they are in mid-sentence? This is not rocket science. For a few bucks, one can buy a silent timer to keep on your lectern, and you can see your time tick away. It encourages discipline to get to your point, and skip the stories about your mother's job knitting woolen caps for the eskimos.

When I argued in an appellate court, and knew I had a specific time, I always took off my watch, put it on the lectern, and made my points fit the time allotted. Even arithmetically challenged people like me can do that, and unlike in televised debates, lawyers need constantly to adjust for court interruptions.

I suggest the networks who run these Circuses intentionally encourage the chaos. Some programming geniuses in their midst are convinced this is hot-shot television. Shame on them, and shame on the candidates who let themselves be used in this manner.

The merits? Nothing has changed much. Klobuchar and Buttigieg are great and have no shot at the nomination. Steyer is just wasting everybody's time, and so is Warren, who, as one reporter put it, stomped her high heel shoe on Bloomberg's neck the first time she opened her mouth. (I was surprised to see Mike shake her hand at the end of the program. Me, I would have stepped on her foot, hard.)

That leaves i) Bloomberg, (who continued his stick-up-his-ass performance, but at least mentioned some of his qualifications for the job,) ii) Biden, and iii) Bernie-the-Red.

I will vote for whomever gets the nomination. But I wince when I play out the campaign and the debates between Trump  and Bernie. There will not be enough sawdust on the floor to soak up the blood. The Republicans will inflict a thousand cuts on the Democratic Socialist. Socialized medicine, open borders, social programs that cost so much that even Bernie can't count that high, 20% of every corporation's stock transferred to the workers, nice words about Castro (I can see the Republican commercials putting Bernie in the middle of the Cuban Missile Crisis) etc., etc. There is no end to the disaster. And last night we got the cherry on the ice cream float: Bernie pissing away what remains of his Jewish vote with his comments about the Israeli conflict with the Palestinians. OY.

That leaves Biden and Bloomberg. I would much prefer Mike for two reasons. One, I think he will be a better candidate and a better President, and Two, I fear Trump will chew up Sleepy Joe and then we'll end up with four more years, and a 7-2 Supreme Court.

I remain an optimist. Not so much because I think the Dems will choose a winning candidate, but because I believe that Trump will defeat himself, if he hasn't already done so.

That make sense? Even though I am not sure about how we'll beat this narcissistic child-king, I am confident we will.

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

ARROGANCE

Arrogance. Pure arrogance. J'accuse my candidate of arrogance.

I have tried lots of cases, some before judges, some before juries. The discipline is largely the same, the differences are at the margins.

Broadly speaking, there are four blocks to trying a case: i) an opening statement (you tell the jury what you intend to prove), ii) your direct case, (direct testimony from your witnesses), iii) cross-examining your adversary's witnesses, and iv) a summation (you tell the jury what you have proved and point out the weaknesses of the adversary's case. This is your opportunity for emotional gut punches.)

 (As you may have noticed,  items ii, iii, and iv, apply to political debates as well.)

 Whether you are representing a large corporation or a privately held enterprise, the likelihood is that one of your witnesses, sometimes the only one, is going to be the big kahuna, the CEO, the owner, the guy at the top. He is accustomed to giving orders, not taking them. He is smarter and richer than most, and he knows it. He is persuaded he is not only smarter than the adversary's lawyer, he is smarter than you too. He is certain he is smartest guy in the room, and proud of it.

And he may be right. That's how he got to the top of the ladder. He built the best mousetrap, sold the most widgets, bought low and sold high, a capitalist star.

As a businessman, he's heroic. As a witness, he can be a nightmare. Why? Because even though he has never done this before, he is sure he will be a star witness in court, handle the adversary lawyer with aplomb, and impress the hell out of the jury. After all, that's how he got to be the big kahuna, right?

So Mr. Kahuna refuses to take your advice that the courtroom is a way different from the boardroom. It is the difference between sea and city -- a unique world where the lawyers are frequently the sharks and big kahuna witnesses are chum.

So we begin to prepare Mr. K for trial. To do that, we need 
to go over every word of his planned testimony. It's not
 only what he says, but how he says it. We need to be 
sure he covers every base, and at the same time 
doesn't say more than he needs to say. Extraneous 
matter is grist for the cross-examiner's mill.

