Nixon, Trump and the Nexis Between Evil Policy and Core Crimes

It may be helpful to compare Nixon and Trump for the nexus between their crimes and the policy evil they espoused, and the comparison may have long term implications. (For non-lawyers, “nexus” is a word meaning something like connection and overlap.)

For Trump, while the full scope of crimes and evil is barely beginning to be known, we do know that they overlap heavily, from Russia to environmental influence peddling. For these and many others, the connections are really strong.

Nixon on the other hand, did much more harm than we remember, but the crimes, while widespread, were focused on abuse of the national security system to cover up his election committee’s crimes. Now the “plumbers” were set up to prevent leaks about Vietnam, but the ultimate link is tenuous.

Now, the close intertwining of Trump’s evil policy and surely criminal acts will make it harder to get rid of him, because the policy allies will hang on regardless of the criminal revelations.

But, glorious but, once Trump is out, the overall impact on national policy will be much greater, because the evil policy will be de-legitimized by its connection to the crimes, and the advocates for those policies will be further de-legitimized from the failue to understand or rather admit those connections.

Posted in White House | Comments Off on Nixon, Trump and the Nexis Between Evil Policy and Core Crimes

How the Access To Justice Movement is Helping Constrain Trumpism

Of course, the access to justice (ATJ) movement is resolutely non-partisan, as exemplified by its endorsement by the Conference of Chief Justices.

But that does not stop it being part of the bulwark of value-driven institutions that help hold the line against lawlessness.

One: Public Support for the Courts.  For nearly 20 years the ATJ movement has been working to increase public trust and confidence in the courts.  This has not been a propaganda and messaging enterprise.   Rather, and much more importantly, it has done so by mkaing the cours more worthy of that trust and confidence.  By showing that courts can be accessible to all, we have gained them support and respect.  It does not take a genius to see that trust in the courts strengthens them in their ability to play the constraining role that they have so successfully and critically played in the last two years.

Two:  Importance and Acheivability of Neutrality.  Central to the ATJ movement has been the assertion that neutrality in courts can and must be achieved, and that it is the courts responsibility to act institutionally to create and protect effective, not just formal, neutrality.  Given that the essence of Trumpism is to deny the possibility of such norms, every effort to achieve neutrality, particularly by a core institution such as the courts, strengthens all attempts to maintain norms in the face of these attacks.

Three:  Neutrality and value-driven Institutions. To put it another way, the ATJ movement has shown that institutions that are required to be neutral can nonetheless be forceful in protection of their values.  Just like the fact that judicial neutrality does not require passivity in getting the facts, nor does neutrality require passivity in the face of the need to make the system accessible.  So, generally neutral institutions are not prohibited from acting in support of their values, be it education, health or whatever.

So, when you grandkids ask you “what you did in the war to protect against Trumpism,” if are are in the ATJ movement, you have your pride now, and your answer then.

Thanks to all.







Posted in Access to Justice Generally | Comments Off on How the Access To Justice Movement is Helping Constrain Trumpism

Becky Sandefur is a MacArthur!!!

What wonderful news to wake up to!

Becky Sandefur, one of the smartest, gentlest and most beloved contributors to our network has just gotten a MacArthur.

Her work has already reshaped our field, initially by demonstrating beyond doubt the utterly fragmented nature of the access to justice field, and including more recently by providing (with Tom Clarke of NCSC) a brilliant evaluation structure for “Roles Beyond Lawyers.”  This link is to all the references to Becky on this blog.

Combined with last years immigration lawyer MacArthur, this suggests that someone in the ATJ field is one of their scouts.

This is just so well earned.

Posted in Access to Justice Generally, Research and Evalation | Comments Off on Becky Sandefur is a MacArthur!!!

Judiciary Committee Democrats Should Call the Republican “Assistant” as an Expert Witness on Sex Assault Reporting and Veracity

We all remember the scene from Inherit the Wind.  Spencer Tracey, playing Clarence Darrow, is cut off from calling almost all his experts, so he turns round and calls the prosecuting William Jennings Brown-based character, who then makes a fool of himself.

The real story is nearly as good, as described by Wikipedia:

The earliest argument proposed by the defense once the trial had begun was that there was actually no conflict between evolution and the creation account in the Bible; later, this viewpoint would be called theistic evolution. In support of this claim, they brought in eight experts on evolution. But other than Dr. Maynard Metcalf, a zoologist from Johns Hopkins University, the judge would not allow these experts to testify in person.


