20 April 2018

THE PRIVILEGED ONES


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When the F.B.I. executed a court-ordered search warrant of the homes and office of Michael Cohen, his lawyer screamed foul, and the President, known world-wide for understatement, said this was "the end of the attorney-client privilege", "a disgrace,'' and "an attack on our country." They were wrong on all counts. What else is new?

Now that some of the dust has settled a bit, a brief review of some old, and recently learned, facts:

1. As we knew, the warrants were signed by a federal judge, upon a showing of probable cause that Cohen was in possession of evidence of a crime, and

2. There was probable cause to believe that if served with a subpoena, Cohen might destroy evidence.

3. Cohen has only three clients, one of whom, Sean Hannity, has denied being Mr. Cohen's client, and
 
4. There is, at this point, a real possibility that there may be no emails between Trump and Cohen, but possibly other forms of communication.

So what is all the fuss about? Actually the public fuss is all pure political grandstanding, and not so much about the law--and perhaps not even about Trump. It seems that Mr. Cohen was in the taxicab business, the real estate business, is reported to have had an interest in a Russian mob hangout in Brighton Beach, and had other fish to fry beyond paying off mistresses for Republican big shots. Bottom line, he may have a set of criminal exposures having little or nothing to do with Trump. Indeed, yesterday's "breaking news" was a report that Rosenstein told Trump he was he not the target of the Cohen search warrant.

Nevertheless, lawyers for Cohen and Trump promptly instituted a proceeding in the District Court. This was neither an attack on the propriety of the issuance of the warrant, nor on how it was executed. Instead, there were two days of hearings before federal judge Kimba Wood about how to handle the documents recovered in the search. I'll try to sum up what happened in a few hundred words.(Hah, no chance!)

First, an anecdote. Don't worry, it's pertinent. Years ago, I was retained by a group of psychiatrists to defend against a federal grand jury subpoena demanding the medical records of a former patient of one its of members. The group  was appalled, because they thought that preserving the doctor-patient privilege was vital to their profession.

My legal assignment lasted two days. On the first day, I learned the former patient had been arrested on a felony charge, and had interposed an insanity defense.

On the second day I explained to my clients that the patient's plea was a waiver of his privilege: once he put his medical condition in issue, he couldn't then hide facts about his medical condition. Seems simple, right?

The doctors complained, "But what about our privilege? Our colleague said things, wrote things in his medical notes. What about the doctor's privilege?" I gave them the bad news. The doctor has no privilege. It belongs to the patient, and he can preserve it or waive it, as he chooses. At the end of that meeting they were agitated but a lot smarter. I was shocked they hadn't learned that stuff in med school.

That anecdote explains what went on for two days before Judge Wood. It was about the rights of the privilege holders, the mechanics of how the parties would determine which documents were privileged.

The primary dispute was who was going to get the first look at the take to filter out the potentially privileged documents. The government wanted its "taint team," which was separate from its investigative team, to make the first screen..  Cohen and Trump disagreed, saying they wanted to filter out the privileged documents, not the government. (Cohen was the privilege holder only for documents between Cohen and his lawyer. For all other attorney-client communications, the privilege belonged to Cohen's clients, one of whom, Donald Trump, was represented in the court hearings.)

The matter was complicated by the fact that because the search produced computer hard drives and other digital memory, no one knew how many documents were involved. The lengthy court discussion involved cross arguments about rights of the privilege holders versus the government's investigative needs, time parameters, delay, accuracy of the taint team process, possible appointment of a special master to decide the close calls, etc., etc.

I know all this now because I have just read the transcript, but it was interesting to me that when I had earlier watched the TV news and talking head panels, everyone seemed to have been watching a different movie! Some said the government won, others said Trump and Cohen got what they wanted, blah, blah, blah.

