31 March 2018

The Simple Son


It's Passover, I'm in St. Barths. Yes, we have a newly installed Chabad here, but the London family spent the first night of Passover at Le Repaire, eating dorade, not gefilte fish, and drinking Minuty, not Manischevitz. No chicken soup on the menu.

Nevertheless, I think back to the service set out in the Haggadah, I think about the four questions, and the part about the four sons, the wise son, the evil son, the simple son, and the one who doesn't know how to ask questions.  For some reason, the simple son intrigued me, and I found this discussion of him on the web:

The simple one knows how to ask. However, because of his great simplicity, he is ready to accept simple answers. These simple answers are at times caused by [his] limited knowledge... . The answers that the simple son gets are all banal, and don’t deal with the depth and complexity of the questions. Nonetheless, this is why he lives in a harmonious world where everything is orderly and understood. At first glance, there is charm and grace in this naïve life, but it is only an illusion. The world and the reality are complex, and one day the child will grow up and realize that not everything is so simple. 

Or will he just grow up to be President?

Why does the simple son remind me of Donald Trump?  Because he too lives in a simple world. The center of that world is Donald Trump, his business, and his family. If he wants the answer to any question, it is readily available without resort to intelligence summaries, legal or ethical advice, or even the Constitution.

This simple son applies a simple test: what's best for me, my business, my family? 

Should I go into the army when my country calls? Ahh, no, I'll get the family doc to write me a letter about heel bone spurs. Which foot? Don't remember that, they're gone now, anyway and do not interfere with my golf game.

Do I want to increase my political power? Yes, so let's appeal to that element of society that dislikes immigration and dislikes racial integration. Then we simply make up facts that support our position.  We'll just tell lies about Mexican rapists, and we'll promise to make Mexico build a wall we like. So what if we know it will never happen, my people like the idea, I like the "Build the Wall" chant, and we can simply lie about the details.

Do I want to make more money? If yes, then let us abandon all prior precedent, keep our businesses, and use our political clout to get people to give banquets in our hotels, etc. We can have the son-in-law visit countries as this country's representative and try to get financing for his real estate projects. Good for my grandchildren. My daughter and her in-laws can go overseas and sell dresses and condos. Good for the family bottom line.

What do I do if someone thinks I have acted illegally before the election? That's pretty simple: fire them, and then say I did it because I interviewed them for another job, or they had an argument over fees at my golf club. Are those lies? Sure, but are they good lies, i.e., good for me? Yes, I think so, so let's do it.

Wait a minute. There is a prominent newspaper right here in the nation's capitol, publishing stories hurtful to me. Simple solution. I will punish them by using my Presidential pulpit to tell lies about the owner of the paper. I will say his other company doesn't pay taxes, when in fact it does pay taxes, and has published those numbers. (I lie all the time about my personal taxes and won't tell anything to the public about that, but in my simple straight-ahead way, that does not matter.) I will say they are costing the Post Office millions of dollars, when in fact the opposite is true, the USPS makes a lot of money from them and would be much worse off if they went elsewhere.  Is it wrong for me to use the power of my office to pressure the United States Post Office to raise their rates in order to injure my political opponent?  Does a bear poop in a tree?

There are women who say I am unfaithful to my wife. What should I do about those claims? What is the simplest thing to do? Answer: try to buy off the women who say that, and if that fails, just deny everything. Is that wrong?

Will those claims hurt my popularity? Well, even before the election, everybody knew I was a philanderer and I won by three million votes anyway. And besides, even the Evangelicals say I should get a Mulligan for screwing around.

Ahh, you say, this time it's different? You say I won by only 77,000 votes, and won 56% of the women's vote, and I cannot afford to lose even a small fraction of that if I want to be reelected?  And, what's that, you say it's one thing for a voter who otherwise liked me to forgive my sexual molestation and stuff, but when she learns my wife was home trying to lose the 30-40 pounds she gained carrying my child delivered the previous month while I was tomcatting around in Las Vegas and Los Angeles, and this voter thinks that if her husband did that she would brain him with a cast iron frying pan, and so she may not vote for me again? 

And you ask what does the simple son say to that?

Hire John Bolton and declare war on Iran?

27 March 2018


"It's not cars that kill people, it's the people who drive them."

True enough, but we nevertheless have laws that are designed to reduce the likelihood of drivers killing others and themselves. So we have legislative requirements for manufacturers to equip their products with seatbelts, airbags, headlights, brake lights, mirrors, and dozens of other devices to make vehicles safer.

And then we require the drivers of these now-safer vehicles to demonstrate proficiency in operating them. They need to pass a test to get a license, and then we punitively forbid them to drive under the influence of alcohol or drugs, or fail to click their seatbelt, or change lanes without signaling, or exceed speed limits, and more.

Do some complain we are infringing upon their freedom by these rules?  Yes, they do, but we know better than to pay attention to those people.

And if the manufacturer or owner or operator of a vehicle infringes on any one of these hundreds of requirements, they are held accountable not only to the government that imposes fines or more severe criminal penalties, but by personal injury lawsuits as well. It was private litigants who eventually got us seatbelts, ignition systems that did not quit, tires that did not fail, gas tanks that did not explode on impact, and more.

'It's not guns that kill people, it's the people who shoot them."

Also true. But where are the same kinds of rules we have for cars in an effort to reduce the slaughter? Why no rules re trigger locks, gun safes, licensing and training requirements for owners? We don't allow drunks to drive, why do we allow them legally to carry loaded weapons? We don't allow upstanding citizens to market cars without brakes and horns, why do we allow them to sell deadly weapons to criminals at gun shows?

This is a national calamity. It is not the Russians or the Iranians who are killing us. As Pogo said, "We have found the enemy. It is us."

We have no legal internal wars. You don't need a military-style AR15 semiautomatic assault rifle to protect against home invasion--it is not that kind of weapon. A pharmaceutical company cannot make the false claim that aspirin cures cancer without incurring substantial civil liability. Why do we allow a gun manufacturer to say an AR15 is necessary for home protection without the same consequence? Why can a tool manufacturer be civilly liable for damages if it sells a table saw without a blade guard, but a gun manufacturer can be immune from liability if it sells a gun without a trigger lock? Why do I need liability insurance to own a car and yet I can own a far more dangerous semiautomatic military style rifle, with a 30-bullet magazine, without it? Why do a majority of our legislative leaders repeat the nonsense that any of these regulations would violate the Second Amendment when any sentient reader of the Amendment and its interpretation by the current Supreme Court knows that is false?

Why did it take the protests of teenage kids to escalate our attention to the real answers to these questions?

22 March 2018

Stormy and Old Bone Spur: Will 60 Minutes Fold Again?

In I995, Mike Wallace scored a blockbuster, "front page" interview with a scientist named Jeffrey Wigand, who had been fired from a tobacco company. On camera, Wigand told of secret research indicating that the cigarette companies had regularly lied to the government and the public about the health hazards of cigarette smoking.

Dynamite!  A Pulitzer for sure, right?  Well, no. Wigand had signed a "Do Not Disclose" agreement as part of his separation package from his former employer, and the CBS legal department feared that, having induced Wigand to breach his contract, the broadcaster might be subject to an enormous damage award. When threatened with a lawsuit, CBS flinched, and after much internal hand-wringing, left the scientist's taped revelations on the cutting room floor. Instead, it broadcast a ho-hum, vastly diluted 60 Minutes segment about smoking and health that attracted no more attention than it deserved, which was very little.

It was only after The Wall Street Journal published the substance of Wigand's deposition testimony in a Mississippi lawsuit, that 60 Minutes decided to broadcast its original, now-stale, Wigand interview.

