THE NHL, BRAINS, AND LAWYERLY DENIAL

Back in 1988, the Surgeon General of the United States issued a report about the addictive qualities of tobacco. In summary form, its “Major Conclusions” were:

“1. Cigarettes and other forms of tobacco are addicting.

2.  Nicotine is the drug in tobacco that causes addiction.

3. The pharmacologic and behavioral processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine.” — The Health Consequences of Smoking: Nicotine Addiction: A Report of the Surgeon General.

All of that had been obvious to many smokers who’d tried unsuccessfully to quit — and to many others who had watched their efforts. But six years later, the presidents and CEOs of the seven major tobacco companies faced a continuing avalanche of tobacco-related lawsuits. Appearing jointly before a congressional committee on the health effects of tobacco, Congressman Ron Wyden posed a question that he asked each of them to go down the line and answer:

“Do you believe nicotine is not addictive?”

With only minor variations in word choice, one-by-one they replied, “I believe nicotine is not addictive.”

It became an iconic scene of corporate denial. Three years later, the companies did an abrupt about-face and settled the largest class action and government cases against them.

Not Quite Today’s “Tobacco Moment”

The tobacco episode came to mind as I read Senator Richard Blumenthal’s first two questions to Gary Bettman, commissioner of the National Hockey League. But there’s a critical difference: The tobacco executives stood together as one against the onslaught; Bettman and the NHL are all alone.

In a March 2016 congressional hearing, Representative Jan Schakowsky asked Jeff Miller, the NFL’s senior vice-president for health and safety, whether there was a link between football and degenerative brain disorders like chronic traumatic encephalopathy (CTE).

“The answer to that is certainly, yes,” Miller said.

It seemed reasonable to ask similar questions about hockey, and Blumenthal posed these two (among others) in a letter to Bettman:

  1. Do you believe there is a link between CTE and hockey? If you do not, please explain how head trauma in hockey differs from head trauma in football.
  2. Do you dispute that the documented CTE of former NHL players, like Derek Boogaard, is linked to injuries sustained while playing in the NHL?

Bettman reframed the first question and ignored the second one.

A Lawyerly Treatment

Bettman is a graduate of NYU Law School. The league’s litigation attorneys probably drafted his 24-page response to Blumenthal. But he signed what is essentially a legal brief outlining the NHL’s defenses to former players’ pending litigation against the NHL.

Bettman’s reframing of the first question is subtle: “The core of your letter goes to the question of why the NHL has not acknowledged a ‘link’ between playing hockey and developing CTE if an NFL executive may have done so with respect to football.”

Then he recites in great detail the scientific community’s failure to reach consensus on the causation between concussions in contact sports and CTE. Scientific consensus is the way experts approach research issues. But it has never been the standard by which ordinary, everyday people decide whether to engage in an activity. For example, it takes far less than a reasonable degree of medical and scientific certainty — the legal standard implicit in Bettman’s letter — for a parent to make a decision about what is best for a child.

For starters, a scientific study requires a sufficiently large sample size. For CTE, the sample is tiny and will be for a long time. Confirmation of CTE occurs only by examination of a deceased person’s brain. To date, only 200 brains with CTE have been analyzed. As athletes die, the sample size will increase, but it’s a slow process. Even in brains found to have CTE, isolating all variables to identify the specific contribution of contact sports is a daunting task that will take years, assuming it happens at all.

Here’s another way of reframing Bettman’s position on this issue: The NFL shouldn’t have acknowledged the link, either.

And Another Thing…

Bettman then suggests that the key difference between football and hockey is the frequency of hits to the head. That’s why for years boxers were the exclusive subjects of brain injury studies. Interestingly, footnote 37 of his letter defends fighting as an essential element of hockey:

“Outside the context of ‘staged fighting,’ we note also that players (not just Club General Managers) believe that some types of fighting — though penalized — play a useful and worthwhile role in protecting ‘skilled players’ from being targeted by more aggressive opponents because any such ‘targeting’ activity is capable of being appropriately ‘policed’ by a teammate… [S]pontaneous fights — which, of course, are also penalized — provide a ‘safety valve’ that enables players to confront opposing players in a less dangerous fashion than they might otherwise engage in through dangerous ‘stick work’ or cheap shots.”

