November 10th, 2016

Can Trump Be Presidential?

Can Donald Trump be presidential? My feeling, based on his past conduct, is no. So this post is about how Trump can win (some) people over who despise him and believe he is completely irredeemable as a human, let alone as a leader. And profit while doing so.

It starts with the Supreme Court.

As I type, there are protests in the streets. Worse than displaying racism, misogyny, nastiness and hatred, he has displayed complete incompetence on matters of public policy, both foreign and domestic. You have heard them all by now so there’s no reason to repeat them.

So how does someone be presidential in such a circumstance? And I don’t mean act presidential, but actually be it?

It starts by taking the Supreme Court off the table when it comes to partisan politics. It is a shame that we as a nation have allowed ourselves to sink to this level, where every nomination becomes a blood-letting and Americans have begun to lose faith in our courts as an institution.

The issue, as the stalled Merrick Garland nomination has shown, has nothing all to do with the qualifications of the person. It only has to do with “the other side” having made the nomination.

Remember, as I write, that Antonin Scalia was approved by the Senate by a vote of 98-0, and Ruth Bader Ginsburg by a vote of 96-3. So it wasn’t always this way.

Here’s the thing — both supporters and detractors will ultimately benefit from both of these ideas.

The first is for Trump to recognize that if Republicans can hold up the Garland nomination, then Democrats can do that to any of his. What goes around comes around. Karma, and all that crap. Screaming hypocrisy at Washington, D.C. will only result in people shrugging, “So what else is new?”

Having recognized that his own nominations can be torpedoed (as well as anything else he proposes), acting presidential entails telling Republican senators that held up Garland that Americans are sick and tired of stupid political games, that he has come to Washington to actually get stuff done, and therefore re-nominates him.

Since Trump fashions himself as a maverick willing to dump on Republicans if need be, and since this will also make any future nominations sail far more easily through the Senate, it would not only be savvy, but presidential. It would be a giant step toward taking the ugliness of what we have seen, both in Washington and during the campaign, and stopping it dead in its tracks.

I have zero expectation, of course, that Trump is capable of doing this. But if he did, it would force people to take a second look and make folks wonder if the office of the president is capable of changing him.

The second way to take the Supreme Court off the table is by advocating term limits on the court. The reality is that we now live much longer on average than we did 100 years ago, and judges with lifetime appointments can be expected to sit for longer. That means each seat becomes more valuable, and more bitterly contested. Along with that, presidents now try to pick younger, and therefore less experienced judges, to sit longer.

But if the judges were term-limited, this dilutes the power of any one particular seat,and minimizes the political significance of any one appointment. At the end of judges SCOTUS terms, they would still be judges, but they would simply go down to Courts of Appeals or District Courts of their choosing.

There are already various formulations for this floating around — I make no claim to originality here. And it has support on both sides of the aisle.

On the legal side, Article III states that “the judges, both of the supreme and inferior courts, shall hold their offices during good behavior.” There is nothing in there that says a previously approved trial or appellate judge can’t take a temporary appointment to the top court. They would still be judges. And even if my simply formulation wouldn’t pass muster, we could still amend the constitution to take care of it.

You know what people would call such a move? Presidential.

Can Trump do such things? Unlikely. Would he force people who utterly despise him to reevaluate him? Yes.

Would his presidency, and his ability to get other stuff done, be enhanced by acting this way? You bet.
————
Elsewhere:

The New Nine: Make The Supreme Court Legitimate Again (Simple Justice)

Why Donald Trump Must Nominate Ted Cruz To The Supreme Court (Joe Patrice, Above the Law)

November 1st, 2016

Trump and the Threat of Legal Sanctions

An old graphic, because Trump is a repeat offender.

Today we once again turn to Donald Trump, the One Man Bar Exam. Specifically, as to how he might be sanctioned in New York should he bring a frivolous defamation suit here.

Quick background: To absolutely no one’s surprise, Trump threatened to sue the New York Times two weeks ago for defamation because it reported the news. Specifically, it reported that women had stepped forward to assert that he’d sexually assaulted them.

