1. Once again, the Orwell Catch-22. Ethics Alarms has several times flagged the unconscionable use of the Orwellian ” ‘If you have nothing to hide, you have nothing to fear’ in the news media and among the resistance as they try to demonize the President of the United States for insisting on basic principles of due process and legal procedure. (Here, for example.) How did the Left come to such a state where they embraced this unethical concept, which is totalitarian to the core, and the antithesis of liberal thought? It is pure corruption, and forces fair Americans to side with the President and his defenders whether they want to or not.
To get a sense of how insidious this trend is, read Jonathan Chait’s recent effort for New York Magazine. Chait isn’t an idiot, but he’s so biased that he often sounds like one, as in his ridiculously blind 2016 essay declaring that “The 2016 Election Is a Disaster Without a Moral.”
This time, he makes the argument that President Trump must be guilty of horrible crimes because various Trump allies have denied that Michael Cohen will “flip” on his client, meaning that he would testify against him. Lawyers can’t testify against their clients, even if they have knowledge of criminal activity. They can testify to client efforts to involve them in criminal activity prospectively, because requests for advice regarding illegal acts are not privileged. Chait, however, doesn’t observe this distinction: he is simply towing the ugly ‘If you have nothing to hide, you have nothing to fear’ position that has been adopted, to their shame, by many left-leaning pundits and supposedly legitimate news organizations like the New York Times. Look at this section in Chait piece, for example:
Not all of Trump’s supporters feel so confident that Cohen will respect the omertà. In a conversation with Trump last Friday, Jay Goldberg, one of Trump’s lawyers, