How a Gazan paramedic volunteer was killed by the IDF

https://nyti.ms/2RpE8AO

How Trump corrupts rule of law

Check out @LeahLitman’s Tweet: https://twitter.com/LeahLitman/status/1079449459904241664?s=09

/someone-has-already-been-charged-for-most-of-the-actions-the-steele-dossier-attributes-to-michael-cohen/

https://www.emptywheel.net/2018/12/29/someone-has-already-been-charged-for-most-of-the-actions-the-steele-dossier-attributes-to-michael-cohen/

Chinese dissenters lawyers trial backfires ~WaPo

https://www.washingtonpost.com/world/china-holds-a-secret-trial-for-a-rights-lawyer-after-3-years-in-detention-it-backfired/2018/12/27/884d8b6a-09a9-11e9-892d-3373d7422f60_story.html

Congress must not confirm William Barr -Trump’s attorney general nominee. //Slate

Congress must not confirm Trump’s attorney general nominee.: The attorney general must report to the people, not the president.
by Joyce White Vance (former United States Attorney, Northern District of Alabama)

...No matter what [William] Barr’s intentions, the appearance of impropriety—of ingratiating himself with a president whose desire to install a wingman as attorney general—means that the public perception will always equate Barr, if confirmed, with Trump’s desire to hold himself above the law. There will be no public confidence in decisions about potential collusion between the Trump campaign and Russia, or about obstruction of justice. Such a significant loss of public confidence will inevitably erode the credibility of the department’s work in other areas as well. The future of the Justice Department, and that of all Americans, will be impaired if it appears the department is being used as a tool to protect this president.

Recusal is not a sufficient remedy for a faulty choice for attorney general at this critical juncture. Congress has the responsibility to deny confirmation to an attorney general who is not suited for the job. A worthy nominee faced with the knowledge that they, even inadvertently, had damaged DOJ’s credibility would make amends if possible, or take themselves out of the running to ensure the people’s faith in justice. It is hard to believe someone who makes serious missteps, as Whitaker and Barr both have, but remains unwaveringly in place will have the fortitude to pass the challenges Trump’s next attorney general will certainly face.

In Major Move, Census Bureau Offers Up Citizenship Data For Redistricting – Talking Points Memo

Republicans getting ready to cut representation in cities with large non-citizen populations.  In addition to so-called "illegal aliens" there are millions of "legal" aliens.  Republicans, seeking to reduce Democrats votes plan to redisrict based oncitizenshi not residence.
In Major Move, Census Bureau Offers Up Citizenship Data For Redistricting – Talking Points Memo: In what could be a major change for voting rights and the distribution of political power between urban and rural areas,...

China to enhance IPR protection - Global Times

China to enhance IPR protection - Global Times
by Lung Shumei

China has clarified punitive damages for intellectual property right (IPR) infringement in the draft civil code, a move which analysts said would help relax trade friction between China and the US.

Two sections of the draft civil code including provisions on tort and contract were submitted to the Standing Committee of the 13th National People's Congress (NPC) - China's top legislature - on Sunday, launching the second phase of formulating the country's long-expected civil code that is expected to run until 2020, the Xinhua News Agency reported on Sunday.

The draft empowers people whose IPRs are seriously infringed upon with the right to claim for punitive damages.

Shen Chunyao, head of the Legislative Affairs Commission under the NPC Standing Committee, said in a report to the committee that it is necessary to raise the penalty of IPR infringement to enhance the protection of IPRs and fully enact the deterrent role of law, according to Xinhua.

Ni Feng, a deputy director of the Chinese Academy of Social Sciences' Institute of American Studies, told the Global Times on Monday that the move is in accordance with China's goal of establishing a socialist market economy and constructing an innovative country.

"Meanwhile, it also can be viewed as an indication of China's effort to ease trade friction with the US as IPR infringement is an issue of which the latter often accuses China," Ni said. 

The Office of the US Trade Representative said in a report released on November 20 that, "China fundamentally has not altered its acts, policies, and practices related to technology transfer, intellectual property, and innovation."

In response to the slam, China's Ministry of Commerce said on its website on November 23 that China does not accept the report, "which levels new, groundless accusations that go against facts."

China's draft civil code has six sections, namely provisions on property, contract, personality rights, marriage and family, inheritance, and torts, consisting of 1,034 articles in total, according to Xinhua.

China has made multiple attempts to draft a civil law only to halt due to political turmoil and other reasons, according to Xinhua.

"Civil codes are the most important basic law that regulates all aspects of daily life. The draft of it requires clear understanding of social development and social order as well as workable plans to deal with social problems," Wang Sixin, a professor at the Communication University of China, told the Global Times on Monday.

But as China has experienced a rapid development in recent decades, the country has lacked mature conditions to draft it, Wang noted.

The committee had collected suggestions from Chinese citizens on its website for two months before the two sections mentioned above were submitted.

It is reviewing the two sections during a bimonthly session scheduled from Sunday to Saturday. 

Chinese police lock down court for trial of prominent rights lawyer

Chinese police lock down court for trial of prominent rights lawyer: Wang Quanzhang spent 1000 days incommunicado after being charged with inciting subversion of state power in a case that has attracted concern in the west.

Some Holiday Book Recommendations – Talking Points Memo

Some Holiday Book Recommendations – Talking Points Memo: With Christmas and New Year’s upon us, I thought I would give some book recommendations. As always a few caveats...

