Kris Kobach wants to be Secretary of Homeland Security. His “Strategic Plan for the Department’s First 365 Days” includes a Muslim registry (Item #1: “Update and reintroduce and NSEERS screening and tracking system”) and stopping all Syrian refugees (Item #3). So far, the media hasn’t focused on Item 21, which involves “voter rolls.”
Don’t tell anyone about the Kobach Plan. It was supposed to be secret.
Dear President-elect Trump,
Sometimes your lack of impulse control works for you. For example, on Friday night, you lashed out at the Broadway hit, Hamilton. With the stroke of a few tweets, you dominated the weekend news cycle. The fun ended Sunday morning, when Vice-President-elect Mike Pence told CBS’s John Dickerson that Hamilton was “a great show.”
Pence “wasn’t offended” by a 90-second post-performance comment on behalf of the cast and producers. Your tweets had demanded an apology from them, but it turned out that you now owe one — for misstating the facts and challenging First Amendment principles.
You achieved a larger objective. Your twitter tantrum diverted popular attention from: your thumbs-up group photo after meeting with business partners developing a Trump-branded luxury apartment complex in India; white nationalists convening in Washington to celebrate your election; and your selection of National Security Adviser-designate Mike Flynn, who called Islam a “cancer” and a “political ideology hiding behind religion.” He’s also a board member of ACT for America, which the Southern Poverty Law Center calls “far and away the largest grassroots anti-Muslim group in America.”
Master Distracter
Your Hamilton tweets also moved the spotlight away from your attorney general-designate. In 1986, President Ronald Reagan’s Republican Senate put Antonin Scalia on the Supreme Court and made William Rehnquist chief justice. But even at the height of the Reagan revolution, Alabama’s then-U.S. attorney Sessions became only the second nominee in 48 years to be rejected for a federal judgeship. Now he’ll be your attorney general.
In a normal world, Sessions’ earlier defeat would doom your nominee. But you’re normalizing the abnormal. When Steve Bannon is the baseline for comparison, even Jeff Sessions looks good. He shouldn’t.
Sessions on the Merits
The junior senator from Alabama is one of its most conservative members. He opposes: any path to legalizing undocumented immigrants, gay marriage, abortion, and the legalization of marijuana. He voted against reauthorizing the Violence Against Women Act. His portfolio is a distressing compilation of what you seem to mean by “Make America Great Again.”
Sessions is far out of step with most Americans. (Hillary Clinton’s popular vote victory — 1.5 million ballots and growing — proves that you are, too.) But resigned to his confirmation, I propose a bipartisan assignment for him: restore the integrity of the FBI. It will require a public investigation into events culminating in your election.
Roll the Tape
In October, polls showed you losing so badly that you were likely to cost Republicans the Senate. Three months earlier, FBI Director James Comey had announced that no reasonable prosecutor would bring criminal charges against Hillary Clinton for her use of a private email server while she was secretary of state. But in an unprecedented press conference, he’d opined about her recklessness anyway. That kept your “Crooked Hillary” rally theme alive. Even so, as summer turned to fall, the email-gate story was losing its legs.
On October 25, your key surrogate, Rudy Giuliani appeared on Fox & Friends. When a host asked whether you had anything other than “some more inspiring rallies” planned for the remaining 14 days of the campaign, Giuliani chuckled.
“Yes,” he grinned.
“What?” a co-host asked.
“You’ll see,” Giuliani answered in a full-throated laugh. “We’ve got a couple of surprises left. I call them surprises in the way we’re going to campaign, to get our message out there. Maybe in a little bit of a different way. You’ll see, and I think it’ll be enormously effective.”
Giuliani then discussed how “all of these revelations about Hillary Clinton, finally, are beginning to have an impact.”
On Oct. 26, Giuliani appeared with Fox reporter Martha MacCallum. As the interview ended, he interrupted her to volunteer, “And I think he’s [Trump] got a surprise or two that you’re going to hear about in the next few days.”
MacCallum tried to conclude the interview, but Giuliani kept pushing: “I mean, I’m talking about some pretty big surprises.”
Finally, MacCallum took the bait.
“I heard you saying that this morning,” she said. “What do you mean?”
“You’ll see,” Giuliani laughed.
Friday, October 28
Only days after Giuliani’s teasers, Comey violated Justice Department guidelines with a letter informing Congress that the Bureau was reviewing additional evidence relating to the Clinton email investigation. Conservative radio talk show host Lars Larson interviewed Giuliani.
“There’s a kind of revolution going on inside the FBI about the original [July] conclusion being completely unjustified and almost a slap in the face of the FBI’s integrity,” Giuliani said. “I know that from former agents. I know that even from a few active agents who, obviously, don’t want to identify themselves.”
Later, Giuliani backpedaled.
“I don’t know anything about leaks from the FBI or the Justice Department,” he told CNN’s Wolf Blitzer. “I haven’t talked to anybody in the FBI or Justice Department.”
When Blitzer confronted Giuliani with the Lars Larson interview, Giuliani responded, “Well, the information I’ve been getting is from former FBI agents. If I did say that, that was wrong.”
In 48 hours, Giuliani had gone from “I know that even from a few active agents who, obviously don’t want to identify themselves” to “the information I’ve been getting is from former FBI agents.”
But Giuliani’s distinction didn’t help the Bureau. Whether the leaks came directly from active agents, or whether active agents leaked to retired agents who then went to Giuliani, they originated within the FBI. In addition to professional responsibilities of confidentiality under the ABA Standards on Prosecutorial Investigations, agents sign employment agreements that have sharp non-disclosure teeth. Certain FBI personnel working on the Clinton investigation also signed a “Case Briefing Acknowledgement,” agreeing that “due to the nature and sensitivity of this investigation, compliance with these restrictions may be subject to verification by polygraph examination.”
Lie detectors!
Wednesday, November 2
Less than a week before Election Day, another FBI leak produced a new bombshell. Bret Baier of Fox News cited “two separate sources with intimate knowledge of the FBI investigations” for what turned out to be a bogus report. He said that the Clinton investigations would likely to lead to an indictment. You milked that one. As rally crowds responded with “Lock her up” even more loudly than before, some members of your mob added, “Execute her!”
By Thursday, Baier admitted that he’d spoken “inartfully” about the false FBI report. By Friday, he was in full retreat: “That just wasn’t inartful, it was a mistake and for that I’m sorry.”
When MSNBC’s Brian Williams grilled your campaign manager Kellyanne Conway on whether you would stop using the earlier false report in your stump speech, she smiled and said, “Well, the damage is done to Hillary Clinton…”
Sunday, November 6
Then Comey sent another letter confirming that his earlier missive had been a false alarm. But by then, early voters had cast 40 million ballots — almost 30 million of which came after his October 30 letter. Meanwhile, you’d spent the week telling crowds that Clinton’s problems were “bigger than Watergate” and that criminal investigations into her dealings would continue for years into her presidency.
When confronted with Comey’s latest exoneration of Clinton, Kellyanne Conway kept her smile as she told MSNBC, “We have not made this a centerpiece of our messaging… This has not been front and center of our campaign.”
Sessions could put Rudy Giuliani under oath and ask him to name his FBI sources — active or retired. After all, if this had happened to you, hearings in the Republican Congress would already be underway. Now they’ll never happen. To “Make America Great Again,” start with the FBI, if you dare.
Last night, Vice-President-elect Mike Pence attended the Broadway performance of “Hamilton.” At the curtain call and on behalf of the entire cast, Brandon Victor Dixon (who plays Aaron Burr) read a respectful, 90-second statement to Mr. Pence.
Before reading any further, watch it: https://twitter.com/HamiltonMusical?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor
This morning, President-elect Trump mischaracterized the episode in a way that should frighten anyone who cherishes the First Amendment. Here are his two tweets:
“Our wonderful future V.P. Mike Pence was harassed last night at the theater by the cast of Hamilton, cameras blazing.This should not happen!”
“The Theater must always be a safe and special place.The cast of Hamilton was very rude last night to a very good man, Mike Pence. Apologize!”
What “should not happen” is precisely what President-elect Trump has done: misstate facts and attack free speech. As the tape proves, the cast of Hamilton did not “harass” Mr. Pence. Nor was it “rude” him. To the contrary. Brandon Dixon urged audience restraint as he read the remarks. The only apology should come from Mr. Trump — for his twitter assault on the First Amendment.
As I said in my first Open-Letter to the President-elect: “We watch and wait for any sign of disquieting conduct matching the words that helped propel you into office. When you err, we will speak.”
The battle is joined.
Dear President-elect Trump,
Well, that was quick. Within 24 hours of my first open letter pledging to hold you accountable for missteps, you fired up another twitter storm. Your topic was the Electoral College. It’s easy to see why.