When we have his direct testimony in the bag, we 
need to prepare him for cross. We need to ask 
every hard question the adversary is

going to ask, and drill our witness to answer directly, 

truthfully, and without volunteering unresponsive 
information. We  need to go over every statement 
the witness has ever made, or agreed with, and 
rehearse, yes rehearse, answers that are not 
only responsive, but correct, pungent and persuasive.

Oftentimes this training involves a number of lawyers badgering their client, who defiantly resists all those gnats buzzing about his head. "Don't you damn lawyers realize I've got a company to run? I've got this. I am out of here. Call me when you need me to be in court!"

Some examples. I once represented a powerful builder. He was one of the giants who contributed to Manhattan's prominence. He was sued by an investor who thought his share of profits was understated. The claim lacked merit, but we had to go to trial and preparing my developer kahuna for that event was a bear. Lots of documents, lots of accounting, lots of meetings. He resisted my efforts at preparation as if I were his adversary. I had to appeal to his partners and his sons to get him to table and keep him there. His answers to my questions always included information that was unnecessary and not responsive, but which he thought showed how successful he was.

He so resented my successful insistence on his preparation, he actually punished me at trial! When I stood at the lectern and asked a question, he gave an appropriate answer. But when I walked to the witness box to hand it to him a document, he had me: while I returned to my lectern, while my back was to him, he quickly volunteered testimony he knew was irresponsive and boastful. He was like a nine-year old, getting even with me when my back was turned! After two such instances, I had one of my colleagues hand him the documents. I had to keep my eyes on this kahuna to make him behave.

The worst experience I ever had was when I was a young lawyer. It fell to me to prepare our major witness for direct testimony in an arbitration. The witness was himself a big-shot lawyer, though not a litigator. He constantly put me off, telling me he didn't need preparation because he knew everything, he had negotiated the contract at issue, drafted it, blah, blah, blah, and always suggested a "tomorrow" for what he saw as unnecessary preparation. My mistake: I let it happen because I was insufficiently experienced with dealing with kahunas, and because the trial schedule called for him to testify many weeks later. But on the first day of trial, the Chief Arbitrator suggested that Mr. Kahuna, who clearly was the most knowledgeable witness, be the first to testify. Mr. Kahuna, full of self-assurance, said "Absolutely. A capital idea," and in the first fifteen minutes of his testimony set the world's record for stupidity, forgetfulness, and meandering unresponsive answers to his own lawyer's questions. Fortunately, my boss  came up with some effective excuse  to interrupt his testimony and yank him off the stand before he torpedoed our case.

The inverse: an example of a kahuna blowing himself up on cross-examination. Happily this involved an adversary. When my client sued CBS for libel, the key adverse witness was Walter Jacobson, the Chicago station's lead newscaster, whom we charged with making false defamatory statements on the air. When I took his deposition before trial, he exhibited all the kahuna characteristics. He deflected my inquiry by testifying that he wrote the script but barely remembered doing so, he did hundreds of these broadcasts, and how could I possibly expect somebody as busy and important as he to remember the details of his preparation of this single editorial rant that was broadcast more than a year ago?

CBS was represented by a major law firm, and I am sure they prepared their chief witness. Or tried to.

The consequences of that failed deposition prep bloomed at trial. When it became apparent that the jury might well find that his broadcast was indeed false, it became important for him to prove that he nevertheless believed it to be true. That would have been a total legal defense to my claim.

So, with the jury in the box, on his direct examination he testified that he specifically recalled typing each word on the script, and being confident in its accuracy as he did so.  He distinctly remembered being persuaded every word was true. He constantly repeated that refrain. But on cross, when I read to the jury his earlier sworn testimony about him being way too busy to remember anything about what he was thinking when he wrote the script, he was ground chum, fish food diced and sliced. A three-week trial, and the jury found for us after deliberating for less than an hour and a half.

Now, as to Mr. Bloomberg: A disastrous national appearance. The candidate whom I believed was going to save us from the Scylla and Charybdis of Child-King Trump and Angry Socialist Sanders, humiliated himself before the largest Democratic debate audience in history. 

How come? Not smart enough? Couldn't remember the facts? Was surprised by his adversaries' questions? Answer: None of the above.

Mr. B, who built a 68-billion-dollar fortune by his wits, obviously was unprepared. Sure he had been drilled, but you could see from his performance that he was taken aback by the ferocity of the attack, and gave inadequate and wooden responses. In my mind's eye, I see those prep session acolytes fearing the wrath of MR. BIG: "I got this. What's the next question? C'mon, let us not waste time. I'm too busy for that. Dress rehearsal? Don't be silly! Let's get this over with!"
And they gave in to the tyrant.