On the seventh day of the trial, Clarence Darrow took the unorthodox step of calling William Jennings Bryan, counsel for the prosecution, to the stand as a witness in an effort to demonstrate that belief in the historicity of the Bible and its many accounts of miracles was unreasonable. Bryan accepted, on the understanding that Darrow would in turn submit to questioning by Bryan. Although Hays would claim in his autobiography that the cross-examination of Bryan was unplanned, Darrow spent the night before in preparation.

According to the Washington Post, the Republicans have gotten close to hiring one Rachel Mitchell as their questioner.  I am not sure if this violates anti discrimination law, with its Congressional exceptions, nor if it’s a bigger insult to women or men.  Mitchell is in the the Sex Crimes Unit at the Maricopa (Phoenix) DA:

In a 2011 interview, Mitchell said she was drawn to sex crimes work after she was paired with a senior lawyer prosecuting a youth choir director after joining the office as a law clerk awaiting the results of her bar exam. “It was different than anything that I would have ever imagined it being,” she said. “It struck me how innocent and vulnerable the victims of these cases really were.”

She is now a supervisor, where her duties include analyzing legislative changes and managing other attorneys. In an interview earlier this year on a local NPR radio station, she talked about the nuts-and-bolts of the office’s adoption of a new sex crimes protocol, the first in office history, intended to improve the investigation and prosecution of cases. She said the new manual would ensure prosecutors “have something to look at to say, okay, these are the best practices, so that we can do the best we can for victims.”

Can you imagine what an impossible position she is going to be in if she is cross examined abut the circumstances — or how craven the Republicans will seem if they cut off such an exploration off.  Would Michell be able to try a case again.  Everything that she said would be quoted by defense experts in every future trial.

I doubt either side will risk it, but what a thought.


Posted in Access to Justice Generally, Discrimination, Political Issues and Justice, Supreme Court, White House | 1 Comment

Where the Investigation is Headed: Some Propositions

I offer some propositions as to where the Mueller investigation is headed, and what can and will happen:

One:  Under No Circumstances Will Trump Offer Testimony Under Oath.

Guilliani posturing notwithstanding, there is no chance that Trump will testify for the grand jury.  His lack of self-control and lack of regard for the truth mean that he would commit perjury.  Remember, anyone who wants to avoid a “perjury trap” has a simple option — tell the truth.  (Indeed, if he wA capable of the careful responses a grand jury requires, the testimony would reveal his ability to control,  and his entire public persona would be revealed as a fraud.)

Two:  Mueller Will Not Fail to Pursue the Testimony.

The reason is simple.  If he lets the issue go, he will have conceded that Presidents are effectively above the law, crippling future investigations.  This is not a legacy he can afford to leave.  Indeed arguably, a partial loss in the Supreme Court would be less destructive than a failure to pursue.  Even this Court is very unlikely to give a full pass to such a lawless president.

Three:  Any Litigation to Force Testimony Will Do Huge Damage to Trump and Lay the Groundwork for Impeachment.

It is impossible for me to imagine any subpoena-related litigation to occur in a context-free environment.  It will be important for Mueller to establish his need for the testimony, and rebut Trump’s claims of lack on need.  Presumably the pleadings will be released, and if not their contents are likely to leak.  In any event, they will reveal much of prior grand jury testimony.  Moreover, they will be the first coherent document from a government agency pulling together to overall case.  As early efforts in the media to do this have shown, even the public record, when organized, is devastating.  Remember how very little of what is already publicly known has made itss way into indictments.  It will at times of Mueller’s choosing.

Four:  The longer Time Goes On, the Harder It will be for Trump to Destroy the Investigation.

Right now, it has been in the Democrats’ interests to appear to not make this midterm election as being about Trump and he investigation.  This is not because it is not, but because they can have their cake and eat it in different districts.  A pardon or firings would change that dramatically, and surely not to Republicans’ benefit.  Rather it would put Republicans in any impossible position, given their “wait and see” approach so far.

After the midterms, the same calculations will apply — except that dramatic action will trigger an impeachment inquiry (assuming that predictors are right).  It would seem much less vindictive to launch impeachment immediately after such obstructive actions, rather than later.

If these ideas are right, then the Trump camp’s flailing are indeed a sign of desperation, not strategic brilliance.




Posted in Access to Justice Generally, Political Issues and Justice | Comments Off on Where the Investigation is Headed: Some Propositions

A Telling Moment

I feel I should report on a fascinating and telling interaction a couple of weeks ago with people associated with the Secret Service.

I was at a meeting in a DC hotel that happened to be being conducted in a room next to rooms in which it appeared that the Secret Service was conducting job interviews.