Hillary Clinton’s popular win by more than 1 million votes makes you only the fourth president in history to gain an Electoral College victory without support from at least a plurality of the people you will govern. In fact, tiny popular vote margins in three key states tipped the Electoral College balance in your favor: Michigan (12,000 out of almost 5 million votes cast), Wisconsin (27,000 out of 3 million), and Pennsylvania (68,000 out of 6 million).
I’m not a conspiracy theorist, but did you see the tweet from John Dean, former White House counsel to President Nixon?
“What happens when we discover that the Russians rigged just enough votes in Wisconsin, Ohio, North Carolina and Pennsylvania for Trump?” he wrote.
Don’t Believe Everything Newt Tells You
Now you’re turning to the Electoral College for help. But four years ago, you despised it.
On November 6, 2012, you tweeted: “The electoral college is a disaster for a democracy.”
Back then, you thought President Obama would lose the popular vote, but win in the Electoral College. You called for “a march on Washington” to “stop this travesty.” In tweets that you have since deleted, you even urged a “revolution.”
Now you need the Electoral College to override the popular vote that you lost decisively. Throughout the media, critics are asking, “Is it time to eliminate the Electoral College?”
At 5:30 am on November 15, 2016, you provided your new answer, starting with this: “If the election were based on total popular vote I would have campaigned in N.Y. Florida and California and won even bigger and more easily.”
Including Florida on that list projects panic. You spent more time there than in almost any other state. As for New York, it defies credulity to suggest that fellow New Yorkers don’t know you by now.
With respect to California, former House Speaker Newt Gingrich told CBS News’ John Dickerson that you would have picked up “at least 2 million votes,” if you’d campaigned there. No evidence supports that claim. Even so, it doesn’t answer the overriding point that yours is only the fourth election in American history where the popular and electoral vote diverged. (The others were George W. Bush in 2000, Benjamin Harrison in 1888, and Rutherford B. Hayes in 1876.)
But there’s a bigger trap in Speaker Gingrich’s argument that you have now echoed in a tweet. It reinforces the budding false narrative that you have a popular mandate. For the reasons explained in my first letter, you don’t.
Don’t Believe Everything You Read
Your second tweet at 5:30 am on November 15 was: “The Electoral College is actually genius in that it brings all states, including the smaller ones, into play. Campaigning is much different!”
Your tweet gives ammunition to those who focus on the speed with which you decry rules that appear to be working against you, only to embrace them when they turn in your favor. The Electoral College that you described as a “disaster for democracy” in 2012 is now “genius.” For your latest flip-flop, The Washington Post awarded you an “Upside-Down Pinocchio for an unacknowledged change in position.”
Perhaps the inspiration for your second tweet came from reading Dr. Larry Arnn’s Wall Street Journal op-ed that morning. He’s president of Hillside College and defends the Electoral College as “anything but outdated.” His conservative credentials include board membership on the Heritage Foundation and, in 1996, founding chairman of the California Civil Rights Initiative, which prohibited racial preferences in state hiring, contracting, and admissions. Stated simply, he’s one of your growing circle of new best friends.
Alexander Hamilton Is More Than A Hit Play
“Consider for a minute why the Electoral College was invented,” Dr. Arnn writes.
Characterizing your million-plus vote loss as a “whisker,” Dr. Arnn’s historical discussion ignores the most important source of contemporaneous insight into the origin and purpose of the Electoral College: Alexander Hamilton. Conservatives regularly cite The Federalist Papers in defending an originalist interpretation of the Constitution. (You’ve said that you want your Supreme Court nominee adhering to that approach.) In Federalist No. 68, Hamilton explained some of the concerns that led to creation of the Electoral College.
On one hand, Hamilton observed, the framers believed that the will of the people deserved respect. But they also worried that citizens were vulnerable to an unqualified demagogue — someone with “talents for low intrigue, and the little arts of popularity” lacking “a different kind of merit to establish him in the esteem and confidence…necessary to make him a successful candidate for the distinguished office of President of the United States.” The Electoral College became the nation’s safety valve.
What If Every Vote Counted?
Dr. Arnn concludes that binding electors to support the candidate who wins the national popular vote would be a “disaster.” He worries about the 10 states and the District of Columbia — representing 165 electoral votes — that have already signed the National Popular Vote Interstate Compact. It binds each signatory state’s electors to vote for the national popular winner. If a handful of states accounting for another 105 electoral votes sign on and bring the total to at least 270, the Compact will become effective without a Constitutional amendment.
Among the remaining states that in various combinations could put the Compact into effect are Colorado, Connecticut, Delaware, Florida, Georgia, Michigan, Minnesota, North Carolina, New Hampshire, Ohio, Pennsylvania, Virginia, and Wisconsin. Don’t be surprised if those who voted against you now turn their attention to state legislatures that could render the Electoral College irrelevant by 2020. At some point, the constitutionality of the Compact would probably be litigated, but serious scholars believe it would survive.
What Would Hamilton Do?
You can see the irony of your precarious situation. In an unprecedented bipartisan display, the most respected leaders of your own Republican party outlined publicly and repeatedly the dangers that you — their nominee — would pose to America and the world. But the story of the 2016 election is that the people could be trusted. Most voters did not buy your “low intrigue” from someone versed in the “little arts of popularity.” And they reached their decisions, even as FBI Director James Comey, unnamed Bureau leakers of false information, Russian hackers, and Wikileaks distorted the election in your favor. Those clouds will always hang over you.
Dr. Arrn glossed over the fact that on December 19, the Electoral College could still approve the nation’s collective decision and deprive you of the Presidency. Twenty-nine states and the District of Columbia impose some type of requirement that electors vote in accordance with their states’ individual voter totals. But the penalties for noncompliance typically are insignificant. And in the remaining 21 states — including Pennsylvania — electors are free to vote as they see fit.
Would Alexander Hamilton be among the more than 4 million signatories to a current petition urging electors to do what they believe best for the country, rather than blindly follow their individual states’ voting results? We’ll never know. But you’re making a mistake by inviting a focus on the original motivations for the Electoral College. They work against you now.
Dear Mr. President-elect,
Congratulations.
This is the first in a series of open letters that you’re not likely to read. The ultimate goal is simple: accountability. As you speak and act, these letters will try to set the factual record straight in our post-factual world that you now dominate. Your words and deeds will determine the scope and duration of this exercise.
The Responsibility of Attorneys and the Press
I didn’t vote for you, but this isn’t a partisan crusade. Lawyers across the political spectrum are concerned about what you might do as President. We listened with concern to your campaign rhetoric. Repeatedly, you professed disrespect for the rule of law. (Along the way, I wrote about your transgressions here, here, here, here, and here.)
Now we watch and wait for any sign of disquieting conduct matching the words that helped propel you into office. When you err, we will speak. You may say that such vigilance is un-American. It’s not. Holding elected officials accountable to the law and the truth is the essence of democracy.
You’ll start with functional control over two branches of government. Senate confirmation of your Supreme Court nominee will deliver the third. So it becomes the task of those outside your orbit to identify and spotlight your missteps. More than at any time in our nation’s history, attorneys and the press have a special responsibility to remain on high alert.
Open letters like this one will arrive whenever the circumstances require it. Two have already arisen: the false claim that you have a mandate and your early post-election tweets.
The Illusory Mandate
Contrary to the narrative that you and your supporters are pushing, Republicans do not have a mandate to pursue whatever the Trump agenda turns out to be. You benefitted from a disquieting confluence of events and circumstances. And even at that, you lost the popular vote to Hillary Clinton by the widest margin of any elected President in history.
Start with the FBI. As voters were casting more than 46 million early ballots, FBI Director James Comey’s profound misstep on October 28 compounded his July 5 press conference error in handling the Clinton email investigation. Stated simply, he pushed votes your way.
Four days later, the Bureau used a twitter account that had been dormant for more than a year to release documents relating to the Clinton Foundation. On November 2, Fox News’ Bret Baier aired a false report from FBI sources that there would likely be indictments involving the Clinton Foundation. Two days after that, Baier apologized for that “mistake” and retracted his story.
But as your campaign manager Kellyanne Conway acknowledged to MSNBC’s Brian Williams shortly after Baier’s retraction, “The damage has been done to Hillary Clinton.”
Responding to a post-election report that Clinton thought the FBI’s unprecedented actions had affected the election, Conway did a slick about-face on November 13: “I just can’t believe it’s always somebody else’s fault. Sometimes you just have to take a look in the mirror and reflect on what went wrong.”
The Russian Vote
Likewise, you alone benefitted from Russian hackers and Wikileaks. They put their thumbs on the Trump side of the election scale. The fact that the Russian parliament burst into applause when Vladimir Putin announced your victory should not please you. It should cause you and all American citizens grave concern.
Yet even with all of that help, as well as Republican-sponsored state voter suppression laws in North Carolina, Wisconsin and elsewhere, your opponent beat you by more than 2.5 million votes.
