Bob Schwartz

Category: Law

Trump Predicts Revolt If He Is Removed. Are His Words Illegal?

King Louis XV: “Après nous, le deluge.”

Barely noted yesterday, or mostly ignored because we discount just about everything that Trump says, is this from his interview with Reuters, talking about the possibility of impeachment:

“I’m not concerned, no. I think that the people would revolt if that happened.”

A President of the United States just suggested—implicitly endorsed—the possibility of revolution in the event of his ouster. Had this happened at any other time in the past two centuries, bells would be going off as if the Republic was on fire.

In the first place, it is arguably illegal:

18 U.S. Code § 2385 – Advocating Overthrow of Government

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government…

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

Does his interview constitute advocating or advising the desirability of overthrowing government? As a matter of crime, it might be a stretch. As a matter of civic responsibility from America’s highest public office, it is farther over the line than almost anything else Trump has said—and that is saying something.

Second—and this is the real bell ringer—he is in some sense right. The form of revolt is uncertain, but it would likely be more than angry and vicious posts on social media. Even his vacating the office through resignation or by electoral defeat in 2020 might have a similar effect.

In America’s darkest historic hour before the Civil War, in an overheated political climate, some of the greatest statesmen in our history tried to keep the lid on a boiling pot. They failed.

We are nowhere near that. But among the roster of politicians, we don’t seem to have as many genuine statesmen as we had back then—or as we had just a few decades ago. And we’ve never had a president predicting—encouraging—revolt as the consequence of his absence.

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Bob Woodward and Seth Meyers have criticized CNN for suing the White House over the pulling of Jim Acosta’s press credentials. With all due respect to Woodward, you’re wrong.

Noted legal scholar Seth Meyers

The White House pulled the press credentials of CNN journalist Jim Acosta because Trump doesn’t like his questions, his attitude or him. The First Amendment does not allow this. CNN has sued.

Bob Woodward, an extraordinary and legendary journalist who has made his indelible mark on American history, has criticized CNN for feeding Trump’s appetite for lawsuits. So has Seth Meyers, an amusing entertainer legendary for nothing.

Lawyers are not that special. But lawyers are a bit more sensitive than some others to how unopposed government assaults on constitutional rights tend to gather momentum, sliding down a slippery slope. Waiting only makes things worse.

So to Bob Woodward, who deserves infinite respect for all he has done and continues to do, in this case you are wrong. And to Seth Meyers, who is well rewarded for working within the protection of the First Amendment, please remember that the First Amendment needs protection too. It is the First Amendment that allows those who are funny and sometimes ill-informed to express themselves without government interference.

The Hopeful But Limited Relief of Having the New Kavanaugh Investigation

It is good news that there will be a new FBI investigation in the Brett Kavanaugh matter. Any movement towards a return to free, open and lawful democracy is welcome.

But before we pop champagne and release balloons, a reality check. Here are some ways the investigation could have little effect on the outcome—in fact, will be designed to have little effect, besides providing cover for vulnerable and/or spineless Republicans.

1. It is a limited investigation. We don’t know the scope, which is being directed by Trump. It could be as narrow as the single incident alleged by Christine Blasey Ford, the incident that was the subject of Thursday’s hearing. This could mean simply talking to her, to Brett Kavanaugh, and to the few people who were there—only one of whom, Mark Judge, is an eyewitness.

Judge has already said that as an effect of his chronic alcoholic blackouts, going back to high school, he has no memory, one way or the other, of the incident. There is no reason he won’t say the same thing to the FBI.

The investigation could be broader. It could include other allegations that have been made. It could include everything that Ford and Kavanaugh testified to during the hearing. It could thus involve Kavanaugh’s claims about his benign behavior, claims that have been refuted by a number of people who knew him in high school and college. It could include all this, but almost certainly will not.

2. Trump controls the report of the investigation. Trump ordered the investigation. His order presumably included a specific scope of investigation for the FBI to follow. Just as importantly, the report of the investigation will go directly to Trump, who can decide how much of the investigation report can be shared and who it can be shared with.

The worst case, which would not be surprising, is that no copies of the report will be distributed. Instead, senators will be allowed to review the report in the White House. They may be allowed to take notes.

All of this—any presidential redaction and any restricted distribution—are part of the desire by some for this investigation to be “confidential”…

3. The investigation is, in some unspecified way, supposed to be “confidential”. Judge has said he wants whatever he says to be confidential. Kavanaugh has indicated he expects it to be confidential. It is unclear what this means functionally. But it is easy to see the case that would be made:

The only reason we are doing this investigation is to further inform the senators responsible for deciding on confirmation. Others, whether other members of Congress or citizens in general, may be curious, but they have no compelling reason to see the detailed report, given that it contains sensitive information.

