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!