China: 100,000 comment on tort law draft

http://www.china.org.cn/china/2018-12/23/content_74304496.htm

Beto O'Rourke is the new Obama. And that's the last thing we need | David Sirota | Opinion | The Guardian

This is the Left critique of the Center-Left.  The 2020 Democratic Party race - already underway - is going to be messy. - gwc

Beto O'Rourke is the new Obama. And that's the last thing we need | David Sirota | Opinion | The Guardian: Betomania may have befallen Washington elites, but replicating an Obama presidency would be a tragedy.

Why another Obama would be a tragedy

Replicating an Obama presidency would be better than what we have now. But it would still be a tragedy. That’s because the fundamental premise of Obamaism - and its predecessor, Clintonism – is that there is always a policy that can at once serve the people and the powerful. And recent history has showed that is both false and dangerous.

The fantastical mythology of a satisfactory “third way” between the corporate class and the rest of us posits that the Democratic party’s insurance industry backers can be enriched and healthcare policy can still be humane; its Wall Street sponsors can eviscerate industries and workers can still earn enough to survive; and its fossil fuel donors can keep pumping out carbon and the ecosystem can still sustain human life.

The alluring idea is that we never actually have to answer that haunting question of labor lore: “Which side are you on?” Obamaism leads us to believe that we do not need to choose, and that we can actually have it all – as long as we always make sure to line up behind policies that appease the super-wealthy.

It is, in other words, the ideology undergirding the argument recently put forward by former vice-president, Joe Biden, who insisted: “I don’t think 500 billionaires are the reason why we’re in trouble … the folks at the top aren’t bad guys.”

Judge blocks Virginia DMV from suspending licenses for failure to pay fines and costs | Courts and Legal News | dailyprogress.com

RICHMOND, VA — A federal judge in Charlottesville has granted an injunction to prevent the Virginia Department of Motor Vehicles from enforcing a state law that requires automatic suspension of driver’s licenses for failure to pay court fines and costs.The judge also required the agency to reinstate the licenses of three plaintiffs and refrain from suspending those of two others.

U.S. District Judge Norman K. Moon issued the injunction on Friday against DMV Commissioner Rick Holcomb, whom he ordered to cease enforcing the agency policy against the five plaintiffs, remove suspensions on their licenses and refrain from charging a $145 fee to reinstate their driving privileges.

The Charlottesville, Virginia Legal Aid Justice Center announces that on the heels of Governor Ralph Northam’s announcement earlier this week of his support for ending license suspension in Virginia of people too poor to pay court debt, and rulings earlier this year by two federal courts in Tennessee and Michigan declaring similar statutes unconstitutional. The ruling currently affects only the five named Plaintiffs unless and until the Court rules on Plaintiffs’ pending motion for class certification. Repeal legislation sponsored by Senator Bill Stanley will be considered by the General Assembly during the upcoming 2019 session.

Memorandum Opinion (PDF)

Order Granting Preliminary Injunction (PDF)

Stinnie v. Holcomb is a class action lawsuit, filed by Legal Aid Justice Center (LAJC) and McGuireWoods LLP, challenging the constitutionality of Virginia’s statute automatically suspending the driver’s licenses of nearly one million Virginia drivers who cannot afford to pay court costs and fines. The case was originally dismissed at the Circuit Court, but it was revived by the Fourth Circuit this summer when the appeals court allowed plaintiffs to amend their complaint. When LAJC filed the amended complaint, they also asked the court to issue a preliminary injunction, which would have the effect of ordering the DMV Commissioner to stop suspending driver’s licenses for non-payment of court debt while the lawsuit is pending.  On November 15th, Judge Moon took evidence and heard arguments for and against the preliminary injunction.  

On December 21, Judge Moon granted the preliminary injunction finding the driver’s license suspension statute likely unconstitutional and ordering the DMV Commissioner to reinstate Plaintiffs’ licenses while litigation proceeds. The Court also rejected the Commissioner’s arguments that the federal court lacked jurisdiction.

National and Statewide Implications:

• Virginia is one of 43 states that suspend driver’s licenses for non-payment of court costs and fines related to traffic and/or criminal offenses. Since Stinnie was originally filed in 2016, six more statewide lawsuits have been filed (or almost filed) in California, Tennessee, Michigan, Montana, Mississippi (settled pre-filing), and North Carolina, and advocates have won legislative reforms in many states, including California and, most recently, D.C.
• A federal judge recently issued a statewide injunction against a similar enforcement scheme in Tennessee.
• This ruling will not impact the nearly one million Virginia drivers who, as of December 2017, currently have at least one suspension on their license for failure to pay, including approximately 650,000 people whose licenses are suspended solely for not paying court costs and fines. 

• For many drivers, a license suspension means giving up their only mode of transportation to work, forcing them to choose between losing their jobs and risking jail time for driving on a suspended license. These long-suffering Virginia drivers will continue to endure a never-ending cycle of debt and incarceration, so long as the law forces them to choose between driving illegally and forsaking the needs of their families. 

To read more about the lawsuit, or to download the briefs, go to http://www.justice4all.org/drive.

