WILL THE CENTER HOLD?

The rubber will hit the road when the multitude of district and circuit court injunctions blocking Trump/Musk orders reach the Supreme Court. Chief Justice Roberts, in his State of the Judiciary speech for 2024, had made plain the importance of obedience to court orders: 

"An independent judiciary must uphold the constitution against the shifting tides of public opinion... officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions ... must be soundly rejected."

But Trump's minions have been vague about whether the Executive Department will comply with court orders that reject Trump/Musk decrees.

A judge can find a government official who refuses to obey a court order in criminal contempt, and order him to jailed, but Trump can "trump" that order via commuting the sentence or pardoning the defendant. 

 It might not even get that far: court orders are enforced by federal marshals who are employees of the Department of Justice, which today is absolutely obedient to the wishes of Trump. Civil contempt (go to jail and do not pass Go until you comply with my order) is also an effectively toothless remedy because the Bureau of Prisons is also a DOJ responsibility. And civil fines would likely be ignored or countered by executive decree.

The scary hypothesis is that the only way the court can maintain it's stature in the face of a recalcitrant anti-Trump defendant, is to make sure there is no cause for executive agita, i.e. render all decisions in Trump's favor, and thereby avoid the problem of non-compliance with judicial orders that offend King Donald. 

Up to now, the district and circuit courts have been true to their pledge to obey the Constitution and have blocked many Trump/Musk orders. But Justice Alito, even though there was no case before him, publicly complained about district judges who issued decrees that affect the entire nation, even though that has become the only practical way to deal with many of these matters. 

If the center folds, if Roberts gives in to the Alito-Thomas wing of the court, and the Supremes reverse or limit the numerous lower court decisions that stay illicit Trump directives, the Constitution is effectively dissolved.

The easiest one is already there. Trump has (foolishly, I think) already brought to the Supreme Court his loss of the birthright citizenship matter in three district court cases that resulted in nation-wide temporary restraining orders. He has asked the Supreme Court to limit those 14th-Amendment rulings to the particular litigants who brought the cases, an "Alito" result that would create national confusion and limit the application of the Amendment to particular individuals or states,-- a horrendous conclusion.

 We'll see. If the Supremes bend the knee on this one, pack your bags and move to Canada (if Canada will have you!)

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WAR ON LAWYERS

I have written before about Trump's predilection for attacking opposing lawyers as opposed to the merits of the issues involved in  Trumpian litigations. As I noted in my previous blog, I have encountered this directly in a pre-presidential Trump litigation, and have commented about it in the earliest days of his presidency. 

On some subjects, he is consistent. Recently, he has stood the profession on its ear by taking outrageous steps to punish lawyers for their advocacy. He has stripped security clearances of the firm of Perkins Coie because of its representation of 2016 election adversaries. Pursuant to Trump's executive order, government employees may not meet with the firm's lawyers and they are barred from all federal buildings. Whether this means they cannot enter federal courthouses, I am not sure, but the order is outrageous and if it's not unconstitutional, then it should be. A federal judge has already stayed challenged parts of the Trump order.  The judge has called it "retaliatory animus" and noted she expected the "legal profession was watching in horror."

In addition, Trump has stripped security clearances from Covington and Burling lawyers who represent Jack Smith, the prosecutor who pursued Trump (unsuccessfully) for pre-presidential felonies. The only announced rationale for that action is Trump's repeated charge that prosecutor Jack Smith was "deranged."

This is not just a hypothetical constitutional discussion. The Perkins firm reports that it has lost major clients as a result. And it is not unreasonable to expect that the firm will suffer adverse effects in the process of enlisting new clients as well.

The other side of the coin is the public and professional criticism of the law firm Sullivan and Cromwell for its agreement to represent Trump on the appeal of his 32-count New York felony conviction. Trump was found guilty of making fraudulent book entries to hide hush money payments related to his adulterous relationship with Stormy Daniels during his wife’s pregnancy. The criticism has opened an old sore: reports of a horrendous “bending of the knee” by the Sullivan firm— the revelation that for several years in the early 30s, Sullivan and Cromwell's Berlin office signed “Heil Hitler" on all office correspondence. 

Is Trump sending a message? 

