Tag Archives: Trump

Everything You Ever Wanted To Know About Privilege

Caveat: This post won’t address recent debates over the nature of White privilege or Male privilege. It’s focused instead upon two longstanding legal doctrines: Executive Privilege and Attorney-Client Privilege, both of which are currently relevant to the prospects of the Trump administration.

I am indebted for this discussion to my colleague (and former co-author) David Schultz, who teaches both law and public policy at Hamline University and the University of Minnesota Law School. David recently used his blog to address those issues. As he introduces the topic,

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.

The way in which Executive Privilege is most likely to be asserted would be an effort by Trump to quash subpoenas issued by the Special Prosecutor.  The Supreme Court considered a similar claim in U.S. v. Nixon, and that precedent isn’t helpful to Trump. (The Nixon case raised the issue whether a president had to comply with subpoenas from a special prosecutor; at that time, the object was the infamous tapes.)

Nixon asserted executive privilege, which he claimed was absolute. The Court rejected the claim,  ruling that the Privilege “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Of course, it is the attorney-client privilege that Trump and his supporters insist was violated in the  raids on Cohen’s office, home and hotel room. However, as David writes,

Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States,449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.

A well-known exception to attorney/client privilege is the crime-fraud exception.   Communications between lawyers who collude with their clients to break the law are not protected.  In this case,  the government evidently gave the court evidence sufficient to support an allegation that the crime-fraud exception applied. (There was also evidence that Cohen rarely acted as a lawyer–that he did little or no legal work, but was actually a “fixer” and business partner for Trump and occasionally others.) The mere fact that a business partner –or a partner in crime–has a law degree isn’t enough to privilege the communications.

As David concludes,

Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.

Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

It can’t happen soon enough….


These Are The People Running Our Country..

This is truly terrifying.

Ed Brayton at Dispatches from the Culture Wars reports on one of those “best people” Trump promised us. This time it’s a communications person in the Department of Health and Human Services.

As a fringe right-wing political commentator, Ximena Barreto claimed that “African-Americans are way more racist than white people,” labeled Islam “a fucking cult” that has “no place” in the United States, pushed the false Pizzagate conspiracy theory, and attacked the “retarded” 2017 Women’s March. In December, she became a deputy communications director at the Department of Health and Human Services (HHS)…

Brayton buttresses this description with specifics of the time, place and rhetoric employed. Click through to see the rest, but here’s a taste:

During her November 30, 2016, Periscope, Barreto said that Islam advocates for “killing other people and abusing women; that’s not a religion, that’s a fucking cult. Like, I’m serious. Like, that’s not religion.” She also said during a June 12 video that Islam is “just a cult. All the practices are cult-like, all that they do.”

During a December 4, 2016, Periscope video, she wondered aloud whether there are members of the Muslim Brotherhood in the U.S. government — a common conspiracy theory among anti-Muslim right-wing media. After someone asked if there’s a Muslim Brotherhood plan in the United States, she replied: “Well, how many of them are in the government already, you know? Like in Congress?”

In a May 25 post on the now-defunct website Borderland Alternative Media, she suggested that practicing Islam should not be allowed in the United States.

Even if her appalling bigotries weren’t disqualifying, her obvious ignorance should have been.
As disquieting as it is to know that these are the sorts of people being hired by our federal government agencies, the fact that so many judicial nominees are only marginally better is far more terrifying. Employees can be replaced; judges are lifetime.
Even the extremely conservative Neil Gorsuch answered that question without equivocation during his confirmation hearing last March. Gorsuch called Brown a “seminal decision that got the original understanding of the 14th Amendment right.” He added that Plessy was a “dark, dark stain” on the Supreme Court’s history.

For 10 minutes in December, the public was agog at the spectacle of Sen. John Kennedy of Louisiana, in his grits ’n’ biscuits twang, shredding a Trump judicial pickto ribbons over his lack of courtroom experience. Kennedy’s evisceration of federal district court nominee Matthew Spencer Petersen was a good show, as shows go, serving to highlight the ways in which some of Trump’s judicial selections were unprepared, entitled, and rushed through the vetting process. Petersen withdrew his nominationnot long after video of his abject performance went viral. The White House also pulled backtwo nominees: Jeff Mateer, who has referred to transgender children as a part of “Satan’s plan,” and36-year-old Brett Talley, who has never tried a case and once defended the “original KKK.”

These nominees are not jokes, and they are not cartoonish bumblers. They are highly effective and respected thinkers with agendas not unlike that of Trump’s Supreme Court nominee Neil Gorsuch. They will create a judicial branch that is hostile to women’s rights, workers’ rights, voting rights, LGBTQ protections, and the environment. And they will do so capably and under the radar. We giggle at the Trump judges at our peril.
I’m not giggling. I’m drinking.

Random Thoughts About The Ryan Announcement

I was on the treadmill (ugh!) watching the news, when it was announced that Paul Ryan would not seek re-election.