A small group was sitting outside the room, and I could not resist going up to them and asking: “Here is an interesting question, what would you do if you had uncontroverted evidence that the person you were protecting was a Russian agent.”

To my considerable surprise, while none of them said anything, the body language was to somewhat quizzically encourage the line of inquiry.

I got even more positive body language from my follow up point that in the past that would have an absurd question, but now the possibility is an openly discussed question in the media.

Ultimately I answered the question by analogizing to the circumstances of an illegal command to the military – “you would talk about it within the agency.”

Now, I do not know if the group were agents, managers, interviewees, or trainees (or that the stated purpose was a cover for some other meeting). But, the question remains as a terrifyingly good one.

Posted in Access to Justice Generally | Comments Off on A Telling Moment

What a Real Apology Takes

PR folks have mastered the art of the “non-apology,” and we are all the worse for it.

First of all, “I am sorry” is simply not an apology.  It is completely ambiguous, with two meanings that in context are often contradictory.

On the one hand it can mean “I apologize,” which is relatively clear, unless qualified by words like “if anyone is offended.”  But “I am sorry” can also mean, “”I sympathize with your feelings, which may or may not not necessarily agree with the underlying source of those feelings.  So, the speaker gets off the hook without admitting the problem.

Spanish has the wonderful phrase “lo siento.”  “I feel it,” which directly addresses feelings.  I would suggest that we say either “I apologize,” or “I sympathize,” depending on context.  Not that either are perfect, but at least in the right direction.

Secondly, even if the words formally indicate a true apology, I do not believe them, at least from public figures, unless they are accompanied by an explanation of an understanding of where the mistake came from and of the damage it has caused, as well as what the person is doing to prevent it from happening again.

For example, when a public figure uses a hurtful word, the explanation might include an analysis of the speakers feelings, and of the complexity of the way they use the word, as well as how the deeper understanding they have now reached will lead to more careful thought with all language.


Posted in Access to Justice Generally, Family Law, Love, Personal, Social Workers | Comments Off on What a Real Apology Takes

The Corporate Response to Trump

I have been suggesting that the “public trust and confidence” analogy between public commitment to court processes and fairness and public politics process and fairness might be useful.  The idea is that we need to find the way to talk about political fairness being more important than any particular outcome just like we have done so in the courts.

Here is an additional if somewhat different parallel.

At the same time as public trust in the courts became an issue, so did business and corporate trust.  Here the issue, at least for large cases, was speediness and efficiency.  Here the courts responded with the creation of business courts, designed to focus appropriate resources on big cases for big business.  I think that this initiative is perceived to have worked.  It was not the outcomes that generally worried big corporations, it was the delay and  uncertainty.

Trump’s recent moves to tear up the world financial system can already be seen to be provoking huge angst in these companies — internationally,  not just nationally.

I have long believed that he real reason Nixon fell was not Watergate, but that he and his apparat were holding up corporations for donations, using governmental power and the threat of its use to get campaign contributions.  To return to the public trust and confidence analogy, its not that corporations want fairness and predictability between rich and non-rich, but they depend on it between rich and rich.  They do not want Putinism.

I suspect we  will see a replay in the corporate response here.






Posted in Access to Justice Generally, Anti-Trust, Federal Agencies, Federal Courts, International Cooperation, Judicial Supremacy, Political Support, Supreme Court, White House | Comments Off on The Corporate Response to Trump

Justice Kennedy’s Opinion On “Baking Discrimination” Is Clarion Call for Process Neutrality In The Entire Governmental Sphere

In a brilliant piece in Politico today, Professor Richard Primus argues that the Baking for Gay Marriage Opinion, by rejecting broad First Amendment protections for discrimination, sets up the travel ban case for a similarly positive outcome, not only because of the general principle, but because of the use of in focus statements to show animus by a legal decision maker.

What may ultimately be more important even than this is the potential for the Opinion to show the importance of neutral process by authorized decision makers;

Justice Kennedy also took a capacious view of what sorts of statements by decisionmakers would suffice to show unconstitutional prejudice. Rather than saying the seven-member Colorado Civil Rights Commission had acted solely or even predominantly on a prejudiced basis, Justice Kennedy wrote that the Commission’s process had “some elements of a clear and impermissible hostility” toward the baker’s religious beliefs. One commissioner in the proceeding described religion as having contributed to some of history’s greatest evils, including slavery and the Holocaust. Another commissioner said that “if a businessman wants to do business in the state and…the law’s impacting his personal belief system, he needs to look at being able to compromise.” On its face, the proposition that someone “needs to look at being able to compromise” doesn’t seem like anti-religious intolerance. But Justice Kennedy regarded the statements of these two commissioners, taken together, as exhibiting a prejudiced attitude that the First Amendment prohibits. In Kennedy’s formulation, the First Amendment prohibits “even subtle departures from neutrality on matters of religion.”