Mike may recover. I sure hope so. I've already invested in a pair of BLOOMBERG 2020 bumper stickers and I see him as the only alternative to Bernie-the-Red, who, if nominated, will be chum to Trump's attacks on his pie-in-the-sky socialism.

I'm only sorry I wasn't watching when Bernie proposed that 20% of the stock of all companies be given to the workers. Did Mike's scalp lift off his head? Steam come out of his ears? Should have. Bet it didn't.

I turned off the television early on. It was like watching Fox News. I couldn't bear it. I gather Mike improved somewhat in the later segments, but I did read that in his effort at a knock-em-dead closing, Bloomberg said that elected officials "should understand what they are doing and the implications thereof." Really? Which preparation genius taught him to add that line to his conclusion? That'll get em in the gut, Mike. None of this "God Save America" or "I can beat Donald Trump!" stuff. Just end your preroration with "and the implications thereof."

I agree with Trump: When asked who he thought won the Democratic debate, The Donald responded, "I did."

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want notice of each    new posting, send me an email and I will add you to the notice list:  mlondon34@gmail.com

For more information about the Jacobson libel trial, see my memoir, "The Client Decides," available on Amazon and Kindle.

ONCE UPON A TIME ...

                        

For many of us, there are historical events that are so jarring, we can, forty or sixty years later, remember where we were and what we doing when we learned of them. I was just under 8 yrs.-old when the Japanese bombed Pearl Harbor, and I can remember sitting in our living room on Carroll Street in Brooklyn listening to FDR on the radio.

I was in my classroom in PS 221 on Empire Blvd, when our teacher told us that FDR had died.

I was working at my desk at Paul, Weiss when somebody came in to tell me JFK was shot, and years later I was in physical therapy on 52d street when the music playing on the ceiling speakers was interrupted with the report of one, then two airplanes hit the twin towers. Afterwards, limping back to the firm, I looked down Fifth Ave and saw smoke pouring out of one of the towers.

I was at somebody's cocktail party on October 20, 1973, when I learned of the Saturday Night Massacre.

The Saturday Night Massacre floored me. It was such a gross assault on the rule of law, that I wondered whether Nixon would order troops to patrol the streets the next morning. I had had extensive conversations and negotiations with Attorney General Elliot Richardson just months earlier regarding the Agnew plea. I knew Elliot to be a man of principle, and respected his decision to quit when Nixon demanded he fire Special Prosecutor Archibald Cox.

I was sitting in this chair some days ago when I learned the details of the Roger Stone fiasco. I immediately thought of that night in 1973. I respected the decision of the four federal prosecutors who quit the Stone criminal case after the President publicly excoriated them and their bosses at DOJ humiliated them by pulling the sentencing memo they had submitted to the court.  Trump not only complained about the  prosecutor's 7-9-year sentence recommendation, he characterized the entire prosecution of his long-time friend and campaign advisor, as "horrible," ''an unacceptable miscarriage of justice," claiming it was brought about by "corrupt people," and he actually demanded the prosecutors "apologize to Stone!"

A few facts about this case to bring it into perspective. Stone was charged with SEVEN felony counts: obstructing a congressional investigation (1 count), lying to congress (5 counts), and witness tampering (1 count). Stone demanded that a potential witness, Credico, a liberal comic/radio personality, support Stone's lies to congress regarding Creico's contacts with Wikileaks. If he refused, "Prepare to die, cocksucker!" was the threat, and Stone's instructions and demands on how to give false testimony were repeated again and again.

Stone refused to plead out, and went to trial before a jury that unanimously convicted him on all counts after only seven hours of deliberation.

For his crimes, Stone faced up to 50 years in prison, but applying the non-binding federal sentencing guidelines, the probation department recommended a sentence of 7-9 years, and the government, via its four-member trial team, endorsed the recommendation.

That's when Trump went ballistic and not only accused the prosecutors of being corrupt, he attacked the Mueller report, accused the trial judge of putting Manafort in solitary--a totally false allegation-- and attacked the foreperson of the jury as being biased!

The DOJ responded immediately by withdrawing the memo submitted by the four trial lawyers and submitted a new one suggesting a sentence of "far less" time would be appropriate. They left the matter totally in charge of the judge's discretion (duh, nice of them, cause that's the law, whether the DOJ bosses recommended it or not), and they did say that a sentence of 3-5 years was more in line with other cases.

