The Birth of Godly Trump, the Humble Teacher – Talking Points Memo

An alternate reality: Donald the Good.
The Birth of Godly Trump, the Humble Teacher – Talking Points Memo
by Josh Marshall

You may have seen some of these paintings already. I’d seen maybe half of them floating around social media over recent months. They’re the work of a painter from Utah named Jon McNaughton. (You can find all his work for sale here.) He specializes in a sort of kitschy painting focusing on patriotic and Christian themes. They have a very didactic bent. People from wildly different eras of history side by side in highly didactic group portraits. So you’ll have Jesus being shunned at the podium in the House of Representatives or this painting of Moses with George Washington, Thomas Jefferson, Antonin Scalia, Phyllis Schlafly and others.

What makes McNaughton’s painting more than a mere curiosity is that he’s developed a huge following on the American right. He’s got the endorsement of Sean Hannity, who frequently posts his new work. (He seems to do a good business selling various prints and reproductions of his paintings to right-wing Republicans – on that front, good for him.) His work has also been lampooned on various mainstream TV shows and websites. Shortly after President Trump’s election he even got this write-up by the art critic of The New Yorker. Like so much of the right today, perhaps half of the effort is to goad non-conservatives into histrionics slugfests which confirms and perpetuates a critical sense of aggrievement.

McNaughton first broke out, as it were, with this 2010 painting called The Forgotten Man, which he says was inspired by the passage of the Affordable Care Act. The title is likely a play on this 1934 painting of the same name by Maynard Dixon. The Forgotten Man got another burst of press just after the 2016 election when Sean Hannity purchased the original painting. Originally he seemed into gifting it to President Trump to hang in the White House.

White Evangelical racism deeply embefded ~ Vox

https://www.vox.com/the-big-idea/2018/4/30/17301282/race-evangelicals-trump-support-gerson-atlantic-sexism-segregation-south

The lynching memorial rewrites American History

https://www.cnn.com/travel/article/lynching-memorial-montgomery-alabama/index.html

Republican senators’ obsession with Antonin Scalia is leading them to make sloppy mistakes. Jed Shugerman // SLATE

Republican senators’ obsession with Antonin Scalia is leading them to make sloppy mistakes.
by Jed Shugerman //Slate

On Thursday, the Senate Judiciary Committee advanced a bill seeking to protect the special counsel from an unjustified removal on a bipartisan 14–7 vote, an important signal of support for Robert Mueller. Majority Leader Mitch McConnell, however, has promised not to bring the Special Counsel Independence and Integrity Act to the Senate floor, and his obstructionism has been bolstered by a bizarre legal claim by some of his Republican colleagues.

In Thursday’s debate on the motion, Sen. Ben Sasse made a stunning argument for voting no: “Many of us think we are bound” by Justice Antonin Scalia’s opinion in the 1988 case Morrison v. Olson. Sens. Orrin Hatch and Mike Lee expressed a similar reasoning for their “no” votes. It’s not a surprise for a senator to defer to Supreme Court decisions. But it is a shock for a senator to say he is bound by a lone dissent in a 7–1 Supreme Court case decided 30 years ago. There is a reason Scalia was all alone in dissent: He was wrong, and his historical assumptions were irredeemably wrong. KEEP READING

5th Circuit Searing Attack on Mark Lanier

https://www.reuters.com/article/us-otc-lanier/5th-circuit-mounts-searing-attack-on-plaintiffs-lawyer-mark-lanier-idUSKBN1HX3GC

The President Can’t Kill the Mueller Investigation - Jack Goldsmith - Lawfare

The President Can’t Kill the Mueller Investigation - Lawfare
by Jack Goldsmith (Harvard Law School)

One of the most remarkable stories of 2017 was the extent to which President Donald Trump was prevented from executing his many pledges—both on the campaign trail and in office—to violate the law. As predicted, courts, the press, the bureaucracy, civil society and even Congress were aggressive and successful in stopping or deterring Trump from acting unlawfully.*

But will these checks continue to work in the new year?

The biggest concern lies in threats to Special Counsel Robert Mueller’s investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” and related matters. The worry is that Trump or his senior associates may have engaged in law-breaking or some form of electoral corruption, and could get away with it. The Mueller investigation involves the executive branch investigating itself, including the president. The president sits atop the executive branch and has made clear from the beginning that he detests the Mueller investigation. In recent weeks anxiety that Trump may kill the investigation has reached a fever pitch as the president and other partisans have ratcheted up attacks on Mueller, the Justice Department and the FBI. And that was before Trump a few days ago claimed the “absolute right to do what I want to do with the Justice Department.” (He also said many times in the interview that he thought Mueller would treat him fairly.)

