You’re Not A Real Lawyer, You Just Play One On TV

Rudy Giuliani

In a country that loves true crime drama, the Trump administration is an unending well of entertainment. Every day brings new legal developments in the ever-growing investigations closing in on Trump world. From Paul Manafort’s trials to Michael Cohen’s guilty plea to Michael Flynn’s cooperation agreement to Allen Weisselberg’s immunity to Trump’s obstructions of justice to Inspector General reports, the Trump-Russia penumbra makes the hoopla over O.J., Casey, and Adnan look quaint. In the modern world of 24-7 cable news, it’s a good time to be a telegenic former prosecutor.

But it’s not just the expert commentators that are grabbing air time and making bank. The true innovation of the Russia investigation is how much TV time the investigation’s principals are getting. Active investigation subjects, subpoena targets, civil litigants, and even criminal defendants are speaking to reporters on the record at an alarming rate. And it doesn’t stop with the peripheral clowns, jesters, and showmen like Sam Nunberg and Carter Page. It’s the lawyers to some of the most endangered clients and sensitive witnesses who are blabbing to Chuck Todd and Anderson Cooper about legal strategy on a nightly basis!

The practice has become so prevalent that the public no doubt believes litigating in the court of public opinion is compatible with and more important than doing so in actual courts of law. But it’s not. If you’re talking to the press about your client’s case with a camera in your face, you’re not a real lawyer, you just play one on TV.

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A Norm For A Norm

The confirmation hearings on Brett Kavanaugh’s nomination to the Supreme Court last week have been compelling. Nursing a razor-thin majority and tasked with supporting a compromised nominee, Senate Republicans have put on a parade of obsequious questioners to delve into such pressing matters as—this is not a joke—which of the Judge’s daughters gives better hugs. For their part, Senate Democrats have risen to the occasion, pummeling the nominee on his partisan Republican allegiances and rigidly ideologically views. Most gripping of all, though, has been Kavanaugh’s remarkably poor performance in answering simple questions and avoiding difficult ones. What was thought to be a coronation has instead raised real political consequences for those who would affirm a nominee so clearly tied to a corrupt Republican establishment and so clearly hostile to the civil and reproductive rights of everyday Americans.

What has been so remarkable—and heartening—to witness, however, has been Senate Democrats willingness to play hardball in opposing this nomination. Continue reading

The Manafort Puzzle

Last Tuesday provided a moment of emphasis in the Justice Department’s pursuit of the Trump crime family. After months of speculation following an FBI raid on his office and hotel room, as well as a breakneck privilege review of the materials found there, former Trump Organization attorney Michael Cohen pleaded guilty to eight counts of tax evasion, bank fraud, and campaign finance violations. It’s the latter charges that have the most national import. During his allocution and as detailed in his criminal information, Cohen admitted that the illicit payments to Karen MacDougal and Stormy Daniels were made “in coordination with and at the direction of a candidate for federal office,” a person described in his information as “Individual-1,” who later “had become the President of the United States.” In other words, the Federal Government and Michael Cohen agree that Donald Trump devised a criminal conspiracy to influence the election.

Dramatically, at the exact same time Cohen was pleading guilty in Manhattan, a federal jury in Virginia delivered a guilty verdict against former Trump campaign chairman Paul Manafort on eight counts of tax evasion, bank fraud, and filing false tax forms dating to his time working for a Putin-allied Ukrainian strongman through the 2016 campaign. Although the jury hung on ten other related counts due to a solitary holdout, it was a significant blow to Manafort and to Trump. Manafort now faces a decade or more in prison for his convictions, to say nothing of the time he faces for the charges against him in a separate D.C. trial set to begin on September 24 and a potential retrial of the hung counts in the Virginia case. For his part, Trump is now officially responsible for hiring a felon as his campaign manager to serve during the critical months of his campaign during which he secured the GOP nomination and held his convention, and for doing so when Manafort’s compromising ties and illicit conduct was plain to anyone with a morsel of self-preservation or shame. Manafort’s conviction has also spurred Trump to some of his more self-destructive behavior, exacerbating existing obstruction of justice exposure with angry tweets about the unfairness of the proceedings while hinting at the possibility of a Manafort pardon.

While significant, neither development can quite be termed a “turning point” in the Special Counsel investigation. Continue reading

Why Progressives Rightly Despise Joe Lieberman

Joe Lieberman's Wall Street Journal Op Ed endorsing Joe Crowley

Joe Lieberman is at it again. Last month, the former Connecticut Senator penned an op-ed for the Wall Street Journal pushing the notion that voters in New York’s 14th congressional district should reject the results of the Democratic primary and re-elect Representative Joe Crowley on the Working Families Party line over Democratic nominee Alexandria Ocasio-Cortez. His reasoning? “Alexandria Ocasio-Cortez’s surprise primary victory over Rep. Joe Crowley seems likely to hurt Congress, America and the Democratic Party,” he argued, because “the policies Ms. Ocasio-Cortez advocates are so far from the mainstream,” and thus “her election in November would make it harder for Congress to stop fighting and start fixing problems.”

Progressives predictably went nuts. They pointed out that Ocasio-Cortez fits her district both demographically and ideologically. They argued that her platform—a higher minimum wage, Medicare for all, a federal jobs guarantee, and free public college—is broadly popular. And they noted that Lieberman’s cool punditry both lacked concrete evidence and conveniently coincided with his own preferred politics.

But this is the game Lieberman has been playing, with considerable success, all along. Continue reading

Kavanaugh’s Legacy Will Be Partisanship, Not Ideology

Brett Kavanaugh is nominated to the Supreme Court by President Trump.

