Wednesday, December 19, 2018

Is Impeachment Mandatory?



The distinguished Harvard Law professor Cass Sunstein has recently argued, in a widely published opinion piece, that if a US president has committed “Treason, Bribery, or other high Crimes and Misdemeanors” then Congress is obligated to impeach. https://news.yahoo.com/impeachment-mandatory-130024433.html.  The “support and defend the Constitution” clause of their oath of office imposes the duty on upon each and every member of the House of Representatives to vote to impeach if the constitutional predicate is satisfied. 

Monday, October 15, 2018

“Her” Computer Consciousness: Can an Artificial Intelligence Be In Love?

The 2013 movie Her, for which Spike Jonze, won an Oscar for best screenplay, raises the question whether one day soon there could be artificial, machine based, consciousness.

Tuesday, October 2, 2018

Mitchell's Memo on Ford and Kavenaugh


“A ‘he said, she said’ case is incredibly difficult to prove. But this case is even weaker than that…I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee.”

That may well be right that the evidence currently in the hands of the Committee would not be sufficient for a prosecutor to conclude that Kavenaugh is guilty beyond a reasonable doubt. This, however, is irrelevant.

Wednesday, September 26, 2018

Checking Rachel Mitchell Against Herself

I hope Senate Judiciary Committee members will obtain some trial transcripts from cases Ms. Mitchell has prosecuted in Phoenix. It will be interesting to compare the substance, tenor, and tone of the questions she asks Ms. Ford with her examinations of sex crime victims in her cases and to compare the substance, tenor, and tone of her examination of Judge Kavanaugh with that of alleged sex assailants she has questioned as an officer of the court. 

Sunday, September 16, 2018

Should President Pence be Impeached with Vice President Trump in the Wings?


Put aside for a moment the specific impeachment counts with which President Pence has been charged by the House, and turn to the opinion makers’ hot question: will we or won’t we be better off if Donald Trump became president following a vote of the Senate to convict Pence and remove him from office?

Wednesday, September 12, 2018

Was Trump’s criticism of Sessions for permitting indictments of Republican House members a high crime or misdemeanor?


The tweet in question:

(1)    “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff…..”

Wednesday, August 22, 2018

Impeachment for Pre-Innaguration Conduct II

In addition to the impeachments of Andrew Johnson and Bill Clinton, and the near impeachment of Richard Nixon, there have been 17 other impeachments voted by the House, mostly of federal judges. (8 were convicted by the Senate; some fended that off by resignation.) The charges in all 19 cases involved conduct while in office.

In a post of April 5, 2017, I suggested that the question of impeachment for conduct prior to taking office was edging towards a relevance more than academic.See http://lawrencecrocker.blogspot.com/2017/04/impeachment-for-acts-prior-to-taking.html.


In that post I argued that any suggestion to a foreign power of an in-office quid pro quo would bring the case within the "misconduct in office" category, whether or not the president came through with the quid pro quo. I also suggested that even if exclusively pre-office, a sufficiently egregious high crime or misdemeanor should be grounds for impeachment, despite the absence of House precedent.  

I invite you again to think about these issues, as they seem now to be more than edging towards relevance.

Thursday, August 2, 2018

Was Trump’s “Russia, if you are listening, . . . “ Criminal? Impeachable?


On July 27, 2016, candidate Donald Trump asked Russia to find Hilary Clinton’s deleted emails. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” It is fair to say, I think, that the Russians, if they took him up on this, could expect Trump’s gratitude and whatever might flow therefrom in the future.  Did this constitute a violation of federal election law? If so, was it a criminal violation?  If so, was it an impeachable violation?

Wednesday, July 25, 2018

Did Cohen’s Release of the Tape Breach Ethical Rules?


In a new development re my last post, on 7/24/18 Michael Cohen make public what appears to be a recording of an in-person conference with Donald Trump, which conference took place shortly before the 2016 election. It seems fair to say that some of the content of this conference involved things that the client would have wanted to remain secret. If Trump had already released any part of the attorney-client privileged content of the conversation, then the privilege was gone. (You cannot pick and choose, revealing those parts of an attorney-client conference that ore favorable, withholding the damaging parts.) Cohen could not then be faulted under the attorney-client privilege branch of his ethical obligation. However, unless Trump had already caused the release of the entire content of the conversation, privileged or not, then Cohen was still ethically obliged not to disclose any secrets of the client that were still secret.

