According to police, Richard Evan Kriger, 60, is still struggling with elements of legal ethics training. Kriger alleged attempted a bank holdup for $50,000. That is the amount that he owes on an ethics violation involving a trust account for his son. Before the robbery, he made an appointment to take out a $26,000 loan in unmarked bills for his nephew.
Category: Lawyering
The New York Times is reporting that Special counsel Robert Mueller has confirmed that President Donald Trump took the extraordinary step of ordering White House counsel Don McGahn to Attorney general Jeff Sessions to prevent him from recusing himself in the Russian investigation. I was one of the earliest voices calling for Sessions to recuse himself and continue to believe that he made the right decision not only for himself and the Justice Department but Trump. The account in the Times states that Trump was irate at hearing that Sessions would follow the advice of his ethics advisors and recuse himself. He allegedly asked why he does not have an Eric Holder or Roy Cohen to protect his interests. If true, it was a grossly inappropriate decision and an even more worrisome analogy. I have been a long critic of Holder and his highly political tenure at the Justice Department. As for Roy Cohen, he is one of the most reviled and disreputable figures in history. It would be akin to a CEO asking where is his Bernie Madoff to protect profits. The accounts is based on two sources that are anonymous and we have not heard from the President. Obviously, McGahn could also deny the truth of the story but we have not heard from either McGahn or Trump’s personal counsel.
Continue reading “NYT: Trump Tried To Stop Sessions From Recusal”
To a layman, the concerns of an attorney can seem quaint or overblown. To an attorney, discussions with a layman can present a problem of translation. That seemed to be the case in a dispute recently between Lindy Lou Layman and well-known attorney Anthony Buzbee. Buzbee took Layman, 29, home after a first date. She was drunk and allegedly proceeded to trash his home — causing more than $300,000 in damage to art including two Andy Warhol paintings.
There is an interesting hearing to be held in Minneapolis where a court will decide whether a new trial is warranted for Michael Smith, who has a record of offenses including fourth-degree assault convictions in 2005 and 2006. He is challenging his conviction four years ago after two jurors have stated that their votes were swayed by another juror calling him a “banger from the hood.” While statements of prosecutors are often the basis for post-conviction appeals, this is a statement from other jurors in deliberations that are rarely the subject of such detailed review.
Yesterday, the Hill posted a column discussing serious legal concerns raised the seizure of transition team emails by Special Counsel Robert Mueller. While the privacy dangers would seem obvious, many dismissed such concerns with a type of .gov defense. The arguement goes something like this: since the transition team used a government address and server (with a “ptt.gov” address), they had no expectation of privacy (or presumably privileges) in the contents of their communications. In another example of rage overcoming reason, this view is being espoused with little concern for its implications for the future.
The overwhelming desire of some to see the prosecution of President Trump has created a strange alliance of some liberals with prosecutors in supporting warrantless searches and heavy-handed tactics. There is palpable attitude that “no cost is too great” to remove Trump, even at the cost privacy or constitutional protections. This week, Minority Leader Charles Schumer went to the floor dismiss concerns raised about Mueller’s tactics as “nothing more than propaganda and disinformation to try and turn the public’s attention away from the real investigation.”
This however is a question of means not ends. I believe Mueller had a legitimate interest in some of these emails and could have likely obtained most them through a court. However, there is no indication that a court order was ever secured by Mueller or demanded by GSA.
Transition records do not constitute agency or presidential material. Commentators have avoided this threshold issue by adopting the secondary position that there was some form of waiver – either express or implied – in the use of the GSA and its computer system. Former federal prosecutor Jeffrey Cramer dismissed any legal or privacy concerns on this basis in declaring: “This is not a problem. The server owner, in this case GSA, properly has the emails and can turn them over if there was a subpoena or court order.” The problem is that there is no record of a subpoena or court order of any kind – only a demand letter following express objections from the transition team that the emails contained privilege and confidential information. Moreover, even if there were an order, there remain questions of whether it should have been issued without greater protection for claims of privileged material.
Express Waiver
The express waiver argument was made by GSA attorney, Lenny Loewentritt. Loewentritt told Buzzfeed that there are disclaimers in the memorandum of understanding signed with the GSA so that “no expectation of privacy can be assumed.” Specifically, he said that the transition team knew that such material could be audited and monitored. However, that does not mean that communications can be reviewed for their content or turned without a court order. The same MOU reinforces that the GSA would delete “all data on [computing] devices” used by the transition team. Indeed, the transition counsel noted that they were assured in the MOU with the Obama Administration that it would “protect the confidentiality of transition information made available to the Government.”