But not to worry. Bettman notes that only two of the league’s video-analyzed concussions resulted from fights. And please, let’s not discuss NHL Deputy Director Bill Daly’s 2011 email: “Fighting raises the incidence of head injuries/concussions, which raises the incidence of depression onset, which raises the incidence of personal tragedies.”

And Another Thing…

Finally, Bettman says that the NHL has educated players on the dangers of concussions. But he says it’s premature to provide a formal warning about CTE. In fact, he suggests, it could even be dangerous to do so. Players might decide they have an irreversible brain disease when they have only depression or other treatable disorders that have similar symptoms.

He concludes with an example. Rather than respond to Blumenthal’s question about Derek Boogaard, Bettman turns to another former player, Todd Ewen. After Ewen committed suicide. his autopsy showed no CTE. Because his widow said that she and Todd “were sure Todd must have had CTE,” Bettman leaps to an absurd conclusion: “This, sadly, is the type of tragedy that can result when plaintiffs’ lawyers and their media consultants jump ahead of the medical community.”

The Real Troublemakers

For Bettman, the villain in “the current public dialogue about concussions in professional sports (as well as youth sports)” seems to be “media hype driven in part by plaintiffs’ counsel.”

In December 1994, another NYU Law School graduate, NFL Commissioner Paul Tagliabue said: “On concussions, I think this is one of those pack journalism issues, frankly…The problem is a journalist issue.”

Twenty years later, what Bettman describes as the absence of medical consensus about the causal relationship between concussions and CTE didn’t stop the NFL from agreeing to a $1 billion class action settlement with 5,000 former players claiming brain injury. On the sliding scale of monetary awards to those victims, former players who died “with CTE” are in the second highest dollar recovery category — with a maximum of $4 million.

The NHL is only two decades behind.

LAW AND DISORDER, GUNS, AND LEADERSHIP

Shortly after the Baton Rouge police shootings, Donald Trump tweeted: “How many law enforcement and people have to die because of lack of leadership in our country. We demand law and order.”

Baton Rouge is about a lot of things. But Trump’s latest branding initiative — “leadership on law and order” — isn’t among them.

Facts Should Matter

On July 17, Baton Rouge police officers responded to a call about a man carrying a gun. When they arrived, he used an AR-15 style semi-automatic weapon to kill three of them and injure three others. Earlier this month, a sniper killed five Dallas police officers and wounded seven more. In addition to his rifle, the shooter was armed with a pistol; he had a small arsenal in his home. Four weeks earlier, a lone killer used a semi-automatic rifle to end the lives of 49 people and wound another 53 as they partied in an Orlando nightclub.

One place to begin a meaningful discussion of these episodes — and an unfortunate number of others — might be the weapons of such mass destruction. Louisiana, Texas, and Florida permit the private ownership of assault weapons. When the NRA defends those firearms as essential to the sport of hunting, I’m reminded of my father’s line:

“If you want to call it a sport, make it a fair fight,” he would say. “Either arm the deer, or require the hunter to chase Bambi down and kill him with his bare hands.”

Lobbying Against Research To Find The Truth

Texas and Louisiana have open carry laws. Wear your gun with pride. Just hope that if you pull it out of the holster, you won’t hurt yourself or someone close to you. That’s no joke. The frequency of self-inflicted wounds and accidental shootings is one reason that the NRA has quietly blocked the Centers for Disease Control and Prevention from researching gun violence since 1996.

The last CDC-funded study on the subject appeared in the October 1993 issue of the New England Journal of Medicine. It concluded: “Rather than confer protection, guns kept in the home are associated with an increase in the risk of homicide by a family member of intimate acquaintance.”

