Courts Piercing Attorney-Client Privilege Because of Crime-Fraud Exception Rarely Seen -- Except in Trump World

Attorneys know how extraordinary Mr. Trump’s legal situation is, aside from his being an ex-president.

The attorney-client privilege is pretty sacred to lawyers and courts. An attorney can’t share privileged information even if her client murdered dozens and molested numerous children. The law values that highly a defendant’s right to be confident in confidentiality.

A critical exception is that while the attorney is muzzled as to past crimes, if she conspires with the client about committing future crimes or participates in fraud, she can’t claim lawyer-client privilege. It makes sense: anyone accused of a crime, but presumed innocent, is entitled to a full and competent defense, but acquires no right to use the attorney to commit new crimes. A new crime requires the courts to assess client’s and lawyer’s relative criminal liability.

Piercing the privilege using the crime-fraud exception is so rare that prosecutors and criminal defense counsel never actually see it done in decades-long career.

Two different judges (one of whom an appellate court refused to overturn Wednesday) in two separate cases involving different crimes and different lawyers, recently ordered Trump’s lawyers to testify and provide their notes, based on that exception. Both judges stated clearly that they’d seen ample evidence of criminal activity.

Judge Beryl Hamilton ordered attorney Evan Corcoran to testify and produce his notes regarding Trump’s retention of classified documents. Corcoran had told the court and the government that Trump had returned all the classified documents he had. A government search then uncovered hundreds more. Lying to courts isn’t popular with judges. Who lied? A rumor that Trump misled Corcoran may or may not prove true. The D.C. Circuit Court of Appeals refused to hear Trump’s appeal. Corcoran may soon be testifying against Trump to save Corcoran’s law practice and perhaps his freedom.

Not two months ago, Judge Eric Davis, hearing Dominion v Fox, stated he’d seen evidence of criminal conduct in Trump’s effort to overturn the 2020 election. The alleged crimes include defrauding the government and conspiracy to interfere with a government proceeding. There, a different lawyer, having conspired with Trump to use dubious methods to overturn the election, will have to help us figure out how clearly Mr. Trump’s knew he was doing wrong.

Trump’s lovers’ quarrel with Ron DeSantis is a tasteless distraction. DeSantis hopes to profit politically from some fellow Republicans’ belated recognition of Trump’s self-absorption and chaotic management.

Both men are hostile to the things we hold dear, such as freedom of speech, democracy, and truth. DeSantis’s repeated efforts to muzzle the press, dictate what teachers can teach (and people talk about in schools), ban books, and seek revenge on Disney for disagreeing with him make democracy almost as endangered a species in Florida as in Russia, Israel, and Mexico. His recent Fox diatribe against Trump articulates how he’d run our government. He’d have fired Fauci. (Don’t want no doctors talking about medicine!) When DeSantis said that unlike Trump, “I’d hire . . .” I thought he’d say “qualified individuals good at their jobs.” Instead he promised to hire people who would shut up and get with his program. But governments’ huge fault is stifling discussion. We reach the best policy by reasoned discussion with a variety of individuals, not by being so close-minded and vengeful that the leader hears only what folks know he wants to hear.

Putin is painfully learning where that lands you.

                                        – 30 --

 

[The above column appeared Sunday, 26 March 2023, in the Las Cruces Sun-News and on the newspaper's website, and on KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and on KTAL (101.5 FM / http://www.lccommunityradio.org/) and be available on both stations’ websites.]

[by the way: Tuesday at 6 pm in Santa Fe -- and on ZOOM -- i'll discuss my novel, The Moonlit Path.  Collected Works Bookstore and Coffeehouse. ]

 

 

Committed to Sunshine Laws -- and Press Freedom

The annual Sunshine Week, celebrated around John Madison’s birthday, is a fine time to contemplate how press freedoms – and freedom of information generally – are faring.