That's when the four prosecutors quit the case. (One left the DOJ altogether.)  And that's when Trump tweeted his congrats to Bill Barr. The next day Barr, facing a revolt in the Department, publicly asked the President to stop tweeting about the DOJ. Trump replied by patting him on the head, basically saying, "good dog, not to worry, I still love you," while his press secretary issued a statement saying the President would continue to exercise his "First Amendment rights!"

The Chief Judge of the D.C. District Court showed her devotion to the Constitution by issuing a statement defending the independence of the courts. The Chief Justice of the United States showed his devotion to the Republican Party  by keeping his mouth shut.

No, I don't believe this outrageous interference with the rule of law will result in yet another impeachment inquiry. (Congress opened one the Monday after the Saturday Night Massacre.) But I do believe that somebody out there, indeed I hope a lot of somebodies out there, will see this as another reason to switch his vote from this irresponsible child-tyrant come November.

One final thought: Credico, who testified against Stone, said at trial, and in a recent interview with Michelle Goldberg of the NYT, that when Stone said to him, "Prepare to die, cocksucker,'' he did not fear Stone that would kill him, but that Credico would become a target for someone wearing a red MAGA cap.

 I am reminded of the abortion case we tried years ago in Portland, OR, where the crazies endorsed the killing of physicians. The courts upheld our argument that under the unique circumstance of that case, encouraging others to do violence was an illegal "threat," even lacking proof that the speakers themselves intended to do the killing.

Encouraging others was enough.

In this heated environment, are our prosecutors, judges, and jurors now to be concerned about making a decision the Commander-in-Chief does not like?

And, horrible of horribles, now that this irresponsible President has painted a target on the backs of four prosecutors, a federal judge, and a juror, what if ...?

A bientot!

.................................

As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

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 If you want more information about my dealings with Elliot Richardson in the Agnew case, or the details of the Portland abortion case, see my memoir "The Client Decides" available on Amazon and Kindle.

QUESTIONS

Fifty-one United States Senators voted to shorten the constitutionally mandated impeachment "trial" by voting against hearing witnesses. Several arguments were advanced in support of that bizarre result:

1. Trump's defense team argued it was the House's job to gather the evidence, and they didn't do it. The House rushed to impeach because i) Barr's DOJ would not prosecute witnesses the House held in contempt, and ii) courts were way too slow in deciding subpoena enforcement cases. That was the House's decision, and it's not the Senate's job to do the House's job. The House brought to the Senate an uncooked stew and the House Managers need to live with their failure.

Let's examine the logic behind that claim. Let's assume (as I think is true) the House did rush to impeach for the foregoing reasons, and let's assume that the decision taken by the House leaders was (I do not agree) flawed. I.e.,the House should have taken the time to hear witnesses. The House made a mistake.

Question: Recognizing the House made a mistake in  its pursuit of the truth, why would a majority of the Senators vote to make the same mistake?

2.  Trump's counsel argued that it was important to bring the proceedings to a close. If witnesses were called, there could be no identifiable end date for the trial.

Question: Where in the Constitution does it say that in impeachment trials, brevity is a more important value than the search for truth?

3. Bolton was the subject of much argument. His unpublished book contained a statement that he had a one-on-one conversation in which Trump made clear that he was withholding assistance funds to Ukraine until Zelensky made a public statement he was pursuing a Biden investigation.

a) Trump's chief counsel Sekulow argued that the Senate should not call Bolton as a witness because the Bolton allegations were "unsourced". I know from personal experience the strains of preparing for trial. Clearly, Trump's counsel Sekulow suffered from overwork, but I suggest this was not a slip of the tongue. He repeated the argument several times, yet

 at the time of the Sekulow argument, the Bolton manuscript had been in possession of the White House for weeks. Clearly the President's lawyers knew what Bolton had written, and they knew that Bolton's statement demolished the defense team's argument that the charge against Trump was hearsay because Bolton was a direct witness to the Trump confession.

 Question: So how could Sekulow urge the Senate to skip over Bolton because the Bolton report  was "unsourced?" That's not only false, it's disingenuous At the time he made his argument, Seculow knew the source of the Bolton report was Bolton.

b) Trump's team argued that calling Bolton would take too much time because the President would assert Executive Privilege, and there would be a lengthy court battle. Putting side the question whether Roberts could or would promptly rule on the privilege issue ( I think he would not) it is important to note that Trump personally responded to the Bolton report by denying it. Trump insisted he never said that to Bolton, and that Bolton made the whole thing up. The Bolton claim was fiction.

