Thursday, October 31, 2019

Ian Millhiser discusses the new impeachment rules

Ian Millhiser discusses the new impeachment rules

The House of Representatives voted 232-196 Thursday morning to approve a resolution laying out how public impeachment hearings will be conducted on “whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America.”
Much of the resolution is symbolic. Neither the Constitution nor any House rule requires the full House to hold a vote on impeachment before the final vote on whether to impeach Trump. Other parts of the resolution resolve questions about who has the power to do what during the public phase of the inquiry. The House Intelligence Committee will hold public hearings, and Republicans will need approval from at least some Democrats to call witnesses or to otherwise issue subpoenas.
The most significant provision in the resolution exempts the Intelligence Committee’s impeachment hearings from a rule that ordinarily limits questioning of witnesses to five minutes per committee member. Though the resolution leaves the five-minute rule in place for most members, it allows Intelligence Chair Adam Schiff to extend his own question time to as much as 45 minutes, so long as he gives equal time to Republican ranking committee member Devin Nunes.
These are important changes because they will allow Schiff and the team of lawyers working for him to focus their time on the impeachment hearings and to spend significant amounts of time asking probing questions during those hearings. The new rules help ensure that the hearing will not be a disjointed process, constantly jumping from one questioner to the next, without giving anyone time to build a coherent narrative.

House Intelligence Committee Chair Adam Schiff (D-CA) arrives for a deposition from acting US Ambassador to Ukraine Bill Taylor on October 22, 2019.

Saul Loeb/AFP via Getty Images
The resolution provides that “the chair may confer recognition for multiple periods of such questioning,” so Schiff could potentially spend an indefinite amount of time questioning witnesses if circumstances warrant such an extension.

Tomgram: Andrew Bacevich, Why Those "Endless Wars" Must Never End | TomDispatch

Tomgram: Andrew Bacevich, Why Those "Endless Wars" Must Never End | TomDispatch:

Here’s the strange thing for the self-proclaimed greatest power in history, the very one that, in this century, has been fighting a series of unending wars across significant parts of the planet: if you exclude Operation Urgent Fury, the triumphant invasion of the island Grenada in 1983, and Operation Just Cause, the largely unopposed invasion of Panama in 1989, Washington’s last truly successful war ended 74 years ago in August 1945 with the dropping of two atomic bombs on Japanese cities. Every war of even modest significance since -- and they’ve been piling up -- from the Korean and Vietnam wars to the ones in Afghanistan, Iraq, Libya, Somalia, Libya, and elsewhere in this century (and the last as well, in the cases of Afghanistan and Iraq) has either ended badly (Vietnam) or not at all (see above).
And if that seems a little strange for the greatest power in history, here’s something hardly less so: the reputations of so many of the men and women who promoted or directed those failing wars and the generals who commanded them remain remarkably intact. And that's in a Washington that still promotes more of the same -- with the exception of our bizarre president, notes TomDispatch regular Andrew Bacevich, author of the soon-to-be-published, aptly titled book, The Age of Illusions: How America Squandered Its Cold War Victory. These days, it seems, you can’t lose a reputation fighting a losing war for the United States.  If you want proof of that, just check out the photo that Guardian columnist Julian Borger recently highlighted. It’s a smile-a-thon of self-satisfaction that happens to include former National Security Advisor and Secretary of State Henry Kissinger (think: Vietnam, Cambodia), former National Security Advisor and Secretary of State Condoleeza Rice (think: the invasions of Afghanistan and Iraq), and former CIA director and Secretary of Defense Robert Gates (think: America’s twenty-first-century forever wars), among others. All three are still admired and have kept their reps in Washington, which should tell you what you need to know about what passes for American foreign policy and the top officials of the national security state in 2019.
While Donald Trump tends to refer pejoratively to that state within a state as “the deep state,” I prefer to think of it as the shallow state, not just because in these years so much of it is in plain sight, but because its thinking is anything but deep, as Bacevich suggests today. Tom
False Security
Donald Trump and the Ten Commandments (Plus One) of the National Security State
By Andrew Bacevich
Let us stipulate at the outset that Donald Trump is a vulgar and dishonest fraud without a principled bone in his corpulent frame. Yet history is nothing if not a tale overflowing with irony. Despite his massive shortcomings, President Trump appears intent on recalibrating America’s role in the world. Initiating a long-overdue process of aligning U.S. policy with actually existing global conditions just may prove to be his providentially anointed function. Go figure.
The Valhalla of the Indispensable Nation is a capacious place, even if it celebrates mostly white and mostly male diversity. Recall that in the eighteenth century, it was a slaveholding planter from Virginia who secured American independence. In the nineteenth, an ambitious homespun lawyer from Illinois destroyed slavery, thereby clearing the way for his country to become a capitalist behemoth. In the middle third of the twentieth century, a crippled Hudson River grandee delivered the United States to the summit of global power. In that century’s difficult later decades, a washed-up movie actor declared that it was “morning in America” and so, however briefly, it seemed to be. Now, in the twenty-first century, to inaugurate the next phase of the American story, history has seemingly designated as its agent a New York real estate developer, casino bankruptee, and reality TV star.

