Here’s the most important line from Melania Trump’s October 17 interview with CNN’s Anderson Cooper:

“Sometimes I say I have two boys at home — I have my young son and I have my husband.”

One of them is running for President of the United States. He loves winning. And he loves to blame anyone else — everyone else — when he isn’t.

Two months ago, polls following Trump’s verbal war with a gold star family showed him losing the election badly. As I wrote at the time, his response was to complain that the election system was rigged. But as his poll numbers rebounded in September, Trump’s cries of “rigging” became more subdued.

After Trump’s disastrous first debate and the revelation of his own vile behavior toward women, his poll numbers plummeted again. And so, once again, Trump rails against a system that, he claims, must be rigged against him. Otherwise he’d be winning.

He pursued a similar strategy when it looked like might not have enough delegates to win the Republican nomination. (Remember when he said there would be riots if he didn’t get it?) When a process makes him the winner, he embraces it; when he fears failure, he denounces it.

This time, Trump has merged his baseless election-rigging rhetoric with his ongoing assault on freedom of the press. For Trump, scorched earth apparently includes destroying two essential pillars of American democracy: a free press and public confidence in the election process itself.

recent Politco poll suggests that Trump’s message is getting through: 41 percent of voters think that the November election could be “stolen” from him.

The Relentless Assault On The Press

During his presidential campaign, Donald Trump has threatened to sue journalists and the media more than a dozen times. Here’s a small sample:

— On April 27, 2016, Pulitzer Prize-winning author David Cay Johnston later tweeted, Trump personally called and threatened to sue him “if he doesn’t like what I report” in discussing Johnston’s book about Trump.

— On May 18, 2016, Trump told reporters for The Washington Post: “I will be bringing more libel suits…maybe against you folks.”

— On July 20, 2016, The New Yorker reported that Trump had threatened to sue his former ghostwriter Tony Schwartz for supposedly “defamatory statements” Schwartz had made to Jane Mayer about the book he “co-wrote” with Trump, The Art of the Deal.

— When The New York Times reported on women claiming that they had been victims of Trump’s sexual assaults, he threatened to sue.

Responsible Lawyers

Why hasn’t Trump followed through? After all, he’s not reluctant to litigate. In June, USA Today reported that Trump and his businesses have been involved in more than 3,500 lawsuits.

And Trump has plenty of advisers with JDs — including Kellyanne Conway (George Washington University, ’92), who replaced Paul Manafort (Georgetown ’74) as campaign manager, senior adviser Boris Epshteyn (Georgetown ’07), and ubiquitous surrogate Kayleigh McEnany (Harvard ’16), among others. So what’s holding him back?

In mid-September, Trump tweeted, “My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting.”

As Trump himself might say in response to that tweet, “I don’t think so.”

A more plausible reason is the restraining influence of Trump’s outside attorneys. Although Trump and his surrogates with law degrees can say whatever they want, litigators marching into a courtroom cannot. A trial attorney’s professional responsibilities transcend the whims of a client. Trump may think that he’s beyond the rules applying to everyone else. But his attorneys know they are bound by court requirements governing all lawyers’ conduct. And they risk serious sanctions for violating them.

A Lawyer’s Duty

One of Trump’s outside attorneys, Marc Kasowitz, signed the recent demand letters to the Times about Trump’s tax returns and sex scandals. Attorneys can send letters threatening lots of things. But when a controversy moves into a courtroom, it’s a whole new ball game.

Kasowitz is an accomplished and respected trial lawyer. Appropriately, he represents clients zealously – and Donald Trump is no exception. Even so, when it comes to lawsuits, even the best attorneys face two immutable constraints: the facts and the law. Most states have rules embodying the principles of Federal Rule of Civil Procedure 11. It provides that by signing a court filing, an attorney certifies that “after reasonable inquiry” that there is factual and legal support for the assertions it contains.

For Trump’s latest threats against the Times, those obstacles are so great that noted attorney Theodore Boutrous, Jr. called Kasowitz’s demand letter a “stunt.” Boutrous suggests that Trump’s real aim is to chill aggressive reporting into his activities.

Rules? What Rules?

The legal restrictions governing the attorneys who would file a Trump lawsuit also explain his February outburst:

“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money… We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

At one level, such bombast reveals Trump’s ignorance. Libel is a state-law tort constrained by First Amendment principles. A president’s views don’t figure in its application. At another level, Trump’s comments reveal a deeper danger.

Conservative law Professor Ilya Somin of the Antonin Scalia Law School at George Mason University notes, “There are very few serious constitutional thinkers who believe public figures should be able to use libel as indiscriminately as Trump seems to think they should. He poses a serious threat to the press and the First Amendment.”

Baseless Conspiracy Theories

In his latest assault on the press, Trump asserts that the media is part of a larger conspiracy to rig the election. It extends, Trump claims, to rampant voter fraud that could rob him of victory. Vice presidential candidate Mike Pence tried to explain away Trump’s incendiary stance as referring only what he claims to be media bias.

But in his tweets, Trump himself set Pence and everyone else straight about his meaning:

“The election is absolutely being rigged by the dishonest and distorted media pushing Crooked Hillary – but also at many polling places – SAD.”

And: “Of course there is large scale voter fraud happening on and before election day. Why do Republican leaders deny what is going on? So naive!”

The evidence refutes Trump’s baseless claims of voter fraud. As I noted previously, Professor Justin Levitt at Loyola Law School – Los Angeles tracked all claims of alleged voter ID fraud and found a grand total of 31 credible allegations – out of more than one billion ballots cast. But facts have never mattered to a Republican presidential campaign that has become the worst reality TV show ever.

As Benjamin Franklin left Independence Hall following the Constitutional Convention of 1787, a woman approached him.

“Well, Doctor, what have we got,” she asked, “a republic or a monarchy?”

“A republic,” Franklin answered, “if you can keep it.”

On November 8, we’ll find out.


Be afraid. Be very afraid.

At an October 10 rally in Wilkes-Barre, Pennsylvania, Donald Trump held up a document. Newsweek’s Kurt Eichenwald describes what happened next:

“He told the assembled crowd that it was an email from Blumenthal, whom he called ‘sleazy Sidney.’ ‘This just came out a little while ago,’’ Trump said. ‘I have to tell you this.’ And then he read the words from my [Kurt Eichenwald’s October 21, 2015 Newsweek] article. “‘He’s now admitting they could have done something about Benghazi,’ Trump said, dropping the document to the floor. ‘This just came out a little while ago.'”

As Eichenwald explains, the words weren’t Blumenthal’s. Trump read from a distorted summary of Eichenwald’s 10,000-word Newsweek article attached to an email to John Podesta, Clinton’s campaign chairman. It resulted from a Russian disinformation campaign tied to a recent Wikileaks release. A Russian-controlled news agency — Sputnik — reported the false story.

Eichenwald asks, “So how did Donald Trump end up advancing the same falsehood put out by Putin’s mouthpiece?”

“This is not funny,” Eichenwald continues. “This is terrifying. The Russians engage in a sloppy disinformation effort and, before the day is out, the Republican nominee for president is standing on a stage reciting the manufactured story as truth.”

Which Takes Us Back to Trump’s Income Tax Returns

Compared to Trump’s boast about being a sexual predator, his admission in the second debate that he paid no federal income taxes for years seems almost innocuous. So why does he still refuse to release his returns? Eichenwald’s latest revelation adds more evidence that the answer may be Russia. Like all things Trump, his words and deeds fit a pattern.

“He is not going into Ukraine, OK, just so you understand,” Trump declared in August. “He’s not going into Ukraine, all right? You can mark it down. You can put it down. You can take it anywhere you want.”

“Well, he’s already there, isn’t he?” ABC’s George Stephanopoulos corrected him immediately, referring to Vladimir Putin’s illegal seizure of Crimea.

“OK,” Trump answered. “Well, he’s there in a certain way.”

Worse Than Ignorance?

A month after Trump’s declaration about Putin in Ukraine, he made what Trump’s campaign later called a mistake. Trump appeared on Russian state-sponsored television to criticize America. Meanwhile, he has praised Vladimir Putin continuously: “If he says great things about me, I’m going to say great things about him.”

Never mind that Putin is a cruel dictator who crushes dissent, makes a mockery of human rights, and orders the invasion of sovereign countries. Political opponents and critical journalists disappear or get assassinated. And there’s growing evidence that he’s trying to influence the election in Trump’s favor.

During the first presidential debate, Trump reacted defensively to Hillary Clinton’s concerns about Russians hacking into the Democratic National Committee’s computers. Rejecting the U.S. law enforcement consensus that Russian intelligence agents were behind that cyberattack, Trump said:

“She keeps saying ‘Russia, Russia, Russia,’ and maybe it was. It could be Russia, but it could be China, could also be lots of other people. It could be someone sitting on their bed that weighs 400 pounds.”

And at the second debate, he persisted: “[A]nytime anything wrong happens, they like to say the Russians are — she doesn’t know if it’s the Russians doing the hacking. But they always blame Russia.”

He knows better. Back in mid-August, Trump and his team received intelligence briefings that directly contradict his recent statements. And 48 hours before the second debate, the intelligence community and the Department of Homeland Security issued a joint statement that pointed directly to the Kremlin:

“The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of e-mails from U.S. persons and institutions, including from U.S. political organizations… We believe, based on the scope and sensitivity of these efforts, that only Russia’s senior-most officials could have authorized these activities.”

Why does Trump ignore undisputed evidence, defend Russia, and praise Putin? Here’s one possible answer: the personal financial self-interest of Trump and his top advisers.

Paul Manafort and Ukraine

When Georgetown Law School graduate Paul Manafort took over as campaign manager, the selection seemed to be the harbinger of an extreme makeover. Manafort would attempt for Trump what he’d accomplished for Ukrainian’s former president, Viktor Yanukovych, whom Manafort resurrected from disgrace to that nation’s highest office in only five years.

But Manafort’s ties to Ukraine’s pro-Putin former president led to accusations of secret cash payments to Manafort’s consulting firm. Then The Washington Post reported that the Trump campaign worked behind the scenes on a Republican convention platform plank that gutted the GOP’s longstanding support for Ukrainian resistance to the Russian-led intervention. Finally, the Associated Press reported that Manafort’s firm hired Washington, DC lobbyists to influence the American press and U.S. government officials on behalf of the pro-Putin Ukrainian Embassy. The cascading revelations of pro-Russian activity led to Manafort’s resignation.

Boris Epshteyn

After Manafort departed, another Georgetown Law graduate, Boris Epshteyn, became the most visible surrogate defending Trump’s continuing admiration for Russia’s top tyrant. Epshteyn was born in Russia and emigrated to the United States in 1993. Twenty years later, when New Jersey Senator Frank Lautenberg died in 2013, Epshteyn wrote,

“[I]t was the Lautenberg Amendment that allowed my family and me to emigrate to the United States of America in 1993. The Lautenberg Amendment, passed in 1990, loosened the restriction on refugee states and thereby allowed for tens of thousands of Jews like me from the former U.S.S.R. to come to America. The legislation was also applied to religious minorities from Iran, Vietnam and Burma, as well as other countries.”