The study noted: “Previous case-control research has demonstrated a strong associate between the ownership of firearms and suicide in the home. Also, unintentional shooting deaths can occur when children play with firearms they have found at home. In the light of these observations and our present findings, people should be strongly discouraged from keeping guns in their homes.”

Hello, NRA lobby; goodbye, CDC funds for research on gun violence — for 20 years! But facts are still facts. In 2010, almost 60 percent of all gun deaths were suicides. More than 600 deaths resulted from gun accidents. Eight percent of the lethal accidental shooters were under the age of six.

Shooting From The Hip

After the Orlando shootings, Trump told a radio interviewer, “It’s too bad that some of the young people that were killed over the weekend didn’t have guns attached to their hip, frankly, where bullets could have flown in the opposite direction…It would have been a much different deal… Had people been able to fire back it would have been a much different outcome.”

On Saturday, he reiterated the point at a rally in Las Vegas: “If there were a couple of folks — man, woman — had a gun strapped right here,” or a gun strapped very nicely to the ankle, this no good sick, sick, perverted, horrible terrorist — terrorist –was in there starting the shooting, one of those people would’ve had the bullets going the other way, folks, it would have been a whole different story.”

Even the NRA’s public face, Wayne LaPierre, was uncomfortable with that line of Trumpisms: “I don’t think you should have firearms where people are drinking,” he told a CBS “Face the Nation” interviewer the next day.

Less than 24 hours later, Trump reversed himself and lined up with LaPierre: “When I said that if, within the Orlando club, you had some people with guns, I was obviously talking about additional guards or employees.”

Obviously.

To appease the NRA, Trump also backed away from his “no fly-no buy” position that people on the terror watch list should not be able to buy guns.

The Police Get It

Trump uses Orlando, Dallas, and Baton Rouge to reinforce the NRA’s position on guns. But it’s an awkward fit. After the Sandy Hook shootings in 2012, the International Association of Chiefs of Police and the Major City Chiefs pushed for tougher gun control laws, including an assault weapons ban. In the wake of the Dallas and Baton Rouge shootings, the president of the Cleveland Police Partolmen’s Association asked Ohio Governor John Kasich to suspend open carry laws for the area near the Republican party’s nominating convention.

According to his website, Trump opposes anything that would interfere with the right to bear arms, including “semi-automatic rifles and standard magazines that are owned by tens of millions of Americans. Law-abiding people should be allowed to own the firearm of their choice. The government has no business dictating what types of firearms good, honest people are allowed to own.”

When Trump pontificates about the need for “leadership” to establish “law and order,” what does he mean? Whatever the NRA wants. True leadership would take him away from pandering to Wayne LaPierre and toward protecting the police officers about whom he claims to care so deeply.

ASSOCIATE PAY AND PARTNER MALFEASANCE

Cravath, Swaine & Moore raised first-year associate salaries from $160,000 to $180,000 — the first increase since January 2007. As most law firms followed suit, some clients pushed back.

“While we respect the firms’ judgment about what best serves their long-term competitive interests,” wrote a big bank’s global general counsel, “we are aware of no market-driven basis for such an increase and do not expect to bear the costs of the firms’ decisions.”

Corporate clients truly worried about the long-run might want to spend less time obsessing over young associates’ starting salaries and more time focusing on the behavior of older attorneys at their outside firms. In the end, clients will bear the costs of short-term thinking that pervades the ranks of big firm leaders. Some already are.

Historical Perspective

Well-paid lawyers never generate sympathy. Nor should they. All attorneys in big firms earn far more than most American workers. But justice in big law firms is a relative concept.

Back in 2007 when associate salaries first “jumped” to $160,000, average profits per equity partner for the Am Law 100 were $1.3 million. After a slight dip to $1.26 million in 2008, average partner profits rose every year thereafter — even during the Great Recession. In 2015, they were $1.6 million — a 27 percent increase from seven years earlier.