Closed until further notice – Beto O'Rourke – Medium

Beto O'Rourke's essay on the Christmas shutdown reveals a man whose thinking out in the open strikes the sae sort of notes as his fellow Columbia college alumnus Barack Obama.  He has the same directness, logical train of thought and aspirational approach.  The two term Texas Member of Congress shows that he has the intellectual competence to present himself credibly for high office, as his Senate race showed.  He is definitely worth watching as 2020 approaches. - gwc

Closed until further notice – Beto O'Rourke – Medium: The government of the greatest country the world has ever known, the wealthiest, most powerful nation on the planet: closed until further notice. This shutdown – hundreds of thousands of our fellow Americans working without pay during the holidays, basic government functions no longer available to the taxpayers who fund them – didn’t have to happen. The Senate passed a compromise government funding bill two days ago, 100–0. The men and women who can’t agree on what to name a post office were able to unite and unanimously agree on how to fund the entire government.

But maybe it was intended to happen.

Maybe in the face of an investigation that seeks the facts surrounding allegations of collusion with a foreign government and obstruction of justice within our own government… as one aide after another pleads guilty… as the stock market tumbles… as men and women intent on keeping their dignity and their conscience flee his administration… perhaps the President calculates that by adding to the blizzard of bizarre behavior over the last two years and shutting down the government at Christmas, while his own party still controls each branch of it, the institutions that we need for our democracy to function (and to ensure no man is above the law) will be overwhelmed.

From a President who promised action, we got distraction.

But my concern for the country goes beyond the immediate pain and dysfunction that this shutdown will cause. Beyond even ensuring that this President is held accountable. What’s happening now is part of a larger threat to us all.

If our institutions no longer work, if we no longer have faith in them, if there’s no way to count on government even functioning (three shutdowns this year alone), then perhaps ultimately we become open to something else. Whatever we choose to call it, whether we openly acknowledge it at all, my fear is that we will choose certainty, strength and predictability over this constant dysfunction, even if it comes at the price of our democracy (the press; the ballot box; the courts; congress and representative government).

If there were ever a man to exploit this precarious moment for our country and our form of government, it’s Trump. Sending 5,400 troops to U.S. border communities during the midterm elections. Organizing Border Patrol “crowd control” exercises in El Paso on election day. Defying our laws by taking children from their parents, keeping kids in tent camps, turning back refugees at our ports. Calling the press “the enemy of the people” and celebrating violence against members of the media. Pitting Americans against each other based on race and religion and immigration status. Inviting us to hate openly, to call Mexican immigrants rapists and criminals, to call asylum seekers animals, to describe Klansmen and neo-Nazis as very fine people. Seeking to disenfranchise fellow Americans with made up fears of voter fraud. Isolating us from the other great democracies as he cozies up to dictators and thugs. Lying again and again. Making a mockery of the United States – once the indispensable nation, the hope of mankind.

KEEP READING

Mattis Proved You Can't Serve Both Trump and America - The Atlantic

Mattis Proved You Can't Serve Both Trump and America - The Atlantic:  
by Eliot A. Cohen (Counselor of the State Department 2007-2009)

The departure of Jim Mattis from government service is proof that you cannot have it all. You have to walk if you are to remain the human being you were, or conceived yourself being, before you went in. He alone refused to curry favor, to pander at the painful televised Cabinet sessions, or to praise someone who deserved none of it. In the end, he could not do his job and serve the country as he knew it had to be served. No one could.

Thomas Wright: Trump, unchecked

Henceforth, the senior ranks of government can be filled only by invertebrates and opportunists, schemers and careerists. If they had policy convictions, they will meekly accept their evisceration. If they know a choice is a disaster, they will swallow hard and go along. They may try to manipulate the president, or make some feeble efforts to subvert him, but in the end they will follow him. And although patriotism may motivate some of them, the truth is that it will be the title, the office, the car, and the chance to be in the policy game that will keep them there.

83 complaints against Kavanaugh buried.

https://slate.com/news-and-politics/2018/12/brett-kavanaugh-ethics-complaints-dismissed.html

Barr’s memo on Mueller embraces a dubious constitutional vision - The Washington Post

Trump's expected nominee for Attorney General William P. Barr (who held the office during the first Bush presidency) is an advocate of the broad view of presidential power known as the "unitary executive". Perhaps angling for a job on rump's team in June 2018 Barr wrote a very detailed memo attacking the obstruction of justice case he understands Special Counsel Robert Mueller to be developing.

Bar admits that "corrupt" intent can make a president's actions criminal and impeachable.  He then sets about whittling down Trump's exposure.  Former Deputy Attorney General Harry Litman has done a careful analysis of Barr's view.  the excerpt below captures the concerns that I had in my cursory reading of the document - which requires mush more thought than I have been able to give it so far.  A flood of commentary has already begun.- GWC
Barr’s memo on Mueller embraces a dubious constitutional vision - The Washington Post: Senators must probe Bill Barr on his views about Bob Mueller's investigation.
by Harry Litman
****There are substantial counter-arguments to Barr’s analysis — though he doesn’t spend a lot of time identifying and rebutting possible objections. But it is in fleshing out his statutory conclusion that Barr wanders into constitutional territory that I believe is dubious and, depending on very plausible courses of events in the coming year, alarming.

Barr asserts that “defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.” He later adds that “the President’s exercise of its Constitutional discretion is not subject to review for 'improper motivations' by lesser officials or by the courts.”

Barr seems here to suggest that a president cannot commit a crime or violate the Constitution if he is exercising an enumerated executive power, such as appointment, removal or pardon. To date, I am aware of nobody other than Rudolph W. Giuliani and Alan Dershowitz who have advanced this view. It is a royalist mind-set that cannot be squared with the constitutional text and structure, important decisions of the Supreme Court, and our strongest shared intuitions about unconstitutional conduct (for example, the president’s removal of an official for reasons of rank racial prejudice). ***

Hearings, counsel required before suspending driver’s licenses in delinquent child support cases - NJ Superior Court

Due Process requires hearings, counsel for suspending driver’s licenses in delinquent child support cases, New Jersey Superior Court holds

Responding to Congressional pressure and the problem of substantial delinquencies in court-ordered child support payments - much of it owed to the state which sought to recover welfare payments - New Jersey in 1998 amended its child support act, providing in NJSA 2A:17-56.41 (a) for suspension of driving licenses “as a matter of law” if a child support arrearage equals or exceeds the amount of child support payable for six months or court-ordered health care coverage for the child is not provided for six months”.  Judges, on the recommendation of probation officers, issued failure to pay (FTP) warrants by virtue of which the statutes provides the “ obligor's driver's license shall be suspended by operation of law”.

In Trenton Superior Court Judge Mary Jacobson has ruled that this “automatic” suspension of driving privileges violates both “due process” and “fundamental fairness”.  Relying on our State Constitution in her 187 page opinion in Kavadas v. Martinez as Chief Administrator of the Motor Vehicle Division, the Mercer County Assignment judge enjoined such automatic suspensions and gave the State 120 days to devise regulations to eliminate this practice by which some 20,000 people each year have lost their driving licenses without notice or an opportunity to be heard.  

The obligation to pay child support depends on the ability to comply with court-ordered child support payments.  Delinquency is concentrated among low income parents with support obligations.  It is only willful failure to pay that is enforceable and sanctionable.  Jacobson therefore ordered the state to provide counsel to indigent obligors who seek to demonstrate their inability to pay, typically due to changed circumstances such as job loss, ill health, etc.  Building on the landmark ruling in Pasqua v. Council (2006), in an opinion by Justice Barry Albin the state Supreme Court required that “attorneys be appointed to assist indigent non-custodial parents facing incarceration at child support enforcement hearings”. 

Aside from the automatic license suspensions enjoined, in some circumstances a hearing officer may recommend or a judge may order suspension of a license as a punitive and coercive measure.  Plaintiffs, represented by the lawyer who prevailed in Pasqua, sought to extend the right to appointed counsel to all indigent obligors who faced serious consequences for failure to pay child support.  Judge Jacobson extended the Pasqua principle to some civil enforcement of litigants’ rights hearings.  She explained that  “both due process and fundamental fairness require courts to provide counsel to indigent obligors at any hearing at which a hearing officer may recommend a driver’s license suspension to a court, or at any hearing when the family court itself is considering a driver’s license suspension.”

In her comprehensive opinion Judge Jacobson took note of a 2006 study by the Bloustein School of Planning and Public Policy with the New Jersey Motor Vehicle Commission -  Motor Vehicles Affordability and Fairness. The report “found that 42% of individuals who had their licenses suspended lost jobs as a result of the suspension, 45% of those who lost jobs could not find another job, and 88% of those that were able to find another job reported a decrease in income.” Jacobson wrote that “[e]ven though most of the Report’s findings addressed license suspensions in general and did not focus on child support-related suspensions, it is reasonable to assume that the affected dependents likely included many children who are the subject of child support orders, and the very individuals that the automatic license suspensions were intended to benefit.”  The Bloustein/MCV report also found that in low income areas “child support suspension rates for drivers...were ten times higher than the Statewide average.”

Judge Jacobson’s ruling addresses an important public problem.  It is to be hoped that Philip Murphy, the state's Democratic Governor, his Attorney General, and the Division of Family Development will work diligently and earnestly to produce the new regulations which the court has granted 120 days to formulate.  Judge Jacobson declined to make her order retroactive.  Thousands of parents - especially low income -doubtless remain stranded without driving privileges.   Their status is something which the Legislature can and should address.  

Finally, as the judge urged, the Legislature should “remove the provision directing automatic suspension of drivers licenses upon issuance of a support-related warrant.”   Judge Jacobson opined that “[s]uch an amendment would also end New Jersey’s outlier status as the only state utilizing this linkage and would restore the procedural protections originally afforded to obligors facing driver’s license suspensions.”

- George Conk
December 14, 2018

CREW Files IG Complaint Against Matthew Whitaker - CREW

CREW Files IG Complaint Against Matthew Whitaker - CREW: Whitaker should be investigated for ignoring a determination by career ethics officials that he should recuse himself from the Mueller investigation.

Washington — Acting Attorney General Matthew Whitaker should be investigated for violating the Standards of Ethical Conduct for Employees of the Executive Branch by ignoring a determination by career ethics officials that he should recuse himself from overseeing Special Counsel Robert Mueller’s investigation, according to a complaint filed today by Citizens for Responsibility and Ethics in Washington (CREW) with the Department of Justice (DOJ) Office of Inspector General. Under the Standards of Conduct, if an agency ethics official independently determines that an employee’s participation in a matter like the Mueller investigation would raise questions about his impartiality and should not participate in it, the employee is compelled to recuse.

According to a letter sent to Senate leadership from Assistant Attorney General Stephen Boyd, DOJ’s ethics officials determined “that a reasonable person with knowledge of the relevant facts likely would question the impartiality of the Acting Attorney General” and concluded that Whitaker “should recuse himself from supervision of the Special Counsel investigation.” That determination triggered a mandatory requirement that Whitaker recuse. Boyd’s letter also incorrectly asserted that the “ultimate decision” about recusal rests with Whitaker. Whitaker went on to ignore the determination by career ethics officials and, based on his own evaluation, decided to not recuse from the Special Counsel investigation.

