Confirming Kavanaugh

Confirming Kavanaugh Sends the Wrong Message

The confirmation hearings for Judge Brett Kavanaugh quickly morphed from a dispassionate examination of his credentials and judicial record into another sordid chapter in the divisive partisan politics that have consumed our body politic ever since Newt Gingrich decided to adopt a scorched earth approach to achieve a one-sided political landscape. The partisan divide aside, the hearings also brought sexual assault and violence towards women face to face with angry white male privilege and entitlement. We are none the better for either.

Whether you believe Dr. Ford’s allegations or Kavanaugh’s denials, the televised hearings made one thing very clear. Judge Kavanaugh did not display anything that comes close to approaching the temperament we expect from judges. Having practiced law in State and Federal trial courts, State and Federal Courts of Appeal and the Wisconsin Supreme Court, I have run across all manner of judicial behavior. There have been partisans and umpires, those with open biases and closed minds, prosecutors who never left their world view, scholars and political hacks at all levels of the judiciary. Fortunately, many of those ill-suited for the bench don’t last long in the robes. They either chaffed at the constraints or failed to earn the trust of their colleagues. 

The standards for judicial conduct are set out in the ABA Standards of Judicial Conduct and State level equivalents based upon them. Federal Judges, including Judge Kavanaugh who sits on the United States Court of Appeals for the District of Columbia, are bound by the Code of Conduct for U.S. Judges. That Code has five Canons which state the broad rules. They are:

Canon 1: A Judge Should Uphold the Integrity and Independence of the Judiciary
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
Canon 4: A Judge May Engage in Extrajudicial Activities That are Consistent With the Obligations of Judicial Office
Canon 5: A Judge Should Refrain From Political Activity

Each Canon has detailed explanations of their meanings and the broad sweep of their coverage. 

Judge Kavanaugh’s angry outburst during his opening statement before the Senate Judiciary Committee after Dr. Ford’s testimony and many of his responses to questions put to him by the Senators clearly demonstrated a lack of judicial temperament and violated Canons 2, 3 and 5. Any one of these violations should disqualify him from confirmation to the United States Supreme Court. The most egregious came when he accused Democrats, including the Clintons, of engaging in a calculated conspiracy involving Dr. Ford and his other accusers to deny him his seat on the Court. Kavanaugh’s lack of judicial demeanor caused over 1,700 law professors and the largest group of protestant Christian churches to call for his nomination to be withdrawn or rejected. I cannot imagine ever appearing in his court and expecting a fair hearing while representing a cause even loosely tied to an issue espoused by Democrats or involving sexual violence against women. His mind will be made up before the case is even called.

Kavanaugh’s disqualifying demeanor should have caused those responsible for his nomination to withdraw it or for the GOP Senators to reject it. Neither course was taken. 

President Trump, after weeks of restraint, finally caved back into his baser instincts. He recently tweeted and spoke demeaning Dr. Ford and her unholy alliance with Democrats. He heaped praise on Kavanaugh and bemoaned the damage done to his reputation and family. Most telling was Trump’s rallying cry that young men must now fear being guilty of similar false accusations, especially for youthful indiscretions. Trump and Kavanaugh both expressed their clear entitlement to do what they will as part of their privileged stations in life. No mention was made by either of a need to listen to and address violence and sexual assault against women by men, even young men. 

We are left with a restricted FBI investigation into some of the allegations raised by Dr. Ford and Deborah Ramirez. So far, this appears to be but a sham to cover loose ends, not the thorough examination of the facts and any corroborating evidence Senators Flake and Coons wrested from Senate leadership before they would vote Kavanaugh’s nomination out of committee. Few now anticipate anything new being added to the confirmation process, especially since Senate Majority Leader Mitch McConnell has indicated the FBI report would not be released to the public before the full Senate votes. 

The saddest part of all these machinations is the message being sent to young girls. They still will not hear, “we believe you” if they are assaulted. They will continue to be told that rape is not the fault of the rapist, but their own because they did not keep themselves safe. Kavanaugh’s confirmation will embolden another generation of privileged white men and silence another generation of those abused and violated by them.