Question: How could the President invoke a privilege over a conversation he insists never happened? Does the Trumpian version of Executive Privilege cover fiction too? Hasn't the President, once again, undercut his own legal position with his tweets?

Finally, I conclude these random post-hoc meanderings with a reflection on the unceasing hypocrisy of the Senate Republicans. In a thin post-trial effort to justify the decision to acquit in face of overwhelming evidence of guilt, several Senators said they voted the way they did because they did not want to remove Trump inasmuch as he had learned his lesson. The leader of that cheering section was "she-who-always-disappoints," Republican Senator from Maine, Susan Collins.

No sooner were the words out of her mouth, then she had to eat them. The Chastened One, at a Prayer Breakfast yet, (where the theme was "Love your Enemies") viciously attacked his adversaries. Trump directly challenged the Catholic religious devotion of Nancy Pelosi and that of Mormon Mitt Romney. In a meeting later in the White House, he attacked the integrity of Representative Adam Schiff, and said the whole Democratic party was "evil." The Republicans cheered.

Yup, he's changed, alright.

Sue, ya nailed it again.  Lots of luck in November.

A bientot.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each new posting, send me an email and I will add you to the notice list.  mlondon34@gmail.com

For more on my litigation experience with Donald Trump, see my memoir, "The Client Decides," available on Amazon and Kindle.

LEARNING FROM THE ENEMY

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Ok, now at last they admit the truth.  All the impeachment defenses put up by the Republicans thus far were lies:  Hearsay, the failure of the House to pursue witnesses in court, a crime is necessary, the absurd Dersh Defense -- all bullshit.

Republican Senator Lamar Alexander, the retiring Senator from Tennessee, spilled the beans in a series, of interviews this weekend. He voted against adding witnesses to the impeachment trial because he didn't need further proof. He was already persuaded that Trump did it. Period. That was clear, said Mitch McConnell's bestie, from the git-go. The Zelensky conversation, taken together with  the hold on the security assistance funds for Ukraine, was all the proof Alexander needed to persuade him that Trump was guilty. Trump's conduct "crossed the line."

Now comes the big BUT from which the Democrats may learn something, or squander their chances to defeat Trump in November.

Having found the President guilty does not mean we should remove him, Alexander said. He hid his real message by asserting his view that Trump's conduct didn't rise to the level of a "high crime or misdemeanor." He also said, -- and this was true--his removal was opposed by 50% of the U.S. population.

BUT he concluded with his real message: Alexander summed in the starkest terms: he was opposed to removal because he wanted the voters to "to be able to decide whether they wanted their next president to be Trump or Warren."

Hmmm, "Trump or Warren."  Not "Trump or Biden," not "Trump or Buttigieg," not "Trump or Klobuchar."

This close friend of the Republican Majority Leader was making the best case for his decision: he was suggesting the public should be allowed to choose between the impetuous child in the White House and one of the two far-left Democratic candidates.

Alexander spoke for the Republican caucus: the NYT reported:

"Senator Ben Sasse, Republican of Nebraska, put it this way: “Lamar speaks for lots and lots of us.”

(Even the Senator formerly known as Lindsay Graham agreed with Alexander!)

As one of my Trumpian readers constantly reminds, elections are binary. Trump  did not win the 2016 because the voters liked him. He won because the voters found him less unattractive than his opponent. (You remember his opponent? She-who-still-will-not-get-off-the-stage?)

The Democrats assert that this election may be existential for our democracy, but nevertheless here we are, seriously considering choosing as our candidate one of two ultra "progressives'' who will appeal to the the fewest number of moderate voters: a 78 yr.-old self-described Democrat-Socialist heart patient, or his competitor for the far-left vote, a "Medicare-for-all," "job-killing-lower-our-oil-production," "decriminalize-illegal-immigration" east coast liberal.

Why didn't Alexander make his point by contrasting Trump with Biden, Bloomberg, Klobuchar, or Buttigieg?

"We have met the enemy and he is us."

That's why.

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As my regular readers know, there is no fixed schedule for these posts. If you want a notice of each posting,, send me an email and I will add you to the notice list.  mlondon34@gmail.com