Wednesday, February 21, 2018

Why A Lawyer Shouldn't Be Allowed to Pay A Client's Bills: (More) Reflections on Rule 1.8(e), Cohen, Trump, and Daniels (A Response to Prof. Dorf)

by Diane Klein

In this space yesterday, Prof. Dorf argued (not exactly in "defense" of Michael Cohen's payoff to Stephanie Clifford aka Stormy Daniels aka Peggy Peterson, through a shell company created for that purpose only) that while Cohen using his own money to pay off Stormy Daniels for her silence about her affair with Donald Trump might violate Model Rule of Professional Responsibility 1.8(e) (or its New York equivalent), the rule itself is "foolish."  I disagree.

Federalist 46 and the Second Amendment

by Michael Dorf

This week, my seminar students and I read Federalist Nos. 36-47. After a month of mostly Hamilton, it was interesting to shift gears and hear from Madison. In light of the school shooting in Parkland, Florida last week, it was hardly surprising that a substantial part of our seminar discussion focused on the implications of Madison's statements in Federalist 46 about "citizens with arms." But given the increasing frequency and severity of mass shootings (which I discuss in my new Verdict column), our discussion likely would have turned to the Second Amendment even if the news had not included a very fresh tragedy.

Tuesday, February 20, 2018

Why Shouldn't a Lawyer Be Allowed to Pay a Client's Bills? Reflections on Michael Cohen, Donald Trump, and Stormy Daniels

by Michael Dorf

Donald Trump's lawyer Michael Cohen claims that he paid Stephanie Clifford, aka Stormy Daniels, $130,000 out of his own pocket in exchange for her keeping quiet about her alleged adulterous liaison with Trump. As discussed in a lurid story in yesterday's NY Times, the payment may have violated federal campaign finance law (as an unreported and cap-exceeding donation of in-kind services to the Trump campaign) as well as New York's ethics rules.

The story also raises questions of journalistic ethics: Is it ever proper for a newspaper (even a gossipy tabloid) to pay for the rights to a story for the purpose of killing the story as a favor to the politically connected friends of the paper's publisher? (The tabloid publishers deny that was their goal in this and other instances, but the Times story cites sources to the contrary).

That's all fascinating stuff. Here I want to focus more narrowly on the rule of legal ethics that Cohen might have violated by making an apparent gift of $130,000 to his client.

Monday, February 19, 2018

What One Impassioned Military Veteran Says About Guns

by Neil H. Buchanan

It is time for another go-round regarding gun violence in the United States.  A few short months ago, the world was shocked by the carnage in Las Vegas and then Sutherland Springs, Texas.  We briefly became fascinated by "bump stocks," but then the Republicans in Congress made clear that even a cheap and easy add-on that turns a semiautomatic weapon functionally into an automatic weapon was not something they were willing to ban.

And now, with shooting after shooting barely registering on the news meter in the meantime, we are wondering whether seventeen deaths in a high school in Florida will finally lead to action.  The early signs are promising, but on the other hand, so were the early signs after the Sandy Hook massacre more than five years ago.  At least some states passed meaningful gun control back then, even though Congress could not even rouse itself to agree with ninety percent of the American people that potential purchasers of guns should have their backgrounds checked.

During the Las Vegas-Sutherland Springs time frame, I wrote four columns about the gun debate in this country (here, here, here, and here).  I spent much of my time in those columns exploring the so-called Insurrectionist View of the Second Amendment, which is the claim that (as I put it in one of those columns) the American people must own guns in order to prevent the government from taking away their guns.

As Michael Dorf put it five years ago, the Insurrectionist View is "Ted Cruz Crazy," far beyond even what Clarence Thomas and Antonin Scalia ever endorsed.  My analysis described how absurd the Insurrectionist View is, and I ended up spending quite a bit of time talking about the claim from some gun extremists that the U.S. military is essentially a hive of insurrectionist sleeper cells that would spring into action if real gun control were ever to become law.

Happily, even though there are well documented (but fortunately not widespread) problems with white supremacists and other fellow travelers in the military and law enforcement agencies, the fact is that the vast majority of Americans in the military are deeply committed to living up their oaths to defend the Constitution and the nation.  This makes the idea of their joining an insurrection impossible to imagine -- for them, even more than for the rest of us.  This is comforting, to say the least.

But what do those people who signed up possibly to be shot at and die in the line of duty think about gun control, as a matter of morality and policy?  As it happens, I have been lucky enough to befriend a man who served over twenty years in the military, fifteen of which were in the military police.  He left the service with a chest full of decorations and continues as a private citizen to do work that enhances our national security.

Because his current position does not allow him to speak publicly about these sensitive political issues, I am distilling and expanding upon his ideas, which he shared with me via email after the news from Parkland had filled the news feeds.  His sensible views cut against the popular suggestion that the way to fight violence is always by escalating the threat of violence and especially by putting soldiers in charge.

Friday, February 16, 2018

Why In the World Would Democrats Refuse to Make Trump a Campaign Issue?

by Neil H. Buchanan

To hear many Republicans and Democrats tell it, the country should stop letting itself be jerked around by the chaos in Donald Trump's White House and instead insist that politicians focus on Real Issues.  In particular, many supposedly savvy political observers on both sides seem to think that the economy is the better issue on which their candidates should focus.  Is this a rare instance in which partisans on both sides are right?