About That Republican Congress
Some voters split their tickets. They were heeding the call of leading Republicans in Congress and elsewhere who shunned you. Outraged at your behavior, concerned about your lack of knowledge and intellectual depth, and fearful of your erratic temperament, they made the case that a Republican Senate was essential to check President Hillary Clinton. Unwittingly, they have now empowered you beyond their wildest fears.
From the standpoint of popular support, you begin your first term from a position of unprecedented weakness. Ironically, you entered politics with a frivolous “birther” claim that questioned the legitimacy of your predecessor’s right to the Oval Office. Yet real shadows hover over yours.
Dubious Tweets
A second circumstance that already requires voices of accountability to speak involves your post-election tweets. Less than 48 hours after your subdued acceptance speech, you responded to nationwide street protests with a two-pronged attack against the dissenters and the media.
“Just had a very open and successful presidential election. Now professional protesters, incited by the media, are protesting. Very unfair!”
No facts supported your claims. As always, your response to any hint of criticism was to find a scapegoat or a distraction. We’ll be watching for that tendency, too. When you fail to fulfill your most unrealistic campaign promises, the anger of those who voted for you will intensify. In Ohio, when the steel mills don’t fire up again in Youngstown and your border wall doesn’t solve the opioid epidemic in Columbus, will you follow your lifelong impulse to blame someone else?
Continuing Attacks on the Press
On Sunday morning, November 13, you renewed your pre-election attack on The New York Times:
“Wow, the @nytimes is losing thousands of subscribers because of their very poor and highly inaccurate coverage of the ‘Trump phenomena’.”
That wasn’t true, either. The Times reported a post-election surge in new subscriptions — four times the pre-election rate.
A few hours later, you went after the Times again: “The @nytimes states today that DJT believes “more countries should acquire nuclear weapons.” How dishonest are they. I never said this!”
But you did say it. When Mike Pence denied in his vice-presidential debate that you’d taken such a position, nonpartisan Politifact rated his statement as “Mostly false” and listed all of the instances that you’d said what the Times reported — the first of which was in March 2016 to reporters for The New York Times.
On April 3, 2016, you had this exchange with Fox News’ Chris Wallace:
Trump: “It’s not like, gee whiz, nobody has them. So, North Korea has nukes. Japan has a problem with that. I mean, they have a big problem with that. Maybe they would in fact be better off if they defend themselves from North Korea.”
Wallace: “With nukes?”
Trump: “Including with nukes, yes, including with nukes.”
Most people are too busy with life’s daily demands to scrutinize your torrent of sometimes conflicting words. But many of us will make the time necessary to stand guard against your demonstrated capacity to take advantage of the post-factual world in which we live. No President possesses a mandate to lie without getting caught.
I’ll have more to say about the election, but not today. Instead, let’s take a closer look at a story that got lost in the shuffle of presidential politics. It deserves more attention than it received.
Back in 2013, when Indiana Tech opened the state’s fifth law school, I wrote that the decision was the latest example of pervasive legal market dysfunction. As the number of applicants declined, marginal schools increasingly were admitting students who wouldn’t be able to pass the bar, much less get decent jobs requiring a JD. Schools such as Indiana Tech were continuing to inflate the growing lawyer bubble, which was also the title of my 2013 book. (Proving that some things never change, it came out in paperback earlier this year.)
The central contributor to that bubble remains in place. Specifically, the federal student loan program absolves marginal law schools of accountability for their graduates’ poor employment outcomes, while encouraging administrators to fill classrooms with tuition-paying bodies. The results are predictable: lower admission standards, lower bar passage rates, and burgeoning law student debt for degrees of dubious value from marginal schools.
Victims of a Doomed Experiment
Indiana Tech’s inaugural class of first-year students began their studies in August 2013. Two years later, the school failed in its first attempt to get ABA accreditation. Further proving the ABA’s failure to address the continuing crisis in legal education, it granted Indiana Tech provisional accreditation earlier this year. The school graduated its first twelve students in 2016; only one passed the bar exam. Another passed on appeal, and a third passed the bar in another state.
On October 31, 2016, the school’s 71 students received an unwelcome Halloween surprise. The board of trustees announced its unanimous vote to close forever on June 30, 2017.
Indiana Tech President Arthur Snyder’s statement said, “[F]or the foreseeable future, the law school will not be able to attract students in sufficient numbers for the school to remain viable.”
Here’s the thing. President Snyder’s observation was equally true in 2011 — when the school completed its feasibility study and announced the decision to move forward. But rather than confront obvious facts about the demand for legal education that were apparent to everyone else, President Snyder insisted in 2013:
“We have given this decision careful research and consideration, and we believe we can develop a school that will attract and retain talented individuals who will contribute to our region’s economic development.”
Thanks to President Snyder and Indiana Tech’s board of trustees, those individuals — students and faculty — now face a tough and uncertain road.
Seeking Answers
What could have motivated such an obviously bad decision to open a new law school in the teeth of a lawyer glut? The answer is pretty simple. Snyder is a business guy. He has an MBA in strategic management from Wilmington University and a doctorate in education (innovation and leadership) from Wilmington University. Before joining the academic world, he spent more than 20 years in the telecommunications industry, rising to the position of vice president for the Data Systems Division of AT&T.
For someone focused on a bottom line approach to running higher education, adding a law school probably seemed like a no-brainer. In a 2011 interview for the National Law Journal, Snyder explained his strategy. Noting that about half of Indiana residents who attended ABA-approved law schools were doing so out of state, he said, “There are potential students who desire a law school education who cannot get that education in this area….”
Capturing that segment of the market was a strange premise upon which to build the case for a new law school. Which Indiana students admitted to established out-of-state schools did he expect to jump to an unaccredited newcomer?
The Real Play For Dollars
Like most law schools that should have closed their doors long ago, Indiana Tech’s business strategy sought to exploit market dysfunction. If the school could attract a sufficient number of aspiring attorneys to Fort Wayne, student loan dollars for tuition would take care of everything else, including a spiffy new building:
“The Indiana Tech Law School contains eight state-of-the-art classrooms, a courtroom, several learning and relaxation spaces for students including lounges and an outdoors patio, a three-story library, and everything else our students need to make their time here a successful and rewarding experience.”
Would graduates obtain decent full-time long-term jobs requiring the Indiana Tech JD degrees costing them close to $100,000? That would never become President Snyder’s problem.
The Opposite of Leadership
After the ABA denied Indiana Tech provisional accreditation in 2015, the handwriting was on the wall. But Snyder doubled down on a bad bet. The school tried to bolster admissions with a loss leader: a one-year tuition scholarship to students who enrolled in the fall of 2015. Anyone who took that deal is now twisting in the wind.
Indiana Tech reportedly lost $20 million. But its failed business strategy, followed by gimmicks that could never save it, produced dozens of real-life human victims whose damage is immeasurable. Those people don’t count in calculating Indiana Tech’s profit-and-loss statement. Except as conduits for federal student loan dollars, it’s fair to ask if they ever counted at all.
In his 2011 interview about the then-planned new law school, President Snyder suggested that Indiana Tech law school could be the first to offer a joint JD and master in science degree in leadership. He thought it would be an especially good fit because the university already has several programs in leadership.
Sometimes the most important learning in life comes from careful observation of negative role models. Speaking of negative role models, as I said at the beginning, I’ll have more to say about the election results in the days and weeks to come.
I hadn’t planned to write another post until after the November 8 election. But on Tuesday, November 1, lightning struck twice.
First, the FBI used its twitter account to post documents relating to President Bill Clinton’s pardon of Marc Rich back in 2001. For those who are too young to remember, that presidential action 15 years ago was so controversial that it led prosecutors in the Bush administration to investigate potential criminal wrongdoing. They came up empty.
The second strike came Tuesday evening: the Chicago Cubs beat the Cleveland Indians and sent the World Series to Game 7.
This post concerns the first bolt from the blue.
Beyond Strange
Taken alone, the FBI’s release of the March Rich documents might have seemed relatively innocuous. But it came on the heels of FBI Director James Comey’s unprecedented letter to Congress on Friday, October 28. Contrary to Donald Trump’s subsequent false assertions, Comey was not “reopening” the Bureau’s closed investigation into Hillary Clinton’s use of a private email server, Rather, Comey said only that “the FBI has learned of the existence of emails that appear to be pertinent to the investigation.”
Then it turned out that the emails in question were on former congressman Anthony Weiner’s computer. Reportedly, the emails were to or from his now-estranged wife, Huma Abedin. Then it turned out that the FBI hadn’t even obtained a search warrant to look at any of those Huma Abedin emails that, to Comey, “appeared to be pertinent.” A judge issued the warrant two days after Comey’s explosive letter. Perhaps the FBI director is clairvoyant.