In 2007, only 19 firms had average partner profits exceeding $2 million; in 2015 that group had grown to 29. But the average doesn’t convey the real story. Throughout big law, senior partners have concentrated power and wealth at the top. As a result, the internal compensation spread within most equity partnerships has exploded.

Twenty years ago, the highest-paid equity partner earned four or five times more than those at the bottom. Today, some Am Law 200 partners are making more than 20 times their lowest paid fellow equity partners in the same firm.

It Gets Worse

Meanwhile, through the recent prolonged period of stagnant demand for sophisticated legal services, firm leaders fueled the revolution of partners’ rising profits expectations by boosting hourly rates and doubling leverage ratios. That’s another way of saying that they’ve adhered stubbornly to the billable hours model while making it twice as difficult for young attorneys to become equity partners compared to 25 years ago.

The class of victims becomes the entire next generation of attorneys. Short-term financial success is producing costly long-term casualties. But those injuries won’t land on the leaders making today’s decisions. By then, they’ll be long gone.

So What?

Why should clients concern themselves with the culture of the big firms they hire? For one answer, consider two young attorneys.

Associate A joins a big firm that pays well enough to make a dent in six-figure law school loans. But Associate A understands the billable hour regime and the concept of leverage ratios. Associate attrition after five years will exceed 80 percent. Fewer than ten percent of the starting class will survive to become equity partners. Employment at the firm is an arduous, short-term gig. In return for long-hours that overwhelm any effort to achieve a balanced life, Associate A gets decent money but no realistic opportunity for a career at the firm.

Associate B joins one of the few firms that have responded to clients demanding change away from a system that rewards inefficiency. Because billable hours aren’t the lifeblood of partner profits, the firm can afford to promote more associates to equity partner. Associate B joins with a reasonable expectation of a lengthy career at the same firm. Continuity is valued. Senior partners have a stake in mentoring. The prevailing culture encourages clients to develop confidence in younger lawyers. Intergenerational transitions become seamless.

Associate A tolerates the job as a short-term burden from which escape is the goal; Associate B is an enthusiastic participant for the long haul. If you’re a client, who would you want working on your matter?

The Same Old, Same Old

As clients have talked about refusing to pay for first-year associate time on their matters, big firms’ upward profit trends continue. But the real danger for firms and their clients is a big law business model that collapses under its own weight.

As it has for the past eight years, Altman-Weil’s recently released 2016 “Law Firms In Transition” survey confirms again the failure of leadership at the highest levels of the profession. Responses come from almost half of the largest 350 firms in the country. It’s a significant sample size that provides meaningful insight into the combination of incompetence and cognitive dissonance afflicting those at the top of many big firms.

When asked about the willingness of partners within ten years of retirement to “make long-term investments in the firm that will take five years or more to pay off,” fewer than six percent reported their partners’ “high” willingness to make such investments. But at most firms, partners within ten years of retirement are running the place, so the investments aren’t occurring.

Almost 60 percent of firm leaders reported moderate or high concern about their law firms’ “preparedness to deal with retirement and succession of Baby Boomers.” Meanwhile, they resolve to continue pulling up the ladder, observing that “fewer equity partners will be a permanent trend going forward” as “growth in lawyer headcount’ remains a “requirement for their firms’ success.”

Do law firm leaders think they are losing business to non-traditional sources and that the trend will continue? Survey says yes.

Do law firm leaders think clients will continue to demand fundamental change in the delivery of legal services? Survey says yes. (56 percent)

Do law firm leaders think firms “are serious about changing their legal service delivery model to provide greater value to clients (as opposed to simply reducing rates)”? Survey says no. (66 percent)

Do clients think law firms are responding to demands for change? Survey says most emphatically no! (86 percent)

But do law firm leaders have confidence that their firms are “fully prepared to keep pace with the challenges of the new legal marketplace”? Survey says yes! (77 percent)

If cognitive dissonance describes a person who tries to hold two contradictory thoughts simultaneously, what do you call someone who has three, four or five such irreconcilable notions?

