Tuesday, April 10, 2018

Don Corleone's Guide to Attorney-Client Privilege

So the President of the United States is very concerned, and very confused, about attorney-client privilege. Let me try to explain, using the example of Tom Hagen from The Godfather. Why The Godfather? Two reasons. First, I want to. Second, I have a terrible suspicion that some of Trump's misunderstanding comes from watching the Godfather movies. (He does love TV.) Trump reportedly believes any meeting that has a lawyer in the room is protected by attorney-client privilege, and oh my sweet God is that not true.

Tom Hagen, as you know, is the Corleone family's unofficially-adopted son, a lawyer who doubles as the Corleone Family's chief lawyer and its consigliere, or criminal adviser-in-chief. No real Mafia organization has ever used an attorney as consigliere. It's just a pun (consigliere means "counselor," which Americans use to address lawyers), and a bit of narrative efficiency. Puzo uses one character to do two or three different jobs (Puzo's consiglieres also do the job of Mafia underbosses) so that he has one well-developed character instead of three sketchier minor characters. But Mafia consiglieres are most definitely not attorneys.

That said, how much of what Hagen does in The Godfather would be covered by attorney-client privilege?

None of it. Basically, not a damn thing.

Now, I am not a lawyer. I am also not a racketeer. But I think I've got a basic layman's grasp of the principle involved here, which is: You are not allowed to use your law degree to commit crimes. Get real.

Criminals are allowed to have lawyers. But lawyers are not allowed to be criminals. The Crips can have an attorney. But attorneys cannot join the Crips.

What this means, in practice, is that if you are accused a crime, even if it's something you actually did, you can hire a lawyer to defend you. And that lawyer cannot tell the authorities about things you reveal while preparing your defense. Attorney-client privilege protects your conversations with your attorney because otherwise you couldn't use an attorney. (A defense lawyer who tells the prosecution incriminating things about you is worse than no lawyer at all.)

On the other hand, if you are planning a crime and you ask your lawyer to help you plan it so it will work better, that is not attorney-client privilege. That is, what's the phrase, a criminal conspiracy. In the same way, if you're committing an ongoing crime and you involve your lawyer in it, there's no privilege involved. That's not an attorney. It's an accomplice.

So, let's say hypothetically that Don Corleone, the Godfather, is accused late in his life of a murder he committed in his youth, in which case he can retain Tom Hagen to defend him. Hagen would not be conspiring with him; he would be defending him in exactly the way the law envisions, and they would enjoy attorney-client privilege. This would allow Don Corleone to admit, privately to Hagen, that he actually did shoot Don Fanucci to death back in the day; he wouldn't have to lie to his lawyer and pretend to be innocent. Then Hagen and Corleone could effectively strategize about what case the prosecutors might have and what evidence there might be. Hagen could ask the Don what he did with the murder weapon, and Don Corleone could tell him, so Hagen could decide how likely it was that the police had found it. (Answer: probably not.) He could ask if the Don had used accomplices who might rat him out. (Answer: no. Tessio and Clemenza suspected, but weren't involved and didn't know anything.) This isn't pretty, but it allows the accused criminal to defend himself in court. And the prosecutors could not then haul Hagen into court and force him to tell them what Corleone said about the gun. That's how attorney-client privilege works.

If on the other hand, Hagen and Don Corleone have a conversation about beheading a horse in order to intimidate a Hollywood producer, that is not an attorney serving a client. That's two gangsters conspiring to commit a crime. Hagen can't play the attorney-client privilege card.

Hagen and Don Corleone actually know this, which is why they behave like criminal conspirators rather than attorney and client. Corleone carefully gives his instructions to Hagen in private, with no witnesses and nothing written down, so there is no evidence. (The horse-beheading is presented as a kind of gangster magic trick, where we can't see either man give the order or even see when Hagen had time to communicate any instructions to confederates. "Could you have your car take me to the airport?" is the construction of an alibi.)

Later on, when Don Corleone is incapacitated, Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant. Then Hagen is part of a more involved discussion about whether and how to kill a rival mobster and his pet police captain. Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either, for a simple reason: he is committing multiple felonies.

If you're trying to solve the Sollozzo-McCluskey murders, you probably need to flip one of the five guys who were in the room when the plan happened. But a fictional detective might have some luck looking at some of the paperwork. Someone arranged for the trigger man (Michael Corleone) to go directly from the scene of the crime to a ship bound for Europe with a false passport. That means someone acquired the passport, and the boat ticket, before the murder. That's a conspiratorial act; it's done with foreknowledge of the crime, in order to abet it. It is part of the murder scheme. If Hagen purchased the passage, or the passport, through his firm, the police could raid his firm for that evidence. Attorney-client privilege would not apply.