Of course, breaches of his duties under New York’s code of legal ethics may be pretty low on the list of Cohen’s problems. This release may also be pretty low on the list of ways Cohen will be a problem for Trump.

Sunday, July 22, 2018

Ethics Inquiry for Leak of Cohen-Trump Playboy Bunny Tape?


Someone apparently leaked the tape in which Trump and Cohen discussed the possibility of reimbursing A.M.I. (parent company of National Enquirer) for its pre-election capture and kill of Karen McDougal’s story of her year-long affair with the  parent of the then infant Barron Trump.

If the tape was attorney-client privileged, or even a client secret, then it would violate ethics for Cohen to leak it. It would, similarly, be a breach for Giuliani or any of Trump’s other lawyers to leak it without Trump’s consent.  

So, either Trump leaked this himself, or someone violated the lawyers’ code of ethics.  Trump should be asked. If he denies directing the leak himself, then an ethics investigation would be appropriate. Of course, it is conceivable that the investigation would turn up that there was no lawyerly breach, Trump having lied on the point.   

Wednesday, July 18, 2018

Was Jesus a Pacifist: The First Generation of Followers and the Sword at Gethsemane


For 1700 years or so it has been the majority view among Christians that Jesus was no pacifist. This is hardly surprising given the number of wars fought, directed, and instigated by sincere, doctrinally orthodox, Christians. History would make no sense, and neither would the political commitments of most contemporary Christians, if Jesus were a pacifist. 

Yet there is some reasonably strong textual support in the gospels for the proposition that pacifism of some variety was part of Jesus’s message: “But I say unto you, That ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also.” (Matthew 5:39. Nearly the same: Luke 6:29.) “[F]or all they that take the sword shall perish with the sword.” (Matthew 26:52).

The exegetical enterprise bent on demonstrating that these passages do not mean what they say has been determined and well credentialed. Sometimes it is a little crude, but sometimes it displays strong scholarship and not implausible arguments. Still, I think the tradition has been somewhat more confident than is warranted in its conclusion that Jesus was no pacifist. 

Thursday, July 5, 2018

Once More The Crime-Fraud Exception Before and After the Crime

In my last post I argued that the crime-fraud exception to attorney-client privilege is really a very different thing when it  is cited to by police or prosecutors before the crime has been committed from when it is resorted to in post-crime litigation. It follows that the elements of the exception should be different in the two different settings – if there should be a post-crime exception at all.

A particular case, suggested but not developed in that post, dramatizes the point: 

Monday, July 2, 2018

Crime-Fraud Exception: Stopping Crime and Prosecuting Crime

In my post “Trump, Cohen and the Crime-Fraud Exception to Attorney-Client Privilege,” 4/13/18, I opined that a lawyer’s informing her client that intended conduct was criminal could fall under the crime-fraud exception. I was mostly wrong as to the way the law is. As to the way the law of this privilege should be, it’s more complicated. 

The crime-fraud exception serves two purposes. The compelling purpose is the prevention of crime. The less compelling purpose is to get hold of a lawyer’s most confidential papers to convict her client.

My thesis here is that the pre-crime and post-crime crime-fraud exceptions should have very different rules – if there must be a post-crime exception at all.

Wednesday, June 6, 2018

“In God We Trust” and the Establishment Clause


No one really knows what started the Great Islamic Conversion of Arkansas, but once it got going, it was unstoppable. Not that everyone in Arkansas became a Muslim, of course. There remained some atheists, agnostics, and none-of-the-aboves, especially around centers of higher learning and middle learning. Steadfast Christians remained in greater numbers than the non-believers, although they held a plurality in only three of the less populous counties. Many Christians moved out of state. 

