Lawyers are not supposed to make things worse for their clients and we definitely are not supposed to wager our law licenses on a particular outcome.  Yet, in the Paul Manafort legal melodrama, that seems to be exactly what has occurred. Paul Manafort entered into a plea bargain agreement with the Special Prosecutor, Robert Mueller. Yet, at the same time, his lawyers also talked with the Trump legal team. Rudy Giuliani said the Manafort lawyers discussed the Mueller probe with Trump’s lawyers. They gained valuable insights, added the former New York City mayor. That is a remarkable admission.

Mr. Giuliani said the Trump lawyers “grilled” Kevin Downing, lawyer for Mr. Manafort, about whether the President knew about the 2016 meeting with the Russians at Trump Tower. See Axios report. And, in fact, that was one of the areas of questions posed to the President by the Mueller team.

Mr. Manafort’s lawyers engaged in those discussions with persons who could grant Manafort a pardon. That suggests the Manafort lawyers were motivated by a desire for a pardon. That suggests the President and his legal team may have suborned perjury. Suborning perjury means to bribe or somehow induce a person to commit perjury. It is a crime. Legal experts have expressed surprise that the lawyers for Manaofort and Mueller would put their law licenses at risk that way. See The Hill news report.

And, of course, at about the same time as all this information emerges, Pres. Trump said he would not rule out granting Manafort a pardon, making it clear a pardon was possible. The president has in effect dangled a dog bone of a pardon before the panting Manafort. Yet, Pres. Trump’s lawyers must realize how that looks. A good prosecutor, even one without the competence of Bob Mueller, would almost certainly look into what was said between the Manafort and Trump legal team. As a class, us lawyers hate to become witnesses. As a witness, we become burdened with a conflict of interest and must withdraw from the legal matter. The lawyers for Pres. Trump have remarkably exposed themselves to legal liability on so many levels. They have likely made themselves witnesses to possible perjury.

Regardless of what was actually discussed, these developments have opened the door to deeper, more extensive investigation. Like doctors, lawyers are expected to if nothing else, do no harm to your client (or to your law license). Yet, these lawyers appear to have done exactly that, harm to the President’s case and to their own law licenses. This is a bizarre turn of events.

 

It is extremely rare for a Chief Justice of the United States Supreme Court to fuss at the President. Yet, that is what Chief Justice Roberts has done. Pres. Trump complained that an “Obama judge” ruled against him. The next day, Chief Justice Roberts said we do not have Obama judges, Bush judges, or Clinton judges. Instead, we have an independent judiciary for which we should all be thankful.  The Chief Justice was trying to tell the President that these frequent attacks on judges makes it harder for judges to remain independent. But, the same day, the President responded, indicating he was not impressed by the Chief’s comment. See CBS news report here.   

It is not unusual for litigants to a lawsuit to complain at the end of an unsuccessful trial that they lost due to the judge. But, for the President to say that is very irresponsible. An important element of democracy is the rule of law. The rule of law replaced the rule of men centuries ago. Perhaps, every few generations, we have to re-learn that lesson.

There are some fundamental requirements in United States jurisprudence. There are some things we just do not do as a matter of fundamental due process. One of those things we do not do is ask minors to make important legal decisions. Yet, that is exactly the slippery slope upon which the Trump administration has embarked. A five year old Honduran who as seeking asylum was separated from her grandmother. She was then asked to sign away her right to a bond hearing. The ABA Bar Journal is relying on a New Yorker magazine article for the story.

Helen arrived in Texas with her grandmother, Noehmi and her teenage uncle, Christian in July. The Trump administration had supposedly ended the practice of separating children from their families weeks before Helen arrived. Yet, Helen was separated from her family.

All immigrants have the right to a hearing to determine whether they are entitled to bond. If the court finds they are likely to appear for their hearing, then the court allows them to post bond and go free until his/her hearing. Little Helen checked the box indicating she wanted a bond hearing. Later, someone handed her a form, with adult language and in English, asking if she wanted to waive her right to a bond hearing. The form was checked that she wished to withdraw her request for a bond hearing. Her signature appeared in typical kindergarten scrawl, just one word, “Helen.” There was no last name.

In Texas, the age at which one may enter into a contract is 18. But, in reality, many businesses require an older age, 21. My son cannot rent a car in his own name until he turns 21. Five years old is definitely below the minimum.

The age of consent affects countless areas of law, everything from marriage, to a driver’s license to voting. It is, or was, a fundamental precept of American law. See the ABA Bar Journal report here.

Later, Noehmi and Christian were re-united. But, at the hearing, the immigration judge and the Department of Homeland Defense lawyer did not appear to realize Helen existed. The lawyer for Noehmi and Christian tracked down Helen and found her. Helen was returned to her family on Sept. 10, 2018. But, now, she is afraid to go to sleep at night for fear her family will leave her in the night.

In another case about immigrants, Pres. Trump’s racist remarks about immigrants were used as evidence against him. This judge, Edward Chen in San Fransisco, ruled in favor of the immigrants partly based on the President’s comments about Mexican immigrants, about Muslims and about immigrants from some African countries. Judge Chen ruled that to the extent the President had influence on the head of Homeland Security Department may have implemented certain restrictions due to the President’s wishes.

The lawsuit seeks to stop Homeland Security from ending provisions allowing immigrations from from El Salvador, Sudan, Nicaragua, and Haiti. Judge Chen found there was evidence that Pres. Trump harbors animus against non-white, non-European immigrants.  See CBS news report here.

I previously wrote about Pres. Trump’s racist comments here. It is exceedingly unwise to make comments like that. Some court decisions have chosen to overlook his comments, finding most of them were made during the campaign. But, in every lawsuit about immigration, those comments become key issues.

Those racist comments may help his election chances, but they undermine his immigration policies. But, I suppose he knows all this and has chosen to emphasize election viability.

 

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.

Its a pretty clear First Amendment violation, firing Peter Strzok. The President and Rep. Meadows have made some hay about Agent Strzok supposedly using influence in regard to the Mueller investigation into Pres. Trump. But, there has been no evidence of Strzok allegedly using his influence to affect the investigation. Agent Strzok specifically said “we will stop” the election of Pres, Trump in 2016. He said he was talking about “we” the voters. That was protected speech by a federal employee. See CBS news report here.

In firing the FBI agent and linking the firing to his comments about the President, the employer has set up a lawsuit nicely for the agent, if he wishes to pursue it. It was very unwise of the FBI to fire him for unsupported reasons. If the President and others could show actual influence over the investigation, my opinion would change. But, for now, there is no evidence of him exerting any actual influence over the investigation. Too, as he pointed out when he testified to Congress, if he wanted to affect the outcome of the 2016 election, he could have leaked the fact that the Trump campaign was being investigated in 2016.

Firing the agent may have placated some folks in the Executive branch, but that short-term gain may result in long-term pain.

Pres. Trump and AG Sessions started a policy separating children from their parents at the border last April. It lasted just a few weeks, but resulted in some 2500 children separated form their children. The policy was changed and the federal government was able to re-unify most of the families. But, there are still several hundred children who are apart from some 500 parents.A federal judge in San Diego has presided over a lawsuit filed by the American Civil Liberties Union, the ACLU. The challenge now is those 500 parents were deported. This is a transient, mobile population. It will be very difficult to find them.

In a recent filing, the Department of Justice unwisely said the ACLU could locate these parents. DOJ said with their network of NGO’s. volunteers and other resources, the ACLU could find the parents. The DOJ was apparently trying to make a joke. The ACLU has no such network. It is more or less a national law firm, composed of individual lawyers in various cities. “NGO” refers to non-governmental organizations. The ACLU has no “network” of NGO’s. DOJ knows that. I can only think they intended the comment as a joke of some sort.

The judge, Dana Sabraw, said to be a dignified sort of judge, did not rise to the bait. He simply told the DOJ that this problem, created by the Trump administration must be solved by the Trump Administration. Judge Sabraw said that sort of plan was not “acceptable.”

It is never wise to make jokes about major problems. The judge will remember that callous humor later when DOJ might wish to be taken seriously. See AP news report here.

Well, the Supreme Court disagreed with me. But, only by a 5-4 vote. The Supreme Court ruled in favor of the President’s travel ban and rejected the appeal of the state of Hawaii. See the opinion in Trump v. Hawaii, No. 17-965 (6/26/2018) here. I previously wrote about that travel ban and its apparent religious bias here and here. The Supreme Court found that the President had broad authority to restrict immigration. And, this was after all the third version, the one the President referred to as a “watered down” version.

Chief Justice Roberts wrote the majority opinion. The President relied on 8 USC Sec. 1182(f), which allows the President broad authority to restrict immigration. Justice Roberts noted that the Proclamation implementing the travel ban is 12 pages long. It provided detailed reasons for the exclusions it sought.

Regarding the allegation that the executive order sought to exclude Muslims, the court noted that the Constitution provides that the government shall take no measure respecting the establishment of a religion. The court noted the many statements by Candidate and President Trump attacking the Muslim faith. In his first week as President, he referred to the first version of the ban as the “Muslim ban.” When the current immigration ban was implemented, he said it was “watered down” and that he wanted something stronger. Justice Roberts then recounted a long history, starting with George Washington, of presidents espousing religious tolerance and freedom. The Justice was clearly calling the current President to a higher standard than to espouse “Muslim bans.”

But, the court would not go so far as to assign bias to the executive order itself. Wearing blinders a bit, the Justice claimed the executive order itself is neutral in regard to the Muslim faith. Of coarse, that conclusion strikes me as naive. The court chose to ignore the President’s own stated bias in effecting this travel ban.

Justice Kennedy issued a concurring opinion, simply to remind the Prudent that he, like all federal officials, took an oath to defend and support the Constitution. Without naming Pres. Trump by name, he was clearly warning the President that he must adhere to the principle of the Constitution even in regard to travel restrictions.

Four justices dissented. This was a close vote. But, the vote to watch belongs to Justice Kennedy. He is the swing vote. He supported the President’s executive order, this time. But, he sent a warning to the executive branch. I am doubtful the President will notice. But, his lawyers will.

 

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.