November 11th, 2020

Blaming the Lawyers – Election Edition

It comes as news to no objective person that Joe Biden won a sweeping victory in the election — both in the popular vote and most likely in the electoral college when the counting is done — and that Donald Trump has lost.

But Trump, being Trump. won’t accept that people have done the rare thing of voting an incumbent out of office. They usually win.

So he’s going to court screaming fraud, or something, and trying to do this in multiple states. Some places he wanted them to keep counting votes and others to stop counting. None of this is in the least bit surprising, because Trump.

But a deeply troubling thing has happened. The Lincoln Project, a group of #NeverTrump conservatives who knew that Trump was neither Republican nor conservative but only out for himself, has decided to attack the lawyers bringing the suits:

The Lincoln Project is set to launch a multiplatform campaign hammering Jones Day and other firms for their role in facilitating Trump’s efforts, I’m told. It includes TV and digital ads and social media highlighting the damage that enabling Trump threatens to our democracy and to the success of the presidential transition.

This is a very bad move.

If lawyers come into court with frivolous suits, then courts can do two things: The first is to dump the suits.

The second is, potentially, to sanction the lawyers if the suits were without basis in law and fact. Courts, after all, have an inherent power to control the conduct of those that come before them and sanction those who use it for an improper purpose. (Chambers. v. Nasco)

So let the lawyers make their arguments. If they go too far in representing their client and overstep their legal and ethical bounds, the courts can take care of that issue

And these would be good things. Let the Trumpers see that the claims of fraud were meritless, and to the extent they existed, they were isolated circumstances where the votes could be counted on fingers and toes. And from both sides.

Sunlight, Justice Brandeis once wrote, is the best disinfectant. Let the world see a lack of merit. Let the world see Trump lose. Over and over and over again.

The one thing we should not want is for anyone to say that he was denied his fair access to the courts and a fair count. Trying to intimidate lawyers away from representation could do that.

Let the courts prove the election and count were fair. Let the courts shove the fairness down Trump’s throat.

Attacking the lawyers for having a reprehensible client is the wrong move. For even sociopaths have a right to due process, and have a right to have their claims heard. And rejected.

Indeed, having the courts reject bad claims is the best possible outcome at this point.

October 20th, 2020

The Qualities a President Needs

As Obama was leaving office, I posted this list of talents and qualities I want to see in a President. This is, notably, without regard to any particular policy.

As people flood the polls now, almost four years later, I re-post.

And ask yourself, of the two main candidates, who has the qualities that are needed?

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I want a policy wonk. Fundamental to any leader is an ability to understand that the choices aren’t between good and bad, but between bad and awful. And you want a president with the deep understanding of policy to figure out which is which.
I want someone to appoint qualified people. The vast, vast majority of America has no idea who the head of the EPA, FEMA, Department of Energy, or HUD are. You know why? Because they didn’t become part of any grand screw-up. There’s something to be said for not knowing who they are, as it means they are most likely doing their jobs without conflict.
I want someone that doesn’t make rash decisions. And that’s because policy is full of nuance. Slow and deliberate is the way to go, so that a president can absorb as much information and as many opinions as possible.
I want someone who can keep his cool under pressure. Every president will face pressure, be it from foreign conflicts, hostage/kidnapping/terrorism or domestic political problems. Being able to take the long view, instead of instantly ranting and raging, is a quality to be admired.
I want a scandal-free administration. When was the last time a president walked out of the oval office after 8 years without major scandal?
I do not want drama. If there is some sort of drama regarding the White House, it is never, ever good.
I want someone who doesn’t blanch at the prospect of admitting error and reversing course. Every president will make mistakes, and ego often gets in the way of admitting error. But it’s far better than making the situation worse by continuing on, in the desperate hope the bad decision will magically turn good.
I want someone with a fundamental appreciation for the fact that ignorance and arrogance are both awful in a president, and together they can be deadly. And the wisdom to recognize it in themselves.

I put up these qualities, instead of issues, because there are thousands of issues that will cross a president’s desk. Cherry-picking what I liked (or didn’t like) would miss the point about the human qualities that someone should have to be an effective president.