Backlash
The bipartisan outrage against Comey was fast and furious. More than 100 former prosecutors and high-ranking Justice Department officials in Republican and Democratic administrations signed an open letter chastising Comey for his breach of longstanding Justice Department guidelines relating both to the confidentiality of investigations generally and, most especially, to any actions that could affect an imminent election.
In fact, The New York Times reported on November 1 that precisely those well-established guidelines stopped the FBI from taking overt actions to pursue its investigation of Donald Trump’s former campaign manager, Paul Manafort. The issues involve Manafort’s connections to pro-Russia officials and business leaders in Ukraine. The Times also reported that the FBI likewise delayed activities relating to a Clinton Foundation investigation.
Meanwhile, Richard Painter, a former chief White House ethics counsel for George W. Bush, filed a formal complaint that Comey’s letter to Congress had violated the Hatch Act. It outlaws misuse of a public office by, for example, seeking to influencing an election.
Who Is James Comey?
Even Comey’s detractors have expressed admiration for his character and integrity. Perhaps that’s justified. But lawyers and judges know that the appearance of impropriety can be problematic. In that respect and as relates to Comey, some facts alone may speak for themselves. So without additional comment, here are some facts about James Comey.
1985: Graduated with a J.D. from the the University of Chicago Law School and clerked for Judge John Walker of the Second Circuit Court of Appeals.
1987: After a brief stint as an associate at Gibson, Dunn & Crutcher, Comey was hired by then-U.S. attorney for the Southern District of New York, Rudy Giuliani. He was an assistant U.S. Attorney until 1993.
1993-1996: Partner in private practice at McGuire Woods in Richmond, VA.
1996: Deputy special counsel for the Senate Committee investigating the Clintons and Whitewater. Eventually, the process led to appointment of a special prosecutor and President Clinton’s impeachment (for which the Senate acquitted him).
1996-2001: Managing assistant U.S. attorney for Richmond division.
2002-2003: U.S. attorney for the Southern District of New York, where his tasks included supervising the criminal investigation of former President Bill Clinton’s pardon of Marc Rich.
2003-2005: President George W. Bush’s appointee as deputy attorney general — the number two person at the Justice Department — reporting directly to John Ashcroft. He became known for his standoff over the no-warrant wiretapping program at Ashcroft’s hospital bedside. According to one report of that internecine Republican battle, “Comey rushed to the room of his bedridden boss to physically stop White House officials from trying to get an ailing Ashcroft to reauthorize the program.”
2005-2010: Vice president and general counsel for Lockheed Martin.
2010-2013: Executive at Bridgewater, reported to be the world’s largest hedge fund.
June 21, 2013: President Obama nominates Comey to head the FBI.
July 5, 2016: In a bizarre departure from an investigator’s role, Comey dons his prosecutor hat to announce his recommendation that Hillary Clinton not be indicted for her use of a private email server while Secretary of State. He then offers a similarly unprecedented description of her behavior as, among other things, “extremely careless.”
July 7, 2016: As Congressional Republicans began investigations into Comey’s recommendation, he testifies that he’d been a Republican for most of his adult life, but was no longer a registered member of the GOP.
July-September, 2016: Trump and his surrogates, including Rudy Giuliani, blast Comey for not recommending the indictment of Clinton. Calling the failure a “total outrage,” Giuliani said, “As associate attorney and as Jim Comey’s boss for two or three years, I was very disappointed in him. I think if you read it, it’s logically inconsistent. He contradicts himself at least three times.”
September 28, 2016: For four hours, Comey testifies before the House Oversight Committee, mostly about the FBI’s investigation into Hillary Clinton’s private email server and his recommendation not to indict her.
October 3, 2016: FBI agents seize Anthony Weiner’s laptop and learn quickly that they include some Huma Abedin emails.
October 28, 2016: Comey sends his letter to Congress about additional materials that “appear to be pertinent.” Two days later, the FBI obtains a search warrant to see what those emails actually say.
November 1, 2016: The FBI releases documents responsive to earlier Freedom of Information Act requests relating to President Clinton’s 2001 pardon of Marc Rich. When pressed, the official FBI comment was that its release of the Rich documents were posted “automatically and electronically to the FBI’s public reading room in accordance with the law and established procedures.” This happens, the statement said, on a “first-in, first-out” basis.
And the FBI twitter account that announced the release? Until October 30, it had been dormant for more than a year — since October 8, 2015.
To the FBI’s official comment that the timing of the release was a coincidence, CNN’s legal analyst Jeffrey Toobin commented, “My official response is, ‘Give me a break.'”
I would add this: Sometimes even paranoid persons have real enemies.
Part 1 of this series discussed the possibility that, if Donald Trump wins the election, New Jersey Governor Chris Christie could become his attorney general of the United States. After all, he was the first major Republican presidential candidate to endorse Trump. With Christie’s popularity in his home state dropping to historic lows (now below 30 percent) and term limits foreclosing a run for another term as governor, he had to do something to salvage his political ambitions.
Sure, he didn’t get the vice-presidential nomination that he reportedly craved. But shouldn’t he reap some reward for his remarkable public scenes with Trump? In one, Christie appeared to be physically ill — or a hostage. In another, Trump mocked him to get a cheap laugh.
About That Bridgegate Thing
The prospect of Christie becoming the nation’s top law enforcement officer isn’t funny. The Bridgegate trial has resurrected old questions that a Christie-appointed independent investigator was supposed to answer almost three years ago. It has also raised new ones.
Christie has steadfastly denied having any knowledge about the George Washington Bridge lane closures before or during the 2013 scandal that culminated in criminal charges against his top aides. Some of those aides have now sworn that Christie knew more than he has admitted.
In that respect, they have confirmed Donald Trump’s declaration during a December 2015 Republican primary rally: “He knew about it. He totally knew about it.”
The Four Other Key Players
In a federal courtroom on September 27, 2016, a senior official at the Port Authority of New York and New Jersey (and Christie’s high school classmate), David Wildstein, testified that Christie knew what was happening on the bridge during the days that traffic was backed up for hours. According to Wildstein, so did Bill Stepien (Christie’s then-gubernatorial re-election campaign manager) and Bill Baroni (the governor’s top appointee at the Port Authority, which runs the bridge).
Another courtroom bombshell exploded on October 21, 2016, when Bridget Anne Kelly — who had replaced Stepien as Christie’s deputy chief of staff — testified that on August 12, 2013, she’d told the governor about the contemplated lane closings a month before they occurred.
Someone is lying. Donald Trump cast his vote: the culprit is Christie, the person who now heads his presidential transition team.
The Investigation
I’ve written previously about the independent investigation that was supposed to put all of this to rest almost three years ago. In January 2014, Christie – a former federal prosecutor with eyes on a 2016 presidential bid – tried to contain the growing scandal by appointing a respected attorney to investigate. He chose Randy Mastro, another former prosecutor, who had served as Mayor Rudy Giuliani’s deputy from 1993 to 1998 before returning to the New York office of Gibson, Dunn & Crutcher.
Mastro’s team included Debra Wong Yang, who had served as U.S. attorney for the central district of California. At a June 2011 event, she introduced Christie as her “very good friend” whom she had “known for ten years” – going back to their time together as federal prosecutors. Yang said he was “the real deal” and “doing a remarkable job as governor.” When Christie took the stage, he recalled how their families vacationed together at the game ranch of a fellow U.S. attorney in Texas.
“We are good and dear friends,” Christie said.
Only two months after the 2014 Gibson Dunn investigation began, Mastro released his final report. It identified Wildstein and Kelly as the Bridgegate villains, both of whom — along with Baroni and Stepien — had refused to speak with investigators.
The Moment
The report discussed briefly a key moment: the conversation that Wildstein said he’d had with Christie and Bill Baroni at a 9/11 memorial service in New York City – two days into the four-day lane closures. According to his attorney, Wildstein told Christie about the lane closures and resulting traffic problems in Fort Lee. Christie said he couldn’t recall any such conversation. The report dismissed Wildstein’s account as not credible.
The investigation was expensive, but not for Christie. Through August 2015, Gibson Dunn billed New Jersey taxpayers $8 million for its work. According to the Times, in December 2015, Debra Wong Yang, “co-hosted a $2,700-per-person fund-raiser in Los Angeles for Christie’s Republican presidential campaign.”
Days of Reckoning
Fast-forward to September 23, 2016, when prosecutors called Wildstein to the witness stand. Using photos showing Christie, Baroni, and Wildstein speaking together at the 9/11 event, Wildstein testified to their conversation. He said that Baroni began by telling the governor in a sardonic tone that “there was a tremendous amount of traffic in Fort Lee” and that Christie would be “very pleased to know” that the Democratic mayor of the city was “very frustrated.” According to Wildstein, Christie laughed at the news. Upon learning that Fort Lee’s mayor was placing urgent phone calls about the situation, Christie said sarcastically, “I imagine he wouldn’t get his calls returned.”
Christie responded immediately to Wildstein’s courtroom testimony.