We don't yet know whether Trump acted unlawfully or wrongfully, or how close (if at all) Mueller will get to him, his business or his family. But Mueller’s probe appears to be “fast approaching a critical crossroads.” This year, we will find out whether Mueller has damaging goods on the president. Let’s assume that the investigation goes in a direction that Trump is inclined to shut down. I believe that what we learned in 2017 should give us confidence in 2018 that Trump will not be able to terminate the Mueller investigation.***

Status threat, not economic hardship, explains the 2016 presidential vote | PNAS

Status threat, not economic hardship, explains the 2016 presidential vote | PNAS
Proceedings of the National Academy of Sciences
by Diana C. Multz
Support for Donald J. Trump in the 2016 election was widely attributed to citizens who were “left behind” economically. These claims were based on the strong cross-sectional relationship between Trump support and lacking a college education. Using a representative panel from 2012 to 2016, I find that change in financial wellbeing had little impact on candidate preference. Instead, changing preferences were related to changes in the party’s positions on issues related to American global dominance and the rise of a majority–minority America: issues that threaten white Americans’ sense of dominant group status. Results highlight the importance of looking beyond theories emphasizing changes in issue salience to better understand the meaning of election outcomes when public preferences and candidates’ positions are changing.

Cruel hoax: Kasich sabotaging Medicaid expansion

So much for compassionate conservatism.  John Kasich (D-Ohio) appeared to be its voice when he expanded Medicaid to cover 700,000 Ohioans.  but now he has joined the eat shit and die crowd: unemployed Medicaid recipients would have to perform 80 hours/month of unpaid "volunteer" labor.
His revival thinks that is too soft. Why are so many Americans so cruel? - gwc
In The Ohio Governors’ Race, The Future Of Medicaid Hangs In The Balance – Talking Points Memo
by Alice Ollstein

Ohio bucked the national trend in 2013, expanding Medicaid under a Republican governor and state legislature, but that expansion could now be in jeopardy. While the Democrats running for governor in 2018 have vowed to preserve the expansion, the GOP frontrunner wants a more aggressive federal waiver to impose work requirements and other restrictions, and his primary opponent has vowed to kill the expansion entirely.

Ohio’s May primary and November general election will determine the future of health care in a state whose death toll from opioid overdoses is second in the nation, and whose rural hospitals depend heavily on Medicaid for their survival.

Since Ohio Gov. John Kasich became one of very few Republican governors to embrace the expansion of Medicaid under Obamacare, the state has expanded coverage to roughly 700,000 previously uninsured people. Even though Kasich garnered a massive political backlash because of the move, he has since urged other GOP states to follow him and beaten back attempts from his own state party to chip away at the program. In 2017, he vetoed a bill passed by the Republican supermajority in the state legislature that would have frozen Medicaid enrollment and forced low-income enrollees to pay insurance premiums.

Any day now, however, Kasich will submit a request to the Department of Health and Human Services for permission to force those enrolled in the state’s Medicaid expansion to prove they’re working at least 80 hours per month. If the waiver is approved by the Trump administration, Ohioans unable to find work would have get placed with an organization in their county and work without pay to earn the value of their health care benefits.

At a recent campaign stop in Youngstown, the GOP frontrunner to replace Kasich, Attorney General Mike DeWine, told TPM he plans to go even further if elected governor.

“Our waiver might be even bigger,” he said. “We would want the ability to really redesign Medicaid, in particular regard to the people covered under the Medicaid expansion.”

Anonymous speech online: When must the identity of a masked commenter be revealed? | Reporters Committee for Freedom of the Press

Anonymous speech online: When must the identity of a masked commenter be revealed? | Reporters Committee for Freedom of the Press

nonymous speech is prevalent on the Internet, of course, but courts nonetheless are often asked to force a web site to reveal the identities of anonymous speakers. Courts are often willing to order the unmasking when there is clearly a valid cause for a libel claim against the speaker. Because many of the demands issued are attempts to silence critics or whistleblowers, courts have started to settle on a standard that tries to tell the two types of claims apart: If the one demanding the unmasking can show he's got a credible libel claim, and the anonymous speaker is given an opportunity to defend himself, courts will allow the unmasking.

