14 October 2016

Packwood Redux

Remember Bob Packwood? A classmate of mine, NYU Law School, class of 1957.  He was on a full scholarship, the President of our class and ran for the U.S Senate from his home State of Oregon only eleven years after graduation. Wonder of wonders, he beat an “invincible” Democrat by the name of Wayne Morse. Millennials, just take it on faith.

Packwood was a Republican who would not be recognizable as such today.  He favored passage of the Civil Rights Act, sought to introduce a bill legalizing abortion, voted against Supreme Court nominees Robert Bork, Clement Haynsworth, G. Harold Carswell, and Clarence Thomas. What’s more, he advocated Nixon’s impeachment. When he and campaign-manager-wife Georgie asked me for a campaign contribution, I willingly kicked in.

What now brings my classmate to mind? Because this mild-mannered, brainy guy, after serving 19 years in the United States Senate, was accused of approaching women in elevators and sticking his tongue down their throats. The bi-partisan Senate Ethics Committee unanimously recommended he be thrown out of the club, and he resigned.

Has our country so coarsened that a confessed sexual predator has a route to the White House? Does anyone believe Trump's denials? “Total fabrication” were his words.  As someone who examined witnesses under oath for a living, I came to have a sense of who was telling the truth. Please look at this video of Jessica Leeds, one of the several Trump accusers who have spoken up since his debate denial of his Access Hollywood admissions.You have seen Donald Trump. Now meet Jessica Leeds, and decide whom you believe:  (An apology. I am technically deficient. I do not know how to trim the commercial from the beginning of the video, and do not know how to trim the succeeding video. So just kill the site after the Leeds video, and then sign back in to this blog. Sorry.)


I got a kick out of reading the letter Trump's lawyer sent to the Times, threatening to sue the paper. (Does anybody believe that?) In that letter,  Mark Kasowitz accuses the paper (and therefore Ms. Leeds and other women) of making false and malicious statements about Mr. Trump. That ignores the Cosby precedent: while many of the women who claimed Cosby sexually assaulted them could not sue because of the statute of limitations, one or more of them have brought viable libel claims, asserting that by denying the assault, Cosby has libeled them by accusing them of lying. I am not sure if Kasowitz distributed his letter to the general press. If he has not, then perhaps he has a defense that Trump lacks, i.e, Kasowitz didn't publish his accusation beyond the addressee, the editor of the Times. Question, could a plaintiff's lawyer reasonably argue that Kasowitz knew the Times would publish it, and therefore Kasowitz constructively made his letter public? Rule Number One for lawyers: while you do whatever you can for your client, you never make the client's problem your problem.

By the way, since my last post, I have looked at the New York Penal Law.  I think Trump did indeed admit to conduct that if committed in his home state would be a Class A misdemeanor, punishable by up to a year in jail for each offense.

But the yin and yang of this subject: nobody is any longer talking about Trump’s tax returns. Nobody is now asking why he does not release those returns that are no longer being audited. Or why he required Pence to submit his returns for review before being named his veep candidate. Nobody is mentioning that Trump couldn’t even buy a co-op in New York City without submitting recent tax returns. Are Hillary's people asleep? Are we going to get another wooden debate performance?

Finally, please indulge me: I was home yesterday convalescing from minor eye surgery, and with my good eye watched Michelle Obama’s speech in New Hampshire. She made both me and my opthamologist happy because tears are good for my condition. I always admired Barack Obama’s oratory ability.  He is now only second best in the family. Michelle’s speech was a classic. I do not recall anything like it.  Do yourself a favor: take some time to watch the whole thing. It is 20-25 minutes long, and worth every minute.  Whatever your politics, this is an extraordinary piece of political oratory:

A bientot.

08 October 2016

Get the Children Out of the Room!

This election cycle is turning the media on its ear. The New York Times has finally lived up to its masthead promise, “All the News That’s Fit to Print.” The latest evidence of Donald Trump’s character issues has pushed the Old Grey Lady off her rocking chair, and moved the paper to report the news for real. The Washington Post, which broke the story, used dashes to describe Trump’s words, (except for “tits,”) but the Times spelled it out in plainspeak. While his wife Melania was home carrying his fifth child,  the 60 yr. petulant-child-candidate-tycoon bragged he couldn’t resist attractive women and tried to “fuck” a married woman he encountered. He also boasted that because he was a “star,” he could do anything he wanted to women, including going up to them and “grabbing them by the pussy.” When the Times publishes the words “fuck” and “pussy,” you know the world is a-changing, and fast.

