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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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

Adjusting the Coverage

The original sin of the 2016 election, the fundamental rot that allowed a conspiratorial, vulgar ignoramus to ascend to the presidency of the United States of America, was the free-flowing “earned” media pumping life into the primary campaign of Donald J. Trump. A New York Times report from March 2016, nearly three months before he had secured enough delegates to be anointed the presumptive GOP nominee, cited an analysis by MediaQuant that Trump had received nearly $2 billion worth of free media coverage by that point in the campaign. By the end of the 2016 election, Trump successfully rode $4.96 billion in earned media all the way to the White House. Earned media, of course, is the sanitized press euphemism for the irresponsible fascination the press had with the Trump campaign. Donald Trump was substance free, but content filled. And the media took the bait.

Trump’s transition from candidate to president-elect prompted some mild recriminations within the industry. That introspection and Trump’s changing role have prompted some positive changes. The media is far more willing to label Trump’s dissembling as the lies that they are, although perhaps not sufficiently so. The tenor of interviews with administration officials has been admirably tough. And thankfully, cable news networks are no longer just airing whole Trump rallies live, as they frequently did in late 2015 and early 2016.

Yet, Trump has maintained his deft touch for manipulating the media and muddying the waters. In doing so, he has solidified his approval rating and given congressional Republicans an increasingly positive, though still challenging, outlook for November. That’s because for all their hard-hitting Trump journalism, the media has not taken a single step in remedying the most pervasive deficiency in their coverage of a fundamentally dishonest and disorganized politician: It’s not whether you cover a story, but how you cover it and for how long. Continue reading

The Rosenstein Conundrum

Rod Rosenstein

A comedy skit performed during a recent podcast episode of Slate’s Trumpcast pinpointed one of the most disorienting features of the Trump era for those who oppose it. Comedians Steve Waltien, Kate James, and Asher Perlman held a mock meeting of liberals to reevaluate their political and social opinions given the topsy-turvy happenings of our national moment (among their new verdicts: Rex Tillerson good, Kombucha bad). Beyond the laugh-lines, it’s a deeply resonant concept for those moved by the endless contortions and contradictions of our president. It calls to mind the Mother Jones report from last month that liberal feminist women were congregating at Stormy Daniels strip shows. Life can be confusing when your mantra is “the enemy of my enemy is my friend.”

Perhaps no one embodies this push and pull like Deputy Attorney General Rod Rosenstein. He’s a Trump political appointee. But he’s a career Justice Department lawyer with a reputation for integrity. Yet, he authored a deeply disingenuous memo that served as the pretext for James Comey’s firing. But he appointed a Special Counsel to investigate Russia’s election interference and coordination with the Trump campaign. Yet, he has acquiesced in Trump’s efforts to discredit the Russia investigation by releasing misleading FBI agents’ text messages. But he spoke out defiantly against congressional Republicans attempting to derail that investigation. Yet, he gave in to GOP demands to disclose highly confidential investigation materials. Hey liberals, where do we stand on Rosenstein again?

Now, there’s a greater conundrum at the center of the Rosenstein riddle coming to a head in the coming months. The deputy attorney general appears to be the only Trump-appointee insulating the Special Counsel investigation from the president’s meddlesome hands. Yet, that very supervision is becoming one of the Mueller investigation’s greatest threats. Continue reading

Review: What Happened

 

What Happened by Hillary Clinton

It was no surprise that Hillary’s Clinton’s latest book was greeted by many as yet another attempt by a calculating politician to deflect blame and reposition her reputation. Here was the former Democratic nominee, not even a year removed from a shocking electoral defeat that by all accounts should not have happened and that has imperiled American democracy, reinserting herself into the national discourse to yet again defend and explain her values and choices. Always opposed to losers, frequently distrusting of Clintons, and often unsympathetic to women, political pundits focused their reviews on whether Clinton sufficiently accepted responsibility for her election loss, seeking their pound of flesh. In a media landscape that allowed vague suspicions about Clinton’s motives and morals to reach equal footing with the daily outrages of Donald Trump, it was all too easy to dismiss Clinton as the worst interpreter of “what happened.”

In many ways, the critical reception proved the unstated thesis of the book. That once set, narratives never die. And for Hillary Clinton—a smart, ambitious, private, and independent woman—that narrative has always been that there was something lurking behind the curtain even when she was most exposed. Fortunately, then, Clinton didn’t write What Happened for those viewing her through that prism. Instead, she set out to expose that prism and show its effect on both the campaign and her public life. Continue reading

Live-Tweeting Obstruction of Justice

Three strains of executive incompetence and self-immolation came to a head this week. First, on the policy front, the administration’s absent leadership and ham-fisted threats continued its unbroken string of legislative futility as the Senate failed to pass its promised healthcare bill. Second, the wild and revolting West Wing drama cultivated by President Trump reached new heights as newly hired (and now newly fired) communications director Anthony Scaramucci caused Press Secretary Sean Spicer and Chief of Staff Reince Preibus to resign, while embarrassing himself with unhinged, confusing, and vulgar statements to the media. And third, the President escalated his assault on the rule of law by assailing his own Attorney General for recusing himself from overseeing the Department of Justice’s Russia investigation due to unavoidable conflicts just as powerful evidence between the Trump campaign and the Kremlin came to light.

