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.

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.

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.

In federal court, all lawyers run into the challenge of an overbearing judge. It can happen in state court. But, generally, pushy judges are mot likely to be encountered in federal court. In the Paul Manafort trial, the judge is not necessary overbearing, but he constantly presses the two sides to avoid lengthy, tedious testimony. That pressure has led to verbal fencing between the judge and the prosecutor.

For example, there was this exchange between Greg Andres, the prosecutor and Judge T.S. Ellis:

“The day’s first significant altercation came as Andres sought to question Manafort’s former  deputy, Rick Gates,            about his travels, using his passport as a visual aid.

“Let’s go to the heart of the matter,” Ellis said.

“Judge, we’ve been at the heart. …” Andres replied, before the judge cut him off.

“Just listen to me. … Don’t speak while I’m speaking,” the judge said, sharply. He added that he didn’t see how the testimony on travel “amounts to a hill of beans” with regard to the charges against Manafort, the former Trump campaign chairman.

See Politico news report.

There have been several such instances of Mr. Andres sniping at the judge and the judge fussing at him for perceived lack of respect, not looking at the judge, rolling his eyes, etc. In a criminal trial, the prosecutor can sometimes take the judge on like that. But, in a civil trial. the jury will perceive it as bad that the judge is fussing at a lawyer. So, usually in civil trials, we do not fuss back. In any event, it is frustrating that some judges will not let you provide testimony you believe essential to your case.

Parties to a lawsuit rarely discuss sanctions, but at least in federal court, sanctions are a real, if rare, possibility. Secretary of State for the state of Kansas, Kris Kobach, learned about sanctions. Mr. Kobach was advocating for the state’s voter ID law. The federal judge hearing the matter struck it down, finding that there were only 67 instances of non-citizens registering or attempting to vote in 19 years. The court found that the state of Kansas did not show an actual problem existed.

Secretary Kobach represented the state in the lawsuit. He was the responsible party. The state of Kansas failed to comply with discovery rules several times. The Judge said Secretary Kobach chose to represent himself in this matter. As such, the responsibility is his. The judge had previously found the Secretary of State in contempt for failing to follow court orders regarding voter notices. He had also been ordered to pay the plaintiff’s attorney fees.

Mr. Kobach excluded evidence which had been requested, yet he tried to use the same evidence during trial. That is as clear a violation of the discovery rules as it gets. The judge ordered the Secretary of State to take an extra six hours of Continuing Legal Education credit hours. The case is styled Fisher v. Kobach. See ABA Bar Journal report.

You know you messed up when the judge orders you to take CLE. Most of would suffer acute embarassment over being sent to Sunday school.  But, in the midst of the culture wars, Mr. Kobach may use this as a springboard to higher office. This is the same Kris Kobach who formerly chaired the President’s so-called Commission on Voter Fraud.

For decades, there has been such a thing as the attorney client privilege. In our system of justice, we depend on lawyers who represent clients zealously. To protect that representation, we have developed this attorney client privilege. Until Watergate, the privilege applied to every communication between a lawyer and his/her client. But, the Watergate conspiracy had many facets, one of which was some lawyers refusing to answer questions based on the attorney client privilege. Many of the Watergate actors were lawyers, so the privilege was invoked many times. So, among the many Watergate reforms, the American bar Association re-looked the attorney client privilege.

The ABA researchers modified the privilege. They recommended that it not apply to planned or future crimes. Yes, zealous representation is still critical to our judicial system. But, said, the ABA committee, zealous representation is not as important as preventing crime and harm to others.

So, when Pres. Trump says the attorney client privilege is dead, he is wrong. He exaggerates, of course, but even allowing for hyperbole, he is wrong. The attorney client privilege has not included crimes yet to be committed for several decades. We do not know yet what supported the search warrant for Michael Cohen. But, with all the multiple layers of review it received, it is very likely the U.S. Attorney for the Southern District of New York is looking at possible crimes, yet to be committed. See Politico news report.

And, by the way, it is not unheard of for law enforcement agencies to seize documents from successful criminal defense attorneys. It is rare to do so, but it happens. Some law enforcement agencies become convinced that some defense lawyer, especially after winning a few trials, are committing crimes him or herself. So, sure, they might investigate some criminal defense lawyers by conducting a raid at his/her office.

