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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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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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U.S. Supreme Court Justice Ruth B. Ginsburg

U.S. Supreme Court Justice Ruth B. Ginsburg

As Mark Stern at Slate writes, “Justice Ruth Bader Ginsburg has decided to take a stand against a major party’s presidential candidate in a way that she—and arguably no prior justice—has ever done before.”

Apart from any principle as to what sitting judges should or should not say or do, the reason one doesn’t wrestle with a pig is that you get really dirty and, besides, the pig likes it.

Then again, anyone fortunate enough to reach her age and still be working a full-time job arguably has earned certain privileges, among them the right to make those comments.

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Trump Pout 4

Hats off to Daniel Henninger of the WSJ for a very fine neologism in his July 6, 2016 column: Trumpenproletariat. This represents a very creative mixing of the current Republican nominee’s name with Marx’s lumpenproletariat, and presents them essentially as opposite of the Perhapsburgs we wrote about a few days ago. Mr. Henninger states:

But for the longest time, the American media saw the Trump base as an “indefinite, disintegrated mass” of mostly angry, lower-middle-class white males. The early Trump adopters often looked like bikers, with or without jobs. The Trumpen proletariat.

Credit should be given where it’s due, and Mr. Henninger get’s today’s gold medal for new terminology. True, he expresses it as two words rather than the one in which it appears in German, but that’s just a quibble.

He mentions various things that have united people behind Trump, including “flatlined incomes and the sense of economic loss.” But he considers the real driver to be a backlash against political correctness, or PC. I don’t think that’s correct because if it were we’d have seen a revolt sooner. Conservative talk radio is just one outlet for letting some steam out of the PC kettle. Even Bill Maher, a die-hard liberal, critiques PC every week on his show.

Blaming PC as the prime mover behind Trump simply idealizes PC, and anything idealized is vastly overestimated. Incomes and economic anxiety are the real drivers. All of that brings us to another one of Marx’s terms: Verelendung, which does not have a direct English translation, but has been stated as increasing misery, “pauperization,” or “immiseration.” If, in 2016, the economy were steaming ahead at full tilt, if incomes were good, if job openings went unfilled instead of each one being mobbed by thousands of resumes, political correctness wouldn’t matter. Money issues have more to do with Trump than any amount of political correctness, and money issues are driving the Trump train.

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There are a few odd parallels between Donald Trump and the Roman Emperor Gaius Julius Caesar Augustus Germanicus, more commonly known as Caligula. Here’s a likeness (supposedly) of the late emperor:

Bust of the Roman Emperor Caligula. Note the grotesque hairpiece, antiquity's answer to a comb-over.

Bust of the Roman Emperor Caligula. Note the grotesque hairpiece, antiquity’s answer to a comb-over. Another funny hairpiece appears on his breastplate armor, and scholars believe this to be a depiction of Rosius O’Donellus, a comedienne of ancient Rome.

Just like the current Republican establishment and media punditocracy, all of whom predicted that Trump would never get the Republican nomination, Caligula’s immediate predecessor, Tiberius, had a soothsayer named Thrasyllus who said that Caligula had

“no more chance of becoming emperor than of riding a horse across the Bay of Baiae [now known as the Gulf of Naples].”

So, in A.D. 39 Caligula ordered a temporary floating bridge of ships to be built across that bay. It stretched more than two miles from one side to the other.  Caligula then rode his favorite horse, Incitatus, across the pontoon bridge.

The Roman historian Suetonius wrote that after this exploit Caligula addressed the crowds that had assembled on the shore to watch the spectacle:

“That was YUUUUUUGGGE! Nobody builds a better pontoon bridge than I do, not even Xerxes crossing the Hellespont! In fact, if Xerxes were alive today I could teach him everything he needs to know about bridges, because I’m a builder. Builders, they build things, know what I mean? ‘Cause I’m a really smart guy! And I’m a really rich guy, too! And if you think this bridge was good, I’m going to build an even bigger bridge, right across the Mediterranean! And I’ll make the Carthaginians pay for it! After all, they’re not sending us their best. They’re thieves. They’re rapists. Though some, I assume, are good people. And those Carthaginians will still love me! I”m tellin’ ya! We’re going to win so much, Rome is going to get sick and tired of winning all the time!”

Caligula subsequently appointed his horse, Incitatus, as Consul of the Roman Empire.

And here we are in 2016, where the United States is damn close to electing a jackass President.

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September 11, 2001: Former Vice Pres. Dick Cheney Watches WTC Burn During the "We Kept You Safe" Period.

September 11, 2001: Former Vice Pres. Dick Cheney kicks back to watch the WTC burn during the period in which the Bush Administration “Kept Us Safe.”

Leave it to Dick Cheney to find a way to kill two birds with one stone. (That doesn’t mean you should go bird hunting with Cheney, though. Some people who have done that have literally lost face.)

During the Republican debate this past weekend, The Donald once again hit Dubbya  (and Jeb! too) (!) on the Right Wing’s bogus claim that Dubbya “kept us safe.” Trump correctly pointed out that the World Trade Center towers (as well as a few thousand people caught inside) were destroyed during W’s reign. That August 6, 2001 President’s Daily Briefing to Dubbya with the re line “Bin Ladin Determined to Strike in U.S.” just won’t go away.

Here’s Cheney responding to Trump’s criticism of the Bush Administration:

The other areas, for example, if you look at what we did in the aftermath of 9/11, we did in fact keep the nation safe for seven and a half years. The president put in place important programs, terrorist surveillance program, enhanced interrogation techniques. All of those things gave us the information that we needed to act. And we had the tremendous support of the American military. They did a superb job. So for Mr. Trump to suggest that just, in my mind, is way off base. He clearly doesn’t understand or has not spent any time learning the facts about that period. 

See, when you talk about keeping the United States safe, you only count seven and a half years out of eight. The first six months don’t count in Cheneyland.

And here’s the second bird: Cheney’s logic also works when a right wing justice on the Supreme Court dies and you don’t want a Democratic president to name a successor. The first half year of a president’s term doesn’t count, even if our country experiences the worst terrorist attack in its history on our own home soil. And under the same Cheney logic, the last half year doesn’t count, so Obama shouldn’t get to nominate a Supreme Court justice.

See how evenly that works out? Better than a pair of bookends. Here’s a little jingle a la William Blake to help us keep this in mind:

Cheney, Cheney burning bright

In the Beltways of the night

Oh, what pundit’s hand or eye

Could frame thy fearful symmetry?

 

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