At too many big law firms the answer is managing partner.

LAW SCHOOLS AND THE NEW YORK TIMES

On June 17, Noam Scheiber’s article, “An Expensive Law Degree and No Place to Use It,” appeared in The New York Times. He focused on individual human tragedies resulting from the legal education bubble.

Four days later, Professor Steven Davidoff Solomon countered with his Times column, “Law School Still a Solid Investment, Despite Pay Discrepancies.” Notwithstanding the title, he’s moving in Scheiber’s direction.

Learning from Mistakes

Professor Solomon’s prior ventures into legal education haven’t gone particularly well. In November 2014, he wrote “[T]he decline in enrollment could lead to a shortage of lawyers five years from now.” Highlighting Thomas Jefferson School of Law as one of the marginal schools fighting to remain alive, Solomon suggested, “It may be tempting to shut them in these difficult times, but it can cost tens of millions to open a new one. Better to invest and cut back on expenses for a while and see what happens.”

Consistent with his area of expertise — financial and securities regulation — Professor Solomon was relying on the market to work. But in legal education, it never gets a chance. Bankruptcy laws and the federal student loan program insulate law schools from accountability for their graduates’ poor employment outcomes.

Waiting to “see what happens” became a triumph of hope over reality. For the Thomas Jefferson class of 2013, the full-time long-term JD-required employment rate nine months after graduation was 29 percent. For the class of 2014, it was 30 percent. Even with an additional month for the class of 2015 to find jobs, the ten-month FTLT-JD-required employment rate was 24 percent. But the school did win that nagging fraud case brought by a recent graduate.

In April 2015, Solomon’s column on legal education and the profession was so riddled with errors that I climbed out of a hospital bed to write a responsive post culminating in this question, “Whatever happened to The New York Times fact-checker?”

Almost There

With all of that carnage in the rearview mirror, Professor Solomon’s June 21 article assumes a more moderate tone. Most importantly, he acknowledges the different legal education markets that exist for new graduates: “[I]t is clear that it is harder out there for the lower-tier law schools and their graduates.”

Noting that some big firms announced starting salary increases to $180,000 for the class of 2016, he cautions, “Only the lucky 17 percent of graduates earn salaries this high. To be in this group, you needed to go to a top 10 school or graduate in the higher ranks of the top quartile of law schools. Things are harder for every other law graduate.”

Solomon also accepts the bimodal distribution of starting salaries that results from the different markets for law graduates: “[W]hile 17 percent of graduates earned median salary of $160,000 in 2014, about half had a median starting salary of $40,000 to $65,000.”

The article could and should have ended with this: “Either way, it is clear that it is harder out there for lower-tier law schools and their graduates.”

In Defense of Fellow Professors?

Four days before Solomon’s article, Noam Scheiber’s Times piece profiled once-hopeful students at Valparaiso University School of Law. They’d incurred massive debt for a JD degree, but couldn’t find jobs requiring one. Scheiber also quoted a professor who recently headed the school’s admissions committee: “If we could go back, I think we should have erred a little more on the side of turning people down.”

Immediately after the publication of Scheiber’s article, social media took over when a law professor complained in an open letter to Scheiber: “Have you seen this line of peer-reviewed research, which estimates the boost to earning from a law degree including the substantial proportion of law graduates who do not practice law?”

The cited “line of peer-reviewed research” consisted of one study, co-authored by that professor in 2013. When Scheiber invited the professor to identify any factual errors in his article, the professor provided six alleged mistakes. For anyone interested in diving into those weeds, Scheiber posted the six items and his response on his Facebook page, including this:

“It’s not worth reviewing the controversy about your work on law graduate earnings here, since the criticisms are well-established. But suffice it to say, I think it’s strange to respond to a claim that the economic prospects of people graduating after the recession have fundamentally changed relative to those who graduated before the recession with a study that only includes people who graduated prior to 2009.”

(UPDATE: On Friday, June 24, the professor responded to Scheiber’s response.)