I had been thinking a lot recently about the relationship between public understanding of the importance of procedural fairness as compared to at least the Trumpsters’ apparent contempt for the importance of governmental process neutrality.

In the end, we have to persuade such folks that regardless of their own political opinion, they have a deep interest in the neutrality of governmental decision-making.  This case is an ideal example.  By making the case about process fairness, Kennedy showed that such fairness is important to all, regardless of their beliefs.  Its one thing to cheer someone getting shafted.  It another to have it happen to you, with no redress.

Indeed, as the writer explains, Kennedy went out of his way to emphasize the breadth of potential consideration of non-neutral statements to cast the neutrality of an ultimate decision into question:

To be sure, Monday’s case and Hawaii v. Trump are not exactly the same. The prejudice question in the entry-ban case is about prejudice in the process of lawmaking, and Monday’s bakery decision was about prejudice in the application of the law to a specific person. Sometimes that distinction makes a difference. So it seems noteworthy that Justice Kennedy went out of his way in Masterpiece Cakeshop to signal that he does not believe that distinction to be significant. “Members of the Court have disagreed on the question whether statements made by lawmakers [as opposed to adjudicators] may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion,” he wrote. To illustrate that disagreement, Justice Kennedy cited a 1993 decision in which he had disagreed with the late Justice Antonin Scalia on that very point—with Kennedy taking the view that the statements of lawmakers do matter.

So this case could be the bridge to broadening the importance of neutrality in all governmental decision-making.  If it is true that Kennedy understands the general importance of this, then the Solicitor General is going to have a bad few weeks, and hopefully, years.


Posted in Access to Justice Generally, Discrimination, Federal Courts, Freedom of Expression, Immigration, Political Support, Supreme Court | Comments Off on Justice Kennedy’s Opinion On “Baking Discrimination” Is Clarion Call for Process Neutrality In The Entire Governmental Sphere

Study Showing Greater Racial Bias By Republican Judges Has to Shatter Our Assumptions

I was getting ready to draft a rebuttal to an article from the New York Times, Would you go to a Republican Doctor, reporting a study that “knowing about people’s political beliefs did interfere with the ability to assess those people’s expertise in other, unrelated domains,” and suggesting that that interfered with rational decision-making.  In one of those “cooperation in meaningless tasks studies” (my term), “people sought and then followed the advice of those who shared their political opinions on issues that had nothing to do with politics, even when they had all the information they needed to understand that this was a bad strategy.”  If you want the detail, look at the article.  In short, people trust those who agree with them politically, even if irrational.

But according to a very different article:

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.“Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”


The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

Perhaps most astonishingly:

“The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap,” the authors wrote.

This has profound implications.

Firstly, first think about the fact that almost two thirds of the racial sentencing disparity in a case in the Federal Court is attributable to being a Republican judge.  Now, judging is perhaps the most transparent and discretion-guided element in the system.  What on earth is this number for the other players, who operate more in the shadows, and with less constraints on the behavior.  Moreover, it would be nice to think that the judicial selection process somewhat filters out the more obviously racist judges.

Add to this all the emerging data about correlations between Trump voting and things like authoritarian personality, preference for dominance in society, contempt for science, and racism.

So, put simply and sadly, political attitudes are highly relevant to certain kinds of capacity, and as the judge study shows, appears to have been so for a long time.  In medicine, for example, the doctor’s attitude to human relationships is absolutely critical.  I hope I will be persuaded otherwise, but for now, I do care about my doctor’s world view. — and not just my doctor’s.






Posted in Access to Justice Generally, Bias, Chasm with Communities, Discrimination, Federal Courts | 1 Comment

Excuses for Not Agreeing to Represent Donald Trump

Here are some of the possible excuses:

I have clients who are Democrats — that’s a conflict.

I have clients who are Republicans — that’s a conflict.

I have clients who are Americans — that’s a conflict.

I have clients who are Russians — that’s NOT a conflict, but it might appear to some to be one.

Posted in Humor | 1 Comment

Trump-Olson Retainer and Non-Disclosure Agreement

So, that was quick.  The story that Trump might be represented by Ted Olson, was shot down within hours.

This blog has obtained a document which might explain why this marriage (a subject on which Olson has argued before the Supreme Court) might not have been made in heaven.

Below are extracts from the Draft Retainer and Non-Disclosure agreement apparently submitted to Trump by Olsen.