“All kinds of stuff is going on up in a courtroom in Newark,” he said on September 27, 2016. “I have not and will not say anything different than I’ve been saying since January 2014. No matter what is said up there, I had no knowledge prior to or during these lane realignments.”
Subsequently, Bill Baroni took the stand and offered his version of the 9/11 memorial service conversation with Christie. He said that the photo of the three men laughing might have captured their joking about Governor Andrew Cuomo arriving at the event on a motorcycle with singer Billy Joel.
But then Bridget Anne Kelly testified to having informed Christie about the planned lane closings a month before they occurred in 2013. And she added a kicker: She said that the governor stopped by her office after the 9/11 event, and they discussed the ongoing Fort Lee traffic complaints. She swore that Christie told her that the Port Authority and Wildstein were handling the situation.
The Lesson
The judge instructed the Bridgegate jury that Chistie was among those about whom the jury had heard but would render no decision. Its verdicts can’t resolve the question of whether Christie has been telling the truth about what he knew and when he knew it.
But that open issue is less important than how all of this relates to Donald Trump. He believes Christie is lying. Yet Christie still chairs the Trump presidential transition team. And he could become Trump’s leading candidate for attorney general.
One more twist in the tale: On January 9, 2014, Christie announced that Bill Stepien’s conduct relating to Bridgegate had caused him to “lose confidence in Bill’s judgment,” so he fired him as gubernatorial re-election campaign manager. On August 26, 2016, NBC News reported that the Trump campaign hired Stepien as its national field director.
“I hire only the best people,” Trump says.
Last week, I discussed Trump’s threats to sue his critics and the possibility that, when it came actually to filing a lawsuit, his lawyers’ overriding duties of professional responsibility became a restraining influence. Even so, the threats themselves — like those Trump reiterated on October 22 to sue any and all accusers who have or will come forward to confirm his boasts about being a sexual predator — have a chilling impact. If an accuser with a truthful story remains quiet, Trump wins without firing a shot or paying a filing fee.
Anyone who doubts the effect of even an idle Trump threat should consider the American Bar Association’s recent actions. The New York Times reports:
“Alarmed by Donald J. Trump’s record of filing lawsuits to punish and silence his critics, a committee of media lawyers at the American Bar Association commissioned a report on Mr. Trump’s litigation history. The report concluded that Mr. Trump was a ‘libel bully’ who had filed many meritless suits attacking his opponents and had never won in court. But the bar association refused to publish the report, citing ‘the risk of the A.B.A. being sued by Mr. Trump.'”
The Media Law Research Center posted the report.
If candidate Trump can achieve that type of chilling effect on the nation’s largest professional association of attorneys, imagine the impact of a President Trump who would select the country’s top law enforcement officer, namely, the attorney general of the United States.
Even Worse Threats
“You’d be in jail.”
Donald Trump interrupted Hillary Clinton to deliver that warning during their second debate. Moments earlier, he’d provided the context.
“If I win,” he said, “I am going to instruct my attorney general to get a special prosecutor to look into your situation, because there has never been so many lies, so much deception. There has never been anything like it, and we’re going to have a special prosecutor.”
As Trump landed another blow against the rule of law, his supporters in the audience howled, “Lock her up” — a standard chant at Trump rallies.
The Gambit
The process for appointing a special counsel doesn’t give any president the power Trump says he’d wield. The last president to have any influence over a special prosecutor was Richard Nixon. Esteemed Harvard Law Professor Archibald Cox had the job, and it didn’t end well for Nixon or the country.
When Cox subpoenaed the president’s Oval Office tape recordings, Nixon ordered Attorney General Elliot Richardson to fire him. Richardson refused, so Nixon fired Richardson. When his successor, Deputy Attorney General William Ruckelshaus, likewise refused to discharge Cox, Nixon fired him, too. After Solicitor General Robert Bork was sworn in to replace Ruckelshaus, he executed Nixon’s command.
Eventually, the U.S. Supreme Court ordered Nixon to release the tapes. Nixon’s own voice proved his personal involvement in efforts to cover-up the 1972 burglary of Democratic National Committee headquarters – the Watergate break-in. The incriminating evidence led the House of Representatives to issue articles of impeachment. When it became clear that fellow Republicans in the Senate would provide enough votes to convict him, Nixon became the first U.S. president to resign his office.
The “Saturday Night Massacre” that cost Richardson, Ruckelshaus, and Cox their jobs led Congress to enact the Ethics in Government Act of 1978 that removed the president from the independent prosecutor process. In 1999, the legislation lapsed under a sunset provision. Today, the Code of Federal Regulations – which has the force of law – governs. The decision to appoint a “special counsel” to conduct investigations or prosecutions of particular matters on behalf of the United States belongs to the attorney general, not the president.
The Executioner
Nixon’s appointees, Richardson and Ruckelshaus, lost their jobs because they refused to do Nixon’s bidding. Trump’s attorney general would have to embrace his illegal post-election assault on a political adversary. To fulfill his banana republic-like promise to imprison a political opponent, Trump would need someone who bowed unquestioningly to his wishes.
Who might use the power of high office for such retribution? There’s an obvious candidate: New Jersey Governor Chris Christie. After all, at the Republican National Convention, he prosecuted the case against Hillary Clinton and invited the audience to roar, “Guilty.”
As for a willingness to use political power for payback, Trump has a favorable view of Christie, too.
“He knew about it,” Trump said during a Republican presidential primary rally in December 2015. “He totally knew about it.”
During a December 2013 news conference, Christie had staked out a different position: “I didn’t know anything about it.”
The “he” was Christie. The “it” was Bridgegate.
The Scandal
On September 9, 2013 – the first day of the school year in Fort Lee, New Jersey – commuters to New York City found themselves in a traffic jam on the George Washington Bridge. Without advance notice to local officials, the Port Authority of New York and New Jersey reduced from three to one the number of lanes and tollbooths available to vehicles accessing the bridge from Fort Lee.
Even by New York standards, the resulting gridlock on the world’s busiest bridge was monumental. Some motorists were stranded for hours. Public health and safety became serious concerns. Was it just a coincidence that the Democratic mayor of Fort Lee had refused to endorse Christie for a second term as governor?
As the debacle developed, what did Governor Christie know and when did he know it? Senator Howard Baker had made a similar question famous during the Watergate hearings, and it still resonated.
The next installment in this series will take a deeper dive into the criminal trial that has inflicted significant collateral damage on Christie — the head of Donald Trump’s presidential transition team.
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.
A 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. 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 bono. Daniel 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.
Two months ago, I wrote an essay, “Trump and the Rule of Law.” I didn’t contemplate that it would evolve into a never-ending series on the subject. This is part three.
Perhaps history doesn’t repeat itself but sometimes it rhymes.
“We must maintain law and order at the highest level or we will cease to have a country, 100 percent. We will cease to have a country. I am the law and order candidate.” – Donald Trump, July 11, 2016
“Law and order is in the interest of all Americans. Let’s just make sure that our laws deserve respect; then, they will be respected by all Americans.” – Richard M. Nixon, 1968
To win the 1968 election, Richard Nixon exploited fear, racial unrest and an unpopular war to exacerbate division. His message resonated with alienated voters who yearned for a bygone time that looked better in hindsight than it had ever been. He offered himself as uniquely capable of fixing anything and everything that was broken.
Shared Disdain For The Rules
Although the differences between 1968 and 2016 are enormous, Trump’s campaign manager Paul Manafort boasts that his candidate will continue using Nixon’s “law and order” playbook. But the most startling similarity between Nixon and Trump is the divergence of that rhetoric from their common disdain for the rule of law.
Nixon confined his dangerous views to private conversations with confidants; Trump shouts them loudly for public consumption. Those who should be paying closest attention have lost themselves in cynical calculations of personal political self-interest.
“He’ll have a White House counsel,” says Senate Majority Leader Mitch McConnell in explaining why he continues to support Trump. “There will be others who point out that there’s certain things you can do and can’t do.”
Senator John McCain rationalizes his tolerance for Trump’s role as his personal abuser-in-chief: “I still believe we have the institutions of government that would restrain someone who seeks to exceed their constitutional obligations. We have a Congress. We have the Supreme Court. We’re not Romania.”
Senators McConnell, McCain and other Republicans refusing to disavow Trump could benefit by spending some time with President Richard Nixon’s former White House Counsel John Dean.
Magical Thinking Has A Cost
On March 21, 1973, Dean told the President:
“[T]here’s no doubt about the seriousness of the problem we’ve got. We have a cancer within – close to the presidency, that’s growing. It’s growing daily. It’s compounding. It grows geometrically now, because it compounds itself… And that is just – and there is no assurance – ”
Nixon: “That it won’t bust.”
Dean: “That, that won’t bust.”
Nixon: “True.”
