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TrumpBothSides

Contrary to some recent Commander-in-Chief tweets, reports of the death of the attorney-client privilege have been greatly exaggerated. Trump appears to believe that the attorney-client privilege is broad. It’s not. In fact, it runs more to the narrow side.

The purpose of the attorney-client privilege is to encourage and promote full and frank consultation between a client and his or her legal advisor by removing the fear of compelled disclosure of such communications. Consolidation Coal Co. v. Bucyrus-Erie Co. 89 Ill. 2d 103, 117-18 (1982).

In addition to generations’ worth of case law interpreting the nature and scope of the privilege, many states, Illinois among them, have specific rules relating to the attorney-client privilege:

Privilege and Work Product. All matters that are privileged against disclosure on the trial, including privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure. Material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney. The court may apportion the cost involved in originally securing the discoverable material, including when appropriate a reasonable attorney’s fee, in such manner as is just.

Illinois Supreme Court Rule 201(b)(2) (emphasis added).

The connections between Trump, Stormy Daniels, Michael Cohen and Essential Consultants LLC, the entity that Cohen created to do the deal with Stormy, bear a distinct resemblance to Abbott & Costello’s “Who’s On First” routine. But even if Cohen makes it past the crime-fraud exception to the attorney-client privilege (and apart from any ethical issues), he’ll have to deal with the terms “between a party” and “the attorney for the party.”

In order to be protected by the attorney-client privilege, the communication must be between a client and his or her lawyer in which legal advice is sought from the lawyer, the communication must relate to that purpose, and it must be made in confidence by the client, and even with those conditions met the privilege can be waived. Center Partners, Ltd. v. Growth Head GP, LLC, 981 N.E.2d 345, 355, 367 Ill. Dec. 20, 30, 2012 IL 113107, ¶ 30 (Ill. S. Ct. 2012). See also People v. Radojcic, 998 N.E.2d 1212, 1221, 376 Ill. Dec. 279, 288, 2013 IL 114197, ¶ 40 (Ill. S. Ct. 2013). Illinois law is clear that the duty to disclose is the rule, and the attorney-client privilege the exception. Consolidation Coal, 89 Ill.2d at 117-18.

So if a communication is made by counsel for one party to counsel for an adverse party, it’s not privileged. Or if a communication is between a client and his or her attorney and privileged, but one of them carbon copies the communication to someone outside that relationship, the privilege may be waived.

Sergeant Schultz

Like Sergeant Schultz, Trump claims to know nothing about any deal between Stormy Daniels and Cohen. If that’s so, then any communication between Cohen and Trump regarding Stormy’s hush money deal would not be privileged because no attorney-client relationship exists between Cohen and Trump as to that matter.

Cohen may argue that he had a “common interest” with Trump that preserved the attorney-client privilege. This would reflect a misunderstanding of the common interest doctrine.

Although sometimes incorrectly referred to as a privilege in itself, the common interest doctrine is not a privilege at all. Rather, it is an exception to the rule that a communication that was protected by the attorney-client privilege loses that privileged status if it is disclosed to a third person. Robinson v. Texas Auto. Dealers Ass’n, 214 F.R.D. 432, 443 (E.D.Tex.2003). The common interest doctrine extends the attorney-client privilege to communications that would otherwise have become non-confidential because they passed outside the attorney-client relationship, but only when the parties undertake a joint effort with respect to a common legal interest. U.S. v. Evans, 113 F.3d 1457, 1467 (7th Cir. 1997). Illinois cases reflect a strong policy in favor of discovery to ascertain the truth in legal disputes, Monier v. Chamberlain, 35 Ill. 2d 351, 359 (1966), so in Illinois the term “common” as used in “common interest doctrine” carries much more freight than it does outside the law: “[t]he key consideration of the [common interest doctrine] is that the nature of the interest be identical, not similar, and be legal, not merely commercial.” Duplan Corp. v. Deering Milliken, Inc., 397 F. Supp 1146, 1174 (D.S.C. 1974). A shared desire to succeed in an action does not create a “common interest.” In re Grand Jury Supboena Duces Tecum, 112 F. 3d 910, 922 (8th Cir.), cert. denied, 521 U.S. 1105 (1997).