1.  This agreement for representation is between President of the United States of American Donald J. Trump (alias and hereafter “Moron”) and Theodore Olson, Esquire (hereafter Counsel).

2.  Moron agrees to provide to Counsel any and all information that might be used to support a process of impeachment against Vice President Mike Pence.  Counsel may use this information in his sole discretion.

3  Moron agrees that any breach of this agreement, whether intentional or unintentional, momentary or permanent, material or non-material, will constitute waiver of all Moron’s rights to confidentiality regardless of any and all provisions of low to the contrary.

4.  Moron agrees that Counsel may, as a matter of absolute right, enter into any representation agreement with any entity, including if he so chooses, any investigatory, prosecutorial, or impeachment process, regardless of any and all provisions of law to the contrary.

5.  Moron agrees to attempt to engage in live sex with a man above the age of consent on Fox News in prime time.

Posted in Humor, White House | 3 Comments

Larry Nassar Sentencing Might Stimulate Discussion About Judicial Neutrality

The New York Times Headline sets it up perfectly:

Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge

Now, the spouse of a sexual assault advocate within me cheers this on, but the former public defender within me squirms in my chair.  Moreover, as an advocate for neutral judicial engagement, and as one who believes that such neutrality has broader limits when a decision has been rendered and compliance has become the issue, my antenna are up.

On the one hand, we want judges to speak forcefully as the voice of the community.  On the other hand, without neutrality, that voice is nothing more than the baying of the crowd.

In this case lots of factors have to be taken into account.  This is a sentencing hearing, which at its best is a conversation between the parties enhanced by judicial candor.  The case was resolved by plea.  Moreover, the ultimate minimum sentence was what had already been accepted by the defendant in the plea agreement.  Thus, there is no argument that the defendant in this case was harmed (unless you read the judges comment on a death warrant as incitement to other inmates, which given prison dynamics, it may well function as.)

But, but, but.  There is something unseemly about the overall picture, if only because of “slippery slope” concerns.

So, maybe it is helpful to lay out what is necessary before “judicial advocacy” is appropriate.

No impact on neutrality of fact finding or decision-making.  In this case, there was no real decision-making.  But given judicial discretion in pleas, that may be less usual than we think.

No impact on perception of neutrality of the process as a whole.  Thus, if the judge was the fact finder, or if they entered controversial rulings in the court of the case, and then let rip at sentencing, there might be a perception of lack of neutrality that is ultimately in no one’s interest.

No Impact on perception of neutrality of the general role of the judicial.  This is the hardest and most speculative, given that it may depend on nuanced understanding of the phases of a case.

Any thoughts?




Posted in Access to Justice Generally, Judicial Ethics | Comments Off on Larry Nassar Sentencing Might Stimulate Discussion About Judicial Neutrality

Florida Bar Foundation and SRLN gets Kudos For their ATJ Mapping from ESRI, the GIS Company

I have already raved about this product, which brilliantly brings together multiple data to show the ATJ burden and treat from the Hurricane.

So it is great to see that ESRI, a very major GIS-mapping company has honored this project with posting on their Maps Gallery.

I really have only one point:  While the hurricane highlights the power of this tool, really it is just as powerful in every environment.  In particular, the pioneering of the LVI , “Legal Vunlnerbility Index,” both makes the data easier to understand, and makes it much more forceful.

I would challenge every ATJ Commission and every IOLTA program, to use these technologies to demonstrate need and impact.

Indeed, I would love to see a national LVI map.

Here is one of the LVI maps from the project.




Posted in Access to Justice Boards, Access to Justice Generally, Census Bureau, IOLTA, Mapping/GIS, Metrics, Software Developers, Technology | Comments Off on Florida Bar Foundation and SRLN gets Kudos For their ATJ Mapping from ESRI, the GIS Company

Nice to Get ABA Journal Award

The AB Journal now does a Web 100 list honoring “the best of lawyers and the law on the web.”  They have included this blog this year on their list.  The logo signifying this award is on the right side of this blog.

Quoting the blog, they describe it as follows (its hard to find, under R for Richard, on page 2 of the blogs only list):

“We define access to justice broadly to include innovations in courts, the bar, legal aid and community that make it easier for people to obtain access to justice institutions, and to just results within those institutions.” Posts cover a broad range of subjects, including access to counsel, foreclosures, self-service, law schools and technology.

The recognition is much appreciated.  I hope that there will many access to justice tools soon.

Remember, all my blogs are listed here.

Posted in ABA, Access to Justice Generally, Technology, This Blog | 4 Comments