Yes, it has been an unnerving few weeks for the country (to say nothing of the last six months, or the last two years). What seems to make it all the more unsettling, though, is the sense—that heavy, dank, oppressive feeling—that that there will be no consequences. The sense that the rules have changed, that none of this will make a difference, and that these monsters will get away with everything. Certainly, this fear has informed and shaped much of the media coverage, with our weekly check ins on whether the Trump diehards are holding fast (newsflash: they are!).

This aura of invincibility that many across the spectrum—left, right, middle, and the media alike—perceive enveloping President Trump is understandable. There’s a legitimate concern that our politics are so polarized, and that the Republican Party is so radicalized, that Trump will survive all outrages and abuses and stand a decent chance of reelection should the economy continue rolling along. Perhaps in the short term this view is correct; Trump will hold most Republicans and the hearts of its most active supporters, and in turn the congressional GOP will muddle along, leaving him unchecked. But the problem with applying the “Teflon Don” theory to all things Trump—including his piques of obstructionist rage and the assorted sordid happenings of son Donnie Jr.—is that it imposes a cable TV framework to legal and policy worlds unconcerned with political theatre. A criminal investigation is not a news cycle. Continue reading

Lies Are Lies Are Lies Are Lies

There are a lot of ways to lie. That was the upshot from Thursday’s dramatic Senate Intelligence Committee hearing, where former FBI Director James Comey spent the better part of three hours recounting the latest chapter in the 1960s political thriller that is our ongoing national nightmare. The hearing uncovered new ground when Comey described President Donald Trump’s efforts to obstruct the Michael Flynn investigation and implied that there was a greater scope to the underlying Russia investigation than previously thought. It also exhibited the many flavors of falsehoods.

The tutorial began the day before the hearing, when the Intelligence Committee prematurely released Director Comey’s written testimony. That seven-page submission detailed presidential intimidation in a dramatic first-person chronology of dinners and telephone calls between a wooing President Trump and a reluctant Comey. The testimony described a series of efforts by Trump as both president-elect and president to pressure the then FBI Director into engaging in deceit in its subtlest form—lying by omission. Continue reading

What’s Accurate and What’s Obvious

We keep waiting for the dust to settle, but Donald Trump refuses to stop kicking it up.  Although his ceaseless motion reveals more with every whirl, it’s hard to see exactly what’s going on right in front of us through all the grime. No doubt the effort is worth it. Determining what’s accurate with high precision is a worthwhile endeavor. Determining the reasons for his policies and pronouncements, the people most influential in his thinking, and the costs of his actions is critical to a righteous, small “d” democratic opposition. Provable, specific facts are the component parts of any indictments or articles of impeachment, and Trump’s totalitarian truthiness must be met with honest, ethical reporting. But in striving for the perfect truth, let’s not lose sight of the obvious. This lesson keeps popping up in a few critical, and often overlooked, ways. For even before we know the whole truth, we often know enough to distinguish right from wrong from immoral. Here are three obvious truths that appear to be getting lost in the distracting thrashing of the Trump administration. Continue reading

A Disastrous Double-Standard

As the remarkable story of President Trump’s secret ties to Russia unfolds each day, it is hard not to think back to the day last summer where a press conference about a different investigation, with a different potential target, and an undoubtedly different outcome became the center of the political universe. On July 5, 2016, FBI director James Comey took to his high podium to deliver a statement about his organization’s criminal investigation into potential mishandling of classified information by former Secretary of State and then-presumptive Democratic nominee for president Hillary Clinton. As Comey himself admitted, it was “an unusual statement.” He both gave “more detail about our process than [he] ordinarily would” while “not coordinat[ing] or review[ing] [his] statement in any way with the Department of Justice.” Intense public interest and importance, he said, justified his departure from protocol.

Comey’s statement was unusual for another reason. Despite finding no deceit or destruction of evidence, finding no intent to disclose classified information, and ultimately concluding that Clinton sent or received a mere 110 e-mails in 52 e-mail chains (plus six others found by examining e-mail fragments) containing classified information over a private server, he felt the need to publicly chastise his investigation target. Although determining that no reasonable prosecutor would bring charges based on such meager evidence of intentional mishandling of classified information, Comey took time to make the damaging and debatable charge that Clinton had been “extremely careless” and speculatively ruminated that it was “possible” a hostile foreign actor had accessed Clinton’s communications.

Now we know that just weeks after Comey made these public statements about a confidential investigation, his FBI was actively investigating the far more explosive possibility that Clinton’s Republican opponent in the presidential race was intentionally conspiring with a hostile foreign power to influence the election in his favor. Continue reading