One huge problem with Pres. Trump is his apparent inability to tell the truth. Bob Woodward’s book recounts the story that to prepare the President to be interviewed by Robert Mueller, his attorney staged a mock interview. John Dowd wanted to prepare his client, so he put together a mock interview. The President could not get through without telling some obvious lies, according to the book. Mr. Dowd was quite frustrated. Not the least because as a lawyer, his license is at risk if he allows a client to testify about lies. It violates ethical rules in every state for a lawyer to knowingly allow a client to tell a falsehood.

Andrew Hall discusses this dilemma regarding Mr. Dowd. Andrew Hall once represented John Erlichman, the former Watergate defendant. As Hall points out, any attorney who represents the President knowing he will lie or might lie puts his license at risk. See The Hill report here. That risk may explain why John Dowd resigned form the President’s defense last March. What many of us have forgotten is that after Watergate, many lawyers lost their licenses to practice law.

Within just a few days, Admiral William McRaven accused Pres. Trump of engaging in Joe McCarthy tactics and the President accused the Mueller investigation of engaging in Joe McCarthy tactics. They are referring to former Sen. Joe McCarthy who conducted anti-Communist hearings in the Senate. Let us look back for a moment at that disgraceful episode in U.S. history

Senator McCarthy was a bully. In his zeal to uproot all vestiges of Communism or Communist sympathizers, he bullied, scared and threatened his way across Washington, D.C. Everyone was afraid of Joe McCarthy, because they feared being branded as “soft” on Communism. Like Donald Trump, Joe McCarthy shot from the hip. For example, he stated flatly, like he knew and only he knew, that there were dozens of Communists in the federal government. He claimed in one speech to have a list in his hands of 205 known Communists in the State Department. Later, in the Senate, he said the number was actually 57. Still later, he claimed it was 81. That alleged list led to Senate hearings looking for Commies anywhere in the federal government. Overnight, Joe McCarthy became a household name. He became an albatross for the Republicans. Gen. Eisenhower, while campaigning, said he supported Mr. McCarthy’s goals, but not his methods. According to some accounts, in actuality, the President had planned a sharper attack on Sen. McCarthy, but backed down at the last minute.

When the Senator ran his own committee, he destroyed people, based on little more than suspicion. His browbeating tactics in Senate hearings offended his colleagues. But, afraid of what he would do or say, the other Senators said nothing.

In looking into the U.S. Army, he could find no evidence of subversion after weeks of investigation. But, he was convinced the Army had been “soft” on Communists. Frustrated, he started focusing on the case of Irving Peress, a New York dentist. Mr. Peress had been drafted in 1952. In his papers, he had disclosed a former membership in the American Labor Party, a leftist organization. When asked about his political affiliations, he had left that portion blank.

Capt. Peress was promoted to Major in 1953. Sen. McCarthy started a campaign  to find out who had promoted Maj. Peress. The question, “Who promoted Peress?” became a conservative rallying cry. All this time, Sen. McCarthy knew that the major had been promoted automatically by the provisions of the Draft Doctor’s Act, a recently passed law which Sen. McCarthy had supported.

When called before the committee, Capt. Peress invoked the 5th Amendment numerous times. He insisted that citing the 5th Amendment did not amount to guilt. Later, Sen. McCarthy demanded that the Army court-martial Capt. Peress. The pressure eventually forced Capt. Peress to request a discharge. He was discharged honorably with a promotion to major.

The committee then called on his commander, Brigadier-General Wicker to explain how he was promoted and discharged without a court-martial. BG Wicker, a West Point graduate, had been at Normandy. He had led an Infantry battalion at the key Battle of Brest. He was a hero. He was asked about his approval of the discharge orders for Maj. Peress. Based on advice from the Army counsel, he refused to answer certain questions. The Senator badgered him, and accused him of perjury. He said the general was not fit to wear the uniform.

“Tail-Gunner” Joe had been an enlisted man in the Army during WW II. His abuse of BG Wicker caused many people to turn against Sen. McCarthy. All the general did was approve discharge for an officer who had committed no transgression while in service. As BG Wicker said many years later, he was initially not unsympathetic to Sen. McCarthy. But, as soon as the hearing began, he quickly became disillusioned. Sen. McCarthy, said the general, was an opportunist. The Senator’s abuse postponed Zwicker’s promotion to Major General.

The debacle with BG Wicker lead to the Army hearings. Sen. McCarthy would hold hearings on live television, the new medium, digging deeper into so-called Army tolerance of Communism. Millions watched as he browbeat and interrogated various Army officials. In one such hearing, the chief legal representative for the Army, Joseph N. Welch pressed the committee about some supposed 130 persons who worked in defense plants and supported the Communist party. Sen. McCarthy jumped into the conversation. He insisted Mr. Welch explain the case of Fred Fisher, a young lawyer who worked in Mr. Welch’s law firm. Mr. Fisher, insisted the Senator, had once belonged to the National Lawyer’s Guild, the “mouthpiece” of the Communist party.