But the truth is -- and I know this sounds trite -- the only winner was the rule of law. As a first step, the government will hold on to the originals and give Cohen's lawyers copies of what it took from him. Cohen will then give Trump's lawyer copies of documents relating to him, and the parties will proceed from there. There was no decision on whether the government's taint team or the Cohen/Trump lawyers will make the first cut, whether a list of potentially privileged documents will be made, who will make it, or what information the log will disclose, how, or when, or whether a special master will be appointed, and if so, what his or her duties may be. All this to be worked out. Until the court makes a further decision, the government will not look at the documents beyond having the taint team digitize them so they can be distributed and reviewed as the judge directs.

What we have here is a careful judge, assuring due process to all parties.  I suggest that anybody who made a dispassionate appraisal of the process thus far would agree it's fair. Doubtless, lawyers for each side will disagree about some of the details at the edges, but not the core. (Of course they will disagree. After all, they are lawyers.)

While I am on the subject of lawyers, I gotta point out some startling statements made by the Cohen team. I didn't hear any of the TV reporters focus on these details, but as a trial lawyer, I was startled by three segments of the transcript:

First, the exposure of Sean Hannity as an alleged Cohen client that so titillated the press:

If you wanna look at Cohen's documents to isolate attorney-client stuff, ya gotta know who was a client, right? Cohen's lawyers, in response to the judge's question, said Cohen had three clients: i) Trump, ii) Broida (the RNC fat cat who paid $1.6 million to the Playmate who aborted his child), and iii) a third person who had instructed Cohen's lawyers not to identify him because he would be "embarrassed."

After much discussion about the identity of the third client, the judge told Cohen's lawyer,

"If you hand the name up, I'll maintain it under seal."

Then, after some more discussion, she ruled that the case law did not permit the client to maintain absolute anonymity. Then this:

Cohen Lawyer: Do you want me to stand and say it, or should I give it to you on a piece of paper as you said I could?

The Judge: Whatever you are most comfortable with.

Cohen Lawyer: The client's name that is involved is Sean Hannity.

Ya can't make this stuff up.

Lawyer item II:

And in case you were wondering whether Cohen, as a Trump Team member, had been focused on any personal exposure he had regarding the "collusion'' issue, we have the following discussion:

 A Cohen lawyer told the judge he couldn't estimate how long his proposed privilege identification process would take because he had been in the case "for only three days."

But the judge wasn't satisfied with that answer because, in a letter to the court, the Cohen team  had said another partner of the firm had been working for Cohen on matters relating to "Mueller, the House, the Senate, campaign finance matters, etc., "for a while." That partner was in the court and he rose to explain, making it crystal clear about what may have been Cohen's personal legal concerns:

"Judge, my swim lane was Russia and the related issues to the Russia inquiry."

Holy shit. Way to go, preserving your client's confidences, guys!

Lawyer item III, and then I'm going to the beach:

The firm representing Michael Cohen was "Big Law," with offices in New York, Chicago, Silicon Valley, Boston and Los Angeles. Its web page says it has 1100 lawyers and an international diversified practice.

The firm representing the President of the United States has one office, in lower Manhattan. Its web page says it has 12 lawyers, (three of whom were in court) and describes its practice as "civil and criminal litigation."

I will avoid sharing my view of which team performed better, but at one point in the hearing, Cohen's team revealed a bit of competitiveness coupled with a startling admission.

Judge Wood was working on a timetable for dealing with the documents. She asked the Cohen lawyer how long a particular segment of the process would take for his team: 

Cohen Lawyer:  Judge, we are a thousand lawyers. We have discovery units that are skilled in these kinds of activities and a boutique law firm would not have that technology array. They have better brains, perhaps, but not the technology array we have.

So, friends, when the feds knock on your door at 6 ayem, who ya gonna call?

A bientot.


18 April 2018

Collusion or Conspiracy


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Collusion or Cowardice:  J'accuse!