I’m not sure how editors decide these issues. The television people would not report the word “fuck,’’ and in the program I saw on NPR, the word was not said, and when the transcript was on the screen, the word was represented by dashes. In its print Late Edition, the article contains the word “pussy,” but more modestly describes Trump’s efforts at seduction as “having sex.” But the same Times article I read on the web reported the words Trump actually spoke, “I wanted to fuck her.”  Good for the Times.

Lots of interesting questions: For certain live broadcast radio shows, (the old Howard Stern shows come to mind, but I am confident there were others) there was tape delay to bleep out forbidden language, but what about live television? Here’s a fascinating hypothetical: Sunday night debate, Town Hall style forum, a woman who has three daughters is so offended at the Trump’s words, she makes a last-minute switch to her question and asks, “Mr. Trump, when, as you put it, you were trying to fuck that married woman, did you think about either your wife or her husband?” or, “What would your reaction be if a "star" walked up to your daughter or your wife and grabbed her by the pussy?'' The possibilities are endless. Have we ever before had a political debate when the announcer said beforehand, “Parents, this program may contain obscene words, so please send the children out of the room.”

I was disappointed in only one aspect of the Times piece. It did not discuss three questions: i) is walking up to a strange woman and grabbing her by the pussy a felony or a misdemeanor under New York State law,  ii) would conviction require the defendant to be added to the state's register of sex offenders?  and iii) if the answer is yes, would that mean no children would be allowed on a tour of President Trump's White House when he was there?

Now, to a second media point. This is a far more serious--and perhaps, for some, a less provocative one. On PBS’ nightly news last night, one of Judy Woodruff’s guests was Michael Gerson, a columnist for the Washington Post. The subject was the President’s condemnation of the Russian hacking of emails involving U.S. Democratic political figures. The stolen emails were published by Wikileaks. Obama said it was an obvious effort to influence and interfere with the U.S. election process, and our government might take serious steps to punish the foreign offenders. In discussing that subject, Mr. Gerson made what I thought was a stunning comment from a journalist working for the Washington Post, a paper that always took, as far as I could see, a consistently absolute “free speech” position on all issues. He suggested that our media in this country consider not reporting stuff contained in documents that were stolen by a foreign power working to undermine our democratic election process. 

So while the Post did not hesitate to print the Trump tax returns mailed from a Trump Tower address, one of its columnists was now advocating self-censorship of the news based on the motives of the thief who stole the Democratic emails? Now that’s big news. Let’s start with what both instances have in common: a stolen document. Anyone who steals a document has a motive to do so. Both thefts seem to be a result of the same motive: to “influence” the U.S. election. One was an apparently American thief favoring Clinton, the other a Russian thief and a Wikileaks accomplice who favored Trump. What’s the test for which, if any, to censor?

The press insists it not only has a First Amendment right to “fence” stolen documents, but it has to right to refuse to identify the thief. But are we now getting into an area where the press first determines how it feels about the thief?  Efforts to influence the U.S. elections are okay if it’s an American thief trying to favor one candidate over another, but not okay if it’s a foreign thief doing the same thing? Or is the test whether the thief’s motive goes beyond favoring one candidate over the other, but is to “disrupt” our election process? So if the source of the tax returns was a Canadian, that would have been okay, but if she were a Russian, that would not be okay? What about Wikileaks, headed by a guy holed up in the Ecuadorian Embassy in London? Where does the "motive counts" test take us?

To those who say, “Let it all hang out, no censorship on anything, absolute free speech all the time,” that's ridiculous. You are wrong. We censor and punish speech all the time, e.g., threats, criminal conspiracy, incitement, defamation, child porn, atom bomb manufacturing instructions, troop movements in time of war, and a long list of other things. And while the President is moving against the foreigners who published Hillary’s speeches and emails, can he please do something about moving against the jihadist foreigners who would not only interfere with our election, but our right to live, i.e., those who publish bomb-making instructions and encouragement to murder and maim U.S. citizens—all stuff freely available on the web right here in the good old U.S. of A?

A bientot.