The emerging test setting forth guidelines for courts faced with requests to compel web sites to reveal identities of anonymous Internet speakers includes five factors:

• the demanding party must make efforts to notify the anonymous commenter and allow a reasonable time for him or her to respond;
• the demanding party must identify the exact statements made by the commenter;
• the demand must set forth a prima facie cause of action, meaning it must present enough evidence for the demanding party, the prospective plaintiff in the libel claim, to win the case barring any defenses or additional evidence presented by the commenter;
• the demanding party must bring forth sufficient evidence for each element of its defamation claim; and
• the court must balance the speaker's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous commenter's identity.

The emerging standard was developed in a 2001 New Jersey appellate case, Dendrite International Inc. v. Doe No. 3, and condensed in 2005 by the Delaware Supreme Court in Doe v. Cahill, which is favorable to anonymous commenters. 

Opinion | The Missing History of the Columbia ’68 Protests - The New York Times

Stokely Carmichael and H. Rap Brown backing
African American students barricaded in Columbia's
Hamilton Hall

This is a quite thoughtful essay by Mark Rudd regarding the rarely recognized leading role of black students in the Columbia University protests of 1968.
He provides a link to a recent essay by Raymond M. Brown.  The son of a brilliant Black trial lawyer, the younger Brown is an outstanding and dedicated lawyer and public interest advocate in New Jersey.
A suburban kid from Maplewood/South Orange, New Jersey (where I later practiced law), Rudd played a negative role in the anti-war movement as a prominent voice in the divisive and extremist Weatherman faction of Students for a Democratic Society (SDS) which soon disintegrated.  This essay shows he has moved beyond his regrettable embrace of violence as a young man. - gwc
Opinion | The Missing History of the Columbia ’68 Protests - The New York Times
***[The Black students] saw themselves as representatives of the Harlem community. Local political leaders, black activists and revolutionaries, and elders bearing hot food all trekked to Hamilton in support. Their occupation, much more than anything we white students did, was “the pivotal act” of the Columbia protest, as Raymond M. Brown, a leader of the Student Afro-American Society , aptly termed it in a recent essay.

Elizabeth Drew on Comey

https://newrepublic.com/article/148076/slippery-james-comey

Rudy Giuliani: Lyng about Hillary

Okay, Guiliani, you are at it again saying Hillary never went to ground zero. Please use google. First responders said she went out of her way to always speak to them got them medical care, made frequent trips, was "anguished" See The Guardian article, People, STOP lying. pic.twitter.com/KfBGVzIrKz

— Rafreeb (@RFreeba) April 20, 2018

Trump lauds North Korean triumph

No country that has nuclear weapons has ever been attacked by another nuclear power.  Trump lauds as a win Kim Jong Un's suspension of nuclear and missile tests.  It is in fact a victory for North Korea's resistance to the sanctions imposed on it.  North Korea is a nuclear power.  No nuclear power has ever given up its arsenal.  Why should it?  It's the nation's insurance policy against attack.  That is what deterrence doctrine is about.
Kim has held out the bait of a nuclear free Korean peninsula.  I am all for it.  But I do not believe that the U.S. will agree to that.  But with Trump.....who knows?  Desperate for wins he could gamble. - gwc

North Korea has agreed to suspend all Nuclear Tests and close up a major test site. This is very good news for North Korea and the World - big progress! Look forward to our Summit.

— Donald J. Trump (@realDonaldTrump) April 20, 2018

Flattery will get you everywhere: Trump will Address Naval Academy Grads

The United States Navy has long held itself above politics.  But its invitation to give Donald Trump the podium at graduation is a disgrace.
On the surface it is appropriate to invite the President.  But his disgraceful behaviour, his ignorance, his lack of character and his fawning over our GREAT military is conduct unbefitting officers, gentlemen, and ladies. -gwc

So exciting! I have agreed to be the Commencement Speaker at our GREAT Naval Academy on May 25th in Annapolis, Maryland. Looking forward to being there.

— Donald J. Trump (@realDonaldTrump) April 20, 2018

Opinion | Smearing Robert Mueller - The New York Times

Opinion | Smearing Robert Mueller - The New York Times

By Nancy Gertner

Ms. Gertner is a retired federal judge.

April 18, 2018

Was Robert Mueller, the special counsel, complicit in one of the worst scandals in the F.B.I.’s history — the decades-long wrongful imprisonment of four men for a murder they didn’t commit?

This question, which has been raised before, is being addressed again — this time by some of President Trump’s most ardent supporters on the right, especially Fox News’s Sean Hannity but also Rush Limbaugh and others. My friend Alan Dershowitz, the retired Harvard Law School professor, has also weighed in.