Now that he is safely in the United States, Epshteyn supports a candidate who proposed a religious ban to keep others out. After receiving his JD in 2007, Epshteyn went to work at Milbank, Tweed, Hadley & McCoy. According to his LinkedIn website page, a Russian theme has permeated his activities:

— June 2007 to present (overlapping with his time at Milbank from October 2007 to May 2009): Principal for Strategy International, providing “consulting and liaising services for domestic and international transactions with a focus on Eastern Europe and former Soviet Union.”

— June 2009 – July 2013: Managing director of business and legal affairs for West America Securities Corp. His duties were to “originate and locate funding for diverse domestic and international transactions, including private placements, public equity/debt offerings and mergers and acquisitions transactions.”

— July 2013 to present: Managing director of business and legal affairs for TGP Securities, Inc. In that position, he moderated an October 2013 panel discussion for a conference titled, “Invest in Moscow!”

In August 2016, Epshteyn became a senior adviser to the Trump-Pence campaign on “media, communications and foreign policy.” If Epshteyn is the important foreign policy adviser that he claims to be, it explains some of Trump’s bizarre denial about Putin.

Whose Party Line?

“First of all,” Epshteyn told a CNN interviewer on July 31. “Russia did not seize Crimea. We can talk about the conflict that happened between Ukraine and the Crimea…But there was no seizure by Russia. That’s an incorrect statement, characterization, of what happened.”

That’s in line with Trump’s statement to George Stephanopoulos that Putin “is not going into Ukraine.” Observers dismissed Trump’s comment as a gaffe, but it’s the Kremlin’s position. And it’s blatantly false. The international community has condemned Putin’s invasion and annexation of Crimea. Period.

Like Trump, Epshteyn also points to Putin’s 82 percent approval rating as proof that Putin is a strong leader. But as Tom Brokaw observed on the September 11 edition of  Meet the Press, “He’s not saying the other 18 percent are on their way to a gulag somewhere.”

All Roads Lead To Trump’s Tax Returns

Trump’s tax returns should confirm what he has now admitted publicly: that he hasn’t owed any federal income tax for years. But a far more sinister explanation for his unwillingness to release the returns is that they could complete a picture of Trump’s business connections to Russia that journalists are piecing together.

David Cay Johnston’s August investigation reveals that Russians are partners with Trump in many American projects: “Trump has tried at least five times to build a Trump Tower in Moscow, including efforts he made during his 2013 trip there. His name is on a 47-story building in Georgia, formerly part of the Soviet empire… Donald Trump Jr. said in 2008 that ‘in terms of high-end product influx into the U.S., Russians make up a disproportionate cross-section of a lot of our assets. We see a lot of money pouring in from Russia.'”

Kurt Eichenwald — the same reporter who revealed Russia’s disinformation effort relating to his 2015 article — published a September analysis in Newsweek: “Hoping to start its branding business in Russia, the Trump Organization registered the Trump name in 2008 as a trademark for projects in Moscow, St. Petersburg and Sochi… If the company sold its brand in Russia while Trump was in the White House, the world could be faced with the astonishing sight of hotels and office complexes going up in downtown Moscow with the name of the American president emblazoned in gold atop the buildings.”

Legal Eagles

Richard Painter and Norman Eisen are former chief ethics attorneys for Presidents George W. Bush and Barack Obama, respectively. Their op-ed for The Washington Post listed the numerous conflicts that would make a Trump presidency “ethically compromised.” Among the most serious are his family organization’s undisclosed financial ties to Russia, China, India, South Korea, and Turkey.

Labeling Trump’s actual or apparent conflicts “as obscure, profound, and dangerous,” they conclude: “The ethics lawyer who would have President Trump as his or her client would face a far more daunting task than either of us — or any of our colleagues in recent years — has ever confronted.”

“Conflict-of-Interest Laws, You’re Fired!”

How would President Trump resolve the massive conflicts that haven’t been disclosed fully to voters? However he chose. All of those elaborate ethics laws and rules applicable to cabinet members and other high-level government officials don’t apply to the president.

As Norman Eisen elsewhere observes, “Because the President of the United States is the single most consequential decision maker on the planet, Congress has decided his hands shouldn’t be tied on any issue because of conflicts of interest over any potential financial or personal gain.”

In September, Kurt Eichenwald concluded, “Never before has an American candidate for president had so many financial ties with American allies and enemies, and never before has a business posed such a threat to the United States. If Donald Trump wins this election and his company is not immediately shut down or forever severed from the Trump family, the foreign policy of the United States of America could well be for sale.”

The Russians have chosen their candidate for president of the United States. Be afraid. Be very afraid.


[NOTE: On Friday, October 7, I’ll be appearing at the Thomson Reuters Legal Executive Institute’s “Law Firm Leaders Forum” in New York City. Our panel’s topic is “Long Day’s Journey Into Night: The Evolving Law Firm Partnership and Strategic Models.” Now, on to more important matters…]

Four months ago, I wrote that Donald Trump’s excuses for refusing to release his tax returns were silly. He said he was “under audit,” but his campaign had released a letter from his lawyers at Morgan Lewis & Bockius confirming that the IRS had closed its examination for years prior to 2008 “without assessment or payment, on a net basis, of any deficiency.”

Presumption: Trump Paid Little or No Federal Taxes

If the pending audit is an issue, why wasn’t he releasing returns through 2008? There was no good answer to that one. So in a September 14 interview with the Pittsburgh Tribune-Review, Donald Trump, Jr. offered a new explanation:

“Because he’s got a 12,000-page tax return that would create … financial auditors out of every person in the country asking questions that would distract from [his father’s] main message.”

(The next morning, Trump Jr. made an unfortunate reference to “gas chambers.” Five days later, he compared Syrian refugees to a bowl of Skittles, sprinkled with a few “that could kill you.”)