Four justices back Trump regs denying asylum petitions

Only Roberts respected the plain language.  One is entitled to seek asylum regardless of point of entry.
Auto, Thomas, For such, Kavanaugh backed Trump.

https://thinkprogress.org/four-republican-members-of-the-supreme-court-just-said-that-trump-can-ignore-the-law-f8d6ac3e89ce/

What’s Noticeably Missing from the Whitaker Nonrecusal Explanation | Just Security

What’s Noticeably Missing from the Whitaker Nonrecusal Explanation | Just Security:  
by Marty Lederman December 21, 2018  

The Department of Justice issued a letter yesterday explaining why Matthew Whitaker has decided he won’t recuse from superintending the Russia Investigation overseen by Special Counsel Robert Mueller, notwithstanding the many inaccurate and inflammatory public statements he made about the Mueller investigation in 2017, before he was hired to work in the Trump Administration.

The regulatory provisions at issue are 5 C.F.R. § 2635.502(a)(2) and (d).  The former provides that an employee concerned that circumstances other than those specified in the regulation “would raise a question regarding his impartiality” should use the “process” described in subsection (d) “to determine whether he should or should not participate in a particular  DOJ doesn’t dispute that this is such a case. 

DOJ doesn’t dispute that this is such a case. Subsection (d), in turn, provides that “[w]here an employee’s participation in a particular matter involving specific parties would not violate 18 U.S.C. 208(a), but would raise a question in the mind of a reasonable person about his impartiality, the agency designee may authorize the  employee to participate in the matter based on a determination, made in light of all relevant circumstances, that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations.”  The regulation goes on to provide that several specific “factors . . . may be taken into consideration,” including:
KEEP READING

William Barr's Memo Makes Compelling Case that Trump Must Be Impeached | emptywheel

Marcy Wheeler does me the favor of not having to write a post dismantling "Bill Barr's" job application letter to Trump.  And BTW I hate the old DOJ buddies use of the familiar, rather than the full name of the once and future Attorney General who will probably have the wheel in his hands as the buckle up final descent begins. - GWC
William Barr's Memo Makes Compelling Case that Trump Must Be Impeached | emptywheel: A lot of people are reading William Barr's memo on why an imaginary Mueller investigation that has nothing in common with the real one is improper and worrying that he'll tamper with the Mueller probe. But given the actual facts, the memo can be used to make the case for impeachment.

Larry J. Sabato's Crystal Ball » Moderation in the Pursuit of Reelection May Not Help

Larry J. Sabato's Crystal Ball » Moderation in the Pursuit of Reelection May Not Help

Federal Appeals Courts Halts Emoluments Case While Trump Appeals – Talking Points Memo

More evidence that our best bet is with the voters.  As McConnell continues court packing the federal courts will grow less hospitable to challenges to Trump. - gwc
Federal Appeals Courts Halts Emoluments Case While Trump Appeals – Talking Points Memo: 

A federal appeals Thursday froze a lower court case accusing Trump of violating the Constitution’s emoluments clause,  halting discovery in the matter pending the resolution of the appeal.

Justice Department attorneys representing Trump had argued for an immediate halt in the matter, brought by the attorneys general for Maryland and Washington DC.

The lower court judge had denied a motion to dismiss from Trump, and allowed the state attorneys general to commence discovery earlier this month. The deadlines on 38 subpoenas were to come due on Jan. 3, but are now halted with the rest of the lower court proceedings

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error - ABA Formal Opinion 481

ABA Formal Opinion 481 (April 2018)

A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error

A perhaps too little recognized irony of the duties of loyalty, diligence, and competence we owe our clients is that the dangers faced may be of our own making.  When we have made a mistake – missed a deadline, failed to join a party needed for proper resolution, or otherwise put a client’s interests at risk a conflict of interest arises.  Our duty of reasonable consultation (RPC 1.2) generally requires us to keep the client informed of our efforts.  But that duty is sorely tested when we may have caused the client harm.  When must we tell the client?  The ABA in Formal Opinion 18- 481 has recently addressed that.

The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion, Rule 1.4, requires that ethical lawyers “self-report” to a current client if they have erred in the client’s representation and if the error is material.  The test is whether a disinterested lawyer would conclude that the error (a) is reasonably likely to harm or prejudice the client; or (b) is of such a nature that it would reasonably cause a client to consider terminating representation even in the absence of harm or prejudice.

          RPC 1.4(a) requires a lawyer to promptly inform a current client (a) of any decision or circumstance which requires the client’s informed consent; (b) to reasonably consult with the client about the means by which the client’s objectives are to be accomplished; and (c) to “keep a client reasonably informed about the status of a matter.”  RPC 1.4(b) also requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”  In a broader context, the guiding principle which furnishes the foundation for RPC 1.4 is that “the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interest.” 

Model Rule 1.7(a)(2) provides that a concurrent conflict of interest exists if “there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.” Where a lawyer’s error creates a Rule 1.7(a)(2) conflict, the client needs to know this fact to make informed decisions regarding the representation, including whether to discharge the lawyer or to consent to the conflict of interest. At the other extreme, an error may be minor or easily correctable with no risk of harm or prejudice to the client.

It is noteworthy that the ABA concludes that the duty to report is not owed to a former client.  But it seems to me that if a lawyer has breached the duty to report his/her own error there may still be a duty – and the malpractice statute of limitations may well be tolled by the failure to disclose one’s error.