He then went on to assert that he would likewise sue the bevy of women who have stepped forward to talk about the assaults they claimed.

Now comes Ted Boutrous of Gibson Dunn and Crutcher to say that he will defend anyone Trump sues. For free. And he likely has 100 lawyers around the country willing to pitch in their services. There is no shortage of lawyers who would gladly take Trump’s testimony and delight in obtaining liberal discovery about him and his manner with women.

In a discussion on how Trump would get destroyed if he were dumb enough to bring such a suit, Boutrous writes at Politico regarding sanctions:

If Trump does end up pursuing these cases, he could do worse than lose. He could get hit with monetary sanctions for bringing frivolous claims and be subjected to countersuits by these women, who can argue that he has defamed them by calling them “liars” and who are private figures and thus not governed by the Sullivan “actual malice” standard that restricts Trump’s claims against them. All they would have to prove would be that Trump negligently made a false statement that injured their reputations.

Now I don’t actually think Trump will sue. I think he did this solely to intimidate others from coming forward, so that they would think, “I don’t need this shit.” It’s a classic case of intimidation.

But if he is irrational enough to ignore the advice not to sue, and he brings the action in state court in New York where he lives, I’m here to tell you the legal mechanics of how such a sanction could come to be.

Since I’ve been sued twice for defamation over blog posts here, in addition to being a personal injury attorney who routinely brings lawsuits, I have a pretty good prospective from both sides of the -v-.

Since I think the case is an absolute slam dunk against Trump if he sues a media outlet I’m going to leap ahead and go straight to the issue of sanctions.

I’ve written about this stuff before. After Trump brought a dumb defamation claim against Univision, and sought $500M in damages, I laid out the case against him. Then I wrote an April Fool’s gag, complete with fake judicial opinion, laying out the case for sanctions.

In supporting the motion for sanctions, the court might consider Trump’s prior acknowledgment that he brings frivolous suits, as he stated to the Washington Post:

Trump said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. “I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.”

While New York doesn’t have an anti-SLAPP statute, much to my dismay (my NYLJ op-ed is here), and has a judicial culture against sanctions, any lawyer dumb enough into letting his arm be twisted into bringing suit may well look to New York’s state court as the place to sue.

So these are the four places to look for sanctions in a New York action that I can conceive — two of which I have never seen happen — assuming the judge bucks the judicial culture against awarding them:

First: CPLR 8303-a: This provides for an award of mandatory costs and fees up to $10,000 for making a “frivolous” claim. In order to meet this definition of frivolousness under this statute, a court must find either that

(1) the “claim … was commenced, used or continued in bad faith, solely to delay or prolong, the resolution of the litigation or to harass or maliciously injure another”; or

(2) “the claim … was commenced or continued in bad faith without any reasonable basis in law or fact and could not be supported by a good faith argument for an extension, modification or reversal of existing law.”

Note that this is per claim, so that if Trump brings suit with multiple claims, it is 10K per claim, not per lawsuit. It’s a nice multiplication factor to use against the vexatious litigant.

Second: Then there are the court rules, specifically, 22 NYCRR § 130.1–1, wherein a court, in its discretion, may also impose financial sanctions upon any party who engages in frivolous conduct. Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false. (22 NYCRR § 130.1–1[c][1–3].)

So essentially we have a statute for commencing a frivolous suit and a court rule for conduct. The one for conduct has no limitation.

Third: This is for an angry judge, who wants to buck the judicial culture against sanctions, and try to use the logic used by the federal courts, wherein courts retain an inherent power to sanction, “to manage their own proceedings and to control the conduct of those who appear before them.” Chambers v. Nasco.

New York judges already have the power to dismiss cases and award attorneys fees, but how far beyond that is an open question. (See, New York’s Court of Appeals in 2014 in CDR Creances SAS v. Cohen, in the context of fraud on the court, with discussion of federal court decisions.)

A judge angry with an abuse of the courts with such a frivolous suit by a wealthy individual might easily expand the Chambers v. Nasco rationale to New York, and it could easily be upheld in such a circumstance.

