Speculation and Manafort’s Change of Lawyers

I want to draw your attention to the some specific language in the Politico story on Paul Manafort’s change of lawyers, quoting a Manafort spokesman (see especially my bold language):

A spokesman confirmed the change. “Mr. Manafort is in the process of retaining his former counsel, Miller & Chevalier, to represent him in the office of special counsel investigation. As of today, WilmerHale no longer represents Mr. Manafort,” Jason Maloni said in a statement.

Now I have absolutely no factual knowledge of the situation.

However, I can not help but notice this.  Apparently, the process of moving back representation to prior counsel was not, at least at the time of the statement, complete.  But, “as of today,” WilmerHale is out of the picture, and apparently it has become important that this is made clear immediately.

Now all the media coverage has focused on the possibility that this change reflects realization of the newly serious situation Manafort faces.  But what strikes me is the apparent speed and finality of the change — so fast that the statement is issued before the retaining of new counsel is complete.  This is in direct contrast to changes made in representation of others caught up in this scandal.  Of course, in a fast moving case, in which the prosecutor has already  shown a willinness to push hard, going even an hour without a lawyer can be very risky.

As a totally general matter, it is an open secret among lawyers that “getting off a case,” is often triggered by disagreement about testimony, or representations made by counsel to legal bodies. Sometimes this can be related to prior testimony or such representations.  More specifically often the problem is the reluctance of counsel to become embroiled in knowing (emphasis added) that testimony is false.  (One might speculate that in such situations, timing can be of the essence.)

Regardless of whether any of my speculation is accurate, you can be sure that Mueller’s staff are already going through everything they have to try to figure out where any problem might be, and to then adjust their strategy.

Not good news for any of those potentially implicated.

Note:  This post appeared initially in my access to justice blog.

 

“Rants From The Madman”

Famously, when Jimmy Carter was president, the Boston Globe “accidentally” ran a headline over an editorial that read: “Mush From the Wimp.”  There was no Internet to make it go viral, but today surely it would.

Today, to label Trump’s tweets as “rants from the madman” seems almost an understatement, and there is already plenty of obvious commentary.  So here are some addition questions:

When will be start seeing resignations from the national security team?

Is the legal team now obliged to formally withdraw representations that they have made to the Fourth, and Ninth Circuits, and to the Supreme Court.  Remember, lawyers can not make affirmative mis-representations to a court.

Will we see resignations from the Solicitor General’s Office, or just an inability to find staff to do the work?

Is there any chance that the Supreme Court will now grant review in the “travel Ban case.”  The risk of them being dissed during the process, such as after hearing, or after decision, is great.  If I were Roberts, I would take no action till the Ninth Circuit agrees with the Fourth (as it surely will), and then see if I have seven or more votes to put the President firmly in his place.  If not, I would do nothing, at least till there is a split from another Circuit.  I do not see how the Court can afford to be seen to be baling Trump out after today.  And, a 5-4 either way would be an absolute institutional disaster for the Court (US v. Nixon was 9-0).

Does the almost systematic dissing of one cabinet member after another mean that a 25th Amendment majority is starting to build up?  What is Pence thinking tonight.

Many previously loyal Republican commentators seem numb tonight.  Republican politicians have fallen largely quiet.  When will they start raising issues of Presidential inability to do the job? 

Finally, whatever else you can say, you can not argue with the fact that each week, things move faster an faster.   Things that would, the prior week, have seemed crazy to suggest, actually happen.

Our brains are lagging indicators.  Like any tipping point, when it comes, it will come quicker than we can possibly expect.

 

Thoughts On Intent in Government Enactments

It seems to me that most f the discussion about the role of intent in analyzing the legality of government actions has been pretty fuzzy.  So let me offer some thoughts. Of course, this issue has come up most dramatically in the context of the appropriately nicknamed “Muslim Ban,” but obviously it is highly relevant to many actions in a time such as this in which every branch of government (except maybe the Supreme Court) is dominated by one party, in this case one with a long history of “dog whistling.”

One way of structuring the inquiry is to focus on where  and when the greatest dangers occur from refusing to look beyond the face of an enactment to find illegal intent.

Probably the greatest danger of completely hidden intent occurs when the action is taken by one person or entity.  Had the “Muslim Ban” been enacted through a legislative or even a regulatory process, then the evidence of intent would have come out in the back and forth.  While that evidence might have been rejected in a challenge, because the court would have relied on the supposed facial neutrality of the enactment, none the less the evidence would have been there for all to see.   So Executive Orders are an area of particular risk.