That North Dakota went through its neo-pagan revival starting just two months later, has, of course, multiplied the conspiracy theories – theories involving exotic mixtures of political, religious and extraterrestrial agents with pharmacological, viral-genetic, and hypnotic agencies.  As there is precious little hard evidence supporting any of these theories, I will not here descend into that altercation, which is so completely consuming our cable news and internet. 

My interest, instead, is in a relatively minor legal issue arising from the new state mottos of Arkansas and North Dakota. The latter state has adopted: “In Gods We Trust,” while the Arkansans prefer “In Allah We Trust.”  Both states display their new mottos prominently on official documents, and in state offices, drivers’ license bureaus and court rooms.

Sunday, May 20, 2018

Libertarianism and Open Borders


There are some who think of themselves as Minimal Government Libertarians who nonetheless believe in restrictive immigration policy, or, at least, are perfectly happy to vote for politicians committed to such policies. On its face, this is inconsistent. Restrictive immigration is state use of force and coercion to keep people from going where they would go and from entering into labor contracts that both sides would enthusiastically execute. Libertarians are great friends of labor contracts, condemning such government interferences as minimum wage and overtime laws. You can’t have a free market in labor without open borders. So how can any libertarian have anything to do with a restrictive immigration policy?

Friday, April 13, 2018

Trump, Cohen and the Crime-Fraud Exception to Attorney-Client Privilege


Private communications between lawyer and client for the purpose of giving and receiving legal advice are normally privileged.  Currently in the news is a restriction on the privilege called the “crime-fraud exception.” 

Sunday, February 18, 2018

The Desert of the Rich



Other things being equal, people deserve bad things for bad things that they do and good things for good things that they do – that they themselves do.  A daughter does not deserve punishment for something her father did before she was born, neither does she deserve a reward for good things her mother did. No matter how much the parents may have deserved their wealth, the children do not deserve their inheritance.

Of course, the daughter in question may be entitled to receive some or all of her parents’ fortunes. She would not be entitled to any part that her mother stole, of course. Deserved status is not heritable. Entitlement is heritable under the right conditions. Bequeath or give away something to which you were not entitled, however, and your beneficiary will also be unentitled except under rare circumstances. If an heir is entitled to wealth, it is not because of her merit, but simply because her parents so chose to give her assets that they possessed and that were not subject to superior claims of others.

Sunday, February 4, 2018

Were the 12 Angry Men Right?



In the 1957 classic “12 Angry Men” Henry Fonda finally persuades the other eleven jurors that, although the defendant may well have been guilty, the prosecution’s evidence did not establish beyond a reasonable doubt that he was the one who stabbed his father to death. In his systematic debunking of prosecution evidence, Fonda rebutted the inference that the knife found in the body must have been the unusual, decorated switchblade that the defendant purchased earlier that night after a fight with his father. Witnesses, friends of the defendant, identified the fatal knife as being exactly the same kind they saw in defendant’s hands on the street, and the shopkeeper testified that he had never seen another like it. In the most dramatic scene of the film, Fonda produced a second identical knife that he had bought down the street during the trial. Was that enough to demote the knife, together with the other evidence, below the reasonable doubt threshold?

Sunday, January 14, 2018

Trump’s Tax Act and Rawls’s Difference Principle



There is no real controversy that the Republican tax act will redistribute wealth upwards. Its best friends have persuaded themselves that it will, however, benefit not only the Republican donor class, but the whole country. Most taxpayers will get some tax cut, at least in the first years. Yes, many will become medically uninsured. (That is, they will be “free to choose” between no insurance and insurance they could not begin to afford.) And the cost of health insurance will rise for everyone more than it otherwise would. Still, these and other disadvantages for the poor and middle class will, it is contended, be swamped by the tidal wave of new jobs and other benefits wrought through the economic magic of the supply side.  It will not be a trickle down, but a Niagara. People, especially politician people, can persuade themselves of the darnedest things when those things coincide nicely with their self-interest. 

Let us throw all caution to the wind and make the assumption that this is not wishful fantasy, but reality. The tax cut will benefit the poorest among us. It might then seem that the act would pass muster under John Rawls’s difference principle, which permits measures that increase inequality so long as they benefit the least well off social class.  Would the tax cut in fact be just if it benefited everyone at least a little, but increased inequality substantially?