Trump’s blanket denial of any knowledge about the Stormy Daniels hush-up deal weakens, if it doesn’t absolutely destroy, any claim by Cohen of a common legal interest.

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Stormy

Every first-year law student goes through Contracts, and of course there’s a final exam at the end of the course. There may be a few multiple choice items, but ordinarily the test is geared to a few essay questions revolving around situations crafted by the contracts law professor to see whether the student has grasped the big ideas in the course, as well as other subsidiary contract law principles that the situation involves. It used to be called  issue spotting. At the same time, most law professors try to inject a little bit of humor into the essay by assigning to parties in the hypothetical the names of other law professors, or other spoof names. (Attorney I. Noah Loophole is visited by a prospective client, Helena Handbasket….”)

Stormy Daniels has now changed all that.

Contracts law final exams may never be the same after this case is done. It has everything in it. Was there a bargain made here? Cash for a promise? Was there a meeting of the minds? Could minds meet if one of them claims they had no knowledge of the agreement? What happens when one party doesn’t sign the contract, but the other party still accepts money or other consideration? What if the money didn’t really come from the party who seeks (or supposedly seeks) to bind the other? Who were the real parties? Is the contract void because it violates other law (e.g., federal election law)?

The Contracts 101 Cup Runneth Over. And as they say in the late night infomercials: “But that’s not all!!!” Just like the old Certs breath mint ad campaign, Stormy’s case is two, two, two tests in one. All sorts of legal ethics questions loom up from the shadows here. Who was (or is) Michael Cohen representing when he put the NDA together, if Trump, a/k/a “David Dension” (or some such fake name), claims to know nothing about it. That’s a whole other line of inquiry, best left for another day.

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It’s been a busy day for the Establishment Clause of the First Amendment. The U.S. Supreme Court’s jurisprudence on separating church and state is long and, in many cases, self-contradictory and even incoherent. But despite all that fog, there are a few solid ideas that emerge.

The Washington Post reports that the U.S. Supreme Court has agreed to hear the case of a Colorado baker who refused to bake a wedding cake for a same-sex couple’s wedding reception, claiming that to do so violated his constitutional right to religious liberty. Masterpiece v. Colorado Civil Rights Commission. The actual decision is probably a year away, but it will be interesting to hear what Gorsuch has to say.

As some ancient sage said, predictions are always dangerous, especially when they involve the future. But here goes. My prediction is that the case will go against the baker.

Were I to walk into a kosher deli and order a cheeseburger, the deli owner would almost certainly not serve me because they serve only food that complies with their religious rules.

But there’s a world of difference between not serving someone because the dish they’re asking for is against your religious principles (and therefore not even on the menu), and not serving someone a dish that is on the menu because that person’s existence or nature is against your religious principles. To call that an exercise of your own “religious liberty” is Orwellian. If that’s religious liberty, then it’s a very short step for a restaurant run by neo-Nazi skinheads (assuming one existed, and, if it did, it could stay in business for more than a week) could refuse to serve anyone who doesn’t meet their definition of Aryan.

Today as well, in the Trinity Lutheran case, the U.S. Supreme Court ruled that taxpayer-funded grants for playgrounds available to nonprofits under a state program could not be denied to a school run by a church. Though the commentariat sees this as shattering the separation between church and state, I don’t. In 1971, the Court decided Lemon v. Kurtzman, which set forth a 3-point test for such statutes: there must a secular purpose behind the statute; the statute’s primary effect must be one that neither promotes nor inhibits religion; and the statute must not foster “excessive government entanglement with religion.” Trinity Lutheran involved public funds used to re-pave playgrounds with rubberized material that’s easier on the knees than asphalt or cement. Before someone sounds alarm bells about Trinity Lutheran, they should first explain why it does not fit fairly within the Lemon v Kurtzman criteria.