Different kinds of evidence of intent are not only of different probative value, but their being ignored can cause different kinds of harm.  Thus, ignoring statistical evidence of harm means that harmful enactments go into force, but do not necessarily represent a public endorsement of the illegal result.  On the other hand, ignoring the clear evidence of the statements of Trump and his “gang” of their goals, sends a strong public message that those goals are in fact allowed and not forbidden.  That is a terrible message.

Moreover, while the general discussion of this topic has suggested that campaign statements are less worthy of consideration in looking at intent, it may be that the harm in ignoring them is even greater than the harm in ignoring post election statements.  The reason is that ignoring such campaign statements of a winner tells the protected minority and politicians that it is acceptable to use discriminatory appeals to win elections is OK — and that those promises can be kept.  Is there anything worse in the entwining of race with elections and government?

So my general conclusion would be that clear evidence of illegal intent should always be relevant, but that the weight of the evidence should depend on a) the nexus between the person making the statement and their role in the enactment, and b)the extent to which the statement of intent increases the harm of legitimizing the illegality of the action.

 

 

 

 

 

A Wholly Different Legal Way of Removing President Trump

There has finally started to be some attention to the 25th Amendment mechanism for removal of the President (Larry Tribe on MSNBC, transcript here).

The main problem is that surely welcome such a development, can not be seen to doing so.

However, there is another legal mechanism.  Surely any document is subject to forms of legal challenge when the signatory lacks sufficient mental capacity to sign it.  And, remember, the level of capacity required depends on the complexity of the document and issues, and to a certain extent its importance and significance.

So,  what about all those Executive Orders?  What about any bill that might get passed?  How do we know if Trump had or will have the mental capacity to sign them.

Think about it this way.  As a lawyer, given Trump’s constant changes of direction, denial of reality, and inability to engage with, remember the accuracy of , and act on, facts as presented to him, would you be willing to submit his will to probate? Surely yes.  Would you tell relatives who wanted to challenge the will that there can be no case at all if lack of capacity?  Well maybe yes, maybe no.  But, more importantly, is it the case that under no theory could the case be made?  Not so sure at all.  Moreover, it is far from clear that the capacity standard for the signing of an Executive Order or a Bill is as low as that for a will.  (Think of it as a will that gives away the whole country!)

While it is hard to imagine a court ultimately voiding Trump’s presidency based on this, it is not hard to imagine this as a way of legitimately and legally drawing attention to, and promoting discussion of, the 25th Amendment approach.  Indeed, the only reason it is hard is because if the evidence started to stick together, the 25th Amendment process would kick in.

Any thoughts, folks?

 

Trump’s Leaker Threat Contains Big Loophole!

Trump threat tweeted today that “the spotlight has finally been put on the low-life leakers! They will be caught!”

That leaves a big loophole, since the vast majority are probably not”low-life” at all, but patriots.  They should be safe.

But then, grammar was never a strong point for the Donald.

Seriously, time to dust off our jury nullification research.  And, surely the necessity defense would be strengthened by Trumps prior expressions of support for hacking.

Do you really think that today you could get a conviction out of a DC area jury on these leaks?  Good luck on that one.

 

The Totally Unbalanced Amici List in the Ninth Circuit Tells the Whole Story

As a general matter, the line up of amici in a significant case provides some indication of how institutions are lining up on the issue.  If this were an issue on which the country were split, one might expect that those in support of the administration and those challenging Trump’s Executive order would be in rough balance.

So, I engaged in a quick research project and looked at the Ninth Circuit docket entries, which are here.

There are approximately twenty briefs, and only two were in support of the Executive Order.  One is from from Freedom Watch., and the other does round up a number of the usual suspects, with the list reading as follows:

Amici Curiae U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center

In contrast to the outpouring of states, technology businesses, law professors, advocacy organizations, etc supporting the challenge to the Order, this is a remarkably weak display.

No states, no Republican officeholders, no businesses.  Only a few frequent litigators and a few far-right frequent fliers, heavy on guns, English language monopoly, and border control.  Not a cross section of even just conservative America, let alone America as a whole.

That suggests to me the deep ambivalence of the institutional structures of our society, not only about the Order, but about the administration from which it came.

This adds to the increasing evidence that the policies of the last three weeks are built on shifting sand in terms of support.  At a minimum, this gives the courts far more freedom to follow the law, knowing that if that triggers a formal constitutional crisis (rather than just the de facto one we already have), the courts will have almost all the system on their side.