Also, the Corleone Family clearly does a lot of boring, paperwork-based crime to run their operation. They pay off large numbers of judges and politicians. (Don Corleone is described as extraordinarily good at bribing and corrupting public officials.) They launder their illegal profits into seemingly legitimate enterprises. They evade taxes, for the inevitable reason that they cannot declare their annual income from gambling, loan-sharking, and extortion. To the extent that they do any of this through Hagen and his firm, those activities are not protected from law enforcement. They're crimes, and if the authorities in The Godfather got wind of them, Hagen's Manhatttan law office would be vulnerable to a raid by the FBI, directed by, well, by the US Attorney for the Southern District of New York, the same US Attorney's office that raided the real Michael Cohen's home and office yesterday.

Which brings us to where we are today. The FBI and Department of Justice are especially cautious about piercing attorney-client communications, and err on the side of assuming they're privileged. But attorneys whom they investigate don't have much cause to complain. Being a lawyer does not mean you're allowed to help your clients evade the law. You don't have a license to launder money. You don't get to violate tax laws for your clients, or election laws. In fact, slow down with me for this one here, you don't get to violate the law at all. Because first, it's the law, and second, you're a lawyer. You know, an officer of the court. You are even more bound to obey the law than the rest of us. But then again, what do I know? I'm not an attorney. I'm not even a crook.

cross-posted from Dagblog; please comment there, not here

Thursday, March 01, 2018

Partial List of Hope Hicks's White House Duties

White lies
Little fibs
Harmless prevarications
Genteel fictions
Telling the truth mainly, but stretchin' it some
Artful misdirection
Poetic license
Flights of whimsy
Pursuing a less literal, more memoir-centered notion of "truth"
Tall tales
Fish stories
Off-the-record briefings
Keeping our oral folklore traditions alive

Diplomatic balderdash
Stimulating the hearer's sense of wonder
Telling all the truth but telling it slant
Telling some of the truth, slantier
Slanting, baby, slanting
Strategic omissions

Misleading paraphrases

Verbal legerdemain 

Sympathetic nodding
Thrilling campfire tales
Press relations
Having the courage to describe the world as we wish it to be
Accessorizing properly for fall colors

Explaining how Santa can be in so many places at the same time
Seemingly accidental misrepresentations
Making soothing noises
Pulling Maggie Haberman's leg, just as a little joke

Sharing staff diet tips

Deliberately misunderstanding
Stone cold lying, bitch.

cross-posted from Dagblog: please comment there, not here

Friday, February 23, 2018

The Deputy Who Didn't Shoot

People, including the President of the United States, are heaping scorn and shame on the Broward County Deputy who was assigned to protect Marjory Stoneman Douglas High, but who did not go into the building to confront the Parkland shooter. He has lost his job. He will probably never live this down, and may never get over his guilt. I don't particularly admire him, but we should not pretend for a second that he is the reason that lives were lost. I might hope and wish he'd gone into that building, but his behavior was completely normal. He's not the first school-protection officer to behave in exactly the same way.

First, let's deal with a simple fact. He was outgunned. The shooter's AR-15 was superior to the deputy's sidearm in nearly every way. It's easier to aim, it has a longer effective range, it's more powerful, and it can fire many more bullets before reloading. The 19-year-old misfit had the law enforcement officer badly outgunned, because that's the country we have decided to live in.

The AR-15's superior firepower makes it more dangerous in the shooter's relatively untrained hands than the deputy's pistol was in his trained hand. The kid had enough firepower to kill the deputy before the deputy could get close enough to return effective fire, and the shooter had enough rounds in the magazine that he didn't need to be an especially good shot. He could just keep shooting. In a straight-up firefight, the expected outcome is that the shooter with the AR-15 kills the deputy with the handgun, not the other way around.

We shouldn't assume that the deputy would have stopped or killed the Parkland shooter if he'd gone in. In fact, he was much more likely to have been killed by the shooter. The deputy would have needed to get some kind of tactical advantage on the shooter, by for example finding a way to get close to him and then shoot behind cover. But entering the building would probably have put him at a tactical disadvantage. He was much more likely to find himself in a position where the shooter had the drop on him, or was firing from behind cover, or both. The deputy had almost certainly undergone active-shooter training which made clear to him exactly how dangerous going into a building after a shooter is.

