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

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

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

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

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

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