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ALL THE MARBLES

 ALL THE MARBLES

In my memoir published before Trump's first term, (‘‘The Client Decides”), I reported on a case I had handled in which real estate magnate Trump had exhibited his inclination to stifle the judiciary by attacking lawyers who brought cases or proceedings against him. To be clear, instead of addressing the merits of a dispute, Trump sought to incapacitate his adversaries by stripping them of effective legal counsel.

  In that matter, Trump sought to evict rent-controlled tenants in a building he wished to purchase and convert to a condominium. The tenants, naturally enough, hired a law firm to protect their rights, and Trump responded by suing the small law partnership for 105 million dollars! He claimed the firm was guilty of violating the federal RICO statute in that they used the courts and other local administrative agencies in an illegal effort to protect the tenants' rights. Strung together, he pleaded, the courts and the administrative agencies the lawyers used were "Racketeering Influenced Corrupt Organizations.’’

Bottom line: we got Trump's lawsuit dismissed by the District Judge, that decision was affirmed on appeal, and when we sought to take Trump's deposition in an effort to recover our counsel fees, he folded and wrote a fat check, a copy of which our client framed and posted on his office wall. 

Today's New York Times reveals the 2025 version of the Trump approach. The front page reports on the president’s revocation of the security clearance of Marc Zaid, a lawyer who for 32 years has represented whistleblowers, i.e., government employees who reported on government ethical or legal lapses, whether the administration was Republican or Democratic. Zaid’s offense? "He was involved with the whistleblower at the center of the first impeachment case against President Trump.” Without a security clearance, Mr. Zaid might not be able to represent officials who work on classified matters. A government spokesman has referred to this as "retribution."

Add to this the Trump administration’s investigation into federal prosecutors and FBI agents who worked on the cases involving the January 6 rioters. Trump has also said he will strip the security clearance of the prosecutors and lawyers who played a role in his two impeachments.

Given the long list of patently illegal executive orders coming out of this Administration and the shameful and complete abandonment of principle on the part of Republican legislators, only the third branch of our government can put it a stop to this autocratic putsch. 

Is it up to the task? Will the 6 to 3 conservative majority of the Supreme Court step up and protect our Constitution, or will they too bend the knee?

We are, I fear, now playing for all the marbles. 

A bientot.

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NO MORE MALE MASTURBATION IN MISSISSIPPI?

On February 25, 2024, I published a blog entitled “Coming Next.” It reported on a faux judicial decision coming out of the Texas Criminal Court of Appeals after a real Alabama appellate decision to the effect that injury to a frozen fertilized human egg in an IVF laboratory was injury to a person, “because God made every person in his image, and this is true of unborn human life no less than it is of all other human life. Even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory."

The principal part of the faux Texas appellate decision in my blog read:

"The Defendant was charged with murder. The court found the 24-year-old male was watching a television show that aroused his erotic impulses.  He masturbated into a tissue that he ultimately flushed down the toilet … . His semen was every bit as important to the creation of God's image as a female egg. His gamete included living cells, observable under a microscope swimming about. Each of the destroyed gametes included a full copy of a set of chromosomes that, when united with a female set of chromosomes… would have dictated the sex, skin, color, eye color, and thousands of characteristics that make up God's image. This defendant’s semen was a key ingredient to that image. It was every bit of a determinant of the characteristics of a resulting fertilized egg as was a female gamete. Accordingly, it follows, that the destruction of the defendant’s semen was as violative of God's will as the destruction of a fertilized or unfertilized female gamete. 

Conclusion: This court sees neither logical nor religious distinction between the role of a male gamete or a female gamete, either before or after they come in contact with one another or whether the contact occurs in a uterus or a test tube." 

In a concurring decision, a faux judge by the name of Thomas wrote, "I respectfully submit that our holding today that wilful destruction of a male (or female) gamete violates the laws of the state of Texas has an undeniable effect on virtually every form… of sexual activity.”

...

The blog was fun to write and was well received. To my surprise, two of my readers missed the sarcasm, and assumed I was making an accurate report of a real judicial decision. I was surprised. The conclusion reached by the faux court in my blog was clearly absurd.

Until yesterday! 

This is real. A bill entitled “Contraception Begins at Erection Act" has been introduced in the Mississippi legislature. The bill would make it unlawful for "a person to discharge genetic material without the intent to fertilize an embryo. The fine is $1,000 for a first offense, $5,000 for a second offense, and $10,000 for each subsequent offense. The bill clearly fixates on masturbation because it excludes semen discharges using contraception or for IVF purpses! 