If that reasoning sounds extreme, that is, extremely suspect, it is. But if you need a basis for it, just look at the “investigation” that went into Kavanaugh in the first place, and look at the history of the Trump administration. No twisted attempt at hiding the truth is too absurd.

Mark Judge and the Theology of Whistleblowing

Mark Judge has come up frequently in the matter of Brett Kavanaugh. Judge was a high school buddy of Kavanaugh’s, and has chronicled his own wild years as a teenage alcoholic. The question Judge can answer—but so far won’t—is whether Kavanagugh was mostly a “choir boy”, as Kavanaugh swears he was, or whether together they engaged in drunken and sometimes aggressive behavior.

Kavanaugh doesn’t want an FBI investigation, Trump will not order one, and the Senate Judiciary Committee did not subpoena Judge. At this point, the only way Judge will speak out is voluntarily. And he has made clear that he does not want to be involved, that he has no memory of the particular incident involving Christine Blasey Ford, and that given his health and his recovery from long-time alcoholism, his public involvement would be detrimental.

This is all to introduce a different light on the matter. Judge’s memoirs of his life and recovery, including a high school depiction of the thinly disguised “Bart O’Kavanagh”, have gotten the most attention. But Judge, a devout Catholic, has also written frequently about the Church and about the need for more theological education.

The involvement of the Church in the Kavanaugh nomination has been pretty straightforward. It is believed that he will help in advancing constitutional limits on or even banning of abortion, and so he is favored. The influential magazine America: The Jesuit Review enthusiastically endorsed him in July. Yet after yesterday’s hearings, where it became apparent to some that Kavanaugh may have been lying about the incident with Ms. Ford, America rescinded its endorsement:

The Editors: It is time for the Kavanaugh nomination to be withdrawn

While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn….Judge Kavanaugh continues to enjoy a legal presumption of innocence, but the standard for a nominee to the Supreme Court is far higher; there is no presumption of confirmability….We continue to support the nomination of judges according to such principles—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

This is not, however, about the Catholic position on Kavanaugh. It is about whistleblowing. Mark Judge is in the position of a whistleblower. As a general matter of ethics and theology, that is a topic that has been widely discussed by Catholic theologians and philosophers. And as a specific topic, the Church is painfully familiar with keeping secrets (yes, sexual secrets) and the theology of handling those who might open a pathway to the painful truth.

Mark Judge has no doubt sought faithful guidance on how to proceed. That religious direction may be supplanted by legal process: it is almost certain that in a Democratic Congress, the Kavanaugh matter will be pursued in hearings, even as Kavanaugh sits on the Court. That will mean a subpoena for Judge.

Duty to yourself. Duty to others, especially the suffering. Duty to your faith. Duty to the truth. As a thoughtful Catholic Mark Judge knows, as every thoughtful person of faith knows, there are way more questions than answers.

To My Brothers and Sisters in the Law: Remember Professional Ethics in the Face of Tyranny

Some of my readers may be lawyers; certainly some colleagues, friends or members of their families are, so please pass this on if you would like. Many people involved in current immoral and unethical polices such as the forced separation of migrant children are also lawyers.

This is a brief chapter from On Tyranny: Twenty Lessons from the Twentieth Century (2017). Note that the Kindle edition of this essential book is only $3.99. It is the best and most conscientious $3.99 you can spend right now.


5. Remember Professional Ethics (emphases added)

When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient civil servants, and concentration camp directors seek businessmen interested in cheap labor.

Before the Second World War, a man named Hans Frank was Hitler’s personal lawyer. After Germany invaded Poland in 1939, Frank became the governor-general of occupied Poland, a German colony where millions of Jews and other Polish citizens were murdered. He once boasted that there were not enough trees to make the paper for posters that would be needed to announce all of the executions. Frank claimed that law was meant to serve the race, and so what seemed good for the race was therefore the law. With arguments like this, German lawyers could convince themselves that laws and rules were there to serve their projects of conquest and destruction, rather than to hinder them.

The man Hitler chose to oversee the annexation of Austria, Arthur Seyss-Inquart, was a lawyer who later ran the occupation of the Netherlands. Lawyers were vastly overrepresented among the commanders of the Einsatzgruppen, the special task forces who carried out the mass murder of Jews, Gypsies, Polish elites, communists, the handicapped, and others. German (and other) physicians took part in ghastly medical experiments in the concentration camps. Businessmen from I.G. Farben and other German firms exploited the labor of concentration camp inmates, Jews in ghettos, and prisoners of war. Civil servants, from ministers down to secretaries, oversaw and recorded it all.

If lawyers had followed the norm of no execution without trial, if doctors had accepted the rule of no surgery without consent, if businessmen had endorsed the prohibition of slavery, if bureaucrats had refused to handle paperwork involving murder, then the Nazi regime would have been much harder pressed to carry out the atrocities by which we remember it.