The First Amendment is first for a reason. As New Mexico law confirms, because democracy depends on an informed electorate, we’re each “entitled to the greatest possible information regarding the affairs of governments and official acts.” Therefore “formation of public policy or conduct of business by vote” must be in open meetings, to which we’re all invited. We have the right to inspect our documents (created, received, and/or modified on our behalf by our public servants), with very limited exceptions that protect personal privacy or allow our servants to form strategies for litigation or negotiations without having to share those strategies with folks their negotiating with or arguing against in court.

The laws require public servants to do their best to provide us with full information. (Unless we know what they know, how can we fully and fairly assess their decisions?) As life and governments grow more complex, complete compliance with the law does too. Technologies like ZOOM, the Internet, and better video systems and microphones both facilitate compliance and create new tasks and obligations. Doing the minimum tasks specified (in laws written before many technological improvements, doesn’t cut it.

A few developments during the current legislative session slightly clouds the sunshine requirement.

First, they’re finally caving to the desire of administrators to keep confidential the names of applicants for key positions. Sorry, but I’ve seen too many bad hires, some of which could have been prevented. Investigating candidates’ backgrounds, I’ve found things local officials should have found but didn’t. An informed citizenry can actually help public officials hire the best candidate. That outweighs the fear that some promising candidates will hold back if their names are known, not wanting to offend current employers. Hiring behind closed doors also could return us to “old-boy networks” and ethnic or gender discrimination.

Second, schools blocked a move to identify school-board candidates’ campaign contributors publicly. We require that of presidential, municipal, and judicial candidates. In a non-partisan” school-board election, voters especially need that contributors list. Choosing between Democrat and Republican, most of us can make savvy guesses about who’s funding each and where they stand on many issues. Suppose two school-board candidates both promise they’ll maintain solid arts and theater programs, or to run the schools with heightened care regarding climate and environmental issues. They both sound great. I vote for Joe, not knowing he’s backed by Exxon and by local citizens clamoring to cut “frills.” So what’s the excuse for keeping contributors’ names secret? To keep the thing non-partisan? When some boardmembers need security assistance to leave safely after a meeting where citizens complained of “Critical Race Theory,” you’re gonna prattle about maintaining non-partisanship?

Locally, ours isn’t the worst city regarding openness, but it could do better. The city routinely breaks the law when withholding videos of police shootings, for example, by delaying public access without a legal excuse. When firing Greg Ewing, LCPSD broke the law until threatened with suit.

This coming Thursday, the local Sunshine Week celebration will feature a panel discussion of “Crime Reporting and the Public Interest” in NMSU’s Branson Library’s First Floor Atrium (1305 Frenger Mall), at 4-5 pm. Panelists include Searchlight’s Joshua Bowling the Sun-News’s Justin Garcia, Robert Moore (El Paso Matters), and Dan Trujillo from LCPD.

It’s an important issue.

                                              – 30 --

 

 [The above column appeared Sunday, 19 March 2023, in the Las Cruces Sun-News and on the newspaper's website, and on KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and on KTAL (101.5 FM / http://www.lccommunityradio.org/) and be available on both stations’ websites.]

How Do you Rely on Fox News Folks who Don't Believe their own Bullshit?

Why are Fox viewers so unaffected by revelations that Fox News personalities didn’t believe the “fraudulent election” story they were pushing, and privately loathed Donald Trump while singing his praises?

The morning after Tucker Carlson aired video of some non-violent moments in the January 6^th insurrection, a reader emailed me to criticize me for saying “insurrection.” It was peaceful, he insisted. Tucker Carlson’s video proved that.

He asked why a guard shot Ashley Babbit, “a diminutive woman.” Maybe because she was coming through an opening at the head of a mob (some armed) that was invading the Capitol, threatening lawmakers, and attacking Capitol Police?

No matter that hundreds have pled guilty, many blaming Donald Trump. No matter the abundance of violent acts caught on video, or the tearful testimony of police officers.