Trump's Troubles

Turning on Those You Trust is Dangerous

Secret Recordings Come to Light

President Trump’s longtime personal attorney and “fixer,” Michael Cohen, secretly recorded some of his private conversations with Trump. When the FBI searched Cohen’s offices, home and apartment, they seized lots of recordings. Cohen’s attorney recently released one of those recordings and it reveals a conversation between Cohen and Trump where they discussed how to buy and bury a story from a former Playboy Bunny who claims to have had a sexual relationship with Trump before he ran for President, but after he married his current wife, Melania.

Trump long denied knowing anything about efforts to hide the Bunny’s story and Cohen’s lawyer released the recording to counter Trump’s current claims that Cohen should not be believed. Trump badly needed to make Cohen out as a liar because it appeared that he was changing sides and cooperating with prosecutors looking into many of the Trump family enterprises. 

Trump then tweeted about how unusual and illegal it was for Cohen to have recorded their conversations. He asked, “what kind of lawyer records conversations with his client?”

As a former criminal defense lawyer, I can make an educated guess why Cohen would have recorded conversations with Trump. Having represented people with mental health issues, a heavy dose of “I can do no wrong” and a less than firm grip on reality, I can tell you that many with those afflictions will gladly turn on their lawyers when their cases go south. Hoping to save themselves, they try to implicate their lawyers with prosecutors anxious to sweep up criminal activity with a broader net. Defendants caught with the evidence against them try too often to offer up their lawyers in order to avoid a lengthy stay behind bars. When the conduct of the client and the lawyer approaches or crosses legal or ethical lines, it is even easier to tempt prosecutors with the defense lawyer’s scalp. 

Experienced lawyers understand what’s involved in representing prominent, but mentally or morally challenged, clients in high stakes matters. They know that one day the advice they gave may come into question and often seek protection by secretly recording their private confidential conversations where strategies are discussed just in case the client later tries to blame the lawyer for the client’s actions. 

Cohen’s recordings were completely legal where they were made. New York law allows for secret recordings when just one party to the conversations, Cohen in this instance, consents to the recording. Wisconsin has a similar rule. Any ethical duty not to disclose the otherwise confidential contents of the recording vanishes when they are legally revealed to others or when the client later makes claims against the lawyer that can be contradicted by the recording.

Trump’s continued attempts to distract and deflect attention away from his own behavior just makes his situation worse. He will soon pay the dictator’s price for following the old patterns telling supporters that his is the only “truth” and all of the mounting evidence of his duplicity, venality and depravity is nothing more than “fake news.”

In Trump’s unreality world, Cohen just joined the conspiracy of false prophets already populated by the mainstream media, the FBI, Courts, Democrats, Republicans who are beginning to question his actions and the “rogue” special counsel investigating him. 

Republicans facing re-election bids in the upcoming mid-term elections have a tough choice to make. They stand with Trump at their peril. Moderate Republicans who have had enough of Trump are challenging them from the center in primaries and progressive Democrats are winning their elections with impressive numbers running anti-Trump, anti corruption, populist campaigns. If GOP legislators seeking re-election repudiate Trump, the financial support his team control goes away, leaving them swinging in the wind. Recent polling puts Trump’s approval rating at an all time low, making their choice all the more difficult.

Trump’s days are numbered. The chief financial officer of the Trump family businesses who has been at Trump’s side for decades was just subpoenaed by the special counsel to appear before the grand jury investigating allegations of criminal activity. He knows where Trump’s money came from and where it went.  He’s a cagey sort and I would not be surprised to find out he has secret recordings too and a second set of books detailing Trump financial dealings. 

Trump is learning the hard way that trusting people and then stabbing them in the back is dangerous business. 

Attorney-Client Confidentiality Has Limits

The Trump-Cohen Predicament

The FBI raid on the office, home, apartment and safety deposit box of Attorney Michael Cohen and the seizure of his files, hard drives and recordings sure has caused a lot of consternation in Washington. 

As a former criminal defense lawyer, I can say with certainty that to obtain judicial approval for a search warrant application targeting a lawyer’s office, any lawyer’s office, the prosecutor has to go above and beyond the usual showing that evidence of a crime is probably located in the place to be searched. The application must also show that the lawyer whose files and records are to be seized was both aware that the criminal activity documented in his files took place and that he was either directly involved in the criminal activity or that his services were being used to shield the criminal activity. 