Historians will remember Obama well.

I wish we’d had an election between Joe Biden and John Kasich. It would have been between two fundamentally decent people, regardless of what you thought of their politics, and no doubt focused on policy issues. It would likely have been boring. When it comes to politics, I usually like boring. (And the press would have hated it which is why so much free press is given to the most outrageous candidates.)

The nation is worse off when presidents don’t have these qualities.

February 26th, 2020

Trump Sues New York Times (He will Lose Quickly)

OK, this is going to be quick and dirty because I am a bit time-limited.

The Trump campaign (Trump for President) sued the New York Times today for defamation based upon this opinion piece written by Max Frankel in March 2019. It deals with his campaign’s conduct regarding the Russians.

Trump is going to lose. In order to prevail he’s going to have to show, for a start, false statements.

First off, the complaint doesn’t start well as it’s supposed to be written with actual facts. This one is chock full of political hyperbole. This is not the way New York lawyers write, which means this is not what the judges expect to see.

And most folks with functioning neurons — and I think most of our judges have them — know that when that kind of nonsense appears in a complaint it’s to mask the emptiness of the complaint.

So we see this nonsense about “not entirely surprising” and “blatant attack” and “extremely biased” that has nothing to do with whether a statement is true or false:

The actual statements claimed to be false are opinions based on the evidence as the writer sees them. They are, in fact, obviously opinions based on the very words that are used:

“Reveals itself” is opinion. So to is “obvious bargain,” “watered down” and “otherwise appeased.”

While this following allegation is a bit better, claiming an “overarching deal,” it too will fail as deals need not be explicit and may be implied:

Given Trump’s invitation to Russia to involve itself with our elections, and the numerous contacts his team had with Russia, this claim has nowhere to go. It’s a fair opinion to claim “they knew about the quid and held out prospect for the quo.”

It’s tempting to leap out and say, “discovery is gonna be a blast!” but it will never get there. This complaint is doomed to be dismissed for failing to state a claim upon which relief can be granted.

New York’s standards for defamation are very high, and are set forth in Steinhilber v. Alphonse. This is a good primer on the law for those who want to know how strongly the courts protect our rights to speak freely.

As I noted back in 2015 when Trump filed a frivolous defamation claim against Univision, expressions of opinion, as opposed to assertions of fact, are privileged. No matter how offensive, they cannot be the subject of an action for defamation. Non-actionable opinion includes “rhetorical hyperbole, vigorous epithets, and lusty and imaginative expression,” as well as “loose, figurative, hyperbolic language.”

The story will make some headlines and then vanish into the ethers.

Addendum: I think both Trump and his lawyer Charles Harder know this suit is dead in the water. Because if it was viable, Trump would be subject to a deposition. Trump. Under oath. About Russia. And there is zero chance of Trump allowing that to happen.

December 5th, 2019

Jury Nullification and the Trump Impeachment

We have criminal trials. We have civil trials. And we have, rarely, impeachment trials.

Today Mark Bower explores the concept of jury nullification in the context of jurors doing whatever they hell they feel like, regardless of the law. I explored jury nullification once before, albeit it briefly, many years ago.

This fuller discussion comes in the wake of news of President Trump wooing Congressmen and Senators with Camp David visits and special lunches.

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A primer on jury nullification:

The United States Constitution guarantees a trial by jury to all persons accused of a crime. That jury is comprised of average citizens from all walks of life with no special training or skills to serve other than being a U.S. citizen who is at least 18 years old, residing in the judicial district for a set period of time (typically one year), being proficient in English, having no disqualifying mental or physical conditions, and (in most states) not having a pending or previous felony conviction. In fact, more than 32 million people are called for jury service every year, according to the National Center for State Courts.

Serving on a jury is a hallmark of our justice system and a cornerstone of democracy. But did you know that, unlike judges, juries historically have been able to ignore the law in order to achieve justice in individual cases that involve unjust rules or their unjust application? This is known as jury nullification. Below, you will find a discussion of jury nullification, including how it’s defined, its legality, examples, and how this applies to the impeachment of Trump.