A month later, Nixon fired him. It takes little imagination to envision Trump delivering that line with gusto: “You’re fired!” While Nixon fiddled with the levers of power for the next eighteen months, the country burned. The United States languished in its most severe recession since World War II and the business of governing slowed to a crawl.
Reticent Republicans
Then as now, prominent Republicans were slow in reacting to Nixon’s attack on the rule of law. Eventually, a unanimous Supreme Court ordered release of Nixon’s incriminating White House tapes and the House of Representatives passed articles of impeachment. Only then did key Republican leaders, including Senator Barry Goldwater, urge Nixon to step down because – at long last – there were enough Republican votes in the Senate to join Democrats in convicting him.
Nixon lost his fight with Congress and the courts. But the margin was thin and for a year-and-a-half the country suffered immeasurable collateral damage. A search for the origins of current public distrust in government could start with the events culminating in Nixon’s 1974 resignation.
Unabashed Lawlessness
Nixon thought he was above the law, but didn’t admit it publicly until three years after leaving office: “When the President does it, it means it’s not illegal.”
Trump’s similar revelations occur in real-time. Even conservative legal commentators express concern for his unwillingness to acknowledge the limits of presidential power. As University of Chicago/NYU Law Professor Richard A. Epstein puts it, “I think Trump doesn’t even think there’s an issue to worry about. He just simply says, whatever I want to do, I will do.”
The Complete Makeover That Never Will Happen
On April 21, 2016, Trump campaign chairman Paul Manafort assured Republican National Committee members that Trump’s antics during the primaries were an act.
“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… 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.”
Since then Manafort’s candidate has devolved in every way.
It Starts And Ends With The Patient
Who was to blame for all of those outbursts? Certainly not Trump himself. On June 20, campaign manager Corey Lewandowski took the fall.
“We’re going to go a little bit in a different route from this point forward,” Trump said. “A little different style.”
Since then Trump has:
At public events, his audiences cheer. Richard Nixon knew what that was about: “People react to fear, not love. They don’t teach that in Sunday school, but it’s true.”
Where’s The Bottom?
Trump’s apologists cling to the self-deceptive notion that he’s just rejecting political correctness. Here’s the truth: almost daily he says something that is simply wrong — factually, legally, and/or morally. Often he hits the trifecta with a single shot. It’s not a matter of political correctness. It’s a matter of correctness — period.
Manafort misdiagnosed his candidate’s underlying problem as something distinct from character. Trump’s personality is an extension of his character. At age 70, he remains what he has always been and always will be. But don’t take my word for it; take his.
As Trump told the press during his Memorial Day rampage against another frequent Nixon target – the media: “You think I’m going to change? I’m not changing.”
He means it. When it comes to character, decency and respect for the rule of law, Donald Trump is Richard Nixon on steroids with a megaphone and no internal filter. What we see is what we will continue to get until November when the worst reality show ever comes to an end.
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:
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.
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.
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.
My daughter, Emma Harper, has a new short story appearing in the online literary magazine, “Bartleby Snopes.” Here’s a link that you can use to read it — and to cast your vote of approval for her Week 3 story: “The Year of the Hedonist.”
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.
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.
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.
“I have a judge who is a hater of Donald Trump,” the presumptive Republican presidential nominee shouted at a political rally in San Diego on May 27. “He’s a hater. His name is Gonzalo Curiel.”
On cue, the crowd booed.
“He is not doing the right thing,” Trump continued. “And I figure, what the hell? Why not talk about it for two minutes.”
There were several reasons for him not to talk about it, including 18 U.S.C. Sections 401 and 1503 of the criminal code, but we’ll come to those shortly. He then rambled on about the judge for eleven more minutes.
“We’re in front of a very hostile judge. The judge was appointed by Barack Obama. Frankly, he should recuse himself because he’s given us ruling after ruling after ruling, negative, negative, negative.”
That’s Trump. If you don’t agree with him, you’re wrong. Greatly, hugely, bigly.
“What happens is the judge, who happens to be, we believe, Mexican, which is great. I think that’s fine.”
Trump knew that the crowd was ripe for his characteristic mixed-message ethnic pitch (“Mexican – which is great”). It had been chanting one of his campaign slogans, “Build that wall.” The audience had no idea that Judge Curiel is a Hoosier – born and raised in a state that Trump “loved” when it delivered the final blow to the stop-Trump movement.
Judge Curiel received his bachelor’s and JD degrees from Indiana University. After graduation, he spent a decade at two small Indiana law firms before moving to California where he was a career prosecutor for seventeen years. In 2002, Republican governor Arnold Schwarzenegger appointed him to the San Diego Superior Court. After President Obama named him to the federal bench, the Senate confirmed him by a voice vote in 2012.
“I think Judge Curiel should be ashamed of himself,” Trump persisted. “I’m telling you, this court system, judges in this court system, federal court, they ought to look into Judge Curiel. Because what Judge Curiel is doing is a total disgrace. OK?”
As assistant U.S. Attorney, Judge Curiel prosecuted drug traffickers along the Tijuana corridor. In 2002, ABC’s Nightline reported that a cartel targeted him for assassination after his attempts to extradite two cartel members from Mexico. His track record demonstrates that he can take the heat. That’s not the point.
Rules That Apply to Everyone Else
The point is that he shouldn’t have to. After Trump blew his dog whistle of anger and intolerance in the city where the judge lives and works, severe legal consequences should follow. His remarks weren’t those of a typical politician criticizing judges who don’t share his ideology. It was a verbal assault by a candidate for President of the United States directed toward the federal judge presiding over a pending case in which he has a personal financial stake.
Federal law prohibits “any threatening letter or communication” in an attempt to “influence, intimidate, or impede” any court officer “in the discharge of his duty….” Likewise, anyone using “any threatening letter or communication influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice” commits a felony punishable by imprisonment for up to ten years.
Trump is counting on the weakness of others to let him skate. That’s why this wasn’t his first offense and it won’t be his last. In February, he complained to Chris Wallace’s Fox News, “I think the judge has been extremely hostile to me. I think it has to do with the fact that I’m very, very strong on the border, and he happens to be extremely hostile to me. We have a very hostile judge. He is Hispanic, and he is very hostile to me.”
Four days after his outburst in San Diego, he did it again on May 31.
For those who respect the rule of law, Trump has crossed an ominous line. But he feeds on the willingness of others to allow his most outrageous misconduct to go unchallenged. Federal prosecutors could open a criminal investigation into his rant. Trump assumes that no one – other than Trump – would have the guts to do that.
He could have filed a motion to recuse the judge, but that would require following rules whereby his grievances could be aired and evaluated according to established legal standards. Why didn’t he have the guts to do that?
Testing the Limits
Trump’s lawyers might argue that the First Amendment protects his rant. But at a time of heightened concern about threats to federal judges, Trump’s actions present a unique situation worth testing the limits of that defense here. He’s not just a private litigant complaining about unfair treatment. He’s a presidential candidate using a political rally to lambast the judge presiding over his personal case. And he did it in the judge’s hometown.
Another penalty route is simpler, but it would put Judge Curiel in an impossible predicament. Professor Charles G. Geyh at Indiana University’s Maurer School of Law suggests that Trump’s conduct “could subject him to sanction for indirect criminal contempt of court.” In such cases, a court can summarily impose a prison sentence of up to six months without a jury trial.
Appellate courts have upheld such sanctions for conduct less egregious than Trump’s, such as vulgar words from a convicted defendant during a sentencing hearing. The difficulty is that if Judge Curiel issues a criminal contempt order, Trump would play the retribution card. The villain would again make himself the victim, if not a martyr. And it would probably allow him to dominate yet another news cycle.
Limited Options
Judge Curiel has to remain on the high road. Ethical rules prevent him from responding to Trump’s improper outburst. But they don’t bar other attorneys and judges from speaking up. And they should – in a loud, uniform, bipartisan, and unambiguous way. Democracy and the rule of law are more fragile than Judge’s Curiel’s previously demonstrated courage under fire. Those who believe otherwise should spend a little time walking through the ruins of once-great civilizations. In their time, Athens and Rome ruled the world. Today? Not so much.
“But we’ll come back in November,” Trump warned as he wrapped up his tirade. “Wouldn’t that be wild if I’m President and I come back to do a civil case. Where everybody likes it. OK. This is called life, folks.”
Wild is one word for it. In a recent article for New York Magazine, conservative commentator Andrew Sullivan observes: “In terms of our liberal democracy and constitutional order, Trump is an extinction-level event. It’s long past time we started treating him as such.”
Perhaps a Trump branding technique would help: “Dangerous Donnie.”
[NOTE: Here’s a link to my recent interview on Viewpoints – https://viewpointsradio.wordpress.com/2016/04/24/too-many-lawyers-not-enough-law-jobs/]
Donald Trump is laying mattresses for the release of his tax returns. His periodically besieged and perpetually angry campaign manager Corey Lewandowski told CBS News that the presumptive Republican nominee for President will provide his returns as soon as the Internal Revenue Service concludes an audit.