Professions can create forms of ethical conversation that are impossible between a lonely individual and a distant government. If members of professions think of themselves as groups with common interests, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power. Professional ethics must guide us precisely when we are told that the situation is exceptional. Then there is no such thing as “just following orders.” If members of the professions confuse their specific ethics with the emotions of the moment, however, they can find themselves saying and doing things that they might previously have thought unimaginable.

Why Trump May Not Fire Department of Justice Officials (It’s Not Impeachment, a Constitutional Crisis or the Rule of Law)

It increasingly sounds like Trump is ready to rush in and try to stop the Mueller investigation:

A Rigged System – They [Department of Justice] don’t want to turn over Documents to Congress. What are they afraid of? Why so much redacting? Why such unequal “justice?” At some point I will have no choice but to use the powers granted to the Presidency and get involved!

Trump actually has no idea what the constitutional powers of the three branches of government are. He may not even know there are three co-equal and balanced branches of government. The only thing he knows is that he is THE PRESIDENT and that is the most powerful position in the world, EVER.

Trump’s firing people responsible for investigating him is wrong, is incident to a constitutional crisis, and breaches the fundamentals of the American rule of law. That won’t stop him. But this might:

If Trump proceeds with his improper intervention, every responsible lawyer currently working on his behalf, and every responsible lawyer being asked to represent him, should and may leave and run the other way. Because by continuing or taking on that work in the aftermath of such action by Trump, they are complicit—even if tangentially and collaterally—in supporting those actions. There is a case to be made that by continuing in those circumstances, lawyers are in breach of their oaths (lawyers are all sworn officers of the court) and of the rules of professional conduct.

All of which is not meaningful or comprehensible to Trump. But he might notice that there are fewer quality lawyers willing to touch his legal problems, and that number will get infinitely smaller if he carries out his threats.

The Next Trap for Trump: Facts Can’t Be Defamed But People Can

Stormy Daniels released a sketch of the man who threatened her in 2011 to keep her from talking about Trump. In a tweet, Trump called this threat and sketch a “con job.” She has now sued Trump for defamation, claiming he accused her of the crime of making a false accusation of committing a crime against another.

This may seem like grasping at straws, but it isn’t. If Trump had ever said one word directly refuting her account of their relationship—which he hasn’t—he would find himself in a bigger defamation action. But even this smaller one is a harbinger of what may become a new trend.

Defamation is a perfect action to bring in the case of chronic and pathological liars. The essential defense to defamation is the truth of the matter asserted. If the reputation-damaging statement was undeniably made, but the speaker/writer will not or cannot prove that it is true, proof of damage is enough for the plaintiff to prevail. In every instance where Trump is the defamer, and an action is brought, he would be obliged to prove that the damaging words he says or tweets about someone are true. Which in all cases, he either won’t do or can’t do.

It is a shame that all the facts that Trump has brutally attacked don’t have standing to sue (two thousand lies and counting, just as president). But people do have that standing. Stormy Daniels, who has one of the smartest, most creative, most articulate, most media-savvy lawyers of the Trump era, is taking advantage of this vulnerability. Do not be surprised to see more of these defamation actions from all sorts of people who have been publicly maligned by Trump.

Lesson for Trump Attorneys: The Lawyers of Watergate

“The Nixon White House initially dismissed the break-in as a “third-rate burglary,” but after a year of increasingly persistent media coverage, Congress initiated multiple investigations that exposed the involvement of more than 20 of the most powerful lawyers in the United States.”

This was going to open with a list of lawyers who are representing Trump and Trump-related enterprises—including the White House. But that list changes too fast; Trump’s chief attorney in the Mueller investigation, John Dowd, resigned just this week.

Whoever they are or will be, they have one thing in common. They are working for a client who almost certainly has engaged in unethical, if not illegal, practices—before and during his political life, including his presidency. A client who has asked others, including his attorneys, to help fix or cover-up those practices when they were in danger of coming to light. A client who is vindictive, willful, self-absorbed, not very smart, and possibly psychologically unstable. A client who will not listen to them.

All of which brings us to Nixon and the lawyers of Watergate. One difference between Nixon and Trump is that Nixon was smart, a lawyer himself and a long-time national politician who understood how government works. Nixon was also a patriot, and, at least at some point in his life, a brave man, having served with distinction in World War II.

Unfortunately, Nixon, like Trump, found himself engaged in practices that he eventually needed to hide. He enlisted a gang of henchmen to help him—and many of those men were lawyers. When they truth came out, many of those lawyers were no longer allowed to be lawyers (including Nixon), and Nixon was no longer president.

If you wonder why lawyers are leaving Trump right and left, the following suggests one of the reasons.