          As the ABA Opinion 481 observes various jurisdictions have over the years addressed the self-reporting obligation as a corollary to RPC 1.4 and 1.7(b).  New Jersey’s Supreme Court Advisory Committee on Professional Ethics in its Opinion 684, published in 1998, has stated that “when the attorney ascertains malpractice may have occurred, even though no damage may yet have resulted, has an obligation to disclose this to his or her current client.” 

          In New Jersey where I practiced for thirty years and remain an active member of the bar our Supreme Court in the 1997 case of Olds v. Donnelly, reminded attorneys that they have an obligation to notify clients when the client may have a legal malpractice claim, even though notification will be adverse to the attorney’s own interest.  The Court there relied on RPC 1.7(a)(2) which states that a conflict of interest arises if “there is a significant risk that the representation of one or more clients will be materially limited by ... a personal interest of the lawyer”; which, therefore, requires the client to be advised of the attorney’s error in order for the client to make an informed decision as to whether to discharge the lawyer or to consent to the conflict of interest.

-       --  GWC

READ: William Barr’s Memo Bashing Robert Mueller’s Obstruction Probe – Talking Points Memo

READ: William Barr’s Memo Bashing Robert Mueller’s Obstruction Probe – Talking Points Memo: President Trump’s pick for attorney general sent the Justice Department an unsolicited memo earlier this year questioning the appropriateness of Robert Mueller's Obstruction Probe.

 Trump is about to get his wish: Once and future Attorney General William Barr, a Federalist Society stalwart thinks the executive branch is an arm of the President therefore any policy of his must be respected.  This is the plenary power doctrine.

Barr's ideological stance is not legally disqualifying: But it should be politically disqualifying given that this President is a lawless rogue.  One of our challenges is do we for the sake of institutional continuity ?  Give respect to this illegitimately elected and unfit man who now occupies an office for which doctrines of prudent deference to expertise and coherent policy-making were developed. - gwc

Let’s Think About Court-Packing : Democracy Journal

Ian Millhiser has not blinked from pointing out that the Supreme Court has been an enemy of democracy throughout our history - with a brief window of 1954 - 1968.  It is at one of its lowest points now. - gwc
Let’s Think About Court-Packing : Democracy Journal: Yes, it’s a dangerous tactic. But so is permitting a reality in which Republicans win rigged elections and the Supreme Court winks.
by Ian Millhiser // Center for American Progress

Just two years ago, this would have been an extraordinarily radical essay.

Its premise is that court-packing—increasing the number of seats on the Supreme Court to change its ideological makeup—is, in certain limited circumstances, justified. And it is not unlikely that those circumstances will arise soon.

Long seen as an unacceptable tactic, court-packing is now increasingly viewed as the least-bad option by an array of scholars and activists fearful that the Supreme Court has become a wholly owned subsidiary of the Republican Party.

The Roberts Court isn’t just a deeply conservative body; it is a body at war with democracy itself. Republicans on the Supreme Court have hobbled a key provision of the Voting Rights Act, and unleashed a torrent of money upon our elections. They brushed off voter suppression laws, and turned a blind eye to partisan gerrymandering. One recent decision held that voting rights plaintiffs who allege that a law was enacted with racist intent must overcome a burden of proof so high that it may now be simply impossible to win such cases in the future.

All four of the Republican-appointed justices who sat on the Court in 2016 voted to reinstate the most aggressive voter suppression law in the country—a North Carolina law that, according to a federal appeals court, targeted “African Americans with almost surgical precision.” If Justice Antonin Scalia were still alive when this case reached the Court, one of the worst voter suppression laws since Jim Crow would have taken effect during the already problematic 2016 election.

And then there’s the Supreme Court’s newest member, Brett Kavanaugh. The fifth Republican vote belongs to a man who blamed credible allegations that he committed sexual assault on a shadowy conspiracy undertaken to secure “revenge on behalf of the Clintons.” Kavanaugh has implicitly vowed revenge against the Democratic Party, telling his political opponents that “What goes around comes around.” He now holds the deciding vote on an array of upcoming voting rights cases.

Kavanaugh, moreover, joins a Court led by a man who’s long fantasized about dismantling America’s most important voting rights law. For years, stretching back to his time as a Reagan Administration lawyer in the early 1980s, Chief Justice John Roberts believed that the entire Voting Rights Act—including the parts left untouched in his 2013 decision in Shelby County v. Holder—should be neutered. Kavanaugh will likely provide Roberts with the fifth vote he needs to eliminate meaningful checks on racial voter discrimination, freeing red states to enact laws that shut Democrats of color out of the polls.

Likewise, these four conservative justices believe that state ballot initiatives giving independent redistricting commissions the power to draw legislative lines are unconstitutional. Kavanaugh will likely be the fifth vote for this proposition as well, eliminating one of the most effective ways we have of fighting gerrymandering.

This new Supreme Court could, in effect, usher in an era in which competitive elections essentially cease to exist in the United States—at least at the federal level. Democrats would lose any meaningful ability to compete for the presidency or for control of Congress. The United States would, of course, still hold elections, and many Democrats would serve as minority players, but the question of who ultimately rules in this country would be predetermined by a web of gerrymanders and voter suppression laws passed by Congress or state lawmakers and upheld and validated by the Supreme Court.