In an April 8 interview with John Catsimatidis on his New York radio show, Mr. Dershowitz asserted that Mr. Mueller was “the guy who kept four innocent people in prison for many years in order to protect the cover of Whitey Bulger as an F.B.I. informer.” Mr. Mueller, he said, was “right at the center of it.” Mr. Bulger was a notorious crime boss in Boston, the head of the Winter Hill Gang, and also a secret source for the F.B.I.

There is no evidence that the assertion is true. I was the federal judge who presided over a successful lawsuit brought against the government by two of those men and the families of the other two, who had died in prison. Based on the voluminous evidence submitted in the trial, and having written a 105-page decision awarding them $101.8 million, I can say without equivocation that Mr. Mueller, who worked in the United States attorney’s office in Boston from 1982 to 1988, including a brief stint as the acting head of the office, had no involvement in that case. He was never even mentioned.

Opinion | Trump Can’t Make War Whenever He Likes - The New York Times

Opinion | Trump Can’t Make War Whenever He Likes - The New York Times
by Bruce Ackerman (Yale Law School)

President Trump has a big constitutional decision to make regarding the attack launched on Friday by United States, British and French forces against Syria for its use of chemical weapons. And he should make it this week.

When he launched his first retaliatory strike against Syria a year ago, the president almost immediately informed Congress, explaining that he was acting in a manner “consistent with the War Powers Resolution.” The resolution, passed over Richard Nixon’s veto in 1973, imposes strict limits on unilateral presidential war-making. It places the burden squarely on Trump to gain congressional approval of his decision to bomb Syria within 60 days; if he fails, he must cease his military campaign within the next 30.

Moreover, the resolution requires the president to notify both Houses “within 48 hours” of the initiation of hostilities, although presidents have taken liberties in meeting this deadline. It took Barack Obama 13 daysbefore formally informing Congress after he announced his open-ended campaign against the Islamic State on Sept. 10, 2014. In contrast, President Trump’s letter arrived in the House and Senate within 48 hours of his initial bombing raid against Syria in April of 2017. It would be a bit much to insist that Trump should have already sent his new notification 48 hours after his speech on Friday night — since Congress was out of session over the weekend. But if Trump is to repeat his exemplary performance, his letter should arrive while Congress is in session this week and can prepare to consider its responsibilities under the resolution.

The first Syrian assault by the Trump administration was a one-shot affair, so the 60-30 timetable didn’t apply. This time around, Mr. Trump said that the United States is “prepared to sustain” the bombing “until the Syrian regime stops its use of prohibited chemical agents.” So if Mr. Trump follows his own precedent and promptly provides Congress with formal notice of his new campaign, he himself will be recognizing that the War Powers Resolution gives him 60 days to persuade Congress to approve his initiative.

How the justice department will protect attorney-client privileged documents in U.S.A. v. Michael Cohen

The furious tweets of Donald Trump that attorney client privilege is dead are repeated in the restrained language of his lawyers memorandum. 

 As usual the best source of information is the primary source: the United States Department of Justice, whose memorandum explains how any documents protected by attorney client privilege will be handled.  In essence the process is to determine if documents seized  contain communications between attorney and client which relate to the representation. Confidentiality is protected – unless the communication is evidence of the attorney’s participation in a crime, or a client "(a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, or (b) regardless of the client's purpose at the time of consultation, uses the lawyer's advice or other services to engage in or assist a crime or fraud."  §  82 Client Crime or Fraud Restatement of the Law Governing Lawyers

 . - gwc

Michael D. Cohen v. United States of America

Case 1:18-mj-03161-KMW Document 1 Filed 04/13/18 Page 5- 6 of 23

The nature of the attorney client privilege

The attorney-client privilege protects from disclosure “confidential communications that pass in the course of professional employment from client to lawyer.” United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). The privilege does not attach to communications between two or more persons that do not enjoy an attorney-client relationship. Id. Additionally, it is settled that even where an attorney-client relationship does exist, disclosure of a privileged communication to a third party waives privilege as to that communication. See Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015) (privilege “is generally waived by voluntary disclosure of the [privileged] communication to another party”); In re Horowitz, 482 F.2d at 81 (“subsequent disclosure to a third party by the party of a communication with his attorney eliminates whatever privilege the communication may have originally possessed”).