Virtually all the talking heads, including former Indiana Senator Evan Bayh, prefaced their reactions by noting that Ryan was a “policy wonk” who understood the economy.


As Paul Krugman (whose Nobel Prize was in economics) has repeatedly pointed out, Ryan is an ideologue. A genuine policy wonk would adjust his economic prescriptions in the face of evidence they didn’t work; Ryan’s tax “reform” was a bigger version of the policies that have proved so disastrous in Kansas and Oklahoma. Rather than learn from those lessons, he doubled down. (It reminded me of the old communist sympathizers who explained that a communist system really would work–that Stalin just hadn’t done it right.)

It’s possible, of course, that Ryan isn’t a “true believer”–that his his tax “reform” was a return on his donors’ investment, and he’s not sticking around to suffer what he realizes will be the political consequences.

A couple of commentators reported that–despite all indications that his spine had simply been removed–behind the scenes, Ryan was critical of Trump and had been a restraining influence on our dangerous President. Color me skeptical; however, the remainder of Ryan’s term will offer an ideal test of that thesis. Since Ryan won’t be running again, he’s free to add his voice to those of the other GOP Trump critics (none of whom are running again).

If I were a betting woman, I wouldn’t risk my money on the likelihood of a Ryan eruption of moral outrage or defense of the rule of law.

In all fairness, Ryan didn’t want the job as Speaker, and for good reason. Thanks to the very successful national Republican gerrymander in 2011, the party won seats well in excess of its votes, but a significant number of those elected from districts that had been designed to be deep red were extremists determined to hew to a Tea Party/White Nationalist vision of America (and not so incidentally, intent upon forestalling primary challenges by candidates even farther to the right.) Estimates are that there are some 80+ members of the GOP’s “lunatic caucus” –and they feel no need to listen to the party’s leadership, which they scorn as the “establishment.” Herding cats would be simple by comparison.

Those of us who detest Trump and the feckless Republicans in Congress who have utterly failed to constrain him are tempted to cheer Ryan’s announcement. And I am certainly encouraged by its implications; without Ryan (not to mention the other 26+/- Republicans heading for the door) , it will be even more difficult for the GOP to hang on to its majority.

But there are six months between now and November, and Trump is increasingly unhinged. As Mueller’s investigation gets closer, as the legal and ethical lapses of his cabinet and cronies become public, and international events he clearly doesn’t understand pressure him to make decisions he is ill-equipped to make, he increasingly resembles a cornered animal.

A rational man would reach out to knowledgable people for advice, but Trump is not a rational man. He’s threatening to bomb Syria, to nullify the Iran accord, to start a trade war with China, and God knows what he’ll say or do when he meets with Kim Jong Un in North Korea.

As the rats desert his sinking ship, he’ll be perfectly willing to take us all down with him.


America’s Very Own Pravda

By now, most readers of this blog have probably read about Sinclair Media’s latest excursion into disinformation: the company required the local anchors of its stations to deliver an identical “editorial” warning viewers to be aware of “biased news.”

On local news stations across the United States last month, dozens of anchors gave the same speech to their combined millions of viewers.

It included a warning about fake news, a promise to report fairly and accurately and a request that viewers go to the station’s website and comment “if you believe our coverage is unfair.

Seemingly innocuous. But the video director at Deadspin had read a report from CNN that quoted local station anchors uncomfortable with the speech. (I initially wondered none of them objected or refused–then Doug Masson posted a provision from the standard, punitive Sinclair employment contract…)

Deadspin stitched together the broadcasts, creating a tapestry of anchors reciting the same lines in unison: it was eery.

Most Americans had never previously heard of Sinclair. Unlike Fox, which is well-known to be a propaganda arm for the GOP and Donald Trump, Sinclair has flown beneath the radar. As the Guardian put it,

Most Americans don’t know it exists. Primetime US news refers to it as an “under-the-radar company”. Unlike Fox News and Rupert Murdoch, virtually no one outside of business circles could name its CEO. And yet, Sinclair Media Group is the owner of the largest number of TV stations in America.

“Sinclair’s probably the most dangerous company most people have never heard of,” said Michael Copps, the George W Bush-appointed former chairman of Federal Communications Commission (FCC), the top US broadcast regulator….

More recently, Sinclair has added a website, Circa, to its portfolio. But not any old website. Circa has been described as “the new Breitbart” and a favorite among White House aides who wish to platform news to a friendly source (a process otherwise known as “leaking”). As the US news site the Root put it: “What if Breitbart and Fox News had a couple of babies? What if they grew up to be a cool, slicker version of their parents and started becoming more powerful? Meet Sinclair and Circa –Donald Trump’s new besties.”

Sinclair is a major media presence, and it is trying to become even more influential by acquiring another 42 stations from Tribune Media. If the FCC approves that 3.9 billion dollar purchase, Sinclair will reach nearly three-quarters of Americans. The current head of the FCC, the former Verizon executive who led the repeal of Net Neutrality, is an obedient Trump henchman, seen as likely to bend the rules that would otherwise disallow the sale.