With 20-20 hindsight, of course, one side would certainly conclude that it was wrong.  That is, if both sides emphasized economic issues throughout the mid-term campaigns, the losing side would immediately regret its decision.  Republican or Democrat, each loser would conclude that a different strategy would have worked better, or at least not have been worse, because losing is losing.

But what is interesting, in advance of the elections, is how much confidence there is among political commentators on both sides that their candidates should not become "distracted by the noise."  Prominent voices, liberal and conservative alike, are saying that they will win only by focusing on economic issues.  Even though that cannot possibly right in an ex post sense, what could both sides be seeing that makes them think that their best strategy is to run on economic issues?

Thursday, February 15, 2018

The First DACA Rescission Was Arbitrary and Capricious. Will the Next One Also Be?

by Michael Dorf

With President Trump's deadline rapidly approaching, negotiations and debate in Congress may or may not produce legislation protecting some or all Dreamers. Meanwhile, on Tuesday, a federal district judge in Brooklyn issued a preliminary injunction against the rescission of DACA. As the opinion repeatedly emphasized, the judge did not rule that the administration lacks the power to rescind DACA. Rather, the court held that the administration's stated rationale--that DACA is unconstitutional--was inadequate and contradicted the administration's decision to retain DACA in place for half a year. Thus, according to the ruling, the rescission was arbitrary and capricious in violation of the Administrative Procedure Act (APA). The administration can still rescind DACA, but before doing so, the relevant agency (here the Department of Homeland Security) must articulate a better reason.

Should Congress adopt a permanent fix to DACA in the coming days, the preliminary injunction will prove unimportant. But given deep divisions within and among the parties, that is hardly a sure thing. Accordingly, the ruling warrants careful study.

Wednesday, February 14, 2018

Shaquille O'Neal and the New Originalism

By Eric Segall

This Friday and Saturday I'll be discussing my forthcoming book "Originalism as Faith" at the annual Works-in Progress Originalism Conference at the University of San Diego. I am excited and flattered to be included in this event. In this post, I want to discuss one aspect of my book that deals with what many people call "New Originalism."

When Exercising One's Autonomy Clashes With One's Best Interests

by Sherry F. Colb

In my Verdict column for this week, I examine the case of McCoy v. Louisiana, currently pending before the Supreme Court. In McCoy, the Court faces the question whether there is a Sixth Amendment right to stop your lawyer from announcing your guilt to a jury, even if the announcement would serve your best interests (in reducing the odds of a death sentence). Among the issues I consider is how to cabin such a right so that convicts are not all in a position to reopen their convictions just because their attorneys deviated from the exact instructions of a client.

A useful analogy to consider here is the medical decision context. A patient who is uncomfortable with her doctor can decide not to patronize the particular doctor or, if he sticks with the doctor, not to follow the recommendations that she makes. For example, if the doctor prescribes a medication that the patient does not want, either because he hates medications in general or because the side effects of this one are unpleasant, the patient can choose not to fill the prescription or to refuse to take it after having filled it. Similarly, the patient can choose not to undergo triple bypass surgery, even though he has heart disease. He may have a bad reason for the decision, such as a belief that heart disease is a myth, or he may have a good reason, such as a commitment to eat in a manner that actually reverses the condition. Either way, he can forgo the medication and the surgery, come what may.

Tuesday, February 13, 2018

The Futile and Condescending Pursuit of Trump's Remaining Supporters

by Neil H. Buchanan

There is a sub-genre of political punditry that relentlessly promotes the idea that the balance of future political power in the United States depends entirely on Democrats reconnecting with the people who voted for Donald Trump.  And to do that, Democrats supposedly need to "understand" and reach out to those voters.

I used scare quotes in that last sentence because the new conventional wisdom among these pundits is not simply that Democrats need to try to understand Trumpists in the sense of figuring out what common ground might exist between the issues they care about and what Democrats can honestly and honorably offer.  It is that Democrats apparently need to stop being snobby meanies who haughtily dismiss those voters' concerns.

As far as it goes, of course, that is the kind of political advice that only a writer with a superiority complex could offer with a straight face.  "Wow," we are apparently supposed to say in response.  "You mean we shouldn't gratuitously insult people whom we're trying to win over to our side?  Thanks for your brilliant insight!"

To be clear, the tut-tutting liberals probably do realize that their advice is obvious, which would explain why they are so exasperated at the very idea of reminding their supposedly wayward compatriots about basic etiquette.  The problem is that they seem to think that the only thing that Democrats need to do is simply be nice to these voters and everything will be fine.  Trump's voters are supposedly willing to switch back to the Democrats's side, and Democrats will apparently not lose any other voters by doing what is necessary to appeal to the white working class voters who were thrilled by Trump.

The bad news is that none of that is true.  The evidence is stronger than ever that Trump's remaining supporters are never coming back, and trying to get them to do so would seriously compromise the Democrats with other voters.  The good news is that Democrats can easily do everything they need to do to win without foolishly pursuing voters who are gone forever.