How the special team – the “filter team” will review documents before they are turned over to the prosecutors and FBI “the investigative team”

As an initial matter, the Filter Team will review and release communications to the Investigative Team between Cohen and persons with whom Cohen undisputedly does not have an attorney-client relationship.3 Based on the information presently known to the USAO, the Investigative Team has compiled a list of individuals and entities relevant to the investigation with whom Cohen undisputedly does not have an attorney-client relationship.

(The U[nited] S[taes] A[ttorney’s] O[ffice] –S[outhern] D[istrict of] N[ew] Y[ork] has asked Cohen’s counsel to provide a list of Cohen’s clients and attorneys, but that invitation has thus far been ignored.)

To the extent there are any remaining potentially privileged documents—i.e., any communications between Cohen and clients known or believed to have been represented by Cohen, any communications between Cohen and an identified.  attorney or law firm known or believed to have represented Cohen—the Filter Team will review them to determine whether the material is: (1) not privileged, (2) potentially privileged, (3) requires redaction, and/or (4) potentially meets an applicable exception (for example, the crime-fraud exception  

To be clear, under no circumstances will a potentially privileged document or a document potentially subject to the crime-fraud exception be provided to or described to the Investigative Team without the consent of the privilege holder or his/her counsel, or the court’s approval. If the Filter Team is unable to clarify a document’s category, or if there is an exception to the privilege that applies to particular material, such as the crime-fraud exception, or any waiver of the privilege – the Filter Team will

(1) confer with counsel for the privilege holder at the appropriate time and before any such material is shared with the Investigative Team and, if no agreement can be reached, submit the material under seal to an appropriate court for a determination as to whether the material is privileged;

(2) bring the document to a court for resolution, including by seeking an ex parte determination if appropriate; or

(3) if the document is of obviously minimal probative value, place the document into the “Privileged” category as a means of efficiently completing the review.

Blowing stuff up — Crooked Timber

Blowing stuff up — Crooked Timber

by JOHN QUIGGIN on APRIL 15, 2018

A while ago, I had a multi-topic post covering some things I hoped to expand on. One of them was this

Blowing things and people up is seen as a demonstration of clarity and resolve, unless someone is doing it to us, in which case it’s correctly recognised as cowardly and evil. The most striking recent example (on “our” side) was the instant and near-universal approval of Trump’s bombing of an airfield in Syria, which had no effect at all on events there.

We’ve now had another round of bombing from Trump, and yet more instant applause. As I reread the para above, and looked at evidence on the general ineffectiveness of airstrikes, it struck me that there is a big asymmetry. The satisfaction we get when our side blows something or someone up is trivial in comparison to the hatred generated when we are on the receiving end. In most cases, the people and resources mobilised against the bomber far outweigh the physical destruction the bomber can inflict. Here’s a study (paywalled, but the abstract is clear) making that point about Vietnam; it seems to be entirely general.

I’ve talked here about large-scale aerial bombing, but all of these points apply with equal force to bombing campaigns undertaken on the ground by non-state actors, going back to the “propaganda of the deed” in the 19th century. Experience has shown that deeds like bombings and assassinations make great propaganda, but not for the side that carries them out.

Super hero altar boy vs. thug - the Comey Trump fight

As my colleague Jed Shugerman points out Comey deserved to be fired by Obama for the "extremely reckless" press conference and for arrogating to himself the decision to prosecute (and supreme self-righteousness).  And Trump obstructed justice when he fired Comey.  Now the super hero altar boy vs. thug will make this another long week. - GWC

The more I hear about Comey’s book, the more I have two opposite reactions: 1. Comey deserved to be fired for his handling Clinton’s emails and general egotism. And 2. Trump firing Comey was felony obstruction of justice. Too bad the book tour is fodder for Trump’s attack dogs.

— Jed Shugerman (@jedshug) April 15, 2018

Yes, Godfather

Syria strike lawless - Jack Goldsmith

http://lawfareblog.com/bad-legal-arguments-syria-airstrikes

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

Protecting Prospective Clients with Diminished Capacity | Legal Ethics in Motion

BY GEOFFREY MARCUS

A recent opinion from the New York City Bar Association’s Committee on Professional Ethics finds that a lawyer may disclose a limited amount of confidential information when a prospective client with serious diminished capacity is at risk of substantial physical, financial, or other harm.  Read the full opinion here.

The opinion describes a scenario in which a neighbor brought a tenant facing immediate eviction to an attorney for legal assistance. During their meeting, the attorney became concerned that the tenant was so seriously mentally incapacitated that she could not retain a lawyer. Despite the absence of an attorney-client relationship, the attorney still wanted to help the tenant.