And I would argue that a sanction should be commensurate with Trump’s wealth, to insure that it has the necessary impact. Let’s fact it, a $10,000 sanction for someone that claims to be worth “in excess of $10 billion” is not even a rounding error for the accountants.

Fourth: If Trump brings suit, there is a 110% chance of him placing a ginormous, stupid number claim for damages in the complaint (even though he may well be libel-proof). You are, quite simply, not permitted to do that, as it would explicitly violate CPLR § 3017(c), which prohibits ad damnum clauses (the monetary damage clause) in personal injury cases. It reads, quite simply:

In an action to recover damages for personal injuries or wrongful death, the complaint, … shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.

Now there are only two possible reasons for a plaintiff to put such a thing in a pleading, given that this law was passed in 2003. First, that the party deliberately violated the law in the quest for press, in the hopes of embarrassing someone with headlines. Second, that the lawyer is ignorant.

While it has never been done before, to my knowledge, the sanction was urged by New York’s late guru of civil practice, Professor David Siegel as a way of enforcing the law against those that willfully violate it.

Finally, if I were writing the brief, I would make damn sure to point out that Trump is a vexatious litigant, and that if the court refuses to sanction then it should expect more of the same. Again. And again. And again.

October 13th, 2016

The Spitballer and The Know-It-All

Hillary Clinton as a kid (actual photograph, previously unreleased)

As some of you have noticed, this election isn’t about politics. It’s about two kids from middle school that we all knew.

The bookworm sat in the front row, did her homework on time and all the time, and raised her hand to answer every damn question.

The other kid never did his homework and sat in the back of the classroom firing spitballs at the front row.

The know-it-all, goody two-shoes, bookworm spent time after school helping others.

Donald Trump as a kid, previously unreleased photograph

The spitballer spent time stealing lunch money and pushing kids on the playground.

The know-it-all took advanced placement classes when she got to high school.

The spitballer went to reform school.

Fast forward roughly 55 years. The know-it-all is a policy wonk whose idea of fun is to spend Saturday nights reading briefing books on Syrian history. The spitballer is an entertainer who likes to spend his Saturday nights assaulting women.

Both kids now want to be President. Both kids claim they are good decision-makers.

Here’s the thing about making presidential decisions: They are all difficult, or they wouldn’t be on the President’s desk. And no, pardoning turkeys at Thanksgiving for crimes they didn’t commit doesn’t count as a decision.

The President is forced to decide between one option that is awful and one that is worse, and needs the wisdom to figure out which is which, and understand that there are still a thousand shades of gray between the two.

Decisions like this: Trying to solve the 10-sided Rubik’s Cube of Syria that involves Assad, ISIS, “moderate” rebels, Iraq, Iran, Turkey, Kurds, Saudi Arabia, the U.S. and Russia.

Or trying to prevent war in the South China Sea over an area claimed by multiple nations, one of whom happens to be nuclear armed China.

We know that one is cool under intense pressure. The other wakes up at 3 am to pick fights with former beauty queens.

Who do you trust to make those decisions? The spitball kid or the know-it-all?

Here’s the thing: Even the know-it-all is going to screw it up some times due to the enormous complexities of the situations and the unknowables. If presidents get it “right” 75% of the time, I figure they’re doing pretty damn good.

And then Presidents have to deal with their failures, by analyzing the actual facts of a situation, to the best they can actually be ascertained in real time, and changing course if necessary. That means acknowledging an initial error. In other words, it’s not just tactics, it’s an issue of ego.

So there are really two issues here:

Who is more likely to make the right initial call in a complex situation?
Who is more likely to acknowledge error, own that error, and make the adjustment?

I don’t usually use this blog to discuss politics, unless it involves tort “reform,” but this issue is too big to ignore.

I don’t know about you folks, but I’ll take that bookish kid in the front row with her hand up every time, whether I like her or not. She may not get it right all the time when the problems are so complex the teacher doesn’t know the answer, but she sure as hell will have a better batting average than the spitball kid.