As another episode in the reality series that has become the presidential campaign, the interview is worth watching. It exemplifies the Trump approach: Confuse the issue, pivot from defense to offense, and identify a new villain or two. As the questions get tougher, allow the natural bully to escape just long enough to intimidate serious inquirers while invigorating core supporters who embrace anger.
Step #1: Confuse the Issue
The CBS News introduction to the Lewandowski interview starts with the enormous range in the estimates of Trump’s wealth. He now claims to be worth $10 billion. In 2014, he said it was $3.3 billion. Last year, Forbes put it at $125 million.
Lewandowski said that Trump’s income last year was $557 million: “By any standard, that’s success.” Then he repeated it for emphasis: “$557 million.”
At best, his assertion was disingenuous. As Fortune Magazine observed, $557 million were Trump’s gross revenues, not his net income. Surely, he would never tolerate someone running one of his businesses who didn’t understand the difference. Plenty of companies with revenues that were tremendous — hugely tremendous, Trump might say — have gone bankrupt. It’s the net that matters.
Lewandowski then talked about the value of the buildings that he says Trump owns. Among them: “a store on Fifth Avenue that’s worth more than Mitt Romney’s total net worth was…”
What is Trump’s actual ownership share of the properties identified with him? Does anyone really believe that he holds clear title to all of the structures that bear the Trump name? Sadly, the answer is yes — lots of people do. They don’t understand, for example, the difference between owning a hotel and licensing the right to let the real owners put the Trump brand on it — often in great big capital letters.
As for his actual properties, do they have mortgages? Fortune reports that while revenues from his businesses increased from 2015, he added debt — $300 million of new debt generating $47 million in interest expense. What is Trump’s real “net-net-net” number? Lewandowski and Trump aren’t saying.
Step #2: Pivot to Offense
How about Trump’s insistence in 2012 that Mitt Romney release his tax returns? Or Romney’s observation that Trump’s returns have something to hide?
“Mitt Romney is a failed presidential candidate,” Lewandowski replied. “And he hid from his wealth.” Then he did a riff on Romney’s eight-car garage in Malibu. (He got that wrong, too. Romney’s building plans involved a four-car garage with an elevator lift in La Jolla.)
If the issue is the continuing IRS audit, why not release tax returns for 2002 through 2008? Those audits are completed.
Lewandowski’s answer: “It’s like what Bernie Sanders said, there’s nothing to see from 2002 and 2003 and 2004. What you guys are interested in right now is what his tax rate is. His tax rate is as low as possible… So he can provide jobs for people in his corporation.”
Step #3: Identify New Villains
As the CBS interviewers pressed ahead, Lewandowski became increasingly angry.
“Every attorney he’s talked to, including people like Greta Van Susteren, has said, ‘As your legal counsel, if I were to be your counsel, I would never allow you to release those taxes until the routine IRS audit is done.'”
“Routine” kept popping out of Lewandowski’s mouth when he referred to the “audit.” It began to take on a “protest too much” aura. But his substantive point is silly. Trump is not just another wealthy private citizen for whom such advice might make sense. He’s running for President of the United States. Does he fear that the IRS is missing something that others will catch? If so, why should he care? If he’s worth more than $10 billion, he can afford whatever anyone finds, can’t he? Besides, if Lewandowski keeps his promise, Trump’s returns will be available “immediately” after the audit is over.
Then came the new villain:
“This is the fault of the IRS,” Lewandowski said with his first smile of the interview. “Have them go finish the audit.”
Behind the Distraction
What could the “something to hide” be? Charitable giving secrets? Maybe. In April, The Washington Post analyzed a list from the Trump campaign of his charitable contributions over the past five years and concluded, “Not a single one of those [4,844] donations was actually a personal gift of Trump’s own money.”
Instead, they were “free rounds of golf, given away by his courses for charity auctions and raffles,” “land conservation agreements to forego development rights on property Trump owns,” and gifts from the Donald J. Trump Foundation, “which didn’t receive a personal check from Trump from 2009 through 2014.”
But I don’t think the most sensitive items on Trump’s personal tax returns involve his charitable giving or lack thereof. I think it’s the tax breaks that benefit every commercial real estate developer: depreciation and carry-forward losses.
Winning “Bigly”
The tax code allows taxpayers to depreciate the cost of a commercial building over its assumed life of 39 years. Each year, one thirty-ninth of the cost gets deducted from income. When you deal in big buildings, even small ownership slices translate into big tax depreciation deductions. It doesn’t matter that most buildings last a lot longer than 39 years. Properly structured, depreciation and other deductions relating to the ownership of commercial property pass through to individual taxpayers. Throw in taxes and other deductions, and the amounts get even larger.
Likewise, if a taxpayer loses money on a business venture — and Trump has ample experience there as well — those losses also offset current income. If total deductions and losses in a year exceed income, they carry-forward to offset income in future years.
“He’s going to pay the smallest amount of taxes possible,” Lewandowski said in reframing the entire issue. “Every deduction possible. He fights for every single dollar. That’s the mindset you want to bring to the government.”
Don’t be surprised if Trump’s personal effective tax rate turns out to be surprisingly close to zero. It’s probably a lot lower than what most of his supporters pay. I guess that makes Trump a winner. It makes those supporters something else.
Abraham Lincoln often gets credit for the line, but in 1814 clergyman Henry Kett’s collection of proverbs in The Flowers of Wit included, “I hesitate not to pronounce that every man who is his own lawyer has a fool for client.”
More than two centuries later, it’s still true. But don’t tell Stephen DiCarmine, former executive director of the now-defunct Dewey & LeBoeuf. He doesn’t believe it. Recently, he appeared before Acting Justice Robert Stolz and explained that he wants to fire his attorney and represent himself.
Last year, three weeks of deliberation following a three-month trial produced a defense verdict on some counts and a deadlocked jury on the remaining charges against DiCarmine, former firm chairman Steven Davis, and former chief financial officer Joel Sanders. Davis then entered into a deferred prosecution agreement and Justice Stolz dismissed additional counts. Retrial on the remaining charges against DiCarmine and Sanders is set for September.
Judicial Skepticism
“The consequences are very severe in this case,” Justice Stolz told DiCarmine. “You could go to state prison if convicted.”
DiCarmine thinks he knows better. A graduate of California Western School of Law in 1983, he told the judge that he had discussed the issue with several lawyer friends. Their reactions: “Bad idea.”
But DiCarmine heard what he wanted to hear. At least, that’s what he told the judge: “They said if anyone can do it, you can do it.”
The truth is that when incarceration is a potential outcome, no one can do it. And no one should try. Gideon v. Wainwright’s guarantee of a right to counsel in criminal cases exists for a reason. And it doesn’t matter if the defendant is a lawyer.
Justice Stolz warned DiCarmine that he might think he knows what the case is all about because he’s been through it once. “But I assure you,” he urged, “it will be a different jury. It will be a different presentation from the People.”
An Unfortunate Moment
DiCarmine’s current lawyer, Austin Campriello, did a masterful job at the first trial. For good reason, he’s among the most highly respected criminal defense lawyers in New York. Campriello told the court that although his client’s finances were a factor, the motivating reason for DiCarmine’s request related to defense strategy.
DiCarmine then offered an unfortunate comment that unfairly tarred other big firms.
“I’ve run a law firm,” DiCarmine said. “When the client is not paying the bill, the services that are being rendered are not necessarily the same as if he were being paid.”
Nonsense. He displayed a remarkable ignorance of what the lawyers in his firm were actually doing while he was “running” it. Directly, he insulted all former Dewey & LeBoeuf attorneys who worked on pro bono matters. Indirectly, he put a cloud over the noble efforts of big firm lawyers who provide millions of dollars in free legal services to clients every year. Implicit in his remarks are widespread violations of ethical rules to advocate on behalf of all clients with the same seal. Those rules apply to all lawyers.
Natural Consequences
Justice Stolz properly put DiCarmine in his place, saying that Campriello would work to the best of his professional capacity, regardless of DiCarmine’s financial situation. He also told DiCarmine to think long and hard about his pro se request before the next hearing on May 27.
DiCarmine seeks to jettison a great lawyer for someone who, apparently, has been in a courtroom only as a witness or a defendant — that is, himself. It reminds me of the joke that one of my mentors told about the importance of using experienced trial lawyers in important cases.
“A patient goes to a doctor with a serious medical condition for which there is an elaborate surgical cure,” the joke begins. “The doctor describes in great detail how the procedure will go — start to finish. The patient is impressed, but has one more question: ‘How many of these operations have you performed?’ the patient asks. ‘Oh, none,’ says the doctor, ‘But I’ve watch a lot of them.'”