Rule 1.14 of the ABA Model Rules of Professional Conduct explicitly addresses the circumstances in which a lawyer may take protective action for the benefit of current clients with diminished capacity. The rule remains silent as what a lawyer can do for prospective clients, but the Committee’s recent opinion provides guidance on this issue.

The Committee concluded that mental capacity is not a factor in determining whether a person is a prospective client and that lawyers owe the same duty of confidentiality to prospective and current clients alike. The Committee references Rule 1.14(c), which provides lawyers with implied authorization under Rule 1.6(a) to disclose confidential information reasonably necessary to protect current clients with diminished capacity. Therefore, the Committee reasons that Rule 1.14(c) applies to prospective clients.

In addressing the earlier scenario with the tenant, the Committee noted that the “lawyer is impliedly authorized to reveal confidential information about the prospective client to a court, a social services agency or another, but only to the extent reasonably necessary to protect the prospective client’s interests.” However, the Committee emphasizes that, when a lawyer interacts with the court and others, she must clarify that she does not represent the prospective client and that no attorney-client relationship exists.

How To Understand James Comey – Josh Marshall -Talking Points Memo

 
Josh Marshall's  year old character assessment of James Comey was spot on,  I thought then.  And now. as we watch the unfolding altar boy vs. bully faceoff I think it has lost none of its accuracy or pungency. - gwc
How To Understand James Comey – Talking Points Memo
by Josh Marshall  May 2016  

***First, I suspect Trump offends Comey on a deep level and in many ways. To Comey’s cult of probity, discretion, independence and self-control, Trump embodies mercurial behavior, corruption, a militant disregard for all rules over the primacy of appetites and need. I think this played into Comey’s swipes at Clinton in July 2016, the slapdash, corner-cutting way of operating. 
With much more certainty, we can see that Comey has an eye for drama and the theatrics of justice. He will above all maintain what we might call authorial control of his own role in this unfolding drama. 
Until last week, Comey was known for the 2004 hospital bed stand off and then the October 2016 letter. Like Archibald Cox after the Watergate Era, I have little doubt he’ll now always be most associated with President Trump’s decision to fire him as director of the FBI.

Even if he thinks he had no better choice, Comey must realize that the October letter was a blotch on his reputation. Whether it was an impossible situation or a catastrophically bad decision, it’s not good either/way. 

Now he finds himself cast again in one of these public morality plays which come naturally to him and makes fertile ground for his public myth. It is his best and last chance to heal that damage and confirm his role in the public sphere. I have little doubt he’ll play it to the hilt.

He’ll probably do a good job of it.

How the Cohen Raids and Trump’s Reactions Edge Us Toward Confrontation - Lawfare

How the Cohen Raids and Trump’s Reactions Edge Us Toward Confrontation - Lawfare
by Benjamin Wittes

The country is entering a dangerous moment—the moment of actual confrontation between the president of the United States and those who would investigate him.

This moment has been deferred for months through a combination of strategies. The president’s lawyers convinced their client for a spell that the investigation would wrap up and clear him if he just cooperated. Investigators refrained from antagonizing the president; they did not leak disparaging material about him or those close to him. They framed their indictments narrowly so as not to suggest more than they were immediately prepared to allege. Even as they moved forward, investigators left room for the president and his defenders to put off any showdown.

The result was that, for months, a confrontation has loomed over American political culture, but has ripened slowly and, while in plain view, in a fashion that has permitted  people to avert their gaze. Those who wanted to deny that the confrontation was coming at all could convince themselves that perhaps Special Counsel Robert Mueller’s investigation would peter out; perhaps it would reveal only misconduct by expendable hangers-on in the president’s entourage; perhaps it would reveal only politically embarrassing conduct rather than conduct that required elements within the executive branch to lock horns over whether the special counsel would be meaningfully permitted to accuse the president.

On Monday, however, the space for such denial began to shrink markedly—and the time span for deferral of the confrontation has shrunk as well.

I will put this as bluntly as I know how: There is no way that the U.S. Attorney’s Office for the Southern District of New York would have sought or executed a search warrant against the president’s lawyer without overpowering evidence to support the action. The legal standard for such a search requires only probable cause that criminal activity is taking place. Under normal circumstances, which these are not, the prudential and policy factors counseling against such an action would be powerful.