Stormy Daniels signed a Non-Disclosure Agreement with Michael Cohen. There is a place on the agreement for the signature of “David Dennison,” who is probably Donald Trump. Mr. Dennison/Trump never signed the agreement. The NDA includes a liquidated damages provision. “Liquidated” damages simply means damages would be hard to determine, so the parties agree in the NDA itself what the damages should be. As Harry Litman explains, this liquidated damages provision represents an effort at pre-determining the amount of damages if Stormy violates the NDA. See CNN news report. The agreement provides that if she breaches the agreement, she would be liable for $1 million per violation. So, Michael Cohn has sued her for $20 million claiming she violated the agreement 20 times.

Yea, yea, whatever. Selecting such  high amount shows bad faith on the part of Michael Cohen and Donald Trump. In any court in the country, anyone suing for $1 million or more better have a very good explanation for that figure. That high an amount suggests it was pulled out of the air. In every discrimination case that settles, the parties sign a settlement agreement. The settlement agreement often contains a non-disclosure provision, just like the one Stormy signed. Sometimes, but not often, the parties agree to a liquidated damages amount. The amount, at least in my experience, is never over $10,000. It just looks silly and amateurish to have an amount in six figures, much less seven figures.

The liquidated damages amount is intended as a guess-estimate regarding how much the damages would be. Otherwise, it would be exceedingly difficult to put a number to how a party has been harmed because the other party blabbed about the settlement. There may be no dollar value. So, generally, I personally oppose including a dollar value. For most of us who lack any notoriety, there is no monetary value to the harm caused.

No, as Harry Litman explains, this use of a million dollars is more “Bronx bluster” than actual legal argument. In 99.9 % of the court rooms in the country, the Trump/Cohen legal team would show themselves to be bullies or amateurs with that sort of a dollar amount. Mr. Litman tells her in his piece on CNN not to worry about the liquidated damages. I would tell her the liquidated damages provision helps her much more than it helps Mr. Cohen/Dennison/Trump. And, that does not even get into the issue regarding whether the agreement is binding. It may not be binding. Mr. Cohen can sign as a lawyer, but he cannot sign as a party. Only Dennison/Trump can do that.

The Equal Employment Opportunity Commission has field suit agains Zachry Industrial for discriminating against persons with disabilities. According to the San Antonio Express News, Zachry Industrial operates a refinery in Pascagoula, Mississippi and it has fired workers after they notified their employer of a disability. Zachry Industrial is headquartered here in San Antonio. See San Antonio Express News report. Zachry Industrial employs 900 employees here in San Antonio and some 22,000 employees world wide.

At least three workers were fired after notifying their employer they suffered from some impairment. Of course, the employer should not fire persons who report a new impairment. Instead, the employer is required to engage in a discussion about accommodations the person might need and what accommodations the employer can provide. The lawsuit was filed in the Southern District of Mississippi.

Zachry Industrial was previously sued for discrimination based on gender. See EEOC press release here. In that lawsuit, the EEOC said the employer fired a woman after she complained about discrimination. Zachry Industrial was formerly known as Zachary Construction Corporation.

According to a May 28, 2017 article in the Austin American-Statesman, members of Congress, including Lloyd Doggett, asked the Department of Labor to change rules that shield frequent violators of USERRA. USERRA is the law that protects Guardsmen, Reservists and other service members from discrimination in their civilian jobs. Some employers just do not get it. They do discriminate frequently. Dept. of Labor knows who they are because DOL processes with administrative complaints filed by the Reservists.

In 2016, the House Veterans Affairs Committee opened an inquiry into the ,matter after the newspaper reported several employers in Texas frequently discriminated against Reserve members in their civilian jobs. DOL initially agreed to change their rules, but have not cooperated since. In Texas, some 16 different employers have had multiple complaints filed which DOL investigated. Those investigations resulted in a settlement or a finding of discrimination.

In 2016, the American-Statesman submitted FOIA requests to DOL seeking the names of the employers. But, the DOL refused, saying they need to protect the privacy of the service member. Lloyd Doggett met with DOL officials in December, 2016. They told him they feared that outing these employers would cause them to hire veterans less.

A review by the newspaper suggests some 40% of lawsuit filed based on USERRA are against state and federal agencies. Texas lead the nation in 2015 with 230 USERRA complaints filed with DOL.

The Trump administration has reportedly instructed departments to refuse requests from Democratic members of Congress, further obstructing Rep. Doggett’s efforts to seek transparency. See Austin American-Statesman report.