As the Court once recognized in its 1938 decision in United States v. Carolene Products, the judiciary has an obligation to intervene when lawmakers restrict “those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or when those lawmakers target the electoral process itself. When these legislators attempt to entrench their own rule, the courts have an obligation to roll back those laws and restore the voters’ power to choose their own leaders.

This same principle works in reverse as well. That is, when a conservative-dominated Supreme Court entrenches its own rule by handing down decisions on matters like voting rights that all but guarantee that future justices will be chosen by Republicans, Congress has a duty to intervene and ensure that elections will remain competitive. If the Supreme Court’s current majority is committed to one-party rule, then Congress must create a new majority on the Supreme Court that will return power to the voters.

Remember the Big Story in the Russia Scandal: Donald Trump Betrayed America – Mother Jones

Remember the Big Story in the Russia Scandal: Donald Trump Betrayed America – Mother Jones: The president and his disinformation squad are trying to distract you from the fundamental scandal.
by David Corn

***Let’s recap:

• Trump, while campaigning for president, had a secret deal in Russia for which his attorney sought Putin’s help. Trump lied to the public about this.
• Trump’s campaign was informed that Moscow intended to intervene to help Trump. It said nothing about this information, essentially encouraged the Kremlin, and denied Moscow’s involvement once the Russian hack-and-dump attack became publicly known.
• Trump, after being told the Kremlin was attempting to subvert an American election, claimed no such thing was happening. He covered for Putin.

Trump aided and abetted Russia’s secret war on the United States—a war that helped shape the outcome of a narrowly decided presidential election. This is all known, and indisputable—except that these days, anything will be disputed by Trump and his followers. Even if Trump’s disputations are demonstrable lies—“I have nothing to do with Russia”—they still color and cloud the ongoing public discourse about what happened in 2016. They have prompted his supporters and his GOP comrades to reject or ignore the powerful truth of Trump’s profound betrayal, portraying it as just another debatable point in the grand chaos of the Trump years.

This holiday season, though, the truth is crashing down on several of the president’s men (and one female Russian operative). And Trump’s multiple lies about the hush-money payments have been highlighted, with Trump himself practically branded an unindicted co-conspirator.***

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Bag Man: A Rachel Maddow podcast from MSNBC | NBC News

Bag Man: A Rachel Maddow podcast from MSNBC | NBC News: Listen to Bag Man: A Rachel Maddow podcast from MSNBC

Is it possible for an American Vice President to carry out a criminal enterprise inside the White House and have nobody remember? To have one of the most brazen political bribery scandals in American history play out before the country while nobody’s paying attention? In her first original podcast, MSNBC’s Rachel Maddow goes back 45 years to dig into a story that got overshadowed in its day.

Should we be able to indict a sitting president? Consider Spiro Agnew. - The Washington Post

Should we be able to indict a sitting president? Consider Spiro Agnew. - The Washington Post
by Walter Dellinger

What does the nation do if it turns out that a president of the United States has committed serious crimes that a prosecutor can prove beyond a reasonable doubt? One possible resolution would be to offer a plea bargain in which the commander in chief agreed to resign the presidency in exchange for utmost leniency. Perversely, the more financially corrupt or psychologically unstable the White House occupant, the greater his or her bargaining power: Only if you let my client go scot-free, a president’s lawyers could argue, will you be allowed to pry the nuclear codes from his hands.

That is a powerful bargaining chip but one with an expiration date. At the strike of noon on his successor’s Inauguration Day, when the (former) president’s Air Force One turns into a pumpkin, he loses that leverage and becomes like any other citizen before the bar of justice. That gives a provably corrupt president a great incentive to end his term early — and on his terms.

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ABA Panel Examines Acting A.G. Whitaker Appointment and Vacancies Act

I have opined that the Whitaker appointment as Acting Attorney General  improperly bypassed the Constitution's Appointments clause and the Department of Justice Vacancies Act.  Whitaker displaced Rod Rosenstein who succeeded to the discharged A.G. Sessions by operation of law.- gwc

ON December 18 the ABA Administrative Law section hosted a telephone webinar on the Vacancies Act, the Constitution, and the Appointment of Matthew Whitaker.

Is Matt Whitaker legally serving as the Acting Attorney General?

In early November, at the request of President Trump, Attorney General Jeff Sessions resigned. Under the Department of Justice’s succession statute, Deputy Attorney General Rod Rosenstein would be the Acting Attorney General until a new nominee could be confirmed. President Trump, however, immediately turned to the Federal Vacancies Reform Act of 1998 to name Matt Whitaker, Sessions’s Chief of Staff, as Acting Attorney General. Under the Vacancies Act, the default acting official is the first assistant to the vacant office, here the Deputy Attorney General. But the Act permits the President to choose another Senate-confirmed official from any agency or a sufficiently senior official at the same agency who has served for at least ninety days. Whitaker falls into that last category.

Maryland, some Democratic Senators, and others have turned to the courts to challenge Whitaker’s new role—on constitutional and statutory grounds. The district court in Maryland’s challenge will hear oral arguments on December 19. There is a motion pending at the Supreme Court to substitute Rosenstein as the opposing party in a petition for certiorari.

President Trump announced on December 7 that he intends to nominate William Barr for Attorney General. Similar challenges would arise if other top agency officials leave and the President selects non-Senate confirmed individuals to serve temporarily under the Vacancies Act.

