15 January 2018

Fire and Fury -- a Review



Observant readers may have noticed i) I am not an impartial observer of the Trump presidency, and ii) Steve Bannon makes my skin crawl. Now that that's out of the way, this is as impartial a book report as I can muster.

First, I read the Kindle version, and didn't bother to bookmark favorite passages.  The Bannon quotes about the "treasonous" Donald Jr., and the "dumb as a brick" Ivanka need no reminding. But though it was the Bannon bombs that made the headlines, the best part of the book is the fine milling of the daily give and take among an ever-changing, ever-warring White House staff -- especially the turf wars between the Bannon clan, and what the Bannon and the author referred to as Team Jarvanka. This is logical, fascinating, important dirt that no one has denied. Even the Bannon semi-apology was not only unconvincing, it in effect confirmed the accuracy of his reported condemnations and criticisms.

Remember Scaramucci, the ten-day wonder? The description of how the Mooch came to be appointed is bizarro. But the best is his contribution to what I thought was the funniest anecdote in the book. At some point in the middle of his brief tenure, the Mooch called a reporter from the New Yorker, and boasted how, unlike others, he had accepted a post in the Trump administration on account of patriotic duty, not self interest: "I'm not here to build my own brand, I'm not Steve Bannon, I'm not trying to suck my own cock." Doncha love the "established" media?  No fake news tolerated: A fact checker for the magazine called Bannon and asked if it were true he sucked his own cock.

While the internecine turf battles are fun to read about, the real scary part is the portrayal of our Commander in Chief. The book is the syntheses of all of the stuff we have seen dribbling out in the press over the past year. The man not only does not (cannot?) read, he does not (cannot?) listen either. Briefers are left with hanging jaws when the President simply leaves the room after five minutes. No subject is too important to overcome his chronic inattentiveness. North Korea, Iran, Afghanistan? Position papers are ignored, and oral briefings cut short by his attention-deficit prompted exclamations of pre-conceived simplistic notions. All we have heard about his fabulism appears to be deadly accurate, and more. The man is totally disconnected from facts, and everyone around him knows it and tries to "manage" around it. Trump not only constructs his own reality that he is incapable of dismissing, but resents anyone who corrects him or appears to be smarter than he is. He has surrounded himself with Generals Kelly, McMaster, and Mattis, and dislikes all three intensely. (The only one he liked was Flynn!)

Wolff concludes with Bannon's prognosis for the Trump presidency: (and this, of course, before Bannon was kicked out of Breitbart):

On third likelihood of impeachment, one third likelihood of an Article 25 incapacity, and one third likelihood of serving out a single term.

­­­­
Bottom line:  Lost in all the hype is the fact that this is a well-written book and bears indicia of accuracy. (I liked his description in the Acknowledgement: his meetings with the publisher's libel lawyers were like visits to the dentist). All in all, a fun read.  Even if you like Trump, you should buy this book. (And there must be lots of people out there who like Trump because, after all, but for the 3 million illegals who voted for Hillary, Trump won the popular vote and had the largest inauguration crowd in history.)

Now, a return to duty: I expect Chernow's Grant is going to go down a bit easier with my feet buried in the warm sand of Gouvernour Beach!


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A bientot.

06 January 2018

Where's My Roy Cohn?

"Where's my Roy Cohn?"

That's the question a frustrated President Trump asked when he learned that Jeff Sessions could not protect the president from the pending Russia inquiry because the Attorney General had recused himself from the matter after making misleading statements to the Senate Committee that confirmed him.

Where was his Roy Cohn, the crooked lawyer who protected Trump, and helped him screw over countless adversaries? He was long gone, of course, but before he died, Cohn left behind a trail of lies, deceptions, and downright thefts. He stole from clients, forged signatures, lied to courts and government agencies, and otherwise disgraced his family and the Bar of which he was a member.

My principal contact with Cohn occurred in 1982 when I signed a petition to have him disbarred.  I had been appointed by the Appellate Division of the New York Supreme Court to chair the Disciplinary Committee that prosecuted unethical lawyers in Manhattan and the Bronx which had 40,000 registered lawyers at the time. Upon taking over the committee, I discovered a molding file on Cohn that was not being pursued because the staff was overworked, and its Chief Counsel feared that devoting time to the well-defended Cohn would eat up too many scarce resources. I fired the Chief, brought on a felony prosecutor from Brooklyn, and we went to work.