Among the many other criticisms to which Scheiber refers is the 2013 study’s failure to consider differences among law schools in their graduates’ incomes. In other words, it ignored the actual law school markets.

Nearing the Finish Line

Professor Solomon’s latest article centers on the importance of recognizing those different markets. But he still cites the 2013 study for the proposition that “most law students earned a premium of hundreds of thousands of dollars over what they would have earned had they not gone to law school, even taking into account the debt they accrue.”

Even so, Solomon’s slow walk away from the 2013 study improves on his April 2015 column. There, he relied on it to suggest that an “acceleration in compensation results in a premium of $1 million for lawyers over their lifetime compared with those who did not go to law school.” Now he’s down to “hundreds of thousands of dollars” for “most law students.”

Professor Solomon teaches at a top school, UC-Berkeley. He knows that plenty of students at other schools have a tough road ahead. Solomon no longer refers to an overly broad $1 million lifetime premium. He has also added a qualifier (“most law students” — meaning a mere 51 percent) — to whatever he thinks the study proves about the economic benefit of a JD. In other words, he has rendered the 2013 study meaningless to anyone considering law school today.

So why does Professor Solomon continue to cite the study at all? Better not to ask. Accept progress wherever you find it.

 

TRUMP AND THE RULE OF LAW — PART II

Every week, Donald Trump intensifies his attack on the rule of law and the fundamental American values that underlie it. In the wake of the Orlando shootings, he added two more.

— Expanding his proposed ban on all Muslim immigrants, he added migrants from any part of the world “with a proven history of terrorism” against the United States or its allies.

— He withdrew The Washington Post’s press credentials to campaign access. That was the culmination of a crusade that Trump has pursued for a month against Jeff Bezos, who owns Amazon and the paper.

Make no mistake. Trump’s actions are part of his “crazy-like-a-fox” campaign strategy. And they fit together neatly.

Why the Post?

Trump’s stated reason for banning The Washington Post stems from a headline that read: “Trump suggests President Obama was involved with the mass shooting in Orlando.”

Here’s Trump’s post-Orlando comment on Fox News that prompted the headline:

“Look, we’re led by a man that either is not tough, not smart, or he’s got something else in mind. And the something else in mind — you know, people can’t believe it. People cannot, they cannot believe that President Obama is acting the way he acts and can’t even mention the words ‘radical Islamic terrorism.’ There’s something going on. It’s inconceivable. There’s something going on.”

In the same interview, Trump was asked to explain why he called for Obama to resign in light of the shooting and he answered, in part: “He doesn’t get it or he gets it better than anybody understands — it’s one or the other, and either one is unacceptable.”

What does he mean by “gets it better than anybody understands”? What’s the “something else in mind” that “people can’t believe”? What’s the “something going on”?

A Familiar Ring

Innuendo is an enduring Trump technique. It feeds irrational conspiracy theories that linger. And irrationality combines with the absence of fact-based analysis to become Trump’s most potent voter weapon.

For example, in April 2011, Trump revived discredited “birther” claims that President Obama wasn’t born in the United States.

“We’re looking into it very, very strongly. At a certain point in time I’ll be revealing some interesting things,” he told CNN. “I have people that have been studying it and they cannot believe what they’re finding.”

What “”unbelievable” things were Trump’s investigators in Hawaii finding? Nothing. But irrationality has allowed his false claim to live on in the hearts of his constituents. Even today, 20 percent of Americans still believe that President Obama was born outside the United States and fall into one of two categories: nine percent have “solid evidence” to prove it; eleven percent admit that it’s just their suspicion.

It gets worse. Twenty-nine percent of Americans — and 43 percent of Republicans — say they think the President is Muslim. So now you know what Trump really means when he says “something is going on” involving the President and Orlando. And you know to whom he is saying it. Which takes us to the link between Trump’s current dual assault: Muslims and the press.