I asked why election-deniers had struck out in sixty-plus legal cases, some before Trump-appointed judges, if there was so much evidence of fraud. He responded that the Supreme Court had gotten things badly wrong in Dred Scott, Plessy v Ferguson, and Roe v Wade. You can’t trust judges, I guess.

Does he realize he’s quoting the insurrection minimization rhetoric of a man who privately wrote that Trump not only was responsible for January 6th but was “a demonic force, a destroyer?” Carlson supported election denial while privately urging Trump to disavow “crazy” election lawyer Sydney Powell.

The Fox revelations remind me of the six months co-hosting a show on a local commercial radio station. Keith Whelpley and I discussed events and took calls. We were followed by Rush Limbaugh and preceded by local attorney Kelly O’Connell. Callers harangued us for our progressive views, though many expressed appreciation for our willingness to engage. Shows were exhausting.

The station provided a “How-to” guide to doing talk radio. The key? Make the audience afraid of someone or something, then convince them that only you can protect them. That so perfectly described Limbaugh’s conduct that I was amazed to see it in writing.

Many find Fox’s hypocrisy startling.

So why are many folks (like my correspondent) not startled? If my private emails mocked what I publicly pronounced as important truths, you’d sure question my credibility. You likely read critically a variety of sources.

Fox viewers watch Fox. A friend says Fox isn’t really mentioning all this. One Fox guy, somewhat of a journalist, apparently alluded to the scandal but said he couldn’t talk about it. So it didn’t happen. Besides, whatever folks like me are reading obviously comes from fake sources like the New York Times, PBS, court cases, hearings, and the like.

Marjorie Taylor Greene wants the House Oversight Committee to visit accused insurrectionists. There are 2,200,000 prisoners in the U.S. Inhumane prison conditions were not of interest to her (because so many prisoners are Black?) until we jailed white folks charged with trying to support a presidential coup. We must treat them right!

You could say Greene’s an outlier; but who released January 6^th footage to Fox, though not to actual news media? Kevin McCarthy, Speaker of the House, a position once held by powerful figures with strong characters, such as Henry Clay, Thomas Reed, Joseph Cannon, Sam Rayburn, and Nancy Pelosi.

Trump’s dwindling power won’t relieve conservatives from making a choice on whether stuff like decency, truth, and democracy matter. That guy in Florida censoring every voice he dislikes doesn’t stand for those values.

                      – 30 --

 

[The above column appeared Sunday, 12 March 2023, in the Las Cruces Sun-News and on the newspaper's website and on KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and on KTAL (101.5 FM / http://www.lccommunityradio.org/) and be available on both stations’ websites.]

John Eastman Lives among Us

John Eastman, the mediocre lawyer who apparently participated in a treasonous effort to veto the 2020 U.S. Presidential popular vote and electoral count, resides in Santa Fe, which annoys many there.

Eastman complains that he’s being punished for “daring to challenge illegality and fraud in the 2020 election.” Sounds lawful, even noble. But instead of filing a fact-based lawsuit and letting the courts decide, Eastman acted to change the result of a presidential election, knowing full-well he had no proof of fraud.

Eastman’s alleged conduct strayed well beyond representing Trump and counseling Trump on his lawful options. Eastman filed “frivolous” lawsuits. That’s legalese for pleadings so bad that the pleader not only loses but may have to pay the opposition’s legal fees. He was part of a coup attempt featuring violence, threats, and fraudulent electors.

Bar associations love aggressive lawyers, but even they are tossing Eastman out. The California Bar’s eleven charges against him include lying about purported election fraud, including at the infamous January 6 Trump rally in D.C. that sparked the same-day invasion of the Capitol. Eastman also urged Vice-President Pence to stop the electoral count after admitting that Pence could not lawfully do so. That’s not “daring to challenge election fraud.” It’s attempting to commit election fraud.

Not many alleged criminals are plagued by protesters objecting to their presence. That’s mostly reserved for pederasts. But treason’s not too popular either. Our limited democracy is too precious to let those who threaten it forget what they’ve done.