Here we go again? Trump lawyer Michael Cohen says he paid porn star Stormy Daniels $130,000 for her written promise to keep quiet about her alleged affair with Donald Trump. The "Hush Agreement" stipulates a One Million Dollar liquidated damage penalty for each breach, and Cohen now alleges there are at least twenty breaches so far. President Trump, though not named in the agreement beyond the initials "D.D," did not sign it, but it is clearly about him and he has filed court papers saying he supports enforcement of the agreement's terms.  

But Stormy and her aggressive lawyer Michael Avenatti have nevertheless submitted to a "tell-all" interview with Anderson Cooper, which 60 Minutes promises to air on March 25. The marketing hype is up there with Michael Wolff's Fire and Fury.

If a court ultimately says the "Hush" agreement is valid, is CBS on the hook if it goes forward with the March 25 broadcast?

I suggest the answer is "No," for a number of reasons.

A court will not enforce "inducement liability" where to do so violates public policy. And it would be a clear violation of public policy to enforce an agreement that bars reporting a crime. While having adulterous sex may not be a crime where it occurred, the $130,000 hush payment may be: If the payment were made by Cohen without recompense from Trump, it may be a political contribution that violated campaign laws or at least an ethical violation.  And if Trump did find a way to repay Cohen, then Trump may have violated campaign laws by his failure to report the expenditure.

The determination of liability for the tort claim of inducing a breach of contract involves a balancing test: a court would need to compare the public's interest in the matter versus the economic harm to the injured party. Does the electorate's interest in learning facts about the integrity and morality of the President of the United States outweigh his interest in keeping secret an alleged adulterous affair?

And of course, First Amendment considerations are woven throughout the fabric of the court's consideration. Assuming CBS has not offered money for the interview, or promised anything of value, (like indemnification), there is a strong case to be made on policy grounds to immunize CBS's right to publish.

The clincher, I suggest, is not so much a determination of these "nice" questions of law. It’s the overwhelming detriment to the president of actually proceeding with such a lawsuit against CBS in open court. For one thing, Trump would have to prove what actual damages he had incurred from a publication of claims that he was a serial adulterer. His damages claim obviously consists of an asserted injury to his reputation. 

But the courts have definitively ruled that in suits where the alleged harm is a claimed injury to reputation, the Times v Sullivan libel strictures apply. That means to win such a lawsuit, Trump would bear the heavy burden of proving, by clear and convincing evidence, that CBS knew Stormy's statements were false, or that CBS had substantial suspicions they were false, and nevertheless published with a reckless disregard of whether her story was true or not.  

Moreover, CBS would be free to show that on the subject of Trump's sexual infidelity, the president's reputation is already in such tatters that nothing Daniels says could harm him further. To prove that, CBS would be free to parade before the jury, in open court, all the public reports, including Trump's own statements, concerning his reputation for matrimonial infidelity.

 As against Daniels directly, Trump's only shot is the remote possibility he can get an injunction against her speaking about him, i.e., a prior restraint on speaking about a matter of public importance involving the president. That horse may have already left the barn. Absent such an injunction against Daniels speaking, Trump would be left with no more than a damages claim.

But not only has Daniels so far ignored the "hush" promise, I suggest she will continue to ignore it because Trump cannot prove any damages: in order to win the stipulated one-million-dollar liquidated damage amount he would need to prove that sum bears some reasonable relationship to his actual injury. And that puts him back in the reputation trap.


I. CBS won't blink. The show will go on. I suspect the network would love to be sued, but it won't happen.


II. The California litigation brought by Cohen/Trump against Daniels is functionally unwinnable. It is just bluster and if Trump doesn't know it, his lawyers do. The longer this drags on, the more the President will be distracted and disgraced. And the longer the case goes on, the greater the risk of much worse stuff coming out re other hush money payments, other dalliances, etc.

The winner, by TKO in round four, is Stormy Daniels!