18 May 2017

Watergate Redux?

Nah. Not even the latest revelations of the Trumpian effort to obstruct justice will bring about impeachment hearings. No way. Paul Ryan leads a spineless, shameless group of self-involved hypocrites. There ain't a teaspoonful of genuine principle in the swamp that is the Republican caucus. The Founders' notions of democracy are forgotten. If you want to see what they stood for, go see Hamilton on Broadway. For sure, you ain't gonna see any of that in today's Republican-led Congress.  Fuhgeddiboudit.

And for certain, this is only the beginning. We are just scooping up stuff floating on the surface. There is a bottomless well of Trump's immorality. But no matter how bad it gets, this Congress will do nothing but mumble about "getting down to business," and then continue to hide under their desks. The Nunes scandal tells it all. There is NO honest effort to investigate anything. The Republicans have a 45 vote advantage in the House, and it takes only 35 of the 52 Republicans in the Senate to block an impeachment conviction. While the Republican House impeached Democratic President Clinton for lying about his sexual improprieties, this Republican House will not impeach Republican President Trump for his obstruction of justice, lying about that, giving vital intelligence to Russia, employing known security risks who were under Federal investigation (Flynn), etc., etc. The list goes on and on and for sure will get longer. This House will not even impeach Sessions for his role in firing Comey, after Sessions recused himself from the Russia investigation. How cynical can they get? Answer: there is no limit.

So what's the remedy? Can the newly appointed Special Counsel, Robert Mueller, indict Trump? Nope. Wanna know why?  See my piece on the Time website that just went up last night. Click on this. Buckle up!



12 April 2017

Camels, Tents, and our Democracy.

I know, I know, taking a position, even a non-political legal one, in agreement with the likes of Rand Paul and Pat Buchanan may be the sign of limited blood flow to the brain. I blame the whole thing on my trainer. She is gracious, beautiful, and smells good too, but she killed me in our gym session on Tuesday morning, and the result is I am once again pinned to my recliner with an angry L4 disc, and actually thinking about stuff, and now impose that stuff on you. 

Bottom line, I submitted the below letter to the NYTimes. Of course, they won't print it, but it makes me feel better to have written it and sent it off.

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

To the Editor:
I am a so-called Liberal, who believes our Constitution is vital to our Democracy. So I double checked: Yes, the Constitution says Congress has the power to declare war, and yes, the President is the Commander-in-Chief of the Army and Navy. But it does not say "Congress is the only body that has the power to declare war," and it does not inform as to what are the limits of the President's powers as Commander-in-Chief. So I went back to the Federalist Papers. No better "originalist" source exists. In Federalist Paper # 69, Hamilton made it elegantly clear. He compared the powers of the President, in what was then the draft constitution, to the power of the King of Great Britain. He wrote,

"The President is to be Commander-in-Chief of the army and navy of the United States. In this respect, his authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. and It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the Confederacy: while that of the British King extends to the declaring of war to the raising and regulating of fleets and armies; all which, by the Constitution under consideration, would appertain to the Legislature." [Emphasis mine]

To argue that the President has the power to institute even a little bit of wartime hostilities, is to argue that our Commanding General of the Army or the highest ranking Admiral in our Navy could choose to bomb Syria because he or she was of the opinion that "it was the right thing to do in the circumstances." That is downright subversive. It may well have been "the right thing to do in the circumstances," but it was for Congress to make that call, not some General or Admiral. The defense that "Well, Clinton did it, Bush did it, Obama did it," doesn't fly. Prior constitutional violations do not justify new assaults on our Democracy.

Where are the impeachment petitions coming out of the conservative House of Representatives, the outcries from the conservative Senate that just confirmed an "originalist" Supreme Court Justice, the outraged editorials and reports from the national media?


Who is coming to the defense of our Republic?

Martin London
..........................


Citizens!  The alarm bell is ringing. It's time to wake up! Write your Congressperson, light up your Twitter, Facebook, Snapchat, Bazinger, Whatever, accounts! Our Constitution is a carefully designed tent that has sheltered our Democracy for 230 years. Our current Camel-in-Chief may have small hands, but he has a big nose, and if we let him push it into our shelter-tent, we will soon be out in the cold. Do something please. I'm busy.

A bientot!

07 April 2017

Conspiracy!



Waiting for a book proof to come back from the printer, I have time to address the nation's problems.

First, what is Trump's authority to declare war on a sovereign nation, no matter how disreputable, without a Congressional declaration of war?  Did Syria attack a U.S. Navy ship in the Tonkin Gulf or something? Did Congress grant him authority to bomb Syria? What did I miss here?

Putting that question aside for the moment, if the talk radio host and blogger Alex Jones, whom President Trump openly admires, can promote conspiracy theories such as, for example, that it was our own government that took down the Twin Towers, and the Sandy Hook school child massacre was really the work of anti-Second Amendment liberal activists, etc., can I put the following far less fantastic theory in the hopper? It goes like this: 

1. Trump is in deep shit over Russian help to get him elected. The only question that remains is whether the Trump campaign colluded with Putin. This remains, day after day, a front page story. Mutterings abound re the possibility of impeachment, talk of treason, etc. A disastrous first 90 days for the new President.  Trump nevertheless continues to make pro-Russian statements, and recently said Assad was invincible. Only slightly more than one third of U.S. citizens approve of the President's job performance. This is a record low.

2. Needing a distraction, he launches tweet campaign saying Obama wire tapped him.  It backfires. FBI and intel agencies tell Congress his claim is"bullshit," and, what's more, Comey reveals the FBI is running a criminal investigation into the possibility of Trump campaign collusion with the Russians. Story remains on front page. Trump’s poll numbers decline some more.

3. Trump administration does a "document laundering" exercise to buttress his wire tap accusations, using puppet Nunes, who is supposed to be running a neutral investigation over Trump campaign collusion with Russia.  Plan is laughable, Nunes is a moron, and he crashes and burns. Trump's polls sink even further. More front page stuff.

4. Republicans launch Trumpcare bill. House conservatives kill the bill. Trump names names and threatens the hard right reps with reprisals. They tell him to piss off. More failure. Trump’s polling numbers decline some more.  Russian collusion issue won't go away, and indeed becomes even more threatening as Trump stature shrinks.

5. So Putin and Assad have a conversation, after which Assad  openly and notoriously deploys poison gas, kills Syrian babies, and the world reacts with predictable horror. New front page story.

6. Trump immediately makes a speech saying he has changed his mind about Assad. Without going to Congress, he gives the Russians advance notice to get their planes and personnel out of a specified Syrian airbase, (but the Russians apparently don't tell the Syrians, who leave their planes there to be destroyed.) Trump then fires missiles at the airbase and Syrian planes are destroyed. So far, there are no reports of casualties, Russian or Syrian.

7. The President announces the missile strike with his Chief Strategist, Stephen K. Bannon, at his side. The U.S Secretary of State praises his boss for taking “decisive" action, and yesterday's critics now praise the President’s decisiveness, determination, and executive prowess.  Putin issues a mild rebuke saying the action “deals a significant blow to relations between the U.S. and Russia, which, (in case you did not know!) are already in a poor state.” The Russian collusion issue is finally off the front page, doubtless Trump will get a bump in his poll numbers, and Assad puts a credit in his Putin favor bank.  Brilliant. Everybody wins except the dead babies.

What, you want more proof? Read this again. It’s all there. Besides, as the conspiracists are wont to say, ''Can you prove I'm wrong?"

A bientot.



28 March 2017

"Document Laundering"

Once upon a time I was involved in a case in which the following series of events occurred:

1. My client, in response to a government agency subpoena, produced a load of documents covered by a Confidentiality provision. Accordingly, we had stamped all produced documents "Confidential."
   
2. A plaintiff, (whom I shall call, for these purposes, "Mr. Green,") then sued my client for millions of dollars, claiming a violation of the antitrust laws.

3. Mr. Green thought he could advance his cause by getting illicit access to the confidential documents. So he corrupted the Agency lawyer handling the case, and the two of them hatched upon a scheme to effectively delete the "Confidential" label on the documents and to substitute newly "cleaned" versions of them. 

4. Mr. Green then had the chutzpah to file a Freedom of Information demand upon the Agency to produce the now-non-confidential documents! 

5. We flushed out the facts via a vigorous discovery program. At a court hearing, the District Judge, upon learning the facts, referred to Green's conduct as "Document Laundering," and wondered aloud whether he ought refer the matter to U.S. Attorney for prosecution.

6. The result was that Green's multi-million dollar suit against my client was dismissed and Mr. Green paid my client's legal fees. The Agency lawyer, who had quit his government job to go to work as Green's General Counsel, didn't hold that job very long because he was promptly disbarred.