Eight hours before the first Presidential debate, Republican Congressman Chris Collins came up with an equally absurd reason for Trump’s refusal to release his tax returns:

“He does not want to give his competitors the advantage of knowing the money he makes or doesn’t make in every partnership he’s involved in… You don’t disclose that kind of information to competitors. That is bad business.”

For someone seeking the Presidency, that explanation is idiotic. In fact, the argument is so ridiculous that Trump himself gutted it during the debate, when he pledged to release his returns upon completion of the current IRS audit. The truth is that — win or lose — Trump will never release his tax returns. If the pendency of an audit mattered, he would have released his pre-2008 returns long ago.

Irresistible Inference from Limited Evidence: Trump Paid Little or Federal No Federal Taxes

In May, I suggested that Trump’s reluctance could stem from the fact that, like many real estate developers who can utilize favorable rules relating to that business, he probably has paid relatively little, if any, federal taxes for decades. In August, James B. Stewart of The New York Times picked up that baton and ran with it.

Paying little or no tax, Stewart notes, was consistent with Trump’s “returns from the late 1970s, which he filed with the New Jersey Casino Control Commission when applying for a casino license in 1981. Mr. Trump reported losses and paid no federal income tax in 1978 and 1979 and paid only modest sums — a total of less than $75,000 — for the prior three years.”

Pulitzer prize-winning investigative reporter David Cay Johnston wrote in The Daily Beast that Trump also paid no income tax in 1984, citing a New York State Division of Tax Appeals ruling.

More Evidence That Trump Paid No Taxes

During the first Presidential debate, Hillary Clinton pressed the issue again. Trump took the bait — and then some.

CLINTON: “Or maybe he doesn’t want the American people, all of you watching tonight, to know that he’s paid nothing in federal taxes, because the only years that anybody’s ever seen were a couple of years when he had to turn them over to state authorities when he was trying to get a casino license, and they showed he didn’t pay any federal income tax.”

TRUMP (in one of his 25 interruptions of Clinton): “That makes me smart.”

In the law, Trump’s statement is called an admission. In a courtroom, the trier of fact would hear it. Admissions are the most damning form of evidence against a party. Juries weigh them heavily in deciding contested issues of fact.

Later in the debate, Trump interrupted Clinton again:

CLINTON: “And maybe because you haven’t paid any federal income tax for a lot of years.” [APPLAUSE] “And the other thing I think is important…”

TRUMP: “It would be squandered, too, believe me.”

That’s another admission. After the debate, an NBC reporter followed up directly with Trump in the “spin room,” and he dodged the question.

Conclusion: There’s More

“So if he’s paid zero,” Clinton said, “that means zero for troops, zero for vets, zero for schools or health. And I think probably he’s not all that enthusiastic about having the rest of our country see what the real reasons are, because it must be something really important, even terrible, that he’s trying to hide.”

What could that something terrible be? Clinton offered examples.

“First, maybe he’s not as rich as he says he is. Second, maybe he’s not as charitable as he claims to be. Third, we don’t know all of his business dealings, but we have been told through investigative reporting that he owes about $650 million to Wall Street and foreign banks.”

Trump responded in a bizarre fashion. He offered to release a list of his banks, and said he that he’ll release his tax returns as soon as Clinton releases her 33,000 deleted emails — an obvious impossibility.

“So it’s negotiable,” moderator Lester Holt suggested, referring to the release of Trump’s returns.

“No, it’s not negotiable,” Trump responded, quickly backing away from his meaningless bluff.

Why does Trump fear transparency in a way that distinguishes him from every presidential candidate in the last four decades? Because, as Trump himself might say, there’s something there. And that something may go well beyond Clinton’s checklist of possibilities.

One reason that Donald Trump refuses to release his tax returns could be the most important of all to voters. In my next post, I’ll discuss it. Here’s a hint: the title of that installment will be “From Russia With Love.”


Brock Turner is out of jail. Santa Clara, California County Judge Aaron Persky is fighting to keep his job. And Donald Trump is on the loose. All result from a culture that marginalizes rape.

The Stanford Rape Case

At the time of his crime, Turner was a Stanford student-athlete from Dayton, Ohio. The police report of January 18, 2015 describes in graphic detail the events resulting in his conviction.

At around one o’clock on Sunday morning, two graduate students were cycling on a path behind two houses on the Stanford University campus, when they noticed Turner and a woman on the ground having sex. But the woman appeared to be unconscious. As they got off their bikes and approached Turner, the first witness yelled, “Hey.”

Turner stood up and ran.

One of the cyclists chased, caught, and tackled Turner. Minutes later, the police arrived. As they interviewed one of the cyclists, he broke down and cried while describing the horrific incident he’d witnessed. The victim remained unconscious and curled in a fetal position. Paramedics took her to the hospital, where she was unresponsive for three hours. After regaining consciousness, she had no recollection of Turner or the assault.

The report notes that when the police questioned Turner, he said that he’d met the victim at a party that evening. He’d consumed seven cans of beer and two swigs of whiskey before kissing her. Then, he said, the two went outside, wound up on the ground, and he fondled her. He said he was having a good time with the victim, who seemed to be enjoying herself.

The Trial and Sentencing

When Turner took the witness stand at his March 2016 trial, he showed the opposite of remorse. He said the victim had consented to everything that happened. She was on the ground because she had fallen down. The bicyclists attacked him for unknown reasons.

A unanimous jury convicted him on all charges. In various statements included in the pre-sentencing probation report, Turner found plenty of culprits to blame.

Alcohol: “Being drunk, I just couldn’t make the best decisions and neither could she.”

Peer pressure: “One needs to recognize the influence that peer pressure and the attitude of having to fit in can have on someone.”