Troubling Precedent

Apparently, it’s okay for Trump to imply vile and non-existent connections between the President, Muslims, and a terrorist rampage by an American citizen who wouldn’t have qualified for Trump’s proposed ban anyway. But apparently it’s not okay for the media to call him out on such dangerous demagoguery. It’s not sufficient for a widely respected newspaper to cover a story. It has to cover it precisely the way Trump wants it to read.

When he talks about “opening up our libel laws,” that’s what he really means. And when he says he thinks he’ll possess the presidential power to do so, he proves his ignorance and/or willful disregard of how individual states’ laws and the U. S. Supreme Court’s application of First Amendment principles shape that area of jurisprudence.

This pattern of revenge isn’t new for Trump, but his previous revocations of press credentials have received less attention: The Des Moines Register (after an editorial called on Trump to drop out of the race), The Huffington Post (too liberal), The Daily Beast (after an article citing Ivana Trump’s allegations against Trump that she later walked back), Politico (after writing an unflattering story about Trump’s then-campaign manager Corey Lewandowski), and BuzzFeed (never credentialed, probably because of a lengthy and unflattering article about Trump in 2014).

Univision was initially banned after Trump filed a $500 million lawsuit against the company for canceling its broadcast of Trump’s Miss USA pageant. Since settling that litigation in February, Univision says the Trump campaign has credentialed its reporters only twice.

And More Precedent

Apart from Trump himself, his words and deeds have historical forebears. After the 1941 attack on Pearl Harbor, fear led to Japanese internment camps. After the Soviet Union detonated its first atomic weapon and China fell to Communism in 1949, Senator Joseph McCarthy’s crusade included attacks on the U. S. Army and baseless claims that Communist spies controlled the State Department.

McCarthy fed on fear and paranoia. He survived because others were reluctant to challenge a dangerous demagogue. His fellow Republicans — even President Eisenhower — remained silent as he ruined thousands of lives. Only a free press brought him down and returned the nation to its senses.

Televised hearings and Edward R. Murrow’s March 9, 1954 investigative program subjected McCarthy and his methods to the disinfectant of sunlight. But for the preceding five years, he left destruction in his wake. Trump is far more dangerous than McCarthy ever was. And we don’t have five years to let him run roughshod over our country’s most fundamental principles.

ONE LAWYER’S DILEMMA

Paul Manafort is campaign chairman and chief strategist for Donald Trump. He also has a law degree from Georgetown. That combination has landed him in a tough spot.

The J.D. from Georgetown means Manafort can’t plead ignorance about the significance of Trump’s escalating attack on the rule of law. As The New York Times reported recently, reliably conservative legal scholars express deep concern over Trump’s failure to acknowledge the limits of presidential power. Uniformly, every high-level Republican has repudiated Trump’s criticisms of Judge Gonzalo Curiel, the Indiana-born federal judge presiding over the cases against Trump University:

Senator Mitch McConnell: “I couldn’t disagree more with what he had to say.”

Representative Paul Ryan: “I completely disagree with the reasoning behind that.”

Former majority leader Newt Gingrich, who has made no secret of his vice-presidential ambitions on a Trump ticket: “This is one of the worst mistakes Trump has made. I think it’s inexcusable,”

And that backlash came before June 5, when Trump added all Muslims to his growing list of “possibly” biased judges who can’t give him a fair shake in a courtroom because their ethnicity collides with his most vile public policy pronouncements.

Manafort Knows Better, Even If His Client Doesn’t

Trump is no stranger to litigation. According to USA Today, his personal and business interests have been involved in more than 3,500 state and federal legal actions — 70 of them filed after announcing his presidential bid. Playing a game that’s worse than identity politics, he’s now engaged in a full frontal assault on the integrity of the judiciary for obvious personal gain in a private lawsuit. At best, it’s unseemly. At worst, it’s could be an unlawful attempt “to influence, intimidate or impede” a judge “in the discharge of his duty” (18 U.S.C. Section 1803) and/or “obstruct the administration of justice” (18 U.S.C. Section 401).