Loewentritt also stressed that the GSA’s Rules of Behavior for Handling Personally Identifiable Information state that “a system manager may disclose your record without your consent under the Privacy Act when the disclosure is to a US law enforcement agency or instrumentality for a civil or criminal law enforcement purpose.” Again, however, that only means that, as the custodian of records, GSA can be required to turn over material. The possible compelled release of information does not mean that citizens have no privacy interests or privileges. For example, the disclaimer mentions civil litigation. Is Loewentritt suggesting that the GSA is free to turn over transition documents when a private litigant simply sends a compelling letter of need?
Implied Waiver
Loewentritt and others have suggested that the use of a government email address should have been sufficient notice that were no protections under privacy or the Fourth Amendment – at least any protections requiring a court order. Under that standard, there is a virtually complete waiver of privacy and Fourth Amendment protections by individuals or organizations when using a .gov or other government address – a position that would be as daft as it would be dangerous. When I have represented government employees, my communications to them on government devices are still given protection.
Loewentritt and others seem willing to boldly go where even the United States Supreme Court feared to tread. In 2010, the Supreme Court considered whether public employees have an expectation of privacy in text messages sent on government devices in City of Ontario v. Quon, 560 U.S. 746 (2010). The lower courts found that employees did indeed have such an expectation even though they were barred from using the devices for anything other than incidental personal use. Note this case did not involve private parties (like transition officials) or constitutional privilege concerns (over confidential transition communications). Just personal text messages by employees. Nevertheless, the Court opted for a “prudent” and “cautious” approach in refusing to reject (as the government asked) the privacy claims of such employees. Instead, it found an exception to such privacy concerns due to the fact that the agency looked at the messages for a “noninvestigatory work-related purpose.” (It was trying to determine if the monthly character limit was sufficient for employees).
When courts have faced government searches of agency devices, even for actual agency employees, they have applied a multifactored test to determine if the search was “justified at its inception” and reasonable in scope. The common exception for a warrantless search is for a “noninvestigatory, work-related purpose” or for the “investigation of work-related misconduct.” O’Connor v. Ortega, 480 U.S. 709, 725–26 (1987). In other words, the assumption is the opposite of the one suggested by Loewentritt and the GSA.
Trump for America (which is the transition entity) is a private non-profit entity. During the Obama Administration, the National Archives assured Obama officials that transition records were private and not governmental records. Moreover, they were required to use the GSA system as part of the transition process.
In the end, none of this means that the emails taken by Mueller’s team will “taint” the investigation or doom any later prosecutions. Nor does it warrant the equally reckless calls for Mueller’s firing as Special Counsel. Rather, this is an area of ambiguity with significant privacy and constitutional concerns. If this was a warrantless seizure, it was a risk not worth taking for Mueller or the country.
After an appalling performance during the election that handed Roy Moore a desperately needed claim of misrepresentation by an alleged victim, attorney Gloria Allred appeared on CNN for a victory lap — an interview that only briefly touched on the debacle over her press conference with Beverly Young Nelson. Allred ignored the fact that Jones won despite her blundering during the campaign. Putting aside the obvious lack of responsibility, Allred did agree with Nelson that this is not over because there is still the matter of defamation to address on behalf of Nelson. That sounds like a threat of a Nelson defamation action, which is precisely what my column today is calling for. Let’s find out who is lying in Alabama. Both Moore and Nelson should stop threatening lawsuit and actually sue.
Continue reading “Allred Appears To Threaten Defamation Action In Moore Controversy”
Below is my column in the Hill Newspaper on a little known case involving Trump attorney John Dowd and the broader issue of conflicts among key players in the Russian investigation.
Here is the column:
I have been critical of the representation afforded by Gloria Allred and her daughter Lisa Bloom in past cases, including the rapid calling of press conferences at the height of news cycles. Most recently I was critical of Allred’s handling of Roy Moore accuser Beverly Nelson, the press conference has not only resulted in her being nationally ridiculed but she was accused of falsifying Moore’s signature on a yearbook. Allred’s defense of her client on the charge has been so anemic and uncertain that many have taken it as a concession. Allred’s eagerness to hold press conferences gave Moore exactly what he hoped to find: a basis for challenging the veracity of his accusers. After numerous evasive interviews that played into Moore’s hand, Allred called another press event and admitted that Nelson did indeed write some of the words attributed to Moore in the yearbook. Now Moore can go into the final stretch of the election claiming that the victim’s evidence was not what she had claimed. It would have been better to have admitted this weeks ago, but Allred waited for the Friday before the election to bury her own gross negligence in the news cycle. This does not alter my view that the allegations against Moore are credible and disqualifying (including another witness who came forward this week), but rather than the blunder played into the hands of those who are struggling to ignore the moral hazard that is Roy Moore.