College culture: “I know I can impact and change people’s attitudes towards the culture surrounded by binge drinking and sexual promiscuity that protrudes through what people think is at the core of being a college student… I want to demolish the assumption that drinking and partying are what make up a college lifestyle.”

The defense’s pre-sentencing memorandum persisted in a bizarre variation of the consent theme that the jury had rejected: “[N]o one can pinpoint exactly when the victim went from being conscious to being unconscious.”

As he decided what to do, Judge Persky must have suffered through a period of intense cognitive dissonance. On the one hand, he had been captain of Stanford men’s lacrosse team. On the other hand, his campaign biography for election to the bench in 2002 boasted, “[I am] a criminal prosecutor for the Santa Clara County District Attorney’s Office, where I now prosecute sex crimes and hate crimes… In addition, I serve as an Executive Committee Member of the Support Network for Battered Women.”

Brock Turner’s victim sent an eloquent 12-page letter to the judge. She complained that probation would be “a soft timeout, a mockery of the seriousness of his assaults, and of the consequences of the pain I have been forced to endure.”

Turner could have received 14 years in prison. Judge Persky sentenced him to six months in the county jail. Public outrage followed. A petition to recall him has collected more than 1.3 million signatures. The Santa Clara County district attorney expressed publicly his lack of confidence in Persky and requested transfer of another sexual assault case to a different judge. A week before Turner’s release on September 2, Persky sought reassignment to the civil division.

Assessing the Damage

The economic modeling for this situation is straightforward. At a micro level, a criminal sentence is the price that the perpetrator pays for his or her wrongdoing — although the victim doesn’t receive anything of value in return.

The first step is the probability of detection and arrest. Two out of three sexual assaults go unreported. On college campuses, it’s worse: four out of five.

The next step is the likelihood of conviction. In Turner’s case, the victim’s letter describes in detail the hellish experience of pursuing a sexual assault charge through trial. That’s one reason only 13 out of 1,000 sexual assaults get referred to prosecutors, and only seven lead to a felony conviction.

The final step is the sentence. At a macro level, a prison sentence reflects the severity with which society views an offense.Time off for good behavior cut Turner’s jail time in half.

At Turner’s June 2 hearing, the victim read a condensed version of her 7,000-word letter to the judge. It included her feelings after a post-attack shower:

“I stood there examining my body beneath the stream of water and decided, I don’t want my body anymore. I was terrified of it. I didn’t know what had been in it, if it had been contaminated, who had touched it. I wanted to take off my body like a jacket and leave it at the hospital with everything else.”

Which Takes Us To Trump

Five days after Brock Turner’s September 2 release, Republican presidential candidate Donald Trump reaffirmed his 2013 tweet (the misspelling was Trump’s):

“26,000 unreported sexual assults in the military-only 238 convictions. What did these geniuses expect when they put men & women together?”

“It is a correct tweet,” he told NBC interviewer Matt Lauer. “There are many people who think that that’s absolutely correct.”

Trump rambled on — complete with factual misstatements — to avoid the obvious implications of his original tweet, namely, that merely putting men and women together sets the scene for inevitable sexual assault. Rather than challenge Trump on his offensive premise, Lauer allowed him to dissemble without interruption.

Another line in the letter from Turner’s victim to Judge Persky connects the cultural dots from the Stanford case to Donald Trump’s tweet:

“The seriousness of rape has to be communicated clearly,” she wrote, “and we should not create a culture that suggests we learn that rape is wrong through trial and error.”

Unfortunately, that culture already exists. Trump’s full-throated defense of a tweet for which he refuses to express remorse embodies and emboldens it.


Call them unsung heroes.

When attorneys in big law firms get things right, they deserve more attention than they receive. Recently, some of them have won important victories in the profession’s noblest pursuit: protecting our republic. And they’re not getting paid anything to do it.

Start with North Carolina. On July 29, a unanimous court of appeals threw out that state’s voter ID law. In an 83-page opinion, the court wrote that the law had targeted African Americans “with almost surgical precision.”

Behind that monumental win was an enormous investment of money and manpower — all of it pro bonoDaniel Donovan led a team of lawyers from Kirkland & Ellis LLP through two trials over a four-week period. More than fifty witnesses testified. After losing in the trial court — which issued a 479-page opinion denying relief — the plaintiffs appealed. On July 29, they won. Think of it as Kirkland & Ellis’s multi-million dollar contribution to democracy.

On, Wisconsin!

The same day that the court of appeals threw out North Carolina’s unconstitutional voter ID law, a federal judge in Madison invalidated Wisconsin’s effort to disenfranchise African Americans and Latinos. Big law firm partner Bobbie Wilson at Perkins Coie LLP was at the center of that effort. A nine-day trial and more than 45 witnesses (including six experts) culminated in Judge James B. Peterson’s 119-page ruling in favor of the plaintiffs.

On August 22, the seventh circuit court of appeals denied the request of Governor Scott Walker’s administration to stay Judge Peterson’s ruling.

North Dakota

Three days later, Richard de Bodo of Morgan, Lewis & Bockius LLP won a challenge to North Dakota’s voter ID laws. The targets of that legislation were Native Americans.

Like similar statutes enacted throughout the country since 2010, voter ID laws in North Carolina, Wisconsin, and North Dakota were products of a Republican-controlled legislature and governorship. The real motivation behind such restrictions on a fundamental right is as ugly as it is obvious.

Fighting Against the Demographic Tide of History

In 2014, the Brennan Justice Center noted that North Carolina and Wisconsin were in select company: “Of the 11 states with the highest African-American turnout in 2008, 7 have new restrictions in place: Mississippi (73.1 percent), South Carolina (72.5), Wisconsin (70.5), Ohio (70.0), Georgia (68.1), North Carolina (68.1), and Virginia (68.1).”