At Georgetown, Paul Manafort learned the legal rules governing every litigant’s right to challenge a judge’s fairness. Prevailing on a motion to recuse requires a factual showing, not a racist rant. The law is well settled that ethnicity or national origin is not a valid basis for disqualification. In fact, a recusal motion on those grounds would be on the receiving end of sanctions for frivolous pleading. It’s no accident that Trump’s outside lawyers — led by the widely respected Daniel Petrocelli at O’Melveny & Myers — haven’t pursued that path.

Enter Manafort

When Trump hired Manafort in April, Senator Ted Cruz was collecting more than his share of delegates from states where Trump had won the popular vote. Trump complained that the system was “rigged,” “corrupt” and “crooked.” Manafort’s assignment was to corral Trump delegates and keep them in line to avoid a contested convention.

In 1976, Manafort was involved in a similar task. Only two years out of law school, he was was President Gerald Ford successful “delegate-hunt coordinator” for eight states during Ronald Reagan’s attempt to wrest the nomination. After Ford lost the general election, Manafort spent three years working for a private law firm in Washington, D.C.

When Reagan prevailed in 1980, the president nominated him to the board of directors of the Overseas Private Investment Corporation — the government’s development finance institution. At that point, what would become Manafort’s lucrative career began. Since 1981, he’s been a lobbyist and consultant, sometimes for notorious international clients.

Master of Extreme Makeovers

In 2005, Manafort became an adviser to Viktor Yanukovych, whose political career seemed over after losing the Ukranian election for prime minister. With the help of Manafort, Yanukovych won in 2010 by exploiting popular frustration with government, exacerbating cultural divisions within the Ukranian electorate, and railing against NATO.

Sound familiar? History may not repeat itself, but sometimes it rhymes. Cue the Trump assignment.

His Latest Client Makeover

On April 21, 2016, newly appointed Manafort assured members of the Republican National Committee that Trump’s rhetorical antics were just an act for the crowd.

“That’s what’s important for you to understand – that he gets it, and that the part he’s been playing is evolving now into the part you’ve been expecting…”

A month later, Manafort had accomplished his delegate mission and received a new title: campaign chairman and chief strategist. Since then, Trump’s attacks on the rule of law have intensified. It now appears that, in contrast to Manafort’s April 21 prediction, the only thing that Trump has “played” is Manafort as he dutifully lined up establishment Republicans who fell in line.

As uncomfortable as Trump’s statements have made those establishment Republicans, none has stepped forward to defend their candidate’s recent outbursts. None has repudiated his or her endorsement, either. Even as they decry Trump’s comments as deplorable, they implicitly suggest that his problem is speaking vile thoughts, not that he has them.

What Could Be Worse?

The same supporters rationalize their continuing support of Trump by assuring themselves that Hillary Clinton as president would be worse. They can’t possibly know that. Senator Bob Corker said that Trump — who turns 70 this month — “is going to have to change.” But change to what? Has anyone ever tried to change a 70-year-old billionaire’s fundamental beliefs, character, or behavior? Besides, Trump has made it clear that he has no desire to change. His approach has worked.

Corker’s position is a triumph of hope over reality. As for Trump’s positions, beyond divisive and destructive rants and branding tag lines –“We’ll make America great again” and “We’ll build a wall” — no one can state with confidence what they will be in five minutes, much less what they would become if he won the presidency.

Which takes us back to Paul Manafort, who assured RNC members in April that Trump was evolving. He went on to say, “Fixing personality negatives is a lot easier than fixing character negatives. You can’t change somebody’s character, but you can change the way a person presents himself.”

Either Manafort shares responsibility for encouraging Trump’s subsequent evolution, or he has an uncontrollable client. If it’s the former, he has put his candidate and his country on a treacherous course; he knows that from his legal training at Georgetown. If it’s the latter, his Trump-tarnished reputation will continue to deteriorate as he remains the campaign’s top strategist. Either way, he’s already lost. And so has the country.