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. 

Beware the Federalists

Federalist Society Judicial Ideologues

Injustice Rules

Supreme Court Justices were originally envisioned as impartial arbiters of what the United States Constitution required when disputes arose between people or those between people and their governments, large and small. The Justices are supposed to be legal scholars and put themselves above the partisan fray of their times. The nine who sit on the highest court in the land, after all, have the final say in those disputes they choose to resolve. 

From time to time in our nation’s history, the Court has strayed from its lofty mission of impartial decision maker and become a player for one side or another, diminishing its stature and credibility as a result. We are now caught up in one of those times. Partisanship does not become the blindfolded lady Justice.

The latest assault aimed at capturing the Court’s power and prestige was launched decades ago with the formation of the Federalist Society for Law and Public Policy Studies. It has become one of the most powerful and little known organizations in our political system. 

Funded by libertarians and conservative business interests, the Federalists have for years been recruiting and training lawyers to become judges in our state and federal courts. Those recruited are groomed to be conservative legal thinkers bound by the literal texts in constitutions and amendments. They give no room to modern notions of constitutional interpretation that take social and cultural changes into account when making important decisions. 

Take the Second Amendment to the United States Constitution for example. It was written to allow slave owning white citizens to keep arms against possible slave insurrection at a time when the average muzzle loading rifleman was at the top of his game if he could get off one shot a minute. Federalist literal constitutional interpretation of this Amendment makes ignores the facts that no one can own slaves anymore or that AR-15 rifles with high capacity magazines and bump stocks can deal death at hundreds of shots a minute. To these limited legal thinkers, this translates easily into banning most forms of gun control legislation as a violation of the original text. 

Our whole system of law is designed to maintain the status quo and apply the brakes to legal innovations. Unfortunately, the maintenance of things the way they are is not sufficient for the Federalists who want to return to a time long past when hierarchical gender roles were clear, white supremacy was the law of the land and government was supposed to stay out of your business.

With the election of conservative legislatures and executives, Federalist judges in waiting have finally achieved their nirvana. With Trump acolytes in control of the Senate, we will soon see a solid majority of Federalist trained or sympathetic Justices in control of the United States Supreme Court. 

Conservative controlled legislatures in state and federal governments will soon pass more laws challenging established precedents involving abortion rights, civil rights, gay rights, women’s rights, voting rights and many governmental regulations setting up disputes for final resolution by the U.S. Supreme Court. 

The Court’s decision in Roe v. Wade provides another example. It established a framework to end illegal abortions and save women’s lives. It did not allow unlimited abortions on demand, as many countries do. It has been used to strike down state and federal laws that limited access to early term abortions. We will soon see outright bans passed in many so-called “pro-life” states and the challenges to them will ultimately be heard by the Federalist dominated Court where they will receive a friendly reception. 

The only potential brake on the wholesale revision of constitutional law the Federalists embrace is found in an often-overlooked canon of judicial interpretation known as “Stare Decisis.”  Simply put, it means the Court should not overturn a prior decision of the same body unless there is a compelling reason to do so. A decision must have been so wrongly decided in the first place that no present court would make the same decision. As with most rules governing interpretation of the laws, there are many exceptions that the Federalists will use to rid us of those pesky precedents they do not like.

This brings us to President Trump’s recent nomination of Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia to replace Justice Anthony Kennedy on the Supreme Court. Judge Kavanaugh brings not only impressive Federalist Society credentials and experience, he also penned an impressive law review article advancing the startling proposition that a sitting president should not be subjected to criminal investigation or prosecution for illegal acts committed in office. For Judge Kavanaugh impeachment is the only remedy. This had to be seen as a “get out of jail free” card for this president. 

Needless to say, the partisans will pull out all the stops to pressure those few GOP Senators who don’t fear Trump’s tweets and those Democrats elected in Trump country.  It should make for an interesting confirmation process in the Senate. Stay tuned.

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.

Trump's Con Continues

Trump’s Conflicts of Interest

When Private Deals Ignore Public Duty

We expect our elected officials will attend to their public duties not burdened with private obligations or interests that might interfere with the public’s best interests. We h expect our elected officials’ to disclose their private economic interests so we know that private concerns are not driving public decisions.

Many conservatives railed against Clinton’s private speeches to Wall Street firms, demanding transcripts so they would know what promises or assurances she might have made to secure the support those on the Street had provided. Some on the left wanted access to those same transcripts to be assured that her campaign promises to clean up Wall Street excesses were not contradicted in those private discussions.

Those same conservatives also complained loudly that large foreign and domestic donations to the Clinton Foundation bought access to government officials as part of the condemned “pay to play” politics that put private interests before the public’s best interests.

With Trump’s election, the conservative voices that condemned potential and real governmental conflicts of interest have gone strangely silent. They now implore us to rewrite the rules and forget the expectations so “change” can come to the dreaded Washington.

Let us not forget that the president-elect promised us his tax returns after he was elected. Have we seen them?

Would you like to know the foreign banks and governments to which Trump owes large sums of money as he writes off the interest he pays on their business loans? Would you like to know just how much of his claimed charitable contributions he wrote off against his income? Would you like to know where the Trump Foundation got its money and where it spent those donations? Would you like to know where all of his holdings are around the globe so we can measure his decisions involving the governments that host them? Would you like to know how much he paid in federal and state taxes, if any, for the last ten years?

These very telling connections have been revealed by every candidate for president in modern history long before the elections, except one, Donald Trump.

We know that Trump’s business is very large and generates significant income to him and his family. No president in modern history has come to the office with such far-flung economic interests and investments.

All of those who have preceded the president-elect have either sold off their business interests and investments and placed the resulting cash into government bonds or placed their assets in a “blind trust” administered by someone with no connections to or communication with the president. This prevents the president from making decisions, both domestic and foreign, which might have an impact upon his business holdings. This puts the public interest first, where it belongs.

Trump has declined to follow these traditions. He first claimed that a president cannot have any conflicts of interest just because he is the president. Then he said he would create a “blind trust” with his sons at the helm that would make no “deals” while he was in office. That did not fly far either, especially when they sat in on meetings between their father and business leaders.

Trump was scheduled to hold a press conference on December 15, 2016, to tell us how he would approach the obvious and massive conflicts he faces between his private business and investment empire and his public trust obligations. It was cancelled and put off to “sometime in January” so he and his lawyers can “figure it out.”

Clearly, the team did not want to face the firestorm before the Electoral College votes to make Trump the next president this coming Monday. After all he remains the Executive Producer of Celebrity Apprentice and that distraction will have to suffice.

Looming on the horizon are still other conflicts between the Trump Empire’s interests and the public’s trust. He remains the owner of several large facilities that lease space to federal government offices under leases that prohibit any government official from profiting from the leases. He owns stock in the company building the Dakota Access Pipe Line and already voiced approval of the line that has been the target of strong opposition to its operations by Native Tribes and their allies. Not to worry. His pick for Energy Secretary, former Texas Governor, Rick Perry, is a paid member of the DAPL Board of Directors. He’ll fix it. Trump’s business dealings with Russia are eclipsed only by those of the Exxon Oil CEO who he tapped to be the next Secretary of State amid a consensus finding by the government’s own intelligence agencies that Russian President Vladimir Putin was behind the cyber hacking of the election that swept Trump to power.

Trump loyalists, let me introduce you to the most conflicted President-elect this county has ever elected.

Waring R. Fincke is a retired attorney and vice-chair of the Democratic Party of Washington County.