Of the 12 states with the largest Hispanic population growth between 2000 and 2010, North Carolina was one of nine that made it harder to vote. The others were South Carolina, Alabama, Tennessee, Arkansas, North Carolina, Mississippi, South Dakota, Georgia, and Virginia.

Rigged Elections? Yes, But in Whose Favor?

Now that the Republican nominee for President of the United States is pushing a dangerous and destructive new theme, the battle to vote has now assumed a great significance.

“I’m afraid the election is going to be rigged,” Donald Trump warned at a rally in Columbus, Ohio on August 1, right after the North Carolina federal appeals court ruled.

That evening he told an interviewer: “I’m telling you, November 8, we’d better be careful, because that election is going to be rigged. And I hope the Republicans are watching closely, or it’s going to be taken away from us.”

Dedicated attorneys — especially those in big firms willing to donate enormous resources to the cause — have worked hard to protect the right of every eligible person to vote. If they hadn’t, then the North Carolina legislature might, indeed, have rigged the election in a key swing state that President Obama had won. But that’s not what Trump meant, was it?

No, he sees a different enemy.

“[P]eople are going to walk in, they are going to vote 10 times maybe. Who knows?” he said in an August 2 interview.

He now has a website page: “Help Me Stop Crooked Hillary From Rigging This Election.” Such whining is actually much more than that. It’s a campaign tactic uniting two sinister and pervasive themes: racial division and attacks on the rule of law.

Facts Don’t Matter

Trump began stoking fear and division with a promise to build a wall to keep out Mexicans, whom he called rapists and drug dealers. He then coupled it with a “deportation force” to “round ’em up,” sending 11 million illegal immigrants “back where they came from.”

Then he professed ignorance about David Duke. (“I don’t know anything about David Duke… I know nothing about white supremacists.”) Before long, he unleashed hostility toward “Mexican” Judge Gonzalo Curiel. After scaring people, it was a short step for him to becoming their self-professed “law-and-order” savior.

Now he is wrapping his message in a long-discredited canard. Defenders of unconstitutional voter ID laws persist in fomenting “election fraud” paranoia, even though it lacks any factual basis. Professor Justin Levitt at Loyola Law School, Los Angeles tracked all claims of alleged voter ID fraud and found a grand total of 31 credible allegations – out of more than one billion ballots cast.

In the North Dakota case, Judge Daniel L. Hovland wrote, “There is a total lack of any evidence to show voter fraud has ever been a problem in North Dakota.”

Likewise, in the Wisconsin case, the judge ruled. “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities. To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease.”

And in the North Carolina case, a unanimous court of appeals concluded, “The record thus makes obvious that the ‘problem’ the majority in the General Assembly sought to remedy was emerging support for the minority party.”

Mob Mentality

The cry of phantom election fraud feeds Trump’s narratives, while taking them a perilous step farther: de-legitimizing an election that polls now show Trump is losing “hugely.” As his prospects sag, his vile rhetoric escalates.

Shortly after an August 10 poll showed Trump trailing in Pennsylvania by double digits, he went to that state and told an Altoona crowd, “Go down to certain areas and watch and study and make sure other people don’t come in and vote five times… The only way we can lose, in my opinion – I really mean this, Pennsylvania – is if cheating goes on… ”

Never mind that Pennsylvania hasn’t voted for a Republican Presidential nominee since 1988. Even an incumbent, George H.W. Bush, couldn’t carry it in 1992.

Trump then continued waving his red herring: “Without voter ID there’s no way you’re going to be able to check in properly.”

Scorched Earth

The real danger to democracy isn’t election rigging or cheating. It’s Donald J. Trump. De-legitimization – the ultimate ad hominem attack on a process to undermine its outcome – is a standard tactic from his deal-making playbook. When it appeared that he might not arrive at the Republican convention with enough delegates to secure the nomination, he warned about “riots,” if someone else won.

Never mind the rules; they’re for losers. Anyone fearing that Trump will win should fear more that he won’t.

Trump knows that facts don’t matter because – true or false – the branding sticks. For example, there was never any evidence to support Trump’s wild “birther” claims about President Obama in 2011. But five years later, 20 percent of Americans still believe — today — that he was born outside the United States.

Some people will always believe anything Trump says, even as he contradicts himself from one moment to the next. His infamous line was pretty accurate: “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.”

Perhaps he is discovering that “any” was an overstatement. But his de-legitimization strategy worked against most Republican politicians, who folded like cheap suits rather than break from the man-baby who would be king. Now the stakes are higher. His targets are the rule of law, the essence of democracy, and the peaceful transfer of Presidential power that occurs every four years.

The Real Losers

The eventual victims of Trump’s scorched earth approach will be the American people. If, as with his false “birther” claims five years ago, 20 percent of voters – about half of his current supporters – believe that Trump’s defeat results from a “rigged” election that “cheaters” won, the collateral damage to the county will be profound.

Donald Trump lives in a simple binary world of winners and losers – and he’s all about winning at any cost. He measures success in dollars. His latest tactic makes democracy itself the loser. Try putting a price on that. And thank some big law firms and their attorneys who are willing to make the investment required to stand in his way.


This is the fourth in what has become an endless series on Donald Trump’s continuing attacks on the rule of law. Those attacks seem to work for him in one respect. Every new one displaces an old one. He’s now relying on “Trump fatigue” — a condition that causes voters to say, essentially, “What stupid thing did he say today?”

Then they discount his offensive, false, or incoherent remark du jour. But his comments over time create a more complete picture and — in the case of the military — a recipe for disaster.

Recipe: Start With An Obnoxious Comment That People Forgive…

A year ago, Senator John McCain learned that he wasn’t a war hero after all.