ABA Journal, June 2012

The Lawyers of Watergate: How a ‘3rd-Rate Burglary’ Provoked New Standards for Lawyer Ethics

The Nixon White House initially dismissed the break-in as a “third-rate burglary,” but after a year of increasingly persistent media coverage, Congress initiated multiple investigations that exposed the involvement of more than 20 of the most powerful lawyers in the United States.

At the top of the list was Nixon, the 37th president of the United States, who resigned on Aug. 8, 1974, as Congress was gearing up to conduct impeachment proceedings.

But the list also included two U.S. attorneys general, two White House counsels, an assistant attorney general and a chairman of the U.S. Securities and Exchange Commission.

John D. Ehrlichman
Disbarred in Washington State.

John W. Dean III
Disbarred in Virginia.

Spiro T. Agnew
Disbarred in Maryland.

Charles W. Colson
Disbarred in Virginia and the District of Columbia, license suspended in Massachusetts.

Herbert W. Kalmbach
Law license in California was suspended, but reinstated in 1977.

Richard G. Kleindienst
Law license in District of Columbia suspended for a month, and censured by Arizona disciplinary authorities.

Egil “Bud” Krogh Jr
Disbarred in 1975 by the Washington Supreme Court, but petition for reinstatement was granted in 1980.

Gordon Liddy
Disbarred in New York.

Robert C. Mardian
Law licenses suspended in California and by the U.S. Supreme Court, but later reinstated.

John N. Mitchell
Disbarred in New York and from the U.S. Supreme Court Bar.

Richard M. Nixon
Disbarred in New York.

Harry L. Sears
Law license suspended in New Jersey for three years.

Donald H. Segretti
Law license suspended in California for two years.

Bradford Cook
Nebraska law license was suspended for three years.

Normalizing Corruption: “Kushner Cos. filed false NYC housing paperwork”

Associated Press:

Kushner Cos. filed false NYC housing paperwork

NEW YORK (AP) — When the Kushner Cos. bought three apartment buildings in a gentrifying neighborhood of Queens in 2015, most of the tenants were protected by special rules that prevent developers from pushing them out, raising rents and turning a tidy profit.

But that’s exactly what the company then run by Jared Kushner did, and with remarkable speed. Two years later, it sold all three buildings for $60 million, nearly 50 percent more than it paid.

Now a clue has emerged as to how President Donald Trump’s son-in-law’s firm was able to move so fast: The Kushner Cos. routinely filed false paperwork with the city declaring it had zero rent-regulated tenants in dozens of buildings it owned across the city when, in fact, it had hundreds.

While none of the documents during a three-year period when Kushner was CEO bore his personal signature, they provide a window into the ethics of the business empire he ran before he went on to become one of the most trusted advisers to the president of the United States.

“It’s bare-faced greed,” said Aaron Carr, founder of Housing Rights Initiative, a tenants’ rights watchdog that compiled the work permit application documents and shared them with The Associated Press. “The fact that the company was falsifying all these applications with the government shows a sordid attempt to avert accountability and get a rapid return on its investment.”

Set aside the specifics of this particular corrupt practice. Ignore the fact that Jared Kushner’s father Charlie, founder of Kushner Cos., once pled guilty to 18 counts of illegal campaign contributions, tax evasion, and witness tampering, and served fourteen months in federal prison. Ignore the business, legal, political and personal practices of Donald Trump, Jared’s father-in-law and boss, and President of the United States.

Focus on this. When corruption is practiced within the context and four walls of a corrupt enterprise, corruption is normal. The only things wrong are any words or actions that brings any of those corrupt practices to light or causes an unfavorable light to shine on them. Everything else is okay, because within those four walls, corruption is normal.

Corruption is not normal. In business. In government. In politics. In the White House. It is as clear as ever that some people don’t know that, don’t believe that, and never will.

Update: Why Trump Wanted to Be “David Dennison” in the Hush Money Agreement with Stormy Daniels (Hint: It Has to Do with Her Breasts)

Update: Following this post, I realized that “DD” are also the initials of Dirk Diggler. Diggler, the main character in the movie Boogie Nights (1997), is a well-endowed male porn star based on the famous porn actor John Holmes. So is the choice of “David Dennison” about a porn star’s breasts or about a porn star’s penis? Or both?

In the non-disclosure agreement signed by Stormy Daniels to keep quiet about her relationship with Trump, he used the name David Dennison. The signature line—which according to her new lawsuit he didn’t sign—doesn’t even have that fake name. All it says is “DD”.

Why David Dennison? The initials tell it all.

Stormy Daniels bra size, reported in the multiple sites that keep track of such things, is 34DD. This is Trump’s juvenile little joke. Get it? If you’re not laughing, that’s because nothing Trump does—including his attempted jokes—is a laughing matter. Just, as he would tweet, SAD!

David Dennison and Stormy Daniels