Wednesday, October 30, 2019

I've not gotten over Brett Kavanaugh ~ Dahlia Lithwick ~ Slate

https://slate.com/news-and-politics/2019/10/year-after-kavanaugh-cant-go-back-to-scotus.html
By Dahlia Lithwick
"It is not my job to decide if Brett Kavanaugh is guilty. It’s impossible for me to do so with incomplete information, and with no process for testing competing facts. But it’s certainly not my job to exonerate him because it’s good for his career, or for mine, or for the future of an independent judiciary. Picking up an oar to help America get over its sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice. Our attempts to get over CIA torture policies or the Iraq war or anything else don’t bring us closer to truth and reconciliation. They just make it feel better—until they do not. And we have all spent far too much of the past three years trying to tell ourselves that everything is OK when it most certainly is not normalnot OK, and not worth getting over."

Sunday, October 27, 2019

Oversight Committee presses tax issue while Trump seeks en banc review in Circuit Court

Oversight Committee presses tax issue while Trump seeks en banc review in Circuit Court: The House Committee on Oversight has sought to expedite the mandate for production of Trump's tax returns that it won in the recent (2-1) ...

Opinion | Thanks, Whistle-Blower, Your Work Is Done - The New York Times

An annotated version of the famous Whistleblower memo that launched the Ukraine impeachment investigation.  It matches the allegations with the evidence that has emerged so far.
Opinion | Thanks, Whistle-Blower, Your Work Is Done - The New York Times
by The Editorial Board

Saturday, October 26, 2019

Arbitration clause in legal malpractice claim barred by New Jersey appellate court

Image result for arbitration


The New Jersey legal community has been roiled by an unpublished – but binding – Appellate Division decision that barred enforcement of the mandatory arbitration provision of a prominent firm’s standard retainer agreement. 

In Delaney v. Dickey and Sills Cummis & Gross, P.C., 2019 WL 3982756, a legal malpractice action, plaintiff Brian Delaney claims the retainer agreement used by defendants   violated several RPCs and therefore its provision to arbitrate all disputes arising from the representation should not be enforced. The Chancery Division judge rejected the argument but a three judge panel reversed. Sills has now appealed to the state’s Supreme Court, and Delaney’s lawyer agrees the Court should grant certification.

A Sills partner handed a complex engagement agreement to Delaney a prospective client – who they describe as a sophisticated businessman.. The partner offered to answer questions, but gave no advice, while waiting for the client to sign it.  In the circumstance, the appellate court concluded this did not satisfy the duty to “reasonably consult” with the client.  RPC 1.4 (c).

The retainer informs prospective clients of the rights they are giving up but does not inform them of the costs and charges they could incur by waiving their right to access to the courts and agreeing to arbitration of all disputes with the firm.  That includes in the drafters contemplation – any malpractice claim by the client, a possibility not discussed or described beyond the language of the attachment to the engagement letter.

The rub arose from the retainer agreement’s incorporation by reference of the JAMS arbitration rules – a long and complex document.  The Sills retainer was faulted because as the same court had held in Alpert v. Quinn, 410, NJ Super 510, 531 (App. Div. 2009) “Merely directing the client to ask for another document that is not directly presented and explained to the client but will bind him or her does not fulfill the lawyer’s obligation pursuant to R.P.C. 1.4(c).”