“I like people who weren’t captured,” Donald Trump said on July 18, 2015, when asked about McCain’s critical comments about him.

He probably thought he was being witty. But it was quite a statement coming from someone who had avoided military service in Vietnam because of a still ambiguous medical condition. Trump said it was minor bone spurs in a foot. Which one? He couldn’t recall. Maybe both.

But don’t worry. His physician assured us in December, “If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency.”

Dr. Harold N. Bornstein didn’t describe how his physical examination of Trump compared with those he’d performed on Thomas Jefferson, Harry Truman, or Dwight Eisenhower.

Add Bigoted Cruelty That Troubled Some…

Having relegated McCain to the “loser” category in Trump’s binary world, he then revealed more completely his attitude about military sacrifice. U.S. Army Captain Humayun Khan received the Bronze Star and the Purple Heart for saving the lives of fellow soldiers in Iraq. At the Democratic convention, Khan’s father delivered a tribute to his fallen son. Trump lashed out, invoking stereotypes and generalizations to reinforce his anti-Muslim campaign theme.

“His wife,” Trump told ABC’s George Stephanopolous, “if you look at his wife, she was standing there. She had nothing to say. She probably, maybe she wasn’t allowed to have anything to say. You tell me, but plenty of people have written that. She was extremely quiet and it looked like she had nothing to say.”

Mix In Lawlessness That Has Been Lost In A Crowd Of Outrageous Comments…

Between those July 2015 and July 2016 bookends came a more disturbing episode. During the March 3, 2016 Republican debate, Fox News’ Bret Baier asked Trump about his advocacy of torture. If he made good on his threats, he would be ordering the military to commit illegal acts.

What if they refused?

“They won’t refuse. They’re not gonna refuse me. Believe me.”

“But they’re illegal,” Baier insisted.

“I’m a leader, I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it.”

Stir In Disrespect For The Military Generally… 

Soldiers such as retired four-star General John Allen won’t do it. He made that clear in his address to the Democratic convention, and Trump didn’t like it one bit. Within minutes, he tweeted, “General John Allen, who I never met but spoke against me last night, failed badly in his fight against ISIS. His record = BAD.”

Then Trump followed up personally at a rally in Denver.

“They had a general named John Allen. I never met him, and he got up and started talking about Trump, Trump, Trump… You know who he is? He’s a failed general. He was the general fighting ISIS. I would say he hasn’t done so well, right?”

Earlier, Trump had declared, “I know more about ISIS than the generals do. Believe me.”

Then he claimed that President Obama had “founded” ISIS. For the next two days, he and his media surrogates defended the falsehood as literally true. Then he said he was being sarcastic — “but not that sarcastic, to be honest with you.”

Whatever his intent, the impact has been clear. Within days, Hezbollah’s leader was using Trump’s absurd charge against America. Hassan Nasrallah is a Shiite backer of Syria’s brutal Assad regime, an ISIS foe, and a critic of the U.S. position calling for Assad to step down.

“This is not simple speech,” Nasrallah said in a speech to followers. “This is an American presidential candidate. This was spoken on behalf of the American Republican Party. He has data and documents.”

As Vice-President Biden observed, Trump’s comments caused the danger to military lives in the Middle East to go “up a couple clicks.”

Bake Until Someone Sees The Resulting Danger To The Country…

General Allen explained why he was speaking up when he did: “He’s talked about needing to torture. He’s talked about needing to murder the families of alleged terrorists. He’s talked about carpet-bombing ISIL. Who do you think is going to carpet-bombed when all that occurs? It’s going to be innocent families.”

Allen feared that if Trump actually followed through on his threats, he would be ordering illegal actions.

“I think we would be facing a civil military crisis, the likes of which we’ve not seen in this country before,” he said. “What we need to do is ensure that we don’t create an environment that puts us on a track conceivably where the United States military finds itself in a civil military crisis with a commander in chief who would have us do illegal things.”

Top With Callous Disregard for the Constitution…

Which takes us back to Khizr Khan. The most powerful 90 seconds of his convention remarks occurred when he looked directly into the camera and addressed Trump.

“Let me ask you: have you even read the constitution? I will gladly lend you my copy.”

It’s a serious question. Among legal scholars, Trump has achieved rare bipartisan consensus on his disregard for the rule of law and the limits of presidential power. From unfair “Mexican” judges (born in Indiana) to religion-based discrimination to brazen attacks on the press that include warnings of retribution to the owner of the Washington Post, Trump has been frighteningly consistent.

Everything around Trump exists to serve him and his whim of the moment, whatever it might be. The military is no exception. Fortunately, the men and women wearing the uniform answer to a higher calling.

As General Allen explained, “When we swear an oath to support and defend the Constitution, which is a document and a set of principles and it supports the rule of law, one of those is to ensure that we do not obey illegal orders.”

The Final Product: Digest It If You Can

Trump doesn’t care that his orders would be illegal. In that respect, his world is eerily similar to the bubble in which President Richard Nixon lived. As I noted in an earlier post, three years after precipitating a constitutional crisis that forced him to resign from office, Nixon finally admitted, “Well, when the President does it, that means it is not illegal.”

At least Trump isn’t President… yet.


It’s a mere formality. Every five years, the Department of Education renews the ABA’s power to accredit law schools. The June 2016 session before a DOE advisory committee (NACIQI) was supposed to be just another step in the rubber-stamping process. The NACIQI staff had recommended approval. The committee’s three-day session contemplated action on a dozen other accrediting bodies, ranging from the American Psychological Association to the American Theological Schools. Sandwiched between acupuncture and health education, the agenda contemplated an hour for the ABA.

What could go wrong?

For starters, committee members grilled the ABA’s representatives for an entire afternoon.

Questions About Law Student Debt?