 

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One might be forgiven for mistaking the Federal Energy Regulatory Commission for an Agatha Christie mystery play in which the characters disappear one-by-one. With the earlier departures of three of its five commissioners, including former Chair Norman Bay, FERC is currently down to two: Acting Chair Cheryl LaFleur and Commissioner Colette Honorable. FERC has not had a quorum since those departures became effective. Honorable’s term ends in June, and she has said that she’ll step down then. LaFleur will be the sole commissioner at that point.

The Trump administration has named three replacements so far, but as of this date none of them have been confirmed by the U.S. Senate. Given the Senate’s work schedule (raising campaign funds is more important than all that boring Article I stuff), it’s not likely that the three nominees will be confirmed by June. So FERC could be hobbled for a while yet.

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trump

The factors that went into the Hillary loss/Trump win will keep historians and political scientists busy writing books for a decade, if not more. Some will adopt a monocausal theory and blame the emails, or the combination of Comey and the emails. Others will view it as a more a generalized phenomenon of how dysfunctional our politics have become. My own view, as I said in my last post, is that his success owes to the lingering effects of the 2007-09 Great Recession, which for anyone not living in the Wall Street-Washington corridor or the West Coast, is really the 2007-2016 Continuing Great Recession. And while the Iraq War began a long time ago, even its erstwhile supporters (other than Dick Cheney) view it as perhaps the biggest foreign policy blunder in the history of the United States. The “elites” of both left and right have shown conclusively that they’re about as competent as Laurel and Hardy trying to move a piano up a flight of stairs.

DNC Leadership deciding the best way to get Hillary up all those steps.

DNC Leadership deciding the best way to get Hillary up all those steps.

Trump’s problem will begin not with his opposition from the left, but rather with his supporters on the far right. That may sound counter-intuitive, but the left at least has some idea of what to expect from a Trump Administration. The right, on the other hand, is in for some major disappointments. Though I don’t like to predict the future, I will make three predictions right now. First, there will never be a wall with Mexico. Second, there will never be a ban on entry of Muslims into the United States because they happen to be Muslim. Third, there will never be a deportation force running from house to house rounding up some 11 million undocumented (or illegal, if you prefer) immigrants. (And, by the way, Trump will not be locking up Hillary.)

The net effect of these and other unfulfilled promises will be to disappoint the neo-Nazi, KKK and alt-right types who supported Trump. Steve Bannon, an alt-right mouthpiece, will likewise lose a lot of support among his ilk. Economist Paul Krugman said that, during this election cycle, the problem with the left and the media was that they took Trump literally, but not seriously. A large majority of white voters, the “lost white voters,” many of whom are not racists, took him seriously but not literally. But to complete Krugman’s logic is to understand where Trump’s difficulties will begin: namely, with the people of the alt-right/white supremacist persuasion who took him both literally and seriously. That group comprises the racist element of the Republican right. When they learn, as they soon will, that there will be no wall, no deportation force, no ban on Muslims, etc., they will turn on him in a New York second. Everything costs something, and soon Trump will learn the high cost of the rhetoric that got him into the Oval Office.

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2016-election

Well, there it is. The candidate that no one would give credence to has won the Oval Office, and in about two months he’ll take the helm on the bridge on the S.S. United States. There are lots of things that can be said about the view off the bow, but we’ll limit this post to the view from the stern. There will be no reaching for apocalyptic metaphors from Bronze Age Biblical passages.

The roots of Trump’s victory date back to the major events of the 2007-09 Great Recession. The people have rejected, decisively, the power of the Wall Street-Washington Axis. Until last night, the United States was not a democracy; it was a corporatist state, one in which the unproductive financial capitalists of Wall Street ventriloquized Washington, D.C. and ran the country by themselves, for themselves.

Just look at the wake our ship of state has made. The U.S. Gov’t. made sure that all the AIG executives got their bonuses, even though it was they who almost drove the global economy into a bottomless abyss. The megabanks all got bailed out on the taxpayers’ dime, even though they had to be bailed out because they’d spent years packaging and selling trillions of dollars of collateralized debt obligations that they themselves didn’t understand, and knew were worthless. Meanwhile, those same taxpayers who bailed out Wall Street lost their jobs, then lost their homes, and, of course, lost their health care coverage.