The National lawyers Guild is still around. It is indeed liberal leaning, but it is also independent of any political affiliation. Sen. McCarthy had to know this.

Joseph Welch accused the senator of cruelty. The Senator persisted, demanding to know about Mr. Fisher’s former membership. Mr. Welch famously replied, “Senator, may we not drop this? We know he belonged to the National Lawyer’s Guild. Let us not assassinate this lad further, Senator. You’ve done enough. Have you no sense of decency, sir, at long last? Have you no sense of decency??” When Sen. McCarthy persisted, Mr. Welch cut him off. He reminded him that he could have asked about Fred Fisher any time that day. He sat within six feet of Mr. Welch. He told the chairman of the committee to call the next witness. The gallery then erupted in applause and a recess was called. Sen. McCarthy’s decline began soon after.

Fred Fisher did indeed once belong to the NLG during law school. But, as Mr. Welch pointed out, this was needless trashing of a man at a time when membership in liberal organizations could ruin a man’s career. This line of inquiry served no purpose, other than advancing Sen. McCarthy’s political goals. It was cold-blooded political opportunism and Mr. Welch called it.

So, when persons accuse another of McCarthyism, that is indeed a deep insult. Sixty years ago, the end for “Tail-Gunner” Joe started with one decent man, representing the U.S. Army.

When I was a young lawyer, I did child abuse cases. I represented children who had been abused or neglected. In one of those cases, I represented two children. The mostly absent father came to my office and made threats to almost everyone he encountered there. I was gone, so I missed the drama. One of the lawyers present practiced family law. He confronted the father and told him he needed to leave. That same lawyer was involved in many difficult divorces. He shared with me several stories of spouses following him or thereatening him. He said he once pulled up to a traffic light in his car. He glanced to his right to see a husband in a car pulled up next to him pointing a pistol at him.

In Georgia, a husband apparently objected to how the lawyer representing his wife conducted himself. Within hours of the divorce becoming final, the man went to the lawyer’s office, shot him and then shot himself. See CBS news report.

The lawyer, Antonio Benjamin Mari, was said to have told colleagues he thought the ex-husband might try to harm him. The lawyer business can be very dangerous.

Recently, it emerged that Pres. Trump’s lawyers have advanced the theory that as the nation’s chief executive officer, the President cannot obstruct justice. The theory is the President has complete authority to start or stop investigations. Rudy Giuliani said the only remedy if the president committed a murder was impeachment. Mr. Giuliani also said the President has the power to pardon himself.

Legal scholars mostly disagree. The bedrock of the U.S. Constitution is that no person is above the law, they point out. Former acting Solicitor General Neal Katyal flatly said the idea that someone could be immune from obstruction of justice died with George III, with a brief attempt at revival by former Pres. Nixon. The opinion of any former Solicitor General, acting or not, carries a lot of weight. Solicitors General represent the U.S. government before the U.S. Supreme Court. Any Solicitor General is considered to be a top flight lawyer. They are the lawyer’s lawyer. Mr. Katyal derided Mr. Giulinai’s suggestion as a “ludicrous legal theory.” If a careful lawyer pokes fun at Mr. Giuliani’s argument, then we can conclude the argument is weak.

The decision in the Paula Jones lawsuit against then Pres. Clinton is instructive. The courts universally found that a sitting President was still subject to the normal civil legal process. Former Pres. Clinton tried to argue that as President, a civil lawsuit should be postponed until his term has ended. He lost at every level of appeal. If civil cases still apply to sitting presidents, it is very likely that criminal legal process will also still apply. The ABA Legal Fact Check noted that in ruling on a subpoena issued to then Pres. Nixon, Chief Justice Warren Burger wrote that yes, a President does enjoy special consideration. But, that special consideration does not include an “unqualified presidential privilege of immunity from all judicial process under all circumstances.” See ABA Bar Journal report.

But, for a president who famously provides his own legal counsel, these legal opinions may not matter.

Pres. Trump has dis-invited the Philadelphia Eagles to the White House. The reigning Super Bowl champs are typically invited to the White House. The President indicated it was because of a disagreement over whether to stand for the national anthem at football games. See CBS news report. The President issued a statement that said:

“They disagree with their president because he insists that they proudly stand for the National Anthem, hand on heart, in honor of the great men and women of our military and the people of our country,”

As a retired member of that great military, all I can say is that is what I believed when I was in first grade, too. In fact, I attended a military school in first grade and absolutely believed that standing straight and tall during the national anthem meant I was a good patriot. Now, I know better. I grew up during the 60’s and 70’s. I was perfectly okay with protests for the right reason. Now, a lifelong student of history, I can point to dozens of examples of great patriots who protested in favor of sincere beliefs. Many of those protests would later go on to be vindicated. But, I guess it is better politics to think like a first grader……

P.S. You have not lived until you have sung the national anthem in a war zone. It was a surreal experience. Singing it at football games now almost seems to trivialize the song.

