May 10th, 2017

TrumpRussia, the Watergate Sketches, and You

Jurors listen to the Watergate tapes. Sketch by John Hart.

The sketches hang in my office as souvenirs from a trial long ago. I represented the estate of the courtroom sketch artist in a medical malpractice trial, and a grateful widow sold them to me when the trial was over.

Watergate. The scandal by which all others are measured, as the ubiquitous -gate suffix was tagged to anything and everything that it could be tagged to.

The scandal stood for, above all else, obstruction of justice and abuse of power. As everyone knows (or should know) it wasn’t the “third-rate burglary” that sent Nixon packing. It was the cover-up.

I look at the sketches every day.

H.R. Haldeman, White House Chief of Staff, on the witness stand. Judge John Sirica behind him. Sketch by John Hart.

And now, with FBI Director James Comey being fired amidst an investigation he was conducting into the TrumpRussia scandal — no need for the -gate suffix here — Watergate is on everyone’s mind.

For it was Nixon that gave the order to ax special prosecutor Archibald Cox who was doing the investigation. And when the attorney general and deputy attorney general both refused, and resigned in what became known as the Saturday Night Massacre, the job fell to future judge Robert Bork.

No one in the Trump White House, it seems, could foresee that a president firing the guy that was investigating his own administration regarding Russia’s meddling in our election, and possible collusion, might be a problem.

But while Trump can fire Comey, and Acting Attorney General Sally Yates, and Preet Bharara, all of whom were investigating him — he can’t fire everyone. Because not everyone works for him.

Prosecutor James Neal talking to the jury. Judge John Sirica in the background. Sketch by John Hart.

New York Attorney General Eric Schneiderman is investigating Trump. And Schneiderman is beyond Trump’s reach.

The tell for if/when Schneiderman is getting close to something will be when Trump starts tweeting about him.

Ultimately, however, the Constitution charges we the people with the task of removal. And if not by an unwilling Congress, then by a change of the Congress the next election day.

One way or another the republic will survive this. We can only hope that there are no improvident actions in the interim that cost people lives.

May 1st, 2017

The First Amendment Under Attack (From the Left and the Right)

There’s no question that the First Amendment is under attack today people claiming to be from both the right and the left.

Let’s start with the right and Donald Trump (to the extent anyone considers Trump a right-winger): On Sunday came the revelation that Trump may try to alter the First Amendment right to free speech because he can’t handle criticism.

This is not hyperbole on my part — I shy away from such things — but comes from Chief of Staff Reince Priebus explicitly saying so to ABC’s Jonathon Karl on Sunday. Priebus stated that they were “looking at” just such a scenario, to amend/abolish the power to speak freely. This was the first of two exchanges on the subject, that you can view online (emphasis added):

KARL: I want to ask you about two things the President has said on related issues. First of all, there was what he said about opening up the libel laws. Tweeting “the failing New York Times has disgraced the media world. Gotten me wrong for two solid years. Change the libel laws?” That would require, as I understand it, a constitutional amendment. Is he really going to pursue that? Is that something he wants to pursue?

PRIEBUS: I think it’s something that we’ve looked at. How that gets executed or whether that goes anywhere is a different story. But when you have articles out there that have no basis or fact and we’re sitting here on 24/7 cable companies writing stories about constant contacts with Russia and all these other matters—

And, in the event anyone wants to chalk this up to “maybe he misspoke,” he made it clear by reiterating it:

KARL: So you think the President should be able to sue the New York Times for stories he doesn’t like?

PRIEBUS: Here’s what I think. I think that newspapers and news agencies need to be more responsible with how they report the news. I am so tired.

KARL: I don’t think anybody would disagree with that. It’s about whether or not the President should have a right to sue them.

PRIEBUS: And I already answered the question. I said this is something that is being looked at. But it’s something that as far as how it gets executed, where we go with it, that’s another issue.

Trump, of course, is (in)famously on record as wanting to “open up our libel laws” to allow him to more freely sue people when he gets irked because news isn’t reported the way he likes. He seems to forget that, in order to be President and debate the issues of the day, he needs to put on his big boy pants when people decide to flay him for his words or conduct.

And this is evident from his prior conduct in bringing bullshit defamation claims to silence people or punish them for exercising free speech rights. Trump hates the First Amendment. And that is a danger.

But as I noted at the start, the First Amendment is also under assault from people who claim to be from the left. Over at UC/Berkeley, that bastion of liberalism, demonstrations over the appearance of right-wing hate mongers for profit MiloYiannopoulos led to the University cancelling his appearance instead of protecting him.

Then the same thing happened to that other hate monger for profit, Ann Coulter. The university canceled her appearance due to concern over the reaction to her, amounting to a”hecklers veto.” By rewarding those that threaten to commit crimes, the university merely empowered them to repeat their un-American conduct of trying to silence speech (instead of rebut) that they disagree with.

You’ll note that I described these people as those “who claim to be from the left.” They aren’t. Even if they say they are.

Neither conservatives nor liberals are opposed to free speech. But authoritarians are. And authoritarians can come from either the ostensible left or the right. What they want most is the ability to exercise power without regard to open debate.

The answer to speech with which we disagree is simple: More speech. ‘Tis the nature of our republic.

Journalists that describe the hoodlums as “left” or “right” are not only making a mistake, but doing a disservice to the country. Call them thugs, anarchists, wannabe dictators or any other name, so long as it doesn’t align with traditional American political parties and values that embrace open debate. Because they aren’t part of that. And yes, that includes Trump (who’s overriding political philosophy, to the extent such things exist, is not right or left, but TrumpFirst).