First up for the ABA was the chair of the Section of Legal Education and Admissions to the Bar, Arizona Supreme Court Justice Rebecca White Berch. A committee member asked how the ABA assessed schools based on the interrelationship between student debt, bar passage rate, and graduate placement rates. Justice Berch said the ABA was looking “for a bar passing rate of 75 percent…. [W]as that part of your question?”

Actually, that was just a proposal set for an ABA Section hearing on August 6, but it wasn’t what the NACIQI had in mind.

NACIQI Member: “Sorry, no. I think my question also went to concern related to debt that students incurred while in law school and relationship of that to placement.”

ABA Managing Director Barry Currier tried to field that one:

“With respect to debt, we have been following a disclosure model for a number of years now and a lot of information is disclosed… [W]e collect information about student borrowing, but it is currently not part of the consumer information that schools are required to post with us… [T]here is no standard about how much debt is too much debt at this point in time.”

Let the squirming begin.

“So it may be,” Currier continued, “that as evidence mounts that students don’t shop very effectively and that as uncapped student loans are available, that we need to be more paternalistic, if you will, or more — we may need to make more information required and adopt standards around how much debt is too much debt.”

Placement Rates?

NACIQI: “What would be an appropriate placement rate for a law school?”

Currier: “Well our standards do not require any specific employment…[W]e don’t have a specific standard that a school must achieve in terms of placement.”

NACIQI: “But you are the ones who identified that legal education is very expensive… And if they can’t find a job it wrecks their lives.”

NACIQI: “[Y]ou can tell a lot from some of these low performing schools. And a school that sticks out to me is Whittier Law School in California… [T]he enrollment has dropped 51 percent since 2010, yet tuition has increased 31 percent since 2008.”

He wasn’t finished.

“Over 105 million dollars of Title IV funding has gone into this school. All the while, one in four graduates of this law school has obtained a full-time attorney job within nine months… Appalachian School of Law, University of LaVerne, Golden Gate, all have abysmal placement rates… [S]o I guess my question is specifically related to these low performing institutions: what are you guys doing?”

Then he answered his own question:

“[W]hen we look at these low performing schools, you guys are doing absolutely nothing.”

Can We Talk About Something Else?

Justice Berch’s attempt to change the subject was unavailing.

NACIQI: “We are talking about student debt, right, so — I guess you are not answering my question, and so I would like for us to stay on that… I just want to make sure we are talking about what is your responsibility and your response to these lower performing schools. I mean, have they been put on probation? That’s my first question.”

Justice Berch: You make a valid point. The answer is — has anyone yet been put on probation? No…”

NACIQI: “How many institutions have you denied accreditation to for low pass rates?

Justice Berch: For low pass rates alone, none.”

NACIQI: “Over the past five years how many institutions have you withdrawn your accreditation from?”

Currier: “Zero, zero.”

You Think The ABA Can’t Do The Job?

During the NACIQI’s discussion on the motion to recommend renewal of the ABA’s accreditation power, one member put the problem bluntly:

“I am troubled that the ABA just simply isn’t independent enough for this responsibility… I find it very difficult to think that they are going to be objective enough to continue to carry out this responsibility. And I reluctantly conclude that the ABA is not the appropriate accreditor for our law schools…[T]he crushing debt load on thousands and thousands of students is too serious for us… And I think the debt load is not going to get better if we say yes to this motion.”

Another member added: “I think that objectivity is important as you go through this process, so I would think an independent body that does not have the conflict of interest that the ABA has.”

It’s Worse Than They Thought

The NACIQI didn’t consider a recent illustration of the ABA’s independence problems. Former ABA President Dennis Archer is chairman of the national policy board of Infilaw — a consortium of three for-profit law schools. At those schools — Arizona Summit, Florida Coastal, and the Charlotte School of Law — students graduate with six-figure debt and dismal prospects for a meaningful job requiring bar passage. (Full-time long-term JD-required job placement rate ten months after 2015 graduation: Arizona Summit — 40 percent; Florida Coastal — 39 percent; Charlotte — 26 percent.)

On November 18, 2013, Archer and Infilaw’s chief executive officer co-signed a seven-page tour de force warning the DOE about the perils of applying the “Gainful Employment Rule” to “proprietary law schools and first professional degree schools in general.” The letter (on Infilaw stationery) argued, among other things, that the proposed rule was unnecessary because the ABA — as an accrediting body — ensures that InfiLaw “must offer an education that will help students achieve their goals.”

Six months later, Archer became chairman of the ABA’s Task Force on the Financing Legal Education. A year later — June 2015 — the Task Force acknowledged that 25 percent of law schools obtain at least 88 percent of their revenues from tuition. But it refused to recommend an obvious remedy: financial penalties for schools where students incur massive law school debt in exchange for dismal long-term JD-required job prospects.

The Task Force’s recommendations were embarrassingly inadequate, but the ABA House of Delegates accepted them.

One More Chance?

The ABA’s culture of self-interest and insularity has now created a bigger mess. Some NACIQI members favored the “nuclear” option: recommending denial of the ABA’s accrediting authority altogether. The committee opted to send a “clear message” through less draconian means.

The final recommendation was to give the ABA a 12-month period during which it would have no power to accredit new law schools. Thereafter, the ABA would report its progress in addressing the committee’s concerns, including the massive debt that students are incurring at law schools with poor JD-required placement rates.

As one member put it, “It is great to collect data, but they don’t have any standard on placement. What’s the point of collecting data if you can’t…use the data to help the students and protect the students…”

Another member summarized the committee’s view of the ABA: “This feels like an Agency that is out of step with a crisis in its profession, out of step with the changes in higher ed, and out of step with the plight of the students that are going through the law schools.”

The day of reckoning may not be at hand, but it’s getting closer.