Revise the scenario slightly so that the doctor has observed the procedure only once — and is going to perform it on himself. Now you have a sense of DiCarmine’s plan.
Facts are stubborn things — almost as stubborn as persistent academic predictions that boom times for attorneys are just around the corner.
Back in 2013, Professor Ted Seto at Loyola Law School-Los Angeles observed, “Unless something truly extraordinary has happened to non-cyclical demand, a degrees-awarded-per-capita analysis suggests that beginning in fall 2015 and intensifying into 2016 employers are likely to experience an undersupply of law grads, provided that the economic recovery continues.”
In November 2014 after the Bureau of Labor Statistics proposed a new and deeply flawed methodology for measuring attorney employment, Professor Seto weighed in again: “If the new BLS projections are accurate, we should see demand and supply in relative equilibrium in 2015 and a significant excess of demand over supply beginning in 2016.” His school’s full-time long-term bar passage employment rate for the class of 2015 was 62 percent — slightly better than the overall mean and median for all law schools, which are just under 60 percent.
Likewise in 2014, Professor Rene Reich-Graefe at Western New England University School of Law used what he described as “hard data” to argue, “[C]urrent and future law students are standing at the threshold of the most robust legal market that ever existed in this country.” The Georgetown Journal of Legal Ethics published his dubious analysis leading to that prediction. Within ten months of graduation, only 43 percent of 2015 graduates from Professor Reich-Graefe’s school found full-time long-term jobs requiring bar passage.
Fact-sayers v. Self-interested Soothsayers
To his credit, Professor Jerry Organ at the University of St. Thomas School of Law has been fearless in challenging the relentless optimism of his academic colleagues. And he does it with the most persuasive of lawyerly approaches: using facts and evidence.
Analyzing the ABA’s recently released law school employment reports for all fully-accredited law schools, Professor Organ notes that the number of graduates dropped in 2015. But for the second straight year, so did the number of full-time long-term jobs requiring bar passage.
Professor Organ offers a number of explanations for this result: declining bar passage rates; regional factors that reduced hiring in Texas and elsewhere; the impact of technology. But whatever the reasons, he suggests, “[T]his employment outcomes data provides a cautionary tale.”
Proceeding Without Caution
“The fact that the employment market for law school graduates appears to have stagnated and even declined to some extent over the last two years,” Professor Organ continues, “may mean that risk averse potential law school applicants who focus on post-graduate employment opportunities when assessing whether to invest in a legal education may remain skittish about applying, such that this year’s good news on the applicant front may be somewhat short-lived.”
The “good news on the applicant front” to which Professor Organ refers is his projection that applications for the fall 2016 entering class are on track to increase for the first time since 2010. But he offers a cautionary note there as well. Law schools at the upper end “will see more enrollment growth and profile stability in comparison with law schools further down the rankings continuum.”
Perilous Predictions
Some prognostications are safer than others. Here’s mine: Faculty and administration at weak law schools will continue using the overall decline in the number of all applicants to persist in their misleading sales pitches that now is a “Great Time to Go to Any Law School.” They will discourage inquiry into more relevant facts.
But here they are: At the 90th percentile of all 204 ABA-accredited law schools, the full-time long-term bar passage-required employment rate for 2015 graduates was just under 80 percent. At the 75th percentile, it was 67 percent. But at the 25th percentile, it was 49 percent. And at the 10th percentile, it was only 39 percent.
It will always be a great time to go to some law schools. It will never be a great time to go to others.
Colleges have entered a game that law schools have been playing for years. According to a recent New York Times front page headline, “Colleges Seek Warm Bodies From Overseas.” The title of the online version was equally pointed: “Recruiting Students Overseas to Fill Seats, Not to Meet Standards.”
For years, law schools have been dropping standards to fill classrooms. Marginal schools have been the worst offenders, and the profession is now paying the price in declining bar passage rates. But even among top schools, a more subtle and profitable technique has pervaded law school business plans for years: expanding LLM programs.
The Numbers
From 2006 to 2013, the number of law students enrolled in non-JD programs increased by almost 50 percent — to more than 11,000. Leading the way are LLM programs that now exist at more than 150 law schools. And students from foreign countries are flocking to them.
What began decades ago as a noble effort to encourage international cultural diversity has become a cynical method of revenue generation. The Times article focuses on colleges that use foreign recruiters. But its money quotes apply to law schools:
“[T]he underlying motivation for the university…is to get warm bodies in the door.”
“It is ethically wrong to bring students to the university and let them believe they can be successful when we have nothing in place to make sure they’re successful.”
“[C]olleges began to look at foreign students, who pay full tuition, as their financial salvation.”
Need Money?
Warm bodies. Graduate outcomes that aren’t the schools’ problem. Students who pay full tuition. If you’re running a law school as a business, the solution to declining revenues from a JD program becomes three letters: LLM.
Professor George Edwards at the Indiana University Robert H. McKinney School of Law explains:
“I would like to think that U.S. law schools are creating LLM programs or expanding existing programs primarily for altruistic reasons…The reality is that law schools are businesses, and to stay afloat they must generate revenue to pay law school expenses, such as faculty salaries. Law school revenues primarily come from tuition revenues, and revenues are down due to fewer U.S. students enrolling in the degree programs for the basic U.S. law degree, the JD.”
“U.S. law schools have been seeking ways to make up for lost revenue,” Professor Edwards continues. “One way is to create or expand enrollment for international LLM students who may not have the same worries that are driving JD enrollment downwards.”
And so, he concludes,
“The desire to increase law school revenue has triggered a proliferation of new LLM programs and triggered the expansion of existing LLM programs.”
So What’s the Problem?
What exactly should a law school’s mission be? Some deans are unwilling to ask the question because they fear honest answers: revenue generation, short-term profits, and maximizing U.S. News rankings. Moving away from those safe harbors risks reorienting the profession toward what it was when they decided to become lawyers.
An institution’s mission statement should be the starting point for every decision its leaders make. Law schools are no exception. From the faculty hired to students admitted to programs offered, clear goals produce coherent behavior. But at law schools throughout the country, discussions about objectives — what they are and what they should be — aren’t happening.
Restating platitudes is easy. Developing a statement of principles to govern conduct is a challenge. Requiring consistent action in accordance with those principles creates accountability.
For centuries, the legal profession has occupied a transcendent role in the preservation of civilization. Law schools have been the custodians of that tradition. To retain that stature, the people who run them should view their responsibilities as something more than managing just another business. If they don’t, their schools will become exactly that.
It was a “Dewey Defeats Truman” moment.
Shortly after the polls closed on primary election night in New York, CNN made a bold prediction. Its exit polling showed Hillary Clinton and Bernie Sanders locked in a tight Democratic primary race. Clinton’s win would be close, Wolf Blitzer said: 52 percent to 48 percent.
Less than an hour later, that prediction was as laughable as the famous November 3, 1948 Chicago Tribune headline announcing that voters had elected Thomas E. Dewey President of the United States.
Statistically, the CNN call was far worse. In the end, Truman beat Dewey 49 to 45 percent. Clinton won New York — 58 to 42 percent.
When the News is News
One interesting aspect of the CNN mistake is how quickly it disappeared from public sight. That’s because all major media outlets use exit polling to predict results as soon as they can. First-predictors are the first to attract viewers. There’s no incentive for any of them to throw mud on a process that they all use as a marketing gimmick.
Another aspect is the paucity of discussion over what went wrong at CNN. I don’t know the answer, but this article isn’t about that. It’s about the real lesson of the episode: The use of statistics can be a perilous exercise.
Law Schools
Data are important. It’s certainly wise to look at past results in weighing future decisions. But it’s also important to cut through the noise — and separate valid data from hype.
For example, if less than one-third of a particular law school’s recent graduates are finding full-time long-term jobs requiring a JD, prospective students are wise to consider carefully whether to attend that school. But it becomes more difficult when some law professor argues that the average value of a legal degree over the lifetime of all graduates is, say, a million dollars.
It’s even more challenging when law deans and professors repeat the trope as if it were sacrosanct with a universal application every new JD degree-holder from every school. And it sure doesn’t help when schools with dismal full-time long-term JD employment outcomes tout, “Now is the Time to Fulfill Your Dream of Becoming a Lawyer.”
Law Firms
Likewise, based on their unaudited assessments, leaders of big law firms confess that only about half of their lateral hires over the past five years have been breakeven at best. And that not-so-successful rate has been declining.
Law firms are prudent to consider carefully that data before pursuing aggressive lateral hiring as a growth strategy. But it becomes more difficult when managing partners seek to preside over expanding empires. And it doesn’t help when law firm management consultants keep overselling the strategy as the only means of survival.
Data should drive decisions. But the CNN misfire is a cautionary tale about the limits of statistical analysis. Sometimes numbers don’t tell the whole story. Sometimes they point people in the wrong direction. And sometimes they’re just plain wrong.
The Belly of the Beast 