Given that this will involve war and peace and actual dead bodies, this kinda matters.

August 23rd, 2016

Should Trump’s Doctor Be Sanctioned for Fraud?

Dr. Harold Bornstein

With the health of the two presidential candidates, aged 68 and 70, in the news, it’s worth revisiting the statement given out by Donald Trump’s gastroenterologist, Dr. Harold Bornstein. You may remember this from last December for its comical and very Trumpian statement:

“If elected, Mr. Trump, I can state unequivocally, will be the healthiest individual ever elected to the presidency” (Full letter)

Yeah, that Harold Bornstein. Dr. Jen Gunter did a full, line-by-line, deconstruction of the letter at the Huffington Post: I’m A Doctor. Here’s What I Find Most Concerning About Trump’s Medical Letter.

Well, it turns out the letter was even worse than Dr. Gunter thought. And that is because of the signature block, where Dr. Bornstein signs his name with “F.A.C.G.”

That stands for Fellow of the American College of Gastroenterologists. In order to be a Fellow, one must be board certified and pay your dues to the organization. And being board certified is a very big thing for doctors, since it entails taking a grueling test to show that you have the knowledge to be an expert in your field.

The gastroenterology boards are a subspecialty of internal medicine.

But as Rachel Madow learned, after being tipped by one of her viewers, that membership in ACG actually lapsed in 1995 — 21 years ago. And according to the American College of Gastroenterologists, he shouldn’t be claiming he is a member of the organization if he is no longer a dues paying member of the organization.

Yet Dr. Bornstein continues to use those initials after his name.

Dr. Bornstein, incredibly, responded to Madow’s request for comment and said that:

F.A.C.G. is a title that they sell for a fee; in reality it has no value.

He then went on to explain to Madow that he would continue to use this title that “has no value.”

Now that I have given you the past, let me stand on the shoulders of Gunter and Madow to go further with some facts and opinion: What he is doing is fraud.

The website for the New York State Department of Health, gives examples of medical fraud:

Examples of Medical Fraud

False and intentionally misleading statements to patients.
Submitting false bills or claims for service.
Falsifying medical records or reports.
Lying about credentials or qualifications.
Unnecessary medical treatment or drug prescription.

You can see the one that I highlighted. I posted all of the ones listed so that you can see the significance of the infraction. Not significant to me as someone tossing around opinions, but to the Department of Health.

Is this something that the Department’s Office of Professional Medical Conduct (OPMC) should be investigating? Maybe.

I called Douglas M. Nadjari for an opinion, he being an attorney who represents physicians primarily involving matters of professional misconduct before the Office of Professional Medical Conduct and the Office of Professional Discipline.

While not discussing Bornstein/Trump in particular, since he doesn’t have knowledge of the facts, he said that investigation and charges of professional misconduct could theoretically be pursued regarding a physician with a false credential for:

False advertising; and
Practicing the profession fraudulently
Lack of moral fitness

If the doctor were indeed board certified, OPMC would not pursue discipline unless it received a complaint or if a patient was injured. If one of those two things happened, he would likely be asked to consent to an interview and be asked to change his ways.

The kicker for me, though is that he apparently already knows what he is doing is wrong. And has refused to change it.

August 2nd, 2016

Trump and Lawyers and Privilege, oh my! (Updated)

Thomas M. Wells, photo from his law firm website

I’ve said before that Donald Trump is a one-man bar exam, as his candidacy seems to touch on roughly six bazillion different issues. One could easily create a law blog devoted solely to the legal issues he is involved with that come up on a daily basis — from matrimonial, to contracts, to fraud, to defamation, to torture and war crimes and more.

But today, just for kicks, I’ll tell you how he may have been inappropriately slimed. Beating up on Trump, you see, is easy pickings. But defending him from inappropriate conduct? You be the judge.

We turn, now to one of his former lawyers, and since Trump has been involved in 3,500 lawsuits, in addition to godknowshowmany banking and licensing deals, there are many of them around.