To mark Memorial Day, I would also like to recall two area San Antonio heroes. They were both fiends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st CA Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice. He laughed a lot.

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. There is a nice tribute to 1SGT Saenz here. As John Bear Ross mentions on his website, do not mourn that a man like 1SGT Saenz died. Rejoice that a man like 1SGT Saenz lived.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here.  Like many of us, he returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, we remember the fallen – but not the Confederate fallen. They were removed from the list a few years ago.

It is probably the first legal advice I ever received. In law school, the teachers told us if the police say do this or do that, do it. Do not argue your rights with the police on the street, they emphasized. On the street, you do what the police officers say. Period. If the police violate your rights, you can file a complaint later. But, on the street, you do what they say.

So, it may not be popular to say this, but I feel that Sterling Brown was in the wrong when he refused police officer direction to remove his hands from his pockets. See NBC news report. Mr. Brown’s response to being told to take his hands out of his pockets was, “Hold on. I’ve got stuff in my hands.” The situation quickly escalated after he told the police to “hold on.” When the police tell you to do something, you need to do it. Police have a target on their back. They have to control the situation.

I am sure the Milwaukee police could have handled this situation better. But, when law enforcement says take your hands out of your pockets, you have no choice.

Way back when, when I was in my twenties. I was passing through “Fleasville,” also known as Leesville, Louisiana, heading to my then home, Alexandria. I was passing through about midnight. The police stopped me for some reason. Out of habit, I slipped my hands in my pockets without thinking. Immediately, those small town police officer shouted for me to remove my hands from my pockets. The urgency in their tone was clear. As quick as I could, I removed my hands. To me, it was no big deal. My hands can rest wherever.  But, to the police, it was a potential threat to their lives. Just do what they say. To you, it is no big deal. To the police, it is about life or death.

Comal County is adjacent to Bexar County. The County seat for Comal is New Braunfels. Recently, a woman was charged with trafficking a girl for sex. While the jury was out deliberating, Judge Jack Robison interrupted them and told them God had told him the woman, Gloria Romero Perez, was not guilty. The jury ignored the judge and found the woman guilty. Judge Robison recused himself before sentencing. the Defendant asked for a mistrial, but was denied. See Austin American-Statesman report.

Judge Robison explained to the jury that he could not ignore God’s wishes. No, he should not. But, that interruption does provide the Defendant with a basis for an appeal.The defense attorney explained that she submitted a motion for directed verdict at the close of the prosecutor’s case. The judge could have simply granted that motion and avoid a lot of drama. See San Antonio Express News report.

Judge Robison has been previously sanctioned by the State Commission on Judicial Conduct. I think I see a another visit from the State Commission in the judge’s future. Usually, the jury room is sacrosanct. No one may enter.

The jury later sentenced the defendant to 25 years. They gave Ms. Perez the lightest sentence possible. She was accused of bringing her under-age niece to the U.S. and selling her to a 32 year old man. The man then impregnated the niece. The jury foreman said some jurors felt the Defendant should be released and given credit for the time she has already served.

Online legal help has grown tremendously in the past 10 years. But, the truth is many of those websites are providing legal advice – without a law license. In lawyer talk, we call that unauthorized practice of law. Unauthorized practice of law was developed to protect consumers from charlatans, person who claim legal knowledge, but lack it. I am not sure what to think about the online legal service providers.

But, Raj Abhyanker knows what to think. He has sued several of those legal service providers, LegalZoom, FileMyLLC, and others. Mr. Abhyanker practices patent and copyright law. As he points out, those online providers can provide services without incurring expenses for continuing legal education, for malpractice insurance, and the many other expenses actual lawyers incur. The online legal providers have an advantage. Mr. Abhyanker says bar associations are unwilling to push the issue. But, the bar associations all know these providers are providing legal advice, meaning they could be prosecuted. See ABA Bar Journal report.

I think bar associations are holding back also because at least so far, there have been no significant scandals arising from these providers. Until or unless they cause harm to consumers, it is hard to criticize them. They are indeed providing legal advice, but much more cheaply than seeing a lawyer. In most of the world, civil law countries have an institution known as “notaries.” In a civil law country, a notary provides the more routine and mundane legal services more cheaply. In France or Mexico, you can see a notary to draw up a contract for you, and it will cost much less than seeing a solicitor. In the U.S., we do not have an equivalent of the notary. We have notaries, but they cannot draw up legal, binding contracts. There ought to be a cheaper way to obtain the more mundane, routine, legal services.

Part of the reason bar associations hang back from going after these online providers is that they do fill a niche.