The last thirty years of Supreme Court confirmation battles have been waged largely on ideology. Dating back to the genesis of the judicial wars—the defeat of Judge Robert Bork’s nomination in 1987—the opposition party has attempted to cast each nominee as an extremist, an activist, and an ideologue. Conversely, the nominee’s defenders have stressed his or her impartiality. This dichotomy has created a distorted picture of judging for public consumption. Good judges call balls and strikes. Bad judges play favorites and seek to advance a specific judicial agenda. In this telling, the confirmation process is simply about sorting the Alitos, Sotomayors, and Gorsuchs into one pile or the other.
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Zurich’s Secrets

Lake Zurich

Zurich is a quiet place. Set lazily on the northern tip of the lake bearing its name, a short drive away from the Swiss Alps, the city is also Switzerland’s business hub and wealth center. Though they are typically at odds elsewhere, Zurich’s nature and industry coexist nicely, with the gentle ripples of its lake and the ambience of distant mountain peaks in harmony with the ubiquitous building facades offering “Swiss private banking.” For decades, secrecy and discretion have been the city’s selling point, but regardless of whether you are here for business or pleasure, solicitude is at the offing. Continue reading

To All The Haders Out There

Milwaukee Brewers relief pitcher Josh Hader

During Major League Baseball’s All-Star Weekend—indeed, in the middle of the All-Star game itself—disturbing but all-too-familiar news broke about one of baseball’s brightest stars. In keeping with the ongoing trend of mining the ancient social media posts of recent stars, reporters uncovered a series of extremely racist and homophobic tweets from Milwaukee Brewers sensational relief pitcher Josh Hader published when he was a teenager. Many of the tweets are too offensive and outrageous to quote here, but they include sentiments such as “I hate gay people” and “White Power lol” with an emoji of a clenched fist, along with pervasive and aggressive used of anti-black racial slurs. In a sign of our connected times, Hader became aware of the brewing controversy and made his twitter account private during the game. By the time it was over, Major League Baseball officials were in place to usher Hader before a pack of reporters for a pro forma mea culpa. “I just want them to know that I’m sorry for what I did back in the day and the mistakes that I made,” Hader told the assembled media. “They were never my beliefs. I was young. I was saying stuff out of just ignorance, and that’s just not what I meant.” Days later, MLB announced that while it would not suspend Hader over the unearthed, years-old tweets, it would require that he undergo “sensitivity training.” Continue reading

The Bad Faith Party

It’s not just the man at the top. Self-preservation by any means is now the organizing principle of the entire Republican Party. It’s not limited government. It’s not personal responsibility. It’s certainly not the projection of strength abroad. It’s not even conservative values. No, today’s Republican Party is solely devoted to saying and doing anything to sustain itself and those within its narrow band of protection. If nothing else, the past few months of dizzying contortions by congressional Republicans and conservative media have shown us that. Because the arguments the GOP uses to attack Democrats and defend Donald Trump are now routinely made with the thinnest veneer of truth and in explicit bad faith.

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A Judiciary Meant For Better Things

The United States Supreme Court

It was a jarring last week of the Supreme Court’s 2017 term. On Monday, the Court reversed lower court findings that Texas’s legislature had racially gerrymandered its state legislative districts. On Tuesday, the Court struck down California regulations intended to regulate the disinformation that so-called “crisis pregnancy centers” give to women seeking an abortion and upheld President Trump’s travel ban as a facially neutral immigration regulation rather than the blatant religious discrimination it plainly was. And on Wednesday, Justice Alito finally found five votes for his six-year-long campaign against public sector unions, as the Court effectively enshrined “right to work” legislation into the constitution, applicable to all fifty states. Each of these decisions was by a 5-4 vote, with Justice Gorsuch in the majority, contentedly in the background supporting decisions of his longer-tenured colleagues. Each decision, in its own way, ignored settled precedent, exposed blatant contradictions with the majority’s prior views, and set back democracy and civil rights decades.

But it was Justice Anthony Kennedy’s retirement later that Wednesday that proved to be the gut punch that underscored just how deeply damaging the 2014 and 2016 elections were. In 2014, the GOP essentially ran a campaign against Ebola-infected ISIS terrorists crossing into Texas through the southern border, and then used the Senate majority they built from that disingenuous messaging to block President Obama from placing a reasonable, consensus jurist on the Supreme Court. And in 2016, a minority of voters, elevated through the electoral college, allowed an authoritarian demagogue to fill that seat and any others that might arise. For all his unorthodoxies, President Trump surely knows that fidelity to the Federalist Society is his most important political consideration. As a result, Justice Kennedy’s withdrawal from public life surely means the medium-term end of a Supreme Court able to project the best ideals of our founding fathers. Continue reading

Take Them Seriously

Not to go all Marco Rubio on you, but let’s dispel this fiction that Trump supporters don’t know what they’re doing. They know exactly what they’re doing. To support this president, to support this man, you must support, or at least be comfortable with, state sanctioned violence against people of color. Not off-hand political incorrectness, not a person simply free to speak his mind and stand up to liberal bullying, but directed, purposeful, and continuous harm meted out based on race, religion, and national origin. It has been the driving force of Donald Trump’s political life and the only principle he has been unwilling to betray.

The persistent myth that Trump was elected due to some ethereal connection to America’s forgotten man rather than successfully activating racial animus must be buried. Trump said it with his opening words— “they’re bringing drugs, they’re bringing crime, they’re rapists”—and he has not relented. This simple fact has been obfuscated by the unpleasantness of the conclusion: “Are you saying that 63 million people are racists?” But that’s the wrong question.
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