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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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NYC Substation

The New York Times today reported that Russian hackers had gained access to nuclear plants and electricity grid controls, and would have been able to shut off the power in the United States at will.

That is deadly serious stuff.

More amazing still, it was the Trump Administration, that leveled the accusation against Russia. Putin may regard that as an act of disloyalty by Trump, perhaps triggering his release of kompromat on the Donald.

Perhaps he’ll announce a 25% tariff on Steele dossiers.

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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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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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"Morning Joe" Scarborough

“Morning Joe” Scarborough

As far as TV talking heads go, Joe Scarborough is not the best, but he’s far from the worst. Still, every once in a while Joe makes a comment, apparently off-the-cuff, that makes no sense at all, as he did during his discussion of the Devolution of the GOP in his August 29, 2016 broadcast.

Scarborough’s jumping off point was a comparison between the demeanor of Bush the Elder (a/k/a, Bush 41, a/k/a George H.W.) and that of the GOP’s current presidential nominee, Prima Donald Trump.

Scarborough discussed his visit to the Bush compound in Kennebunkport, Maine, which retains its beauty as a quaint New England coastal town, so long as you can forget who the current Maine governor is. Of Bush 41 Scarborough said:

They make others around them feel special despite the fact that they have lived the most remarkable of lives, serving in Congress, running the Republican National Committee, heading up the CIA, being the U.N. Ambassador as well as the U.S. Ambassador to China, serving as Ronald Reagan’s vice president and then leading America as the 41st president of the United States.

But good luck getting George or Barbara Bush talking about themselves. They just don’t do it and they never will. First of all, their parents didn’t allow it. And besides, that kind of thing wasn’t done in the world from which they came. It is just one small way that the ethos of Walker’s Point is so radically different from the mindset that infects Donald Trump’s garish corner office high above 5th Avenue in Trump Towers.

As [Jon] Meacham and I walked down the driveway after saying goodbye to the Bushes, Jon lamented the fact that the same Republican Party that nominated a man like Bush, who rarely spoke about himself, would a quarter century later select a reality TV showman who obsessively talked about little else. Meacham paraphrased Henry Adams in saying that the historical devolvement from Bush to Trump proves that Darwin’s theory of evolution was less compelling when applied to American politics.

Bush the Elder has a lot to be proud of. He served his country both in uniform and in government. He was a fighter pilot in WWII and was shot down in combat with Japanese forces. (As Trump might say,  he only likes fighter pilots who weren’t shot down, he’s gotta tellya.). I don’t take any of that away from Bush 41.

But Scarborough’s notion that not talking about yourself, or not tooting your own horn to say it more directly, is a virtue in and of itself that we all should strive for is absolute nonsense.

Of course Bush 41 never talked about himself. He never had to. He is a walking, breathing pillar of the Republican Establishment, and when the word “establishment” is used in connection with anyone in Clan Bush it is always spelled with a capital “E.”

Bush 41’s father was Prescott S. Bush, a former U.S. Senator for Connecticut, who was a Skull & Bones guy at Yale undergrad (as were Bush 41 and Bush 43), the secret frat where the scions of the Elite of the most elite Elites quaff alcoholic beverages prior to attaining a legal, if not responsible, drinking age and perform pranks that would look very different in 2016 than when they were supposedly performed (e.g., in 1918, when Prescott Bush allegedly led a nocturnal mission to exhume Geronimo’s skull).

(Oh, those kids!)

H.W.’s Wikipedia entry states that he started his business career as a sales clerk with Dresser Industries. Sounds like a humble beginning. But the entry goes on to state that Dresser was a subsidiary of Brown Brothers Harriman, where his father, Prescott Bush, had served as a director for 22 years.

So, Joe Scarborough, please think about that for a minute. I’ll bet H.W. didn’t need to talk much about himself when he got that sales clerk job at Dresser. Suppose, Joe, that you were the supervisor of this new young sales clerk from the Northeast who likes to go by his dual middle initials “H.W.” What are the odds that you’d treat him a bit differently than some other poor schmoe sales clerk? Would you give H.W. a bad performance review, even if he deserved it?

Not if you wanted to keep your job.

Mind, I’m not saying H.W. didn’t do a terrific job as sales clerk. But when your pop sits on the Board of Directors of your employer’s corporate parent,  the reality of who’s the boss and who’s the new hire undergoes a fundamental alteration.

Prescott Bush, Bush 41 and Bush 43 all lived in a rarefied world of great oil wealth and Republican Establishment connections. Bush 43 is a case history all by himself, so I’ll leave that alone, but it’s obvious that, political campaigns aside, not one of them ever had to sell his abilities or his name to anyone to land a job.

I agree that Prima Donald Trump never stops running his mouth, and that’s bad for him and for anyone who’s forced to listen. But for ordinary mortals who have to hustle their butts to make a living, you’d better toot your own horn if you want to eat and keep a roof over your head.

bush-sheldon-p

Samuel Prescott Bush (1863-1948), grandfather of Bush 41

So Joe, before you go off on another tilt about praising modesty and silence as saintly virtues, maybe you should look into Samuel Prescott Bush’s life. He’s the guy who started the Bush family bankroll rolling. I’ll bet old Samuel P. Bush had substantial “book smarts” (he had an engineering degree from Stevens Institute) as well as “street smarts,” some business acumen (given where he started and where he wound up), plus a bit of luck.

I’m sure old Sam P. Bush had to brag a little bit about himself to get hired for his first job, and maybe for a few others.

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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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