In the end, we prosecuted Cohn on four counts.

First, Cohn had represented a woman seeking a divorce from her husband and when the matrimonial matter was settled the husband paid him a $60,000 fee for all services rendered to his wife. Cohn accepted the payment, and then several months later wrote out a check to himself for $100,000 from his client's checkbook, flew to Paris where she was staying, told her he needed to borrow some money, and persuaded her to sign the check, which, on its face, said "Loan." He also gave her a 90-day promissory note in that amount. For ten years he put her off, making some small payments, signing more than 20 documents referring to the "loan," but when she finally sued, Cohn's swore in court that the payment was not a loan at all, but some kind of loose fee arrangement, though neither he nor his law firm had a single document or record to support that claim.  It took seventeen years for his client to get her money back. In the subsequent disbarment proceeding, the Appellate Division concluded his defense had been total and complete perjury.

Second, when a yacht company's assets were frozen by the SEC, Cohn, representing the company, suggested he take all the assets and hold them in escrow for the benefit of the creditors. When the court agreed, Cohn proceeded to pay most of the escrowed assets to himself and his partners, and was held in contempt by federal judge Palmieri. When Cohn tried to explain that away at his disbarment hearing, the court found his testimony to be "incredible."

Cohn was apparently quite comfortable stealing from clients.  Perhaps the most brazen assault on the duty of good faith a lawyer owes to his client involved multimillionaire philanthropist Lewis S. Rosentsteil, whom Cohn had represented in a divorce. While the 84-year old Rosensteil lay dying in a Miami hospital, Cohn and a colleague visited the client, and ignoring the orders of hospital personnel that Mr. Rosenstein was in critical condition and "almost comatose," Cohn put a pen in the patient's hand and "helped him sign" a document he told Rosensteil was just an administrative detail to complete the divorce.  In fact, it was a document that appointed Cohn as an Executor to Rosensteil's estate. Upon his departure, Cohn told hospital administrator he "wasn't there to get any signatures of the patient, it was just a visit!" The Appellate Division noted the document's signature line contained "a number of squiggly lines which in no way resemble any letters of the alphabet," and found Cohn's twisted explanation of the incident to be perjurious.

While these three charges were pending, Cohn had the brass to apply for admission to the District of Columbia Bar, and, on his sworn application, denied that any charges were pending against him except for the "usual crackpot complaint letters."

Before the Appellate Division finally decided the disbarment case we had brought, Cohn told a Washington Post reporter that his accusers (i.e., me and the Committee staff) were "Simply left wingers, deadbeats, and a bunch of yo-yos just out to smear me up." I was honored.

Bottom line, all four charges were sustained, and the unanimous five judge court (of which Cohn's deceased father had been a member) found the "evidence so compelling ... as to leave us no recourse but to order disbarment."

One last note to this seedy tale. At the hearing before the Committee, Cohn scared up character witnesses who were willing, under oath, to attest to Cohn's good character and to testify that he "possesses the highest degree of integrity." One of those witnesses was a young real estate developer named Donald Trump.




Mr. President, that you would choose Roy Cohn as your mentor is no surprise to your critics. The stuff he taught you may well lead to your undoing.
___________________________

This piece may also be found at 
https://contributor.huffingtonpost.com/cms/post/5a50e2fce4b0f9b24bf317a
It is derived from a chapter in my memoir, The Client Decides, published in 2017.




04 January 2018

Disparaging Trump

Today's post got picked up by Time.com

Here it is:

http://time.com/5089028/donald-trump-steve-bannon-cease-desist/

A bientot, and a happy new year.

20 December 2017

Schadenfreude and the Judge



The dictionary defines schadenfreude as "joy at the misfortune of others." To be sure, not something one should be proud of, but nevertheless a guilty pleasure in which we all partake now and then. 

Who among us hasn't at least silently cheered when a bad guy gets what's coming to him, like when a politician or clergyman who loudly preaches marital fidelity and "family values" gets outed as an adulterer or a child molester, or when the guy who raises the price of a life-saving drug from $17.50 a dose to $500 later gets sentenced to prison for unrelated securities fraud. Stuff like that. 