Jury Nullification Defined:

Jury nullification might sound like a convoluted concept in an already confusing legal system, but the idea is actually quite simple. It happens when a jury returns a verdict of Not Guilty despite its belief that the defendant is guilty of the violation charged. Why would a jury do this? Don’t jurors swear an oath to uphold the law? Yes, but oftentimes it is a tool juries can use to set aside a law they believe is immoral or wrongly applied to the accused.

For example, in the 1800s the government passed stringent fugitive slave laws that compelled citizens of all states to assist law enforcement with the apprehension of suspected runaway slaves. Known as the Fugitive Slave Act of 1850, the law included large fines for anyone who aided a slave in an escape, even by simply giving the person food or shelter.

Northerners used the jury box to voice their protest by refusing to convict in these cases and thereby “nullifying” the law on moral grounds. A mirror-image may be found in the countless acquittals in the South of whites charged with lynching black men, regardless of clear guilt-in-fact. In other cases, juries nullified prohibition era laws and drug laws that they disagreed with. Put crudely but accurately, the jurors rejected the charges based on personal beliefs that the laws were wrongheaded.

Jury nullification also exists in civil cases but is relatively uncommented-on. Every trial lawyer knows that cases may be won or lost based on intangibles, such as the likeability or unlikeability of the client, that has nothing to do with the merits of the case. A jury nullification advocacy group estimates that 3–4% of all jury trials involve nullification. A recent rise in hung juries is seen by some as being indirect evidence that juries have begun to consider the validity or fairness of the laws themselves.

Legality of Jury Nullification:

Jury nullification is legal according to the U.S. Supreme Court, but whether or not juries may be instructed on this right is a different matter. Although the power of jury nullification exists, lawyers are generally prohibited from urging a jury to disregard the law. Although no precedent revokes the power of nullification, courts have since the 19th century tended to restrain juries from considering it, and to insist on their deference to court-given law.

The 1895 decision in Sparf v. United States written by Justice John Marshall Harlan, held that a trial judge has no responsibility to inform the jury of the right to nullify laws. It was a 5–4 decision. This decision, often cited, has led to a common practice by United States judges to penalize anyone who attempts to present legal argument to jurors and to declare a mistrial if such argument has been presented to them. In some states, jurors are likely to be struck from the panel during voir dire if they will not agree to accept as correct the rulings and instructions of the law as provided by the judge.

A 1969 Fourth Circuit decision, U.S. v. Moylan, affirmed the power of jury nullification, but also upheld the power of the court to refuse to permit an instruction to the jury to this effect:

“We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”

Nevertheless, in upholding the refusal to permit the jury to be so instructed, the Court held that:

“…by clearly stating to the jury that they may disregard the law, telling them that they may decide according to their prejudices or consciences (for there is no check to ensure that the judgment is based upon conscience rather than prejudice), we would indeed be negating the rule of law in favor of the rule of lawlessness. This should not be allowed.”

The right to disregard the law if one disagrees with it on moral grounds, also comes from the fact that jurors cannot be punished for the verdict they render, no matter how unpopular it is to the general public or the specific judge presiding over the case. Also, defendants found not guilty, cannot be retried for the same crime, that would violate the double jeopardy concept.

Hence, once a jury finds a defendant not guilty, there is no mechanism for a prosecutor to bring the case against the same defendant again. (See: Bushel’s Case, from the 1670 trial of William Penn.)

Several cases that were speculated to be instances of jury nullification included the prosecution of Washington, D.C.’s former mayor, Marion Barry; the trial of Lorena Bobbitt; the prosecution of the police officers accused of beating Rodney King; the prosecution of two men charged with beating Reginald Denny in the resulting riots; the trial of the surviving Branch Davidian members; the trial of the Menendez brothers for the murder of their parents; and perhaps most famously, the O. J. Simpson murder trial. In the days preceding Jack Kevorkian’s trial for assisted suicide in Michigan, Kevorkian’s lawyer, Geoffrey Fieger, told the press that he would urge the jury to disregard the law. Prosecutors prevailed upon the judge to enter a pretrial order banning any mention of nullification during the trial, but Fieger’s statements had already been extensively reported in the media.