No, I'm not talking about Trump/Putin. 
The malefactors I charge are Congress, the President, and the Supreme Court. By employing collusion or cowardice of their co-equal Departments of the government, they successfully ignore the Constitution of the United States when it suits them.  An explicit or unspoken conspiracy that defeats the checks and balances we all learned about in grade school, the scheme that was carefully designed to preserve the balance of power in our government.

I suggest the evidence is overwhelming. The terms of the deal are: "You don't complain about my violations of the Constitution, and I won't complain about yours."

I choose two simple examples to prove my charge. The first is relatively small, beyond most of the public notice, but I mention it here because I was directly involved. It does not threaten our national security (as contrasted with the second example below) but it offers direct proof of my assertion:

Example One: I accuse the Supreme Court of blithely amending the Constitution at will, ignoring the explicit and exclusive provisions of Article V, which provide the exclusive means of amending our basic charter. The Founders concluded that the architecture of our Democracy was so vital to its longevity, that all citizens, States, and federal government Departments must operate within Constitutional constraints. And only if an overwhelming majority of society (two thirds of Congress and three quarters of the states) want change, can they formally amend the Constitution.

But I suggest the Supreme Court has arrogantly defied Article V, and simply amended the Constitution without bothering with the requirements of that Article.

In 1995, I tried a libel case against CBS. The unanimous federal jury found the essential facts: that we had proved, by clear and convincing evidence, that CBS had knowingly or recklessly defamed our client. 

CBS appealed, and that's when we were faced with the Supreme Court's outright violation of the Seventh Amendment, which reads:

"In suits at common law ... no fact tried by a jury shall be otherwise re-examined in any Court in the United States ... ."

But in its zeal write a new section of the Charter, to substitute different rules from those employed by the Founders, the Court amended the Constitution by directly contradicting the Seventh Amendment: It manufactured a new rule; Henceforth, when a plaintiff wins a jury verdict in a libel case, the facts tried by the jury must be re-examined by the Court. Wow! By requiring federal appellate courts to make their own "independent assessment" of the evidence considered by the jury in some cases, the Court blithely repealed the Constitution!

So when CBS appealed the jury verdict to the Seventh Circuit, the three-judge panel decided they would make a de novo review of the evidence "with little or no deference to the jury's findings."  In effect, they re-tried the case, based on reading the transcript. It was as if the Seventh Amendment didn't exist and the jury verdict was a nullity.

In the end, they came to the same conclusions as the jury did, but that's beside the point. The Supreme Court had promulgated a rule that directly violated the Constitution. That startling malfeasance was never challenged by Congress, which of course, had impeachment power as a check on the judiciary. But the Congress had no appetite to i) object to a ruling favoring publishers and reporters who could be vital allies at election time, or ii) challenge the conduct of the judiciary, the entity that had the power to pass on the constitutionality of congressional legislation. 

Collusion or Cowardice?

But the foregoing is just an hors d'oeurve. The main course of this piece is the stuff that is on today's front pages:


Article I, Section. 8.  of our Constitution, provides:

"The Congress shall have the Power ... To Declare War ... ."

Article II, Section. 2. provides:

"The President shall be Commander in Chief of the Army and Navy of the United States ... ."

The distinction could not be clearer: Congress is not the Commander in Chief, and the President has no power to declare war. (Without going into mind-numbing detail, it is unquestioned the President, as Commander in Chief, has the power to direct the Armed Forces to defend the United States if attacked. That distinction is not relevant to this essay.)

Where did Truman get the authority to send troops to Korea without seeking Congressional approval, Eisenhower send troops to Lebanon, Johnson to bomb North Vietnam (even before the questionable Tonkin Gulf Resolution,) Reagan to send troops to Grenada, Clinton to bomb Serbia, Bush I to invade Panama, or Obama to make war on Libya, etc., etc., etc.?

President Trump has effectively declared war on ISIS, and we are bombing Syria and have troops on the ground there. 

All without any declaration or authorization by Congress.

Question: Putting aside the issue of whether our wars on ISIS and Assad are morally justifiable, what is the legal justification for this gross violation of the Constitution?