Should Eastman be allowed to live his personal life without facing unfriendly strangers on the street?

First, Eastman should “man up” and admit what the real issues are. I’d sympathize more if he were more candid. Second, he’s a comfortably wealthy white man in a fancy house, not, say, a vulnerable young woman seeking medical care and running a gauntlet of Eastman’s political allies to reach a clinic.

Still, it’s a tough line to draw. Judicially, he’s not guilty until proven so; but the protesters are entirled to speak out. The public nature of the evidence means we’ve all seen it.

Certainly no one should do or encourage any form of violence or threatening conduct, or commit any crime against Eastman. Nor should anyone make his life miserable. We should not physically attack him as his allies did the Capitol Police. We should not rough him up, as his “client” urged supporters to do to dissenters at political rallies. He remains a citizen, convicted of no felony.

Letting Eastman know you know who he is, and despise what he did, seems fair game when passing him on the street or eating in the same restaurant. (Engaging with him at great length is more than I’d care to do.) A quiet presence of protesters on his street, or at the locked gate to his residential area, seems fair too.

Believing in civil political discourse doesn’t mean one has to share a table with an apparent traitor.

Still, we punish people through our laws. Yeah, I think Eastman is a coprophagous homunculus. But, as a former civil rights worker and antiwar protester, I’ve experienced people making life unpleasant for someone whose conduct offends them. Even criminal convictions can be erroneous. (Consider Trump’s full-page ad demanding the death penalty for the later-exonerated “Central Park Five.”)

I’d urge justifiably outraged neighbors to limit sharply their conduct toward Eastman. None of us is without sin.

                                                  – 30 --

 

[The above column appeared Sunday, 5 March 2023, in the Las Cruces Sun-News and on the newspaper's website and on KRWG's website. A related radio commentary will air during the week on KRWG (90.7 FM) and on KTAL (101.5 FM / http://www.lccommunityradio.org/) and be available on both stations’ websites.]

[Maybe I should have written about the interesting discussion of police accountability at the recent Las Cruces City Council work session, or about legislative developments in Santa Fe, or other appealing subjects; but I got annoyed by Eastman’s self-righteous complaints, featuring a very inaccurate account of his alleged conduct. It was easy to feel he should be punished extensively. (He lacks any of the usual excuses for crime, that he didn’t know any better or was desperate to pay the rent, or drunkenness.) At the same time, I do not wish to see that widespread feeling of revulsion turn into misconduct toward him, particularly any kind of violence. That is not how we should conduct ourselves. We don’t have to like him, or break bread with him, or play tennis with him, but not only do we have no right to harm him, we have much to loose by conducting ourselves as extremist Muslims and dedicated Trump fans feel entitled (or even called!) to do. And I got intrigued by trying to figure out where one ought to draw the line!]

[Another point how is much less weight we should give the fact that he hasn’t (yet) been convicted of any crime. In many cases, from whether or not ___ bludgeoned her husband to death, to the Central Park Five, to the recent Murtaugh murder verdict, we do not know a lot of the key facts, but can see only circumstantial evidence and witness testimony, and often do not know what was actually presented to the jury. In those, we have only our prejudices and fallible guesses about what happened. Eastman’s case is different in at least two ways: first, it’s political as much as judicial, and trying to abuse power and usurp the presidency could get one shunned, even if the actual conduct was execrable but not criminal; and much of the evidence is in the public domain because of public hearings and news reports. If he is tried, the lawyers’ arguments will concern motive, mental state, and the subtleties of how the law applies to the facts, not many of the facts themselves. The basic facts, that he sought to overturn an election by shouting fraud when he knew he lacked any serious evidence of fraud, participating in putting forth slates of electors he knew had no claim of legitimcy, shouting “election fraud” to help whip up the January 2020 crowd in D.C., and urging Pence to stop the count when he knew Pence had no such authority, are embedded in documents and/or sworn witness testimony, including his own. Even so, it is not our role to punish him. Our system of justice is more important than punishing one greedy clown.]