In a 1998 article, Vanderbilt University Law Professor Nancy J. King wrote that “recent Looking to the Clinton impeachment trial for guidance on the Chief Justice’s role has been unsatisfying. C.J. William Rehnquist’s low-key role is remembered mainly for two minor things: (1) His decision to adorn his black robe with glittering gold stripes – an idea lifted from Gilbert & Sullivan’s “Iolanthe;” and (2) his ruling preventing the Senators from being referred to as “jurors”. It is not likely that C.J. John Roberts will get much precedent from Rehnquist’s presiding over the Clinton impeachment.

Will the Trump Impeachment Call for Nullification?

As of this writing, the Trump defense strategy has essentially been to contend that Trump’s pressuring Ukraine to “dig up dirt” on the Bidens, while perhaps unappealing, is too minor a transgression to rise to the “high crimes and misdemeanors” standard for impeachment. So far as I know, no legal commentator has yet called this “jury nullification.”

But conceptually, this is every bit as much “jury nullification” as northern jurors refusing to convict those who helped slaves escape bondage because of their revulsion to slavery, or Southern jurors refusing to convict lynchers. And so, without say so explicitly, the G.O.P. defense strategy is to appeal to the public and Senators to embrace jury nullification and prevent impeachment and conviction.

As the Supreme Court has never rejected jury nullification but won’t allow defense attorneys to explicitly advocate that jurors substitute their personal beliefs for following the law, I expect Chief Justice Roberts will follow that path, not explicitly allowing the Senate to disregard the law while simultaneously allowing them to “vote their consciences.” That will allow the jury nullification strategy that is currently playing out in the media, to play out in the Senate without ever saying so outright.

Will the jury nullification strategy succeed? I can tell you the answer with complete certainty: Maybe. Ask me again in a year, and I will give you an even more certain answer.

* – Mark R. Bower is a former Court TV Commentator and is a board-certified medical malpractice lawyer in NYC. .

December 20th, 2018

Trump and the Presidential Veto

[Cross-posted from Above the Law]

On Thursday morning Donald Trump threatened to veto all legislation over his wall. No such Trump veto will happen. Ever. On any bill.

I don’t get into the realm of political punditry often as it’s not what I do — I usually confine political comments to those issues that deal with tort “reform” — but today we make an exception because this goes, in essence, to all bills sent to the president.

We start this short analysis with the observation that Trump hasn’t vetoed a single bill. He’s the first president since James Garfield to act that way, and Garfield was only in office six and a half months before being shot dead.

Before that was Millard Fillmore who left office in 1853, who also served a partial term as he took office upon the death of Zachary Taylor. Taylor didn’t veto anything, but was in office only 16 months. Before that was William Henry Harrison, who died a month into office.

The last president to go a full term without a veto? John Quincy Adams, our sixth president who left office in 1829.

And a few more simple observations: First, Trump loves signing things and makes a big show of displaying his signature, even for executive orders.

Second, he campaigned as a “deal maker.” It matters not one whit if you agree or not, or think he’s good or not. This is the persona he wants the world to believe.

And now, with the House of Representative turning to Democratic control, any bill that passes both the House and Senate that is in any way contentious will be the result of bipartisan compromise. A deal.

So if Congress passes a bill — even one that’s a complete anathema to his other policies — he will sign it and claim “credit.” Even if he had nothing to do with its negotiation.

Envision, for a moment, a bipartisan compromise bill on immigration. Imagine it chock full of things Trump claims to hate and campaigned against.

Will he sign it? No, the contents of the bill don’t matter. Because more important than the contents is that he would be able to claim “credit” for something, even if he campaigned against it. ‘Look at me, the deal maker.’

Will Trump supporters have a feeling of betrayal — one of the most powerful human emotions? Possibly. But that’s a column for another day. Trump’s first instinct has always been to look inward as to what was good for him today.

Why write about this now? Because every so often you will see Republican Senators claim that they won’t pass a bill because the president won’t sign it. Don’t believe it. It’s a diversion.

Trump will sign anything.