These extra hurdles exist to protect one of the most sacrosanct legal protections, the confidentiality of attorney-client communications. The things clients tell and give to their lawyers are protected from forced disclosure so that the lawyer can expect honesty from his clients and be better prepared to defend their interests. These communications are protected first by the rules of evidence that prevent the information in the lawyer’s files from being used against the client in court and also prevents the lawyer from being compelled to be a witness against his client. The confidentiality of attorney-client communications is also protected by rules governing lawyer conduct and provides an additional barrier to disclosure of information the lawyer obtained from or about the client. 

Using these protective rules, some organized criminal elements began to hire lawyers to help them conduct illegal activity and protect against the lawyer becoming a government informer. Recall the days of the mob families with their lawyer consiglieries made famous in the Godfather and you get the idea.

In order to prevent lawyers from providing cover to or profiting from illegal activities by their clients, courts and legislatures changed the rules of evidence to add a “crime-fraud” exception to the attorney-client privilege and bar associations changed their ethical rules to prohibit the same kind of activity. 

The approval of the search warrant for Attorney Cohen’s files and documents added an additional level of judicial scrutiny because it had become well known that Mr. Cohen’s main client was the President of the United States for many years prior to his recent election and had continued in that relationship after the election as well. 

There is yet another layer of confidentiality in play. Normally, lawyers are loath to make public statements about representation of their clients. Making confidential information public, removes the privilege that otherwise might have prevented forced disclosure of the information. Additionally, lawyers do not usually make public disclosures about confidential information involving their clients without first discussing the pros and cons of the disclosures with and obtaining the client’s consent to the disclosures in advance. Once the Stormy Daniels door was opened, it could never be closed. 

Federal search warrants issued for lawyers’ offices involve yet another layer of scrutiny to protect confidential information from being disclosed erroneously. Federal prosecutors use “taint teams” of lawyers who are not involved in the case in which the warrant was used. These teams go through all of the information seized and make an initial determination which evidence falls within the scope of the underlying criminal investigation and then exclude from further examination or use by the prosecution team of evidence related to other clients represented by the lawyer and information unrelated to the criminal activity outlined in the warrant application. 

Attorney Cohen and other lawyers for President Trump asked the supervising judge in the case to let them have the first look at what was seized and make the call about what should be shared with the prosecutor. That request was denied, but the judge still has the option to appoint a completely neutral “special master” to either make the initial review or oversee the work of the “taint team” to make sure the privilege is not violated. 

President Trump’s attack on the FBI’s seizures as “un-American” and against the rule of law demonstrate just how worried he is about what Mr. Cohen’s files and recorded conversations might contain. Many suggest that the material seized may very well be more damaging to the President than anything that might come out of the investigation by Special Counsel Robert Mueller into Russian interference with the 2016 presidential election. So far, President Trump has avoided any direct connection to Russian election fraud even while campaign staff and other subordinates have been indicted and convicted of illegal activities. 

The saga got even more interesting when Mr. Cohen was required to identify his other clients so that the supervising judge could evaluate the scope of his privilege claim. He readily gave up the name of a prominent GOP donor who had retained him to make secret hush money payments to the donor’s mistress who had become pregnant. Cohen initially asked not to divulge the name of the third client, but the judge refused and ordered disclosure. The fact of a lawyer’s representation of a client is not confidential. Mr. Cohen then revealed that his third client was Fox News personality Sean Hannity, one of President Trump’s biggest supporters, who had been railing against the FBI seizures from the minute they took place.

The evidence sought by the search warrant included information related to the now very public payment made by Cohen to adult film actress Stormy Daniels just days before the 2016 election and to other “fixes” Cohen had undertaken on Mr. Trump’s behalf to quash damaging information from coming to light before the election. Federal charges of money laundering, illegal election campaign contributions, and others easily come to mind as possible criminal violations that could land Mr. Cohen behind bars and sweep away what remains of the Trump presidency as well. Time will tell.