Why does that case come to mind? Because current events spur the recollection, that's why.  This is the sequence of current events as I understand them: 

1. The President of the United States published a series of tweets one morning between 3 and 6 ayem alleging the former POTUS  "a bad (sick?) guy" tapped his phone! Despite an avalanche of criticism from both supporters and adversaries, President Trump not only refused to withdraw the accusation, but doubled down on it.

2. There was a huge flap. At the urging of Republican legislators, the Republican chaired "non-partisan" House Intelligence Committee, which was gearing up to investigate the Russian interference with the U.S. elections, decided also to look into the question of whether Republican candidate Trump had been wiretapped by the President Obama!

3. At a hearing before the House Committee, the heads of the FBI, NSA, and CIA, all swore that Trump was not wiretapped, and thereafter, Mr. Nunes, the Republican Chair of the Committee, publicly declared that "no evidence" exists to support President Trump's claim.

4. A day later, Mr. Nunes gets a call while he is a car with two of his aides. He listens, and then without explanation, abandons his colleagues, calls an Uber, and rushes alone to the White House, where he meets with an unnamed source in a "secure facility," is shown some document or other evidence, goes home,  and tells nobody, not even his Committee colleagues.

5. The next day, Nunes rushes back to the White House to inform the President of what Nunes learned at yesterday's visit to the White House, i.e., he has seen some evidence that could arguably support the the President's delusional tweets.

6. Representative Nunes then tells the press what he told the President, and Mr. Trump publicly declares he feels "somewhat vindicated."

7. (It appears the "breaking news" was that in legally listening to the Russians, U. S. intelligence agencies picked up "incidental conversations" with one or more of Trump's people. How that helps Mr. Trump is beyond my imagination!)

8. Representative Nunes refuses to give any details re his first White House visit, refuses to explain why that White House source gave the information to Nunes instead of telling the President directly.  Why go through the sequence of White House source to Nunes, then Nunes to Trump, and then Nunes reporting to the press what he told Trump? I can guess.  (Hint: Check out the title of this post.

9. Oh, yeah, Nunes did all of this secretly. Prior to informing the President, Nunes had not shared any of this information with either the Democrats or the Republicans on his committee. Not to worry, he says he is sorry.

  A vote please, readers:

1. Most important, whose idea was this?

2. With whom did Nunes meet?

3. Who in the White House knew of this
a) before, b) during, and c) after the first Nunes/White House meeting?

4. Will Nunes resign his chairmanship?

5. Will Ryan force him out?

6. Are the Russians the big winners here because of the distraction?

7. Will this, in one way or another backfire and hurt the Trump administration? (I can think of several scenarios.) 

8. If you had read this in a Connelly or Grisham novel, would you have written an Amazon review giving the book only one or two stars because the plot was not believable?

9.  Really, have you EVER?

I will have Price Waterhouse tabulate your votes, put them in a secure envelope, and Fedex it to me here in St. Barths, where, btw,  President Bruno Magras has been reelected to a precedent-making fourth term. The major issue in the campaign was whether the former Vicar of the Anglican Church, who had purchased the Toiny Hotel on the east end of the island, violated either legal or ethical principles by adding sand to a hitherto unused beach, placing tables and chairs on the sand, and serving lunch there.

A bientot!


16 March 2017

Stop Gorsuch!



So the Senate Democrats need to decide whether to fight Gorsuch tooth and nail, risking the "nuclear option," or to surrender, thereby rejecting the "stolen seat" argument, and forgiving the Republicans for their outrageous refusal even to consider President Obama's nomination of Judge Garland to replace Justice Scalia. Though no United States Senator has, as of today, yet solicited my opinion, (we could do a lot worse than Gorsuch, but then I thought the same about Alito and Roberts and they both deceived me), I had nevertheless been pondering the question and was undecided until this morning, when I read Linda Greenhouse's latest piece in the Times. She wrote:

"This year is the 30th anniversary of the titanic battle over President Ronald Reagan’s nomination of Robert H. Bork. The lessons from the bipartisan defeat of that nomination in the Senate are still being debated. In recent days, I’ve been thinking about one particular exchange from Judge Bork’s week before the Senate Judiciary Committee, a colloquy between the nominee and Senator Paul Simon, an Illinois Democrat. Senator Simon asked Judge Bork about a speech he had given two years earlier, in which the nominee said that “when a court adds to one person’s constitutional rights, it subtracts from the rights of others.” The senator asked, “Do you believe that is always true?”


“Yes, Senator,” Judge Bork replied. “I think it’s a matter of plain arithmetic.” 

Senator Simon: “I have long thought it is kind of fundamental in our society that when you expand the liberty of any of us, you expand the liberty of all of us.”

Judge Bork: “I think, Senator, that is not correct.” 

Greenhouse's article produced this NYT published Comment from someone named HurryHarry from New Jersey:

“When a court adds to one person’s constitutional rights, it subtracts from the rights of others. - Robert Bork
A zero-sum theory of rights … - Linda Greenhouse
Ms. Greenhouse misreads Judge Bork’s assertion. To summarize it accurately she would have said “A zero-sum theory of rights over and above those already spelled out in the Constitution…”  Judge Bork is no longer here to explain his comment, but permit me to provide what I think is an example of what he meant: abortion rights. Ms. Greenhouse’s view, I believe from reading her columns over many years, is that the decision to have an abortion - say a late term abortion - should be solely among a woman, her family and her doctor. No extraneous party is “harmed” by her abortion. But abortion opponents argue that a viable fetus capable of experiencing pain - along with justice itself - are harmed when that fetus is cruelly and painfully deprived of life it otherwise would have.  Here we are talking about the “rights” of the unborn. It is supremely ironic that a prime counterargument is that a mere fetus has no rights, and is not a “person” until birth. Or, put differently, rights granted a fetus effectively deprive women wishing to have an abortion of their own rights - an affirmation of Judge Bork’s assertion, which is so contemptuously dismissed by Ms. Greenhouse in her column today."

The Times allows replies: Here's mine they published one hour after HurryHarry's piece appeared :

"A straw-man (woman?) argument. It is easy to find a "victim" in the right to abortion if you sign on to the religious view that life begins at conception. But of course, for those who don't buy that unscientific dogma, there is no victim but the woman whom you would deny the right to choose. And what about contraception? We forget the constitutional right to use contraception was established a mere 60 years ago, when it was crime in CT for married couples to use such devices. Difficult to believe, but the vote was not unanimous. The court struck down the law by a vote of 7-2. Who was injured by expanding married couples' rights to use contraceptives? Or, despite the dissent by Justice Burger, the right of unmarried couples to do likewise? Who is injured when a devoted gay couple, living together and bringing up children for decades, is granted the right to marry? Bork's argument that there is a finite number of personal liberty rights in our society tells much about Mr. Bork. Smart as he was, he was clearly unsuited to decide such questions for all of us."

All this has sharpened my focus. The Democrats should fight this 49-year-old nominee tooth and nail.  His conservative views are anathema to our liberties. The Senators should resist putting another Alito, or Roberts, or Scalia on the court. Fight the good fight, and take the consequences.  If the R's take the nuclear option route, they will regret it when the big wheel turns.  Hold fast!

A bientot!





























































16 February 2017

Fake News/Fake History, and World War i

Up until a year ago, I never really understood what started WW I.  I got it that the Archduke was shot, but it was never clear to me who he was, who shot him, and why, and how did that start the great conflict. Then I read "The Sleepwalkers: How Europe Went to War in 1914," by historian Christopher Clark. Long book but immensely readable and scary to see how the links of the chain snapped together so quickly, and mindlessly.  The book was a NYTimes "Ten Best."  I heartily recommend it.

What is so frightening is that the spark was a generations-old Serb nationalistic mythology. Total "Fake News/Fake History," but truth was incapable of erasing or diluting it. The mythology was at the heart of the Serb assassination of the heir apparent to the Austro-Hungarian Empire. The assassination quickly led to a local conflict, then all the NATO-like treaties on both sides kicked in, and tens of millions of people were killed. (Btw, the Serbs never abandoned their fake historical myth, and 100,000 people were killed, and some 10-20,000 women raped, in the Bosnian War the Serbs started in 1992.

The myth, illogical, factually indefensible, demonstrably false, endured.

Now read the below article from Salon, about the endurance of Trump's mythology, Trump's fake history, and the support of his followers despite all facts, logic, et al.

If you already have trouble sleeping, this may not be for you.

11 December 2016

R.I.P., The First Amendment?

In 1787, there was significant opposition to ratifying the draft constitution because convention delegates feared it gave too much power to the Executive Department and could lead to a monarchy. Specifically, the draft did not spell out the rights reserved to the citizens against the government, and the draft was adopted and ratified only because of the Founders' assurances that appropriate amendments would promptly be drafted and offered up for adoption and ratification. James Madison, et al, were good to their word and two years later, we had the Bill of Rights. First things first, and The Amendment directs that Congress (later all government entities, state and federal) shall “make no law abridging the freedom of speech… .’’ The aim was to protect the citizens’ rights to criticize the government.