Sinclair makes no bones about its political agenda. It forces its local stations to run pro-Trump “news” segments. Boris Epshteyn, a former Trump campaign spokesman, is Sinclair’s chief political analyst., and the “must-run” political commentary segments echo Trump.

The news and analysis website Slate, referring to Epshteyn’s contributions, said: “As far as propaganda goes, this is pure, industrial-strength stuff.”

In a recent column for the New York Times, Michelle Goldberg compared Trump’s unremitting attacks on the mainstream press and his characterizations of uncongenial reporting as “fake news”  to similar behaviors by autocrats in Turkey and Russia.

Meanwhile, Trump uses his platform to praise obsequious outlets like Sinclair Broadcast Group, which ordered news anchors on its nearly 200 local television stations to record Trump-style warnings about fake news: “Unfortunately, some members of the media use their platforms to push their own personal bias and agenda to control ‘exactly what people think.’” After Deadspin produced a creepy viral video of Sinclair anchors reading their script in totalitarian unison, Trump came to the company’s defense, tweeting, “Sinclair is far superior to CNN and even more Fake NBC, which is a total joke.”

Sinclair’s regime-friendly propaganda, which seems meant to erode trust in competing sources of information, is also familiar from other nations that have slid into authoritarianism.

Those of us who live in Indiana still remember Mike Pence’s effort to establish an “official” state news bureau–an effort that collapsed after critics dubbed it “Pravda on the Prairie.”

Propaganda and efforts to control the news are at the very core of the rot that infects this administration. Outlets like Fox and Sinclair are the willing tools through which they disseminate their Newspeak.


When Ignorance Met Lunacy

Every day, life in America gets more surreal. (Not “When Harry Met Sally” surreal–more “Invasion of the Body Snatchers” surreal.)

Almost every day, there is a departure from the White House. Although no one currently serving there is particularly knowledgable or professional (or, from all appearances, literate) some are reasonably sane–and they’re the ones who have been leaving. Yesterday, it was McMasters–one of the two normal military figures who were supposed to be protecting the nation from Trump’s nuclear fantasies.

If McMasters’ ouster wasn’t worrisome enough, we have learned that he will be replaced by John Bolton, a belligerent chickenhawk who is certifiably loony-tunes.

So here we are. We have a Congress dominated by a Republican Party that is a cross between a cult and a criminal enterprise; a President who hasn’t the foggiest notion what government is, or is supposed to do, and who is uninterested in learning; a looming trade war we can’t win that is likely to devastate the nation’s farmers, among others–and now, a not-insignificant threat that the U.S. will precipitate a nuclear war.

In a column for the Washington Post, Joe Scarborough (formerly a Republican congressman) called Bolton’s appointment a “fitting coda” to the failure of conservatism.

One hundred years ago this week, the founder of modern American conservatism was born into poverty in Plymouth, Mich. Russell Kirk’s “The Conservative Mind,” published in 1953, laid the foundations of a modern conservative movement that dominated the second half of the American Century. But 65 years later, Kirk’s classic work reads instead as a damning indictment against the very movement he helped launch.

The central thesis of Kirk’s philosophy was that “the conservative abhors all forms of ideology” and subscribes to principles “arrived at by convention and compromise” instead of “fanatic ideological dogmata.” Six decades of Republican overreach and corrosive causes have instead led to the rise of Donald Trump and a foreign policy run by John Bolton, an economy guided by Larry Kudlow and a legal team led by conspiracy theorist Joseph DiGenova.

Bolton will be Trump’s third national security adviser in 14 months, but unlike his predecessors, he may last; his history suggests he has a lot in common with our intemperate, reckless and profoundly ignorant President. As Scarborough reminds us, Bolton has called for the preemptive bombing of North Korea and Iran. He has defended his role in taking the U.S. into the Iraq war–a war that was the worst U.S. foreign policy disaster since Vietnam–and had the chutzpah to call Obama’s 2011 decision to bring U.S. troops home “the worst decision” made in that debacle.

This was the predictable outcome of my Republican Party aligning its interests with the most cynical political operators of our time. The Atwaters, Manaforts, Gingriches and Roves leveraged a weaponized media culture that reduced politics to a secularized religion and consolidated political power and material wealth in the hands of its richest donors.

Meanwhile, no matter how bad it gets, no matter how much damage is being done every day by Trump and the most inept and corrupt Cabinet in my lifetime, Congressional Republicans continue to obediently enable this farce of an Administration. According to 538. com, all of Indiana’s GOP Representatives enthusiastically support Trump’s “agenda.” Two of them–Susan Brooks and Larry Bucshon–have voted with the President 98.6% of the time.

There are seven months until the midterm elections. Assuming we make it to November without experiencing a nuclear winter, we absolutely must give control of the House and Senate to the Democrats. Are they perfect? Hell no. But at least they’re mostly sane.