KEEP READING

"it's a slippery slope" Wendy Vitter on whether she agrees with Brown v. Board of Education

If you wonder how low the Federalist Society - Trump's surrogate judicial nominee pickers - will go, take a look at Wendy Vitter, being examined by Senator Blumenfeld (D-CT) yesterday.

WATCH: During her confirmation hearing this morning (yes, this morning – in 2018), judicial nominee Wendy Vitter refused to say whether she agreed with the result in Brown v. Board of Education. #UnfitToJudge pic.twitter.com/RWroh0XUIC

— The Leadership Conference (@civilrightsorg) April 11, 2018

Trump to Russia: Get ready

Mind boggling.  This is not a cartoon action hero but the elected President of the United States.

Russia vows to shoot down any and all missiles fired at Syria. Get ready Russia,  because they will be coming, nice and new and “smart!” You shouldn’t be partners with a Gas Killing Animal who kills his people and enjoys it!

— Donald J. Trump (@realDonaldTrump) April 11, 2018

Lawyer investor in litigation funding in conflict with client it finances - NY State Bar Assocation

In an advisory ethics opinion the New York State Bar Association has declared that RPC 1.8 Current Clients - Specific Rules bars a lawyer with a substantial interest in a  litigation funding company  from representing a client the company finances.  Read the full opinion here.

The Legal Ethics in Motion blog comments

the NYSBA found that the representation at issue is impermissible under Rule 1.8(e), which prohibits a lawyer from advancing or guaranteeing financial assistance to a client, and Rule 1.8(i), which prohibits a lawyer from gaining a proprietary interest in the litigation he or she represents a client in. With respect to the former rule, the NYSBA expressed two concerns: “first, that such financial assistance ‘would encourage clients to pursue lawsuits that might not otherwise be brought’”; “second, that ‘such assistance gives lawyers too great a financial stake in the litigation.’ Rule 1.8, Cmt. [10].” The NYSBA further found that none of the exceptions or waiver provisions applicable to Rules 1.8(e) and 1.8(i) would apply. And, with respect to the lawyer’s firm, given that none of the exceptions or waiver provisions apply, the ethical violations would be imputed to the lawyer’s law firm.

This seems right to me - litigation finance companies perhaps appropriate to the risk - charge credit card type interest rates in exchange for a stake in the litigation proceeds.   To encourage access to justice we permit contingent fees.  But a substantial interest in the finance company effectively increases the lawyer's stake and raises the possibility of compromising the lawyer's independent advice beyond what inheres in the contingent fee itself . - gwc

Opinion | Why the F.B.I. Raid Is Perilous for Michael Cohen — and Trump - The New York Times

Opinion | Why the F.B.I. Raid Is Perilous for Michael Cohen — and Trump - The New York Times

By Ken White

Mr. White blogs on law at Popehat.com.

April 10, 2018

After a year of almost weekly revelations about Robert Mueller’s investigation of Donald Trump’s 2016 campaign, even indictments and guilty pleas of campaign officials have grown familiar. It’s not that the special counsel, Mr. Mueller, is crying wolf; it’s that we’ve gotten used to real wolves. Only truly startling developments engage a lot of us.

The F.B.I. search of the office, home and hotel room of Mr. Trump’s attorney Michael Cohen is such a development. It’s historic, even in the lofty context of a special counsel investigation of the president.

This is what we know, in part from Mr. Cohen’s attorney: The United States attorney’s office in Manhattan, acting on a referral from Mr. Mueller, sought and obtained search warrants for Mr. Cohen’s law office, home and hotel room, seeking evidence related at least in part to his payment of $130,000 in hush money to the adult actress Stephanie Clifford, who goes by her stage name, Stormy Daniels. There are reports that the warrant sought evidence of bank fraud and campaign finance violations, which is consistent with an investigation into allegations that the Daniels payment was illegally sourced or disguised. (For example, routing a payment through a shell company to hide the fact that the money came from the Trump campaign — if that is what happened — would probably violate federal money-laundering laws.)

What does this tell us? First, it reflects that numerous officials — not just Mr. Mueller — concluded that there was probable cause to believe that Mr. Cohen’s law office, home and hotel room contained evidence of a federal crime. A search warrant for a lawyer’s office implicates the attorney-client privilege and core constitutional rights, so the Department of Justice requires unusual levels of approval to seek one. Prosecutors must seek the approval of the United States attorney of the district — in this case the office of Geoffrey Berman, the interim United States attorney appointed by President Trump.