Answer: There is none that passes the laugh test!

Defenders of Presidential war-making powers have used absurd justifications. "Korea was not a "war", it was a 'Police Action,'" Clinton could bomb Serbia because he was "Commander in Chief," blah, blah, blah.

Currently, the President's minions argue we can make war against ISIS and Assad because on September 14, 2001, Congress reacted to the attack on the Twin Towers three days earlier by passing an Authorization to Use Military Force that gave the President power to use military force against "those who planned, authorized, or aided in the attack."  Without congressional approval, the Bush administration independently insisted that meant it was now authorized it to make war on Al-Qaida and the Taliban wherever we found them. Congress sat on its hands, and successive administrations have drunk the Kool Aid.

But even under that questionable expansion of the 2001 AUMF, there is certainly no authorization for the current war against ISIS, or our attack on Assad. ISIS had nothing to do with 9/11 --it did not even exist then. And there is no suggestion that Assad's 2018 atrocities had anything to do with 9/11. Yet the proponents of Presidential war-making power, in and out of congress, continue to cite the 2001 AUMF as authority for these Executive Department's military ventures. 

Those justifications are legally preposterous.

What is going on here is that Congress doesn't want to make these decisions. They simply do not want to think and talk about decisions that might come back and bite them at election time. Want evidence" Think back to the 2016 election charges and countercharges about who was for and who was against our incursions into Iraq and Libya. The only candidates who escaped criticism from one side or the other were the candidates who kept their mouths shut.

The press and the public are free to express opinions on the subject of military intervention, but for a politician, it's a lot safer not to take a position publicly. Let somebody else do it. But honorable members of Congress do not have that option. They are obliged by the Constitution to discuss and decide.

The prime example of their failure to do that was when Assad used chemical weapons and crossed Obama's "red line" declaration, and the President, listening to the advice of Constitutional scholars, went to Congress to seek authorization to strike Assad. To its disgrace, Congress refused even to take up the bill. It was never  discussed. The result, Obama did not use force, and the hawks criticized Obama, not Congress!

The result: two of the three Constitutionally-created Departments of our government have been  engaging in an unmistakable if unspoken acts of conspiracy or cowardice, leading to the degradation of our Constitution.

Many of these foreign adventures have public support. In Korea we fought the bad guys, same in Kosovo, etc. ISIS is evil and Assad's use of poison gas is horrendous. It's should be easy to agree on the easy ones, but even as to those, Congress refuses to do its job. There's always an election right around the corner for all the members of the House and one-third of the Senate. Why take unnecessary political risks?

But when it comes to the proposed use of force against bad guys, who decides who the bad guys are, and what degree of force we should use? It is perhaps easier to overlook Constitutional violations if we have Dwight Eisenhower making the call, and we were even okay with the Bushes and Obama. And the assault on our Constitution may be easier to swallow when the adversaries are monsters like ISIS and Assad.

But the wisdom of the Founders is ever more prominent today.  Their vision was that making war on anybody was something deserving, indeed demanding, discussion and decision exclusively by the people's representatives. That's the law.

But our current Congress ignores its Constitutional duty. While Trump bombs, Congress dithers. 

A bipartisan group of Senators is now actually getting ready to propose a new AUMF, but there is apparently no hope of getting it through either house. Paul Ryan, the empty-suit Leader of the House, has said he sees no need for the legislation because "The President already has the power he needs!"

North Korea is again in the news. The President earlier boasted about how big his nuclear button is. There was much debate about whether that was wise, or dangerous. But that's irrelevant to my point. What is important is that it is not HIS button. It belongs to the members of Congress. Where are those people? Hiding under their desks, that's where. It's "duck and cover" for pols.

Shame on the leadership of both parties in Congress for dishonoring Constitutional separation of powers commandments. 

As we sow, so shall we reap.

N.B. The more polite, and concise, editors of Time.com have published a condensed version of the second half of this piece. You'll find it here:


A bientot.