This is what the old assault-weapons ban was about: about not having the cops outgunned by criminals, or by random kids. But we have decided that the Second Amendment requires us to live in a world where nearly everyone has access to pretty serious firepower. The country where teenagers outgun the cops is exactly what the NRA has been lobbying for, has been demanding, for decades now.

The Broward County Sheriff has also announced from now on school-protection officers will have, well, AR-15s. But that's not a good solution; upping the firepower in an arms race just increases the risk all around. And it's too late now. The shooting is over, and the deputy only had the weapon he had.

Now, does part of my heart wish that the deputy had heroically gone into that building anyway, knowing he was more likely to be killed than the save anybody? Do I wish he'd tried? Sure. Especially when I compare his position to the unarmed teachers who had to sacrifice themselves inside. But we're asking for extraordinary heroism here, even for futile self-sacrifice.

If your position is that the deputy should have gone in and died trying even if it was hopeless, that he had a duty to get killed, that's a position. But admit that's what you're saying. 

Instead of blaming the deputy for not risking his life against the odds, we should ask why he was put in that position at all. We have created, and accepted, a system where the deputy is more likely to be killed himself than to stop the killing. Let's not talk about what he did or didn't do without keeping that in mind.

There was also an armed county deputy at the Columbine shooting. He didn't go into the building either. So what the Broward deputy did is not unexpected; it's what happened before. The deputy at Columbine High did manage to exchange some fire with one of the shooters in the parking lot, but when the killers went into the building he did not follow. Later, he and the same shooter exchanged some more fire through a window, without any real result. You will sometimes find people on the internet looking for evidence of "good guys with guns" point to the Columbine officer and say that it would have been worse without him, but there's no evidence of that. The Columbine shooters managed to kill 13 victims anyway. It's not clear the deputy even managed to slow them down much.

The officer at Columbine waited outside the building until backup arrived. That was not cowardice on his part. It was what he had been trained to do. He did not enter Columbine High, where he was more likely to become a victim than to save one. In fact, a number of other deputies and officers showed up and all remained outside the building, focused on evacuating fleeing students and sometimes providing covering fire for them. They shot back at the killers when the killers shot out windows, but they didn't enter the school. Eventually a SWAT team arrived, a force strong enough to overwhelm the shooters, and that SWAT team went into the building, at which point the Columbine shooters killed themselves.

The Broward County Sheriff has said unequivocally that his deputy should have gone “in. Addressed the killer. Killed the killer." The last part is wishful: just because Sheriff Israel would want his deputy to succeed in killing the shooter, that doesn't mean that it would have happened. You can expect your deputy to try. You cannot mandate that he succeed. And Sheriff Israel has to know that his deputy was more likely to be killed by the killer. Even I know that.

As for demanding that the deputy enter the building and engage the shooter, that may be an expectation. But it may be a retroactive expectation. I am not at all sure how the deputy was trained. Taking a defensive position and waiting for backup may, in fact, be what the deputy had been told to do in this situation. Deciding after the fact that he should have done something else is, well, too late. Maybe Broward County deputies are trained to rush into dangerous situations without backup if the situation seems bad enough. I have known cops who rushed into homes before backup could arrive because they thought a situation, such as a domestic dispute, was getting too dangerous too fast. (To be fair, those cops weren't rushing into buildings where there was gunfire.) But neither would I be surprised if standard Broward County training turns out to dictate exactly what the deputy ended up doing.

And, for what it's worth, we have been training a whole generation of cops, across the United States, to be very risk-averse, with training that heavily emphasizes the danger they're in. One of the reasons we've had so many police shootings of non-dangerous civilians is that the cops' training has made them intolerant of even very minor risk, and encouraged them to use deadly force in self-defense even against things that later turn out to have been phantom threats. Those civilians got killed because cops are now trained to approach every tactical situation from a place of fear. They have fear of their lives drilled into them as part of their training. It shouldn't be a surprise that a deputy whose training likely emphasized mortal fear didn't rush to face a genuine threat to his life.

cross-posted from Dagblog; comments welcome there, not here

Tuesday, January 23, 2018

For Le Guin

Ursula K. Le Guin was my hero. Urusla K. Le Guin is my hero still. She is gone from this world, and only her words are left to us. Those words are marvels.

I remember driving to a college interview with a copy of The Dispossessed on the passenger seat beside me, in case I arrived too early. My first computer password, at the beginning of college, was an anagram of her name. I remember reading The Dispossessed again when I moved to California, to console myself to the strangeness of the new planet where I found myself. And The Dispossessed is on my bedside table again, tonight.

For the last two falls I have been teaching my graduate students The Left Hand of Darkness. Last fall, I realized their edition had a typo, a crucial, meaning-changing typo, on the novel's last page. I went through my house looking for other editions to compare. It turns out I had five.

I have blogged in the past about the debts I owe to Le Guin as a writer, and those debts have only matured as I have:

I no longer know how many times I have read The Language of the Night.  [I]t was my first example of how to write an essay about a piece of fiction. More importantly, it was my first model of an essayist's prose, and I could not have had a better. Le Guin's prose, lucid and evocative, as clear and as complex as running water, still gives me my sense of what a paragraph or a sentence ought to be.


I was all too slow to be aware of it, but this is the truth: I am trying to write like Ursula K. Le Guin. I am always trying to write like Ursula K. Le Guin. This is no less so because I do it without thinking of it; it is only more so. .... She is the essayist I wanted to be when I grew up, and she is the stylist whom I, having grown up, would like to be. ... In the middle of my life, better late than never, I am obliged and honored to acknowledge her as my master.

She was a late bloomer, who published her first novel the year she turned 37, and her first undeniable masterpiece, The Left Hand, the year she turned forty. That has always been a lesson to me.

She was an American Taoist, a real one, in a country where many who profess Taoism are deceiving themselves. She had no space for self-deception; the Tao, after all, is about dispensing with illusions. Her perspective was unblinking and undeceived, looking straight at truths most shy from. Many would call such a perspective cold but, precisely because she was so free of illusions, her viewpoint was astonishing warm. She wrote fantasy, but never trafficked in or tolerated the everyday lies and fantasies that our society breathes. Her novels took you to another planet, where you found yourself facing the truths of human nature that you shied away from every day.

She was fearless. She could not be intimidated. And her craft was profound.

I am thinking of her husband tonight, Charles, to whom she was married for decades, and who clearly served as helpmeet to her in a way that men of his generation expected of their wives and not themselves. Le Guin wrote, again and again, of deep monogamous bonds, the pairing for life, in a way that has to be, in part, a profound tribute to her own partner.

I would take, gladly, another year or two or five of her words, of whatever she was able and willing to share. But she had already written her last novel, and knew it. When she no longer had the physical stamina to write a novel, she faced that truth. Her accomplishment is complete tonight. She has already achieved more than anyone could ask.

Ursula Le Guin did not believe in heaven. She found the idea of an afterlife suspect. So all that remains of her tonight are her words. They will always be there if you want them. Let me say what a comfort they can be.

cross-posted from Dagblog, where all comments are welcome

Sunday, January 21, 2018

The Art of No Deal

As everyone has already noticed, a president who boasts about his deal-making skills, author of The Art of the Deal, has been unable to strike a deal to keep his own government funded. Worse, he actually blew up a deal in the making, and now negotiations from the White House side seem to have all but stopped. This is because the word "deal" doesn't mean what Donald Trump thinks it means. He doesn't want a deal. He wants a "win," which he defines as the other side losing. And that makes deal-making impossible.

Now, all the blame does not fall on Trump. We have years of legislative brinksmanship and hostage-taking to thank for this, all of it pioneered by the Republicans in Congress with their government shutdowns and debt-ceiling hijinks. McConnell and Ryan bear heavy loads of blame, as do the House Freedom Caucus, who often defy their own leadership, and the so-called "Hastert Rule" which allows Republican hard-liners to keep popular bills off the House floor. And White House Chief of Staff John Kelly, who is supposed to be keeping chaos at bay, seems to have actually been sowing chaos.

But Trump has also messed this up, torpedoing deals in progress. The infamous "shithole" meeting wasn't just a moment where the President singled out black-skinned immigrants as undesirable. It's also a meeting where the President unilaterally destroyed a bipartisan immigration deal that would have moved the funding bill forward. The White House has been disputing the particular foul word the President used, but not his refusal to accept African and Haitian immigrants or his sudden decision to rip up a deal that was close to being made.

If you want to know why the government shut down, that meeting is the key. The President of the United States ripped up a deal and offered nothing in its place. That's when the wheels came off.

John Kelly is also to blame for sabotaging that deal. Senators Graham and Durbin were scheduled for a meeting with the President about the deal they'd been working out, and walked into a room unexpectedly filled with anti-immigration figures who had no real reason to be there, like Tom Cotton. That only happens if the Chief of Staff permits it, or causes it.

None of this should be a surprise. Trump's business career is littered with examples of him changing deals or tearing them up after the fact. Think of the many building contractors he's stiffed, waiting until they'd done the contracted work and then not living up to his half of the contract. And think of his multiple bankruptcies, in which he borrowed vast sums of money, didn't pay it back, and then tried to renegotiate his debts so that he wouldn't have to pay in full. (Now, bankruptcies happen and we have bankruptcy laws for a reason, but the sheer number of Trump's is revealing.) This is why Trump hasn't actually put up a building in a couple of decades, as opposed to entering agreements to put his name on buildings other people create; Trump can't get the funding for his own building projects, because he's known for not sticking to his deals.

The many stories about stiffing contractors suggests that Trump doesn't see business in the both-sides-win, let's-get-to-yes way that most successful businessmen and dealmakers do. He sees business as a zero-sum, I win-you-lose proposition about dominating the other party and making them accept his terms. That is much closer to the mindset of swindlers and racketeers, ho look to extract everything they can without contributing anything to the deal. It's pretty clear that Trump sees business as about beating the other guy. But that mindset encourages people not to deal with you. In fact, it makes it irrational to deal with you. Why give concessions to someone who won't give any back?

This mindset is also clear from the way Trump talks about virtually every treaty or trade agreement the United States has, complaining that they are "terrible deals" and talking about blowing them up. He doesn't think about what America gets back from those deals. He just threatens to blow them up, hoping to extract extra concessions without giving up anything in exchange. No foreign government is actually going to do that, of course. But Trump's whole career has been about trying to get something for nothing.

Trump the deal-breaker has been on display for the last week. First he blows up the close-to-finished deal that Durbin and Graham were trying to finalize. Then, in the opposite of normal negotiating behavior, he kept demanding more and more without giving anything in return.

The way it's supposed to work when you get close to a deal is that each side trades a little bit more until they have a bargain. It's what you do when you buy a house, or a used car. And usually what you do in that situation is offer small concessions in order to get other concessions back. You do the sidewalk repairs the city inspector wants and I'll throw you some money toward closing costs. You  come up a little on price and I'll throw in the washer and dryer. What you never do is increase your demands when you're close to a deal. If we're five hundred bucks apart on price, I don't suddenly increase my ask by another thousand dollars. I don't suddenly demand that you pay my closing costs AND throw in your washer and dryer. Of course not. But Trump does.

There was a deal in process and, two days before the deadline, Trump blew it up, apparently expecting to get more. That wasn't just moving the goalposts. It was increasing the ask. The Democrats were willing to trade some things in order to keep 800,000 kids from being deported, including other immigration concessions. Then Trump said that wasn't enough, and essentially that he wanted Dem votes to avoid a shutdown without giving them anything on the Dreamers. Oddly, the Democrats were not eager to go along with a deal where they were getting less.

Trump even threatened to reduce his offer even more, tweeting his opinion that CHIP should be taken out of the bill. Fortunately, that did not happen. But it sure would not have helped. Then Trump spends ninety minutes personally negotiating with Chuck Schumer and got an offer of funding for his ridiculous border wall in exchange for not deporting the Dreamers. Then John Kelly calls Schumer to retract the offer. This is not getting to yes. This is actively, doggedly, moving toward no at every opportunity.

Now the Republicans say they refuse to negotiate about the Dreamers at all until the Dems cave on the continuing resolution. So they're saying the Democrats have to give concessions before even asking for things. Demanding the other side cave is not negotiation.

I have no idea how long this shutdown lasts. It could be over Monday afternoon. It could stretch into February. It may end in a compromise. It may end with the Democrats caving. It may end with the Republicans melting down. I really don't know, and I'd be a fool to make a prediction. But there are two real possibilities that should go into the mix.

It would not surprise me if Senate and House eventually make a deal without Trump and send it to him to sign. He isn't helping negotiations. They might hash this through without him.

It would also not surprise me if Trump increases his demands at some point, either demanding more concessions from the Democrats or taking back part of the offer already on the table. That would be a mistake, but it would be one of Trump's favorite kinds of mistake.

cross-posted from Dagblog; all comments welcome there, rather than here