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Furious President Attacks Dept. of Justice and FBI

The President of the United States is at best uninterested in how the law works.  For example the Department of Justice has a rigorous manual governing how its lawyers are to operate.  Section 9-13.420 Search of Premises of Subject Attorneys makes provision for protection of attorney client privilege.  Yet Donald Trump, doubtless unaware of these matters, has stormily denounced the subpoena addressed to Michael Cohen his longtime business partner and lawyer.  Cohen says he paid off porn star Stormy Daniels days before the election. 

So far neither the Speaker of the House nor the Majority Leader of the Senate has spoken about Trump's furious assault on the lawful investigation by the FBI under the direction of the United States Department of Justice lawyers for the Southern District of New York.   Geoffrey Berman -  -who was appointed by the President himself  recused from the decision, leaving it in the hands of career lawyers in the Department.  The decision was reportedly approved by Assistant Attorney General Rod Rosenstein, and the search warrant issued by a federal district Judge. - gwc

Trump comments responding to Cohen Raid pic.twitter.com/vNhZGsqCv5

— Josh Marshall (@joshtpm) April 9, 2018

If US trade with China is so unfair, why is GM the best-selling car there? — Quartz

When I first went to Communist China in 2004 I was picked up at the airport in Beijing by my Chinese law professor host in his brand new Buick Regal.  Made in China, I learned quickly that GM is the largest auto manufacturer in China.

Is our trade policy STUPID as Trump says?  It's complicated.  - gwc
If US trade with China is so unfair, why is GM the best-selling car there? — Quartz

Ahead of a high-stakes summit with Chinese leader Xi Jinping, Donald Trump’s White House has made clear that it isn’t happy with China’s high tariffs on imported American automobiles. These contribute, it says, to the US’s total trade deficit with China, which was $347 billionlast year. Former Obama economic advisor Larry Summers also brought up the issue in a recent meeting with China’s premier (paywall), Li Keqiang.

While the US taxes imported cars and cars parts at a maximum of 2.5%, China charges tariffs of between 21% and 30%. This gives foreign automakers who want to sell in China a big incentive to manufacture there to avoid the import charge. But China also requires foreign subsidiaries to operate as 50-50 joint ventures with Chinese companies. These, of course, then become classrooms for Chinese engineers to gain foreign know-how.

This isn’t exactly anyone’s definition of “fair” trade, but there is a logic to the situation. The system came into play in 2001, after China joined the World Trade Organization. At the time, Chinese industry was much further behind America’s. The idea was that future rounds of WTO negotiations would lower China’s trade barriers further, but global trade talks have stagnated completely.

Ironically enough, therefore, this “unfair” situation for America is a product of globalization’s stumbles, not the unyielding march forward that the Trump administration portrays it as. And any attempts to convince China to drop its protections will now be coming from the most protectionist American administration in recent memory.

A state-sponsored mass shooting | +972 Magazine

Our mass media fail to seriously acknowledge the magnitude of the violent response to massive non-violent protests by thousands of Palestinians - largely from the open air prison called Gaza.  The scattered Palestinian violence we read about is trivial - burning tires and stones - met by gunfire by sharpshooters. 
Because we identify with Israelis, not Arabs, we blind ourselves to what our allies are doing. - gwc
A state-sponsored mass shooting | +972 Magazine

Israeli army sharpshooters and snipers have shot over 1,000 unarmed Palestinian protesters inside the Gaza Strip in the past week, killing more than 30 people. This past Friday, at least six Palestinian journalists were reportedly among those shot at the Great Return March. One of them, Yasser Murtaja, a photographer for “Ain Media” who was reportedly wearing a helmet and vest clearly marked “PRESS” when he was shot, later died of his wounds.

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“The IDF doesn’t target journalists with gunfire,” numerous publications quoted an Israeli army spokesperson as saying on Saturday, adding that “the circumstances in which journalists were wounded, supposedly by IDF gunfire, are unknown and are being looked into.”

Let’s stop right there.

Trump: Xi Jinping and I will always be friends

DJT and BFF XJP!   JFC he scarcely knows the man.

The VSG has shown he has no understanding of how trade works. We buy Chinese goods and China has loaned us the money at minimal interest rates to finance eight years of steady growth.  That is reciprocity.

President Xi and I will always be friends, no matter what happens with our dispute on trade. China will take down its Trade Barriers because it is the right thing to do. Taxes will become Reciprocal & a deal will be made on Intellectual Property. Great future for both countries!

— Donald J. Trump (@realDonaldTrump) April 8, 2018