In a statement to NBC affiliate WLBT of Jackson, the legislator who proposed the bill issued the following stagement:

"All across the country, especially here in Mississippi, the vast majority of bills relating to contraception and/or abortion focus on the woman’s role when men are fifty percent of the equation," he wrote. "This bill highlights that fact and brings the man’s role into the conversation. People can get up in arms and call it absurd but I can’t say that bothers me."

 Mississippi masturbaters beware!

A bientot.

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TRUMP vs THE CONSTITUTION

For weeks I have been mulling over a piece about the disservice Joe Biden has done to this country by defaulting on his stated intention to serve but one term as president. That self-serving failure is directly responsible for the too-short Harris campaign and the legitimate criticism that her selection was not the result of a rigorous nomination process.  His selfishness has led to the coming Musk/Trump administration. 

Biden clearly is not fit to be president today and the notion that he would strive to be president for the next four years is further evidence of his mental decay. Power feeds brainworms.

But instead of developing the details of that condemnation here,  I offer up a legal argument that the United States Constitution bars Donald Trump from being the next president of the United States. The details leading to that conclusion were neatly set out in a piece written by David Schulte and Evan Davis, two former Supreme Court clerks, and recently published in The Hill, (600,000 readers.) The Schulte- Davis argument has been picked up by former DOJ prosecutor Glenn Kirchner, who has 800,000 followers on YouTube. The argument that Trump is barred from federal office by the Fourteenth Amendment is powerful, and in my judgment, absolutely correct, despite its certain ultimate ineffectiveness. Kirchner presents the case clearly and persuasively, and there is no point in my trying to outdo him. You can find it at:

https://youtu.be/5OCN-OvYsW0?si=xm9wPZmglrZ-R89U

(Note: For some inexplicable reason, I cannot get Blogger to accept this link as clickable. I have spent hours on this problem to no avail. Solution: I surrender. Just copy the link and paste it on a new page in your URL box.)

Happy New Year.

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TRUMP THIRD TERM?

On April 12, 1945, President Franklin Delano Roosevelt died in the early stages of his fourth term as President of the United States. No prior president had served more than two terms— a precedent set by George Washington, who rejected suggestions that he run for a third term.

Vigorous opponents of Donald Trump today take some solace in the fact that his recent election to the presidency will at least be his last term in that office because in 1947 Congress passed, and the country thereafter ratified, the 22nd amendment to the Constitution, which provided that "no person shall be elected to the office of President more than twice.”

But those Trump opponents are overoptimistic. The 22nd Amendment is not a bar to Trump serving as president upon the completion of his duties on January 20, 2029. It is a bar only to his being elected as president after that day. There remain two other Constitutional routes to his subsequent service as president.

However vaguely connected, a bit of history brings this circumstance to mind. In 1973, my law firm represented the Vice President of the United States, Spiro Agnew, who was under investigation by the Department of Justice for allegedly accepting “pay for play” payments while Governor of Maryland. Whether he could or should be indicted was the subject of much negotiation between us and Attorney General Elliot Richardson. One of our arguments was that Agnew was immune from prosecution while in office because scholars had concluded that a sitting president was immune from prosecution, and therefore a sitting vice president must be similarly endowed. While the DOJ agreed the president was immune (a conclusion recently substantially ratified by a sketchy Supreme Court decision), the Agnew prosecutors insisted the president’s immunity did not spill over to the vice president. 

One of the Attorney General's concerns was that if he accepted our immunity argument, his opportunity to proceed against Agnew might be forever barred by the applicable statute of limitations. We offered to waive the statute during the term of Agnew’s immunity, which had three more years to go, but Richardson, fairly enough, pointed out that at the end of his current term as Nixon's veep, Agnew might run for president and, if successful, could earn another four or eight years of immunity and might even run for vice president after that and effectively run out the clock. Unlikely, but possible.

The vague connection to that bit of history brings to mind the following two Constitutional routes for Trump's post-2029 service as president:

1. He could run for vice president. The popularity that won him the 2024 election might reward his ticket with a 2028 victory. Then, if the president-elect on that successful MAGA ticket, pursuant to an unspoken understanding (wink, wink) were to resign on or after January 21, pursuant to the 25th Amendment, Vice President Trump would become President Trump for the next four years! Again, unlikely for lots of reasons, but let's face it, Trump's entire political history is unlikely.