This one is about Thomas M. Wells, who was hired by Trump for a New Jersey real estate deal regarding a mall.

On July 31st, he published a nice, juicy article in the Huffington Post with this headline:

Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.

Wah? Inside scoop? Let’s read!

This was the basic background where Wells establishes his credentials to write with authority:

In 1987, when I was 35 years old and he was 41, Donald Trump hired me to be his attorney on a major northern New Jersey project, a shopping center, which like everything else, was to bear his name, Trump Centre. It was a big deal that he picked me and a high honor for me just a couple of years after I started my law firm, which is now over 30 years old. This was at a time when Trump still built things, having recently finished Trump Tower.

OK, he was one of the lawyers. But what kind of information can he possibly spill if he was Trump’s lawyer? There is, after all, the subject of client-attorney privilege.

Well, off the bat, Wells gets right to it, giving personal stories to lede into the rest of the piece. (The rest of the piece appears to be based on public information.)

First, there is this bit about bad deals, which is odd since Wells was helping him with a deal:

He seemed to me smart, business savvy, decisive. He had a very impressive office, a fancy and very big boat, an airline, a helicopter shuttle and several casinos. Within a few years, virtually all of this would be lost because of bad business decisions.

Second is this piece about Trump claiming that women wanted him:

After the initial interview, my client contact with Donald was actually not very much. One low point I do remember (actually will never forget) is a limousine ride to a meeting with the editorial board of a New Jersey newspaper in which my married client sought to regale me with the number and quality of eligible young women who in his words “want me.” I was just plain shocked and embarrassed, but I kept smiling. I wanted and needed this client happy.

And third, Wells takes on Trump’s well-known braggadocio and lust for publicity in discussing the size of his apartment and the varying press stories on just how big it is:

While I was working for Donald, various press reports had Trump and his then-wife Ivanna living in a personal apartment in the Trump Tower of 8, 16 and even 20 or 30 rooms. Genuinely curious, I once asked him how many rooms the apartment actually had. I will never forget his response to me: “However many they will print.”

Zing! The story confirms your bias against Trump, leaving you wanting to read the rest of the piece for any other juicy tidbits.

But, but, but.

Were those three pieces fair game for an attorney to discuss? Clients, after all, share all kinds of information about themselves. Lawyers often need to know what they are, so that we can represent them the best. Sometimes the information is useful, sometimes it’s garbage.

Wells is licensed in New Jersey, and that state’s Disciplinary Rules of Professional Conduct would control. In this case, it would be section 1.6 relating to confidential information. With few exceptions, “A lawyer shall not reveal information relating to representation of a client…”

Did any of these three stories relate to his representation? I think it goes against Wells. The comments were made in the course of a client meeting. The client may reasonably expect the such communications would be privileged — even if it is Donald Trump.

I’ve written before about lawyers that want to capitalize on being associated with those in the public eye, such as Lindsay Lohan, or as part of puff pieces. This stuff is almost always verboten.

It seems to be that if an individual can’t keep a secret, then representing clients may not be the right line of work.

I’ve reached out to Wells for comment and he gave this initial response:

The only references made were to conversations approximately 30 years ago, not on business or legal matters and no legal advice was sought or given in same.

There is, of course, no part of the client-attorney privilege that simply expires based on the passage of years. There is no statute of limitations with regard to confidentiality.

As to whether the information must be strictly related to “business or legal matters” or “legal advice,” that is not an easy line to draw. Clients talk, in confidence. And they deserve to know that the confidences will be kept.

Even if a client hires a lawyer to do a closing, and then volunteers in private that she killed someone 20 years ago, or that she cheated on her husband with a few dozen others, I don’t think it means the lawyer gets to blab the stories later. The stories may not be related to the subject for which the lawyer was hired, but were still uttered within the quiet bubble representation.

If you think I’m wrong, have at it in the comments.

Update: Mr. Wells gave me a further comment by email:

this conversation did not deal with a legal or business matter and no legal advice was sought or given. There are other issues in this instance as to who the actual client was, who was present etc. but that could be argued to be confidential so I will not go there.