Despite the apparently clear language barring any abridgement of speech (“make no law”), the language does not mean what it says, it means only what the Court, on any given day, says it means, and our judiciary has consistently ruled the government may indeed abridge freedom of speech by some laws, e.g., those barring libel, threats, incitement, criminal conspiracy, criminal contempt, child porn, -- the list is long. Over the years, the Supreme Court has tinkered with the definition, and the result has been a contraction or expansion of The Amendment in accordance with prevailing political winds.

But today’s challenge is perhaps beyond any we have faced before. There may not be any more rubber in the rubber band.

The guiding principle in the Supreme Court’s to-and-fro decisions has always been to appraise the value of the speech to our democracy. The Court has consistently ruled that a full and unrestrained exchange of views is a vital part of our republican scheme. Criticism of the government and its policies is good. Criticism of each other is good. Criticism of products is good. All of the above is good because the exchange of views enlarges our fund of knowledge and enhances our decision making, even if the language used is harsh and makes people angry. On the other hand, speech such as threats, child porn, defamation (i.e, false statements), incitement, etc., add nothing of value to our small-r republican society, and are therefore not protected. Indeed, false information is unredeemingly valueless, and may be civilly punishable in some circumstances (libel, false advertising, etc.), and criminally punishable in other circumstances, (e.g., perjury.)

Fake news is especially harmful when national and international affairs are involved. History is full of examples of its devastating impact: the Gulf of Tonkin Resolution (the Congressional authorization for our involvement in the Vietnam War) was based on a false report, the internment of Japanese-American U.S. citizens was confirmed by our Supreme Court based upon misinformation supplied to it by our government, the Iraq War resolution was based on false reports of WMDs, false Nazi propaganda lead to the Holocaust, Serbian myths and deception led to the assassination of Archduke Franz Ferdinand and the inception of WWI, -- the list is long.

We are now afflicted with “social media” that spew “fake news” with the efficiency of the Ebola virus, and a substantial segment of our population is infected. Much of the fake news generation is malicious; it is either knowingly false or transmitted with reckless abandon. Some of it is profitable to its originators, all of it is insidious. What is the value to our democracy of viral reports that the Pope endorsed Donald Trump, or that Hillary Clinton was involved a child abduction ring in a local pizza parlor, or that two million illegal voters cast ballots in California?  We have always had a fringe of conspiracy theorists in the country, but this is different. It is not only more substantial, more threatening to the function of our society, it is also standing the First Amendment on its head because much of this fake news is not from citizens criticizing the government, but is fake news originating from within our government, or being endorsed by it, and disseminated by it. (Or perhaps even fabricated by another government and then endorsed and distributed by our government?) When Trump issued his totally fabricated tweet about two million illegal votes, House Speaker Paul Ryan (second in line to Presidential succession) said the lie “didn’t matter” to him. And was it Vice President-elect Pence or the designated Chief of Staff Priebus, who justified the Trump fake-news tweet by saying, “Well, it’s possible.”  And it must be okay, because Kellyanne Conway basically said, “Well, he is the President-elect, and if he did it, it’s “Presidential.”

This is immediately after an apparently otherwise sane person traveled from North Carolina to Washington, D.C, went into the above-mentioned pizza parlor with a semi-automatic rifle and discharged the weapon it while looking for the children “abducted” by the Clintons. When accosted, he was only willing to go so far as to say something to the effect that there were no abducted children there at that time, and "perhaps the intel was bad." And the son of the President-elect’s designated National Security Advisor, who was working with his father on the Trump transition team, said that the abduction claim would remain a story until the pizza parlor proved it was false!

Is truth really now old-fashioned? Out of style? Irrelevant?  What does that do to First Amendment jurisprudence, indeed to our form of government, for which truth is the bedrock foundation? 


-->
Any notion that we must tolerate this plague because of First Amendment values is, to me, comparable to the suggestion that the First Amendment confers immunity upon al Qaeda’s publication of recipes for pressure cooker bombs so its readers could kill and maim our citizenry.  I suggest neither has any social value and neither is entitled to the immunity from state action conferred by The Amendment.

 Ahh, more London overheated rhetoric, you say? Is it a hyperbolic rant to compare the dangers of fake news to terrorist propaganda? Well maybe, maybe not. The terrorist statements lead to scores, and perhaps hundreds of deaths and injuries; fake-news plagues have lead to worse.