Or

2. Citizen Trump might remain on the sidelines in November 2028 and add his stature to promoting the election of a MAGA ticket. Assuming a successful campaign, if the newly elected vice president were to resign on or after January 21, 2029, then pursuant to Article 25 of the Constitution, the newly elected MAGA president could nominate Donald Trump as the new vice president. A MAGA Congress as lacking in morality as the current Republican caucus would readily confirm the nomination, Trump would then be the vice president, and would, of course, succeed to the presidency if and when the new MAGA president resigned.

Ugh, what causes my brain to manufacture these fantastical scenarios?  Maybe RFK Jr. is not the only one with a dead worm in his frontal lobe?

A bientot.

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R.I.P. ARTHUR FROMMER

The November 20, 2024 print edition of the New York Times contains a lengthy and informative obituary of Arthur Frommer, the author of "Europe on Five Dollars a Day" and the successful publisher of a series of books and other media about the low-cost travel industry.

Arthur played a significant role in my professional life.

In 1961, Arthur was a mid-level litigation associate at Paul, Weiss, then considered to be a "large" law firm — with fewer than 50 lawyers spread out among Corporate, Tax, Trust and Estates, Entertainment, and Litigation departments. 

But litigating was not Frommer’s only job. He was also the head of a growing publishing entity involving books and other media regarding low-cost travel. The competing pressures of these two occupations overwhelmed him, and he informed Paul, Weiss that the publishing industry was his first choice and he was leaving the law.

That would leave the Paul, Weiss litigation department with a large hole in the center of the line.

 At that time I had departed a small law firm where I was a third-year associate: I had been recalled by the army as a result of the crisis over the construction of the Berlin wall. A law school classmate, who was also a litigation associate at the Paul, Weiss, sent me a note about Arthur’s forthcoming departure. At my urging, he arranged an interview for me during a Christmas furlough. Two months later, my military tour of duty ended, I received an offer from Paul, Weiss, and I succeeded to Arthur’s desk and his portfolio of litigation assignments!

I will never forget my first major Frommer leftover. 

The firm represented Herman Levin, the producer of the Broadway show My Fair Lady, which had a historic six-year run. But when ticket sales slowed, the theater owner, Stanley Stahl, shut down advance ticket sales and ultimately evicted the show. Prior to leaving Paul Weiss, Frommer, representing Levin, sued Stahl, but lost. 

My first assignment as Arthur’s successor was to obtain a reversal and we did so, ultimately resulting in an appeal court holding that theatre owner Stahl had breached his contract with producer Levin. 

So I ended my first year at Paul, Weiss, representing plaintiff Herman Levin in a non-jury trial for damages for breach of contract. It was me and Rifkind representing Levin versus the lawyers for Stahl. 

Pre-trial, it was my job to take all the depositions. 

There were four witnesses at the trial. The plan was for me to do the direct examination of our accountant and the cross-examination of Stahl’s accountant. Rifkind was to do our client's direct examination and cross-examine theater-owner Stahl.

In court, all went as planned until the last witness, Stahl, was called to the stand by his counsel.  I was relaxed during the start of his direct. There was nothing more for me to do. This was Rifkind's witness. 

But halfway through Stahl’s direct, Rifkind poked me in the ribs and said, “Martin, why don't you take the cross on this!" Yikes! Cross is all about preparation, and I certainly had not prepared for this cross, but there was no way I was going to argue with the boss. If ever there was a time to put on my big-boy lawyer pants, this was it.

All was not lost. I had taken Stahl’s deposition. Like so many “important” people, he had been cranky at the deposition table and was especially cranky at trial when being crossed by this young twerp. I brought out his deposition testimony that when he shut off advanced sales, he failed to inform would-be My Fair Lady ticket buyers of the name of the theatre to which the show was moving. Indeed, he instructed his box office personnel to reject their telephone calls and visits to the box office, and he failed to post or publish any form of notice as to where customers could go to buy tickets to Levin’s show. At the deposition I said to Stahl: "In fact, sir, you really didn't give a damn whether any of those customers ever got to buy tickets to My Fair Lady, correct?" And he snapped back, "Correct." I used that as the centerpiece of the rest of my cross, and we got a favorable damage verdict from the judge.

Subsequently, I actually represented Arthur when a Greek court found him guilty of libeling restaurant “A” by reporting that restaurant “B” was better.  We did OK on that one too, even though, with Arthur’s blessing, my trip to Greece cost more than five dollars a day.

