It’s been nearly impossible to write blogs over the past year or two. There has been such an embarrassment of riches in terms of legal subject matter in the news. And since January, as we all know if we have working brains, it has been coming so fast and furiously that by the time I have written something it is already old news, replaced by whatever strange goings-on have occurred in the past hour or two.
Used to be that a good legal issue worthy of writing about came up about once a week if you were lucky. Sometimes you would get two or three in one week and have trouble picking out one to focus on. Now they come up two or three times a day.
That’s right, I am talking about Team Trump and their unusual legal antics. This past week was a classic example. Even the off-hand comment by the big man himself about Madame Macron being “in great shape” was worthy of legal analysis about the impropriety (or not) of such comments.
Trust me, based on roughly 100% of the comments from women I’ve heard about the propriety of this comment it most assuredly did not meet with their approval.
But two examples this past week stood out:
- Donald Trump Jr.’s admission, and revelation of emails describing his attendance at a clandestine meeting with an alleged Kremlin shill, heretofore undisclosed, coupled with Jared Kushner’s apparent attempt to hide his own involvement in said meeting, is surely ripe for legal analysis.
- And then the outburst of Trump Sr.’s own attorney, once again in email traffic, (after all, “E is for Evidence” as we criminal lawyers always like to say) deserves a comment. Or two.
Let’s start with Junior.
First of all, I have to say, while not exactly legal criticism, on a personal level I always worried that one day I might have kids who were not especially bright and wondered how that would be. Fortunately, I have the opposite problem; my kids make me feel stupid and lazy compared to them and the amazing things they have been able to accomplish in their relatively brief time on the planet. They are awesome. I wonder if Donald Sr. feels the same way? I wouldn’t.
What Donald Jr. did was stupid. Period. But since we are conducting legal analysis here, let me explain how I think this worked in the minds of his attorneys – assuming they were actually involved.
If they weren’t involved, then that answers the question about how this happened. If Donald Jr. did this on his own, without legal advice, then he is even stupider than I thought. I have to assume some lawyer or lawyers told him it was a good idea.
But they probably thought about it the same way I think about bad evidence and how to present it in trial. There’s the parallel with what I do.
I am talking about prior convictions, or prior “bad acts”. Under Evidence Rules 404 and 609 (among others), evidence of other bad things that your clients may have done in the past, including their prior convictions, may be used against them in court under some circumstances. Before they are, normally, the lawyers have a chance to argue to the court in advance whether this type of evidence is admissible in a Motion in Limine.
You get advance notice of whether the jury is going to find out about the bad stuff when the judge decides and issues a ruling as to its admissibility. Kinda like when the New York Times tells you in advance that they have some evidence about something bad you did and are going to publish it next Sunday.
In trial, typically, the defense attorney – certain that the bad stuff is coming in – elects to bring it before the jury first, and does not wait for it to be brought up by the prosecutor.
A classic example is a prior conviction for a felony or certain crimes of dishonesty. Under ER 609, that is coming in if your client (or any witness for that matter) takes the witness stand and testifies. I could write a book about whether taking the stand is a good idea and how to decide whether to advise a client to do that.
Simply put, the vast majority of the time it is not a good idea.
But once that decision is made, and the judge has already told you that the client’s prior is coming in, you have to decide how to deal with that. Most good trial lawyers in that situation recommend getting it out up front, during the client’s direct examination.
This allows you to control the information to some extent, and to offer explanations right off the bat. Even more importantly, it takes away the “AHA, GOTCHA!” moment prosecutors crave. It takes the impeachment wind out of their little sails, preventing them from making it appear that you were trying to hide something. It’s the best you can do in a tough situation.
That is almost certainly what the lawyers were thinking here. But it was handled horribly by Jr. as he talked up a storm on TV.
Plus, releasing the emails means that there is no question now about their authenticity; no question whether Jr. or the heavy-duty people he described were there, no question about what they talked about, no question that he had reason to believe he was meeting with a Russian operative who was working for the Russian government and giving him illegal hacked dirt. Did I miss anything?
In short, no legal issues left at all. Other than fleshing out whatever additional bad facts are brought to light as a direct result of Jr.’s disclosures.
Jr. just picked his jury, gave opening statement, presented evidence, testified, argued and convicted himself of arranging and participating in this meeting.
“So what?” you may say. And you’d have a point. There may indeed be nothing illegal about this meeting. But, then again, there may be. Reasonable lawyers are disagreeing about that, which is a bit of a problem.
And even if there isn’t, if some eager U.S. Attorney, anxious to make a name for themselves, decides it is a crime… well then, Houston is about to have a problem. It was a very bad legal move.
Speaking of which, Topic Two: The Drunk Lawyer. Or at least, so some are saying. It was my first thought when I read the incredibly inappropriate profane emails sent by Trump Sr.’s lawyer, Marc Kasowitz.
I immediately checked the times of the emails, and then it was my second thought too. Then I read the strange and bizarre denial issued by his law firm and it was my third and final thought.
They were denying being forced to meet with him in (apparently) the bar of a restaurant across the street from their office, a classic old-school Alcoholic Manhattan Mad Men Move. It appears they wanted us to know that he does NOT hang out there. Makes me think he hangs out there all day long. Something must explain his unhinged unprofessionalism.
Talk about impropriety. This is ‘conduct unbecoming’ to the nth degree. I have always been one to push the fake professionalism angle to the breaking point. I say what I think, and don’t really care what people think about it if what I am saying or doing helps my client. SO LONG AS IT IS ETHICAL. AND LEGAL.
The Rules of Professional Conduct prohibit all kinds of bad behavior by attorneys. I submit that we are the most closely regulated and monitored profession around, even more than doctors. Attorneys have to be constantly mindful about what they say, and how they act must be above reproach.
That is because we have to be free to go 101% fighting for our client’s rights. If we are worried about our own personal welfare because we are crossing ethical lines, we can’t be doing a good job for our clients. We have to be focused on them and free from any personal concerns.
The night this lawyer was spewing his venomous wacked-out obscene emails, it appears that he sent an email, waited 15 minutes, sent another, then another and so on.
In between, do you think he was working on his client’s case and suddenly felt the need to interrupt that work to shoot out another profane missive? No. He was sitting stewing, probably drink in hand, obsessing on how some random email made him feel, then lashed out again. And again.
This is incompetent. To think that the President of the United States is relying on this guy is scary. And sad. He’s worse then Jr.’s bad lawyers. And that is saying something.
So that’s that: my legal analysis for this past week, only focusing on but two of the one hundred or so legal balls that are bouncing around the inner tubes right now. Like the Chinese Curse says: May you live in Interesting (Legal) Times.
We certainly do.