It is that First Amendment, of course, that gives people the right to criticize governments (among many other things). The First Amendment is not a partisan issue, but a principle of how a democracy functions.

Keep your eyes open folks, because this all looks to get a lot uglier for America. Regardless of which side of the political divide you fall on.

Elsewhere:

Berkeley’s 99 Problems (Greenfield @ Simple Justice)

Donald Trump’s Lawyers Don’t Know Or Don’t Care What Defamation Is (White @ Popehat)

Donald Trump vs. The First Amendment (Cole @ The Nation)

Gawker’s Demise and the Trump-Era Threat to the First Amendment (Tobin @ The New Yorker)

April 10th, 2017

Passover, Syria and a Presidential Prayer

Passover and its seders deal with two fundamental concepts. The first is a celebration of a very dramatic escape from slavery to freedom.

The second is empathy. At the seder, we are asked to place ourselves in the footsteps of those who were physically there, as Jews note that we were slaves in Egypt and now we are free. A central part of the reading of the Passover Haggadah states:

“In each generation, each person is obligated to see himself or herself as though he or she personally came forth from Egypt.”

This concept is repeated in song and other readings as we attempt to “relive” history, so that its lessons are not forgotten.

So what does this mean for the current catastrophe in Syria, with an exodus of people fleeing to freedom as fast as they can get out the door?

Should we not place ourselves — to the best such placement can even be contemplated — into the shoes of others living in oppression?

If people are enslaved or living under tyranny elsewhere, how can we really be free if we have empathy?

Aren’t those who are currently free, mostly free due to little more than the lottery of birth?

An additional Passover prayer for President Trump, in the event that he can attend a seder or two this week:

Let him contemplate that the Jewish escape from tyranny and slavery 3,000+ years ago is not just history, but that others remain in such dire circumstances today. Let him have the wisdom and the charity to open our doors to those fleeing oppression, and recognize that those who make it to freedom are often the best that this world has to offer.

While freedom may be a lottery for most, it is not for all.

March 28th, 2017

Jacoby & Meyers Goes Down Bigly

Jacoby & Meyers had an idea. If only they could get non-lawyers to put money into its firm for a share of the profits, they could fund expansion. The only itty, bitty problem with that is that it’s ethically impermissible to share legal fees with non-lawyers.

So it brought suit back in 2011, trying to claim its rights were violated. And worse yet, to me, tried to claim it was doing so on my behalf, when they wrote that suit was being brought:

“…on behalf of itself and all others authorized to practice law in the State of New York…”

Blech. Non-attorneys owning a share of law firms is an awful idea, and one that the Second Circuit Court of Appeals shot down last week. The firm tried to lawyer its way around the ethical prohibition by claiming it was a First Amendment violation of its right to freely associate. The problem, of course, is that the right to associate with a lawyer belongs to the client, not to the lawyer trying to finance business expansion.

As Scott Greenfield notes, it wasn’t always this way. It started, sort of, as the People’s Express of law firms:

When Jacoby & Meyers began, it was supposed to be the People’s law firm, solid lawyering at prices regular folks could afford. Some wags might argue that this was merely a marketing stance, as they wanted money as much as any other law firm. When they didn’t get it, they pivoted to a personal injury firm.

The firm having pivoted to personal injury, I’ll rehash what I’ve said before about non-lawyers owning any portion of a firm: It is an invitation to ambulance chasing. The non-lawyers simply skirt the ethics rules to which they are not accountable, and impermissibly hustle business. The concepts of ownership, solicitation and marketing all become fused into one unaccountable mess.

And what will the lawyers say when the non-lawyers gets found chasing? They would no doubt profess shock (shock!) that such activities were going on under their roof. “We’re so sorry! We had no idea!!”

Let’s hope this miserable idea is finally put to bed, for the surest way to degrade the practice of law and diminish the residual respect we still have in some quarters is to introduce non-lawyers into the mix.

March 20th, 2017

Breslin and Blogging

Breslin on a bar stool, where he belonged, via Daily News and Michael Brennan/ Getty Images

I was reading an obit of the great New York newsman Jimmy Breslin, who died yesterday, and a quote jumped right off the page that I wanted to share. Because it’s about blogging, sort of.

His readers and reputation were clearly that of the everyday working man, and not the hoity toity elites. How did he make his curmudgeonly pieces spring to life?

Before one gets to writing styles – no one needed a dictionary to read a Breslin piece, he being the antithesis of George Will — one needs to address motivation.

As in motivation for writing the piece to begin with. The quote:

Asked in a 2012 interview what he aimed for as a journalist, Breslin replied, “To please a reader: me.”

“I didn’t care about anybody else,” Breslin said. “If I thought it was humorous, if it made me smile, I put it in. I wrote it in the paper and didn’t care what anyone thought.”

I note this because, while no one would ever confuse me with being Breslin, it reflects my own motivation to write this blog for the past 10 years.

With no publisher (and obviously no editor) I write whatever the hell I want. Which is usually on the personal injury law, but I’ve obviously taken a very expansive view of what that subject entails and feel free to get sidetracked if I like.

Writers gotta write. And you can only do it if you have a zest for the subject, be it law, running, or ponies.

If you write for others, instead of yourself, your work will probably suck. That’s what happens when a writer doesn’t have an interest or a passion in the subject. People that write for Google algorithms will always turn out crap.

It’s a pretty good lesson for bloggers. Write what feels good and what feels right. Then hit the send key and go about your day.

If others like it, great, and if not, well, nothing lost there since you weren’t writing it for them.