Arthur was a good guy, smart, pleasant, and as luck would have it, he turned out to be the foundation stone of my career at a remarkable law firm.

A bientot.

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WAPO CANCELED

I had taken a holiday from writing about the presidential election because I could not think of anything to say that others hadn't said better, clearer, and to a much wider audience. It all seems so clear to me, and yet 50% of my fellow citizens seem prepared to elect as their president an unhinged grifting criminal authoritarian.

I'm not a subscriber of the L.A. Times, and so I could not cancel my subscription. I was, until a couple of hours ago, a subscriber of the Washington Post, but no more. 

I don't kid myself. Jeff Bezos is a multi-billionaire, and he won't miss my few dollars, but I will miss the Washington Post. What’s more important, Bezos’s veto of his editorial board’s decision to endorse Harris is as scary as Trump’s explicit threats to veto our Constitution. The Nazi-creep has begun in earnest. I feel the walls starting to crumble around us.

So I have put out my lawn sign, sent in my money to Kamala, will vote on November 5, and then wring my hands for the following 72 hours.

I am not a religious person, but if there is a God, now is the time for her to do her job:

As we learned to sing in the first grade: 

“God bless America, land that I love, … my home sweet home.”

A bientot.

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DEBUNK THE DEBATES

I could not be happier the debate process is over. The design of the system is absurd. I have spent my working life "debating" other lawyers, sometimes in a conference room and often enough in a courtroom. I have won some of those “debates”  and lost some (more of the former than the latter, I am happy to report.) 

But there was always a sense of structure to the event. I knew what the other side was going to say and had a specific plan for how I was going to rebut assertions that were false, misleading, or illogical, in addition to making my own points. I was prepared to do that with evidence that I brought to the contest. 

A courtroom session in which each side is permitted to say whatever they want, make any false statement they choose, knowing the other side is barred from bringing along the evidence to prove the falsity of the adversary's assertion, is a sham. It is simply a non-starter.

But that is what television has brought to the debate stage. Participants are denied the ability to bring anything to the debate, not even a scrap of paper with a list of the lies you know the adversary will tell. What sense does that make? It simply favors the team that sells the most snake oil. I'm not talking about small errors. I'm talking about major lies, things like "Trump tried to save Obamacare", and "Vance is not in favor of national legislation banning abortion" (when he has said the opposite in writing!). We are talking whoppers here. 

So one side is given two minutes to tell a handful of lies and the other side is given one minute to rebut those lies and is barred by the debate format from bringing along any evidence to do so. Is that ridiculous, or what.

Questions from the moderator? Answer them if you choose. Otherwise go on and talk about how your grandmother was a drug addict. The concept is preposterous. then the next day the media writes about who "won" the debate, for the most part, ignoring who told the truth and focusing on who was the "smoothest talker."

Lunacy. I'm glad it's over.

 

On another subject there is a growing body of substantial evidence coming directly from Donald Trump that his brain is delaminating. This 78-year-old candidate who wishes to be president of the United States on his 82nd birthday, insists that he won the election in 2020, insists that the January 6 insurrectionists were just good people exercising their First Amendment freedoms, and insists if he does not win the election next month, it will be because the other side cheated and the United States of America, after 250 years of extraordinary democratic existence, will disappear. In other words, no Trump, no United States. All that is in addition to Hannibal Lecter and sharks.

I remain optimistic that Harris will win the election. I,E., she will get 270 or more votes in the Electoral College. I am just as certain that Trump will not concede defeat and will try any one of a dozen legal and extra-legal maneuvers to change that result. He and his partner will tell any lie, fabricate any story, threaten any non-supporter, political or otherwise.

They will fail, but I am pessimistic about our country because this is a tight election and not a landslide. There are not two sides here. Trump is an irresponsible lying grifting felon, but will get almost 50% of the vote.  And, like last time, almost half of our Congressional representatives (and that, of course, includes J.D. Vance, who in 2020 voted in Congress against confirming Biden's Electoral College majority, and last night refused to concede that Trump lost the 2020 election!) will disgrace. themselves by supporting Trump anyway because they believe their personal best political-party interests are so served. Liz Cheney said it best at the J6 hearing: 

"I say this to my Republican colleagues who are defending the indefensible. There will come a day when Donald Trump is gone, but your dishonor will remain."

A bientot.

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