For decades, the Wall Street-Washington Axis preached the gospel of Rugged Individualism and The Free Market, which was all a lie. Goldman Sachs perfectly exemplifies why: when the market turned on Goldman Sachs during the Great Recession, Lloyd Blankfein, its CEO, called his good old buddy, old chum, old fellow alumni Hank Paulson, who just happened to be U.S. Treasury Secretary. And, presto change-o, Goldman Sachs became a bank holding company with access to the Federal Reserve cash window before the weekend was over.

See? It pays to have friends in high places.

The Americans who voted yesterday don’t have friends in high places, and they’re sick and tired of seeing the country run for the exclusive benefit of those who do. Washington in 2007-09 refused to countenance an economic reckoning for Wall Street because that would have affected their compatriots (and the campaign donor class) in the banks. But in economics, one link forges the next, and the reckoning that should have happened in the markets was translated to the political sphere. Think Tea Party. Think Occupy Wall Street.

And not one banker ever went to prison. In fact, the best thing that happened to Wall Street during the Great Recession, the guy who did the world’s biggest favor for the banksters, was Bernie Madoff. Bernie may be the Platonic Form of Ponzi Schemer, but he had no connection whatsoever to the Wall Street madness that brought on the Great Recession. Still, he became the face of it.

Places like Westchester County, NY, and Fairfax County, VA, came out of the crisis more prosperous than they’d ever been. But it you were not within that Charmed Circle because you lived, say, in a place the Wall Street-Washington Axis labeled “Flyover Country,” you were financially doomed. The elites were not affected by the downturn. Out of sight, out of mind.

The Wall Street-Washington Axis sold themselves on the basis of merit, they convinced the country that they knew best. “If you let us bail out the banksters, we’ll be back to the boom times in no time!” But that didn’t happen. They were wrong. Take Alan Greenspan, once viewed as the Grand Poohbah of All Economics, given to cryptic utterances that verged on the unintelligible. Turns out that he was just an old Ayn Rand fanatic, a rooster claiming credit for the dawn.

These examples could be multiplied. The mistake of Establishment politicians was to think that people would just forget about all that. The political legitimacy of the Wall Street-Washington Axis is based on alleged merit. When that merit is shown to be a complete falsehood, their political legitimacy dissolves.

More than anything else, the Great Recession and how it was handled threw a decisive advantage into the scale on the populist side. Whatever faults Trump may have, he was sharp enough to see this when everyone in the Wall Street-Washington Axis did not. Sanders saw it too, which accounted for his relatively successful campaign, which also surprised the media.

I don’t attribute Hill’s loss to the private email server business, which most people didn’t understand, much less follow. Nor to Benghazi, a word that practically became a Republican mantra. Nor is it the trust/distrust factor.

No, the real issue is that, no matter how hard she tried, Hillary could never portray herself as an “agent of change,” to use an overused term. Forget exit polls, forget college-educated or not. All that’s just trivia and beside the point. She represented continuity with the unacceptable status quo, continuity with a way of governing that the American people want smashed into atom-sized pieces and rebuilt from the ground up.

Ergo Trump.

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trump

New Donald Trump LE Six-Shooter boasts a groundbreaking windage adjustment technology.

In further support of GOP nominee Donald Trump’s candidacy for the presidency, and in particular his positions on the Second Amendment, the National Rifle Association has commissioned a new Limited Edition Trump Six-Shooter. In addition to regular iron sights, the accuracy of the handgun is enhanced by long orange fibers attached to the barrel that, when unfurled, indicate both wind speed and direction, as pictured above. The fibers can be combed over and tucked behind the ejection rod on the cylinder when not in use.

Though revolutionary in concept, the design follows in the traditional footsteps of the finest Colts and Remingtons that removed so many Bad Hombres from the Old West. But by far the most unique feature of the new LE Trump Six-Shooter is that, no matter where you point it, you wind up shooting yourself in the foot. It’s expected to be available on November 9.

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