The engagement letter’s appendix said that “any dispute arising out of the engagement” would be arbitrated.  But it did not state expressly that even a malpractice lawsuit would be barred.  The arbitration clause was found unenforceable because the JAMS rules were neither explained nor attached, merely referenced with a hypertext link.  Review of the JAMS rules would have shown the prospect of the client being compelled to pay substantial undeterminable costs for arbitration, the counsel fees of the law firm in a malpractice action, and the severe limitations on discovery in an arbitration under JAMS rules.  

To the common distress of the Bar the New Jersey Supreme Court has long provided that a successful legal malpractice plaintiff is entitled to counsel fees.   Of special concern to the court here was this somewhat ambiguous clause:
The firm and you will pay an equal share of all costs and expenses related to compensation of the arbitrator and any administrative fees except that the award rendered by the arbitrator may include the costs and expenses of arbitration reasonable attorneys' fees and reasonable costs for expert and other witnesses..

As the panel notes  the JAMS rules referenced but not explained   required the parties not only to share the arbitrator's fees and expenses, but also "that the award rendered by the arbitrator may include the costs and expenses of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses."

These provisions plainly benefit the drafter and burden prospective clients who, contrary to New Jersey’s established case law in Saffer v. Willoughby, 143 N.J. 256 (1996), may find themselves indebted to their former lawyers (and insurers) for the costs of a successful defense even of a non-frivolous malpractice claim.  The panel cited RPC 1.8(h)(1) for its proscription of “an agreement prospectively limiting the lawyer’s liability for malpractice unless the client is independently represented in making the agreement…”

The Appellate Division alarmed lawyers whose retainer agreements provide for arbitration.  They face the prospect of explaining such pros and cons at the point of sale.

In my opinion the Appellate Division correctly held that the retainer agreement’s arbitration clause was not enforceable because it did not assure informed consent to provisions which substantially limited the client’s rights vis a vis the law firm.  There was no explanation of the “the material risks of and reasonably available alternatives to the proposed course of conduct” embodied in the retainer agreement as called for by RPC 1.0 [e] Informed consent.

-         George Conk

Friday, October 25, 2019

Obama, Clintons, widow honor Baltimore’s Elijah Cummings for fighting through pain to bring justice to others - Baltimore Sun

Obama, Clintons, widow honor Baltimore’s Elijah Cummings for fighting through pain to bring justice to others - Baltimore Sun
Rep. Elijah Cummings funeral

Inspectors General renounce DOJ OLC letter blocking whistleblower

Council of the Inspectors General on Integrity and Efficiency; IGnethttps://ignet.gov/
The Inspectors General of the full array of federal agencies on October 22 joined together to renounce the Department of Justice Office of Legal Council's opinion declaring that the Intelligence Community IG's letter regarding a whistleblower should not be forwarded to Congress.  Contrary to the DOJ the IG's affirm that as a matter of urgent concern the charge that Donald Trump improperly withheld Congressionally authorized military aid to Ukraine. - gwc
The Council of the Inspectors General on Integrity and Efficiency (CIGIE) is an independent entity established within the executive branch to address integrity, economy and effectiveness issues that transcend individual Government agencies and aid in the establishment of a professional, well-trained and highly skilled workforce in the Offices of Inspectors General.
CIGIE_Letter_to_OLC_Whistleblower_Disclosure 
Honorable Steven A. Engel
Assistant Attorney General Office of Legal Counsel
U.S. Department of Justice 950 Pennsylvania Ave., N.W. Washington, D.C.   20530

Dear Assistant Attorney General Engel:

Thank you for your interest in the views of the Inspector General community on the concerns raised by the Inspector General of the Intelligence Community (ICIG) in response to the Office  of Legal Counsel’s (OLC) September 3, 2019 Memorandum for the Office of the Director of National 
Intelligence (ODNI). That memorandum effectively overruled the determination by the ICIG regarding an “urgent concern” complaint under the Intelligence Community Whistleblower Protection Act (ICWPA) that the ICIG concluded appeared credible and therefore needed to be transmitted to Congress. 
This letter from the Council of the Inspectors General on Integrity and Efficiency, on behalf of the undersigned federal Inspectors General (IG), expresses our support for the position advanced by the ICIG and our concern that the OLC opinion, if not withdrawn or modified, could seriously undermine the critical role whistleblowers play in coming forward to report waste, fraud, abuse, and misconduct across the federal government. Further, as addressed in detail below, OLC’s interpretation regarding the ICWPA procedure in question, which  mirrors the procedure that Congress included in Section 5(d) of the Inspector General Act of 1978 
(IG Act), has the potential to undermine IG independence across the federal government.

As an initial matter, we find the arguments and concerns raised by the ICIG in his September 17, 2019 response to the OLC memorandum compelling. OLC concluded that the foreign election interference alleged by the whistleblower was not an “urgent concern” within the meaning of the ICWPA because it did not concern “the funding, administration, or operation of an intelligence activity” under the authority of the DNI. In his response, by describing and citing to 
the DNI’s relevant legal authorities, the ICIG showed that the DNI has a broad legal mandate to address intelligence matters related to national security, as well as the specific responsibility to assess instances of possible foreign interference in United States elections and identify, to the maximum extent possible, the methods used and persons and foreign governments involved in the interference. These responsibilities support the ICIG’s conclusion that the protection of federal elections from foreign interference is squarely within the DNI’s “operations”. The legal 
authorities cited in his letter also support the ICIG’s determination that the whistleblower raised a claim of a serious or flagrant problem that relates to an intelligence activity within the DNI’s jurisdiction. It surely cannot be the case that the DNI has responsibilities related to foreign election interference but is prohibited from reviewing the cause of any such alleged interference.1 We further note that the DNI has jurisdiction over the handling of classified and other sensitive information. As a result, the whistleblower’s allegation that certain officials may have misused an intelligence system also raises an additional claim of a serious or flagrant problem that relates to the operations of the DNI and therefore may properly be considered an urgent concern under the statute.

Thursday, October 24, 2019

Onboarding CMP - ShareThis

Onboarding CMP - ShareThis

Sharing Popup Iframe

Sharing Popup Iframe

Opinion | Will the Supreme Court Stand Up for an Unarmed Mexican Teenager Shot by a Border Agent? - The New York Times

The Supreme Court is poised to put a final nail in the coffin of the Bivens action - a theory that permits one to sue for violation of federal constitutional rights based not on state (42 USC 1983 addresses state action) but rather directly on the Constituiton of the United States. - gwd
Opinion | Will the Supreme Court Stand Up for an Unarmed Mexican Teenager Shot by a Border Agent? - The New York Times
by Linda Greenhouse
The Institute for Justice, a libertarian organization often allied with the current administration, has filed a brief on the parents’ behalf that may get the attention of the court’s conservatives. It makes an originalist argument for Bivens as having not only “a storied common law pedigree” dating back to England and to colonial America, but also as offering “the only route to recovery now available to individuals like Sergio Hernandez’s parents.” The court should “fully embrace the Bivens remedy as a means for holding federal officers personally liable when they violate constitutional rights,” the brief argues, prominently citing a concurring opinion that Justice Neil Gorsuch wrote as an appeals court judge, shortly before President Trump named him to the Supreme Court, arguing that “there may be some circumstances when federal courts have to act because state courts are unable or unwilling to intervene.”

Wednesday, October 23, 2019

Audio: Trump v. Vance - 2d circuit

Image result for trump v vance second circuit
2d Circuit judges Chin and Consovoy
Trump v. Vance - background - GWC
Consent to stay enforcement of the order

The oral argument in the United States Court of Appeals for the Second Circuit

TPM - The Logical Endpoint of Trump's Immunity Argument

CSPAN Audio:
https://www.c-span.org/video/?465172-1/circuit-hears-oral-argument-president-trumps-tax-returns-audio-only
Live blogging by Jed Shugerman
Live blogging by 
Adam Klasfeld @courthousenews

Twitter thread post-argument: Legal Nerd vs. DavidRLurie