So I plead guilty to a mild case of schadenfreude when I read about the resignation of Judge Alex Kozinski, of the Ninth Circuit Court of Appeals. Current count of accusers is 15, but the word is "everyone knew." He was accused of a wide range of misconduct, all of which had the central theme of humiliating his female clerks, running the gamut from feeling up stunned young women, to sharing his private porno collection alone in his chambers with one of his clerks and asking her if the images turned her on. You get the picture.

Kozinski's name is familiar to many in the legal profession.  He was criticized by a judicial panel in 2008 for maintaining a publicly accessible website containing pornographic images, but arrogantly ignored the message. He was outspoken and loved the camera, was revered by conservatives, and had been a very prominent person in judicial circles. Upon his recommendation, his clerks won sought-after Supreme Court clerkships.

My only direct connection to the judge was the opinions he wrote in a case we tried in Oregon in 1999:

My firm took on the pro bono representation of a group of physicians who provided legal abortion services to their patients who needed or wanted that procedure. The doctors had been threatened by a group of anti-abortion extremists who targeted them with old-west-style "WANTED" posters after a nationwide pattern had been established that physicians who were so "postered" were soon thereafter murdered. The extremists applauded the killings and then not only published WANTED posters of our clients, they set up a website that published personal details of the targeted docs, including the names of family members, home addresses, etc.

After a three-week trial, the federal jury found the posters to be a true threat, not protected by the First Amendment. The jury imposed upon the defendants the largest monetary verdict in the history of the State of Oregon, and the trial judge, affirming the correctness of the verdict, entered an injunction barring further threats.
 

In my memoir published earlier this year, I wrote about the appeal from that verdict:

"But two years after trial, a panel of three conservative judges of the Ninth Circuit did what we feared that particular trio would do. In a decision we thought motivated by abortion politics, not First Amendment jurisprudence, they voted to reverse the judgment and dismiss the complaint.

Kozinski wrote the appelate court's opinion. My suspicions about his disrespect for a woman's right to choose were confirmed when he led his panel's reversal by an intellectual foray citing First Amendment cases involving claims of incitement. That was a straw-man argument. Our case was not about incitement. In fact, our leader, Maria Vullo, specifically avoided that claim because of extant First Amendment jurisprudence.  Instead, we charged the posters were a "threat," which was a civil and criminal violation of federal law. Threats are not protected by the First Amendment. And under prevailing Ninth Circuit law, defendants' conduct fit the threat definition.

Kozinski nevertheless, citing incitement cases, concluded,

"If the defendants' statements merely encouraged unrelated terrorists," to kill the doctors, it was protected speech. 

That would be the case, he wrote, even if,

"by publishing the doctors' addresses, the defendants made it easier for any would-be terrorists to carry out the gruesome mission."

In that chapter of the book, I wondered aloud: 

Suppose: 

a) ISIS had established a pattern of circulating WANTED posters featuring judges who had voted to affirm convictions of ISIS adherents, and  

b) The postered judges had then all been murdered, and 

c) Kozinski and his two adherents had recently affirmed conviction of an ISIS adherent, and 

d) ISIS thereafter plastered WANTED posters on neighboring fences and telephone poles, and on Facebook and Instagram, supplying the three judges' names, photographs, their home addresses, the names of their wives and children, the location of their children's schools, the place and time of school bus stop locations, etc., 

Would Kozinski have voted to protect that speech? I doubted it.

The evidence is overwhelming that a very large number of abortion providers have quit out of fear of violence to themselves and their families. Indeed, in many areas of the country there are no providers at all, and a woman's constitutional right of freedom to choose has thereby been nullified by the terrorists. A decision to permit domestic jihadists to threaten the lives of abortion providers is a decision that harms not the doctors, but the women who would be served by them. It is the reproductive freedom of women, the right of free choice to make decisions about their own bodies, that was totally disrespected by the Kozinski court. 

An en banc Ninth Circuit panel later rejected the Kozinski panel's alarming views, and reinstated the trial court decision. Kozinski, of course, dissented. Not counting the two judges on the Kozinski panel on the first appeal, the final vote was 6-3 to reinstate the trial verdict.

Question I: Does the revelation of Kozinski's egregious disrespect for women support my cynicism about the motives that may have influenced his decision in the Oregon case?

Question II: Is it reasonable to inquire whether that disrespect is reflected in other Kozinski decisions as well?

Question III: Am I justified in reveling in my schadenfreude over Kozinski's public disgrace?

I'm anything but shy. The answer to all three questions is "Yes."