• William Baude, Professor of Law and Aaron Director Research Scholar, University of Chicago Law School
• Marty Lederman, Visiting Professor of Law, Georgetown Law School
• Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School
• Anne Joseph O’Connell, Professor of Law, Stanford Law School
• Stephen Vladeck, A. Dalton Cross Professor in Law, University of Texas School of Law

William Baude will explain why many formalists, such as Justice Thomas, see the Vacancies Act as unconstitutional when non-Senate confirmed officials are selected to serve temporarily in principal offices. Steve Vladeck will argue that the Appointments Clause does not preclude such service. 
Jennifer Mascott will shed light on early historical practices and discuss how these practices might shape the current constitutional analysis. Marty Lederman will suggest that the Department of Justice’s succession act should be read to prevent Whitaker from serving as Acting Attorney General in order to avoid a serious constitutional question. Anne Joseph O’Connell will moderate the discussion and provide some data on modern practices.

No Collusion? Trump's letter of intent for Moscow tower

So on October 28, 2015, three months before the first primary election Donald Trump signed a letter of intent and term sheet for construction and management of a hotel complex in Moscow.
Do you recall him discussing this in 2016?  I didn't think so.
Letter of intent and term sheet October 28, 2015

Law Schools Are Bad for Democracy - The Chronicle of Higher Education

Law Schools Are Bad for Democracy - The Chronicle of Higher Education: They whitewash the grubby scramble for power.
by Samuel Moryn

Yale Law School, where I teach, was roiled by the confirmation process of Brett Kavanaugh. The usual disagreements about the politics of the day that are healthy in any community were exacerbated by a sense that this was not just one more confirmation fight but an epic battle over the future of the country. Students, in particular, denounced the school for its complicity with elite power and the nonchalance of its commitment to institutional and national justice. And when the accelerant of personal-misconduct charges was thrown into the blaze, the school began a period of self-examination.

This dispute raised a lurking question: What is law school for? How does it serve the individual aspirations of some of our most gifted young people, and the high ideals for social justice that many of them care about? "Elite institutions get so satisfied," my colleague Harold Hongju Koh observed in The New York Times, in the midst of the controversy. "Who are we? What do we stand for? Are we being true to our values? It’s a constant struggle for defining the identity of the institution as times change."

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Some might be forgiven for thinking that there is an obvious answer to the question of what law schools, even elite ones, are for. Their purpose is to make lawyers, especially practicing lawyers. And for faculty members lucky enough to teach at such schools, they are not just for schooling but also for scholarship.

Such easy answers do get at the core of what law schools are supposed to be about and therefore how they ought to be organized. But they also miss a lot. Many students believe that they are doing something more than enrolling in a trade school to solve other people’s legal problems for (often tremendous) pay. Students are also hoping to advance or even incarnate certain ideals of political and social justice — ideals that professors, too, often talk about. The Kavanaugh crisis exposed a longstanding worry that law schools, and especially elite law schools, are failing to advance those ideals. Law schools allow you to do well. But it is harder to establish that they allow for doing good.

Yes, there was ‘collusion.’ Now what should we do about it? - The Washington Post

Yes, there was ‘collusion.’ Now what should we do about it? - The Washington Post: The future president and a hostile foreign power, working for the same goal in the same ways.
by Paul Waldman

As we continue putting together the pieces of the 2016 Trump campaign’s cooperation with the Russian government, a pair of new reports produced for the Senate Intelligence Committee is making clear just how intense the Russian government’s effort on Donald Trump’s behalf was. In fact, it’s long past time when we stop talking about Russian “meddling” or even a Russian “attack” on our election, not because those characterizations are inaccurate but because they obscure the broader truth.

So let’s stop beating around the bush. The Russian government tried to get Trump elected, and Trump, his campaign, his close associates and even members of his family tried to help them. For all practical purposes, Russia was part of the Trump campaign. That is no longer in doubt. All we’re doing now is filling in the details.

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How Russia did it - the New Knowledge white paper - Tactics and Tropes of the Internet Research Agency

The

How the Russians did it.
The tactics and tropes of the Internet Research Agency

A year after a groundbreaking series on race in Boston, has anything gotten better?

A year after a groundbreaking series on race in Boston, has anything gotten better? https://www.bostonglobe.com/metro/2018/12/16/year-after-groundbreaking-series-race-boston-has-anything-gotten-better/MRxbVP6w9fWSQWkS2g81rL/story.html

John Gibbons Dies at 94; Argued for Rights for Guantánamo Detainees - The New York Times

John Gibbons Dies at 94; Argued for Rights for Guantánamo Detainees - The New York Times: As a lawyer, he put his faith in equal access to the courts for all, including rioters in Newark in the 1960s; he also served as a federal appellate judge.

John J. Gibbons, a lawyer who persuaded the authorities in Newark to provide access to the courts for people detained during riots in 1967 and nearly 40 years later argued successfully before the Supreme Court that foreign prisoners at the Guantánamo Bay Naval Base in Cuba had legal rights too, died on Dec. 9 in Maplewood, N.J. He was 94.

His death, at an assisted living facility, was confirmed by his daughter Mary Gibbons Whipple, a Superior Court judge in New Jersey.

Mr. Gibbons also spent 20 years as a judge on the United States Court of Appeals for the Third Circuit, which is based in Philadelphia; he was its chief judge for three years.

The Guantánamo detainees — 16 were involved in two consolidated cases — contended that they had been denied access to lawyers and federal courts in violation of their due process rights. Lawyers representing the administration of President George W. Bush responded that the courts had no jurisdiction over the base because the detainees were not American citizens and not on American soil.
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