Continue reading “Allred Admits That Client Wrote Some Of The Words Attributed To Moore In Yearbook”
Below is my column in USA Today on the ethical and practical implications of the controversial tweet sent out by Trump counsel John Dowd. In my view, Dowd should now remove himself from the litigation. Notably, the failure to remove or fail Dowd will likely fuel theories that he is covering for Trump. If Trump did not know that Flynn had lied to the FBI before speaking with Comey, the Dowd tweet would usually result in a quick and rather angry response to a lawyer compromising his client in this fashion. However, various media sources are reporting that White House Counsel Don McGahn did inform Trump that Flynn likely misled the FBI in his interview before Trump spoke with Comey. Whatever the truth of the matter, the Dowd tweet could not be worse in its timing and content.
Here is the column:
Continue reading “Death By Tweet: Questions Linger Over Flynn Tweet and the Role of Trump Counsel”
Below is my column in the Hill on the latest twitter controversy. While Trump counsel John Dowd has insisted that he merely used “sloppy” drafting, news organizations are reporting that White House Counsel Don McGahn told Trump (before the firing of National Security Adviser Michael Flynn) that Flynn had misled FBI agents in his interview. In yesterday’s press conference, Sarah Sanders refused to say when Trump first learned that Flynn had lied to the FBI. That brings us back to Dowd and the breathtakingly dumb mistake in sending out a tweet to millions with an admission against interest under the President’s name.
Here is the column:
Continue reading “TwitterGate: What Did Trump Tweet And When Did He Tweet It?”
Below is my column on the Flynn plea agreement and its potential significance to the Russian investigation. One development is that President Donald Trump is now denying that he ever told Director James Comey to let Flynn go. This follows a highly damaging tweet that a Trump lawyer now says was his sloppy mistake. It is another tweet gone awry for the Trump White House.
Continue reading “The Good, The Bad, and The Ugly Of The Flynn Plea”
Assistant Summit County prosecutor Kassim Ahmed has resigned after a truly bizarre controversy over what appears a slight bump in the hallway that led Ahmed to file an assault charge against court employee Holly Trivett. The videotape below does not support the claim and Ahmed complained that he has “taken unfair criticism as a result of these negative articles.”
Continue reading “Prosecutor Resigns After Filing Assault Charge Over Hallway Bump”
One of our graduates on the judicial bench is in hot water this week. Justice Barbara Pariente (GW Class of 1973) is facing demands from Florida Gov. Rick Scott that she be disqualified in a case over judicial appointments due to a comment caught on a live microphone. On November 1st, Pariente was caught pointing to a document listing members of the Supreme Court Judicial Nominating Commission and saying “crazy.” Update: As predicted, the high court rejected the effort to disqualify Pariente over her remark.
We have hit another milestone today with over 33,000,000 views. We are also expected to reach 35,000 followers on Twitter. That hardly makes us competition for the largest sites but it is still an impressive collection of people seeking a place for civil but passionate discourse on legal and policy issues of our time (and perhaps a few wacky stories). We often use these milestones to look at the current profile of the blog and its supporters around the world.
As always, I want to offer special thanks for our weekend contributors: Mike Appleton, Larry Rafferty, Darren Smith, Kimberly Dienes, and Cara Gallagher (particularly Darren who continues help up with periodic technical problems etc).
I particularly want to thank our regular commentators and readers. We try to keep this blog as an open forum with as little interference or monitoring of the comments as possible. Given our free speech orientation, we try not to delete comments and, for that reason, we are deeply appreciative of how most people avoid personal or offensive comments in debating these issues. We have had to delete a handful of comments with personal attacks or profanity but the number remains quite low for a blog of this size. The success of this blog is due to the fact that we offer something more than the all-too-common troll-driven, angry, and insulting commentary of the Internet. Thank you for voluntarily assuming restraint over the tenor and content of your comments. Continue reading “RES IPSA HITS 33,000,000”
I have been critical of the representation afforded by Gloria Allred and her daughter Lisa Bloom in past cases, including the rapid calling of press conferences at the height of news cycles. Bloom has had public squabbles with clients including Harvey Weinstein and Kathy Griffin. While media management is part of zealous representation, there are times when I am left uncertain as to the legal strategy behind press conferences. In the case of Allred’s representation of Roy Moore accuser Beverly Nelson, the press conference has not only resulted in her being nationally ridiculed but she is now accused of falsifying Moore’s signature on a yearbook. Allred’s defense of her client on the charge has been so anemic and uncertain that many have taken it as a concession. As a result, Allred has given Moore just the issue to paint all of these women as liars and made the failure to turn over the yearbook the element of doubt that he was so desperately searching for in this scandal. Just as I was critical of Moore’s counsel, this situation could not be worse for Allred’s client. This was a predictable attack that Allred should have anticipated and had a response (other than we will turn over the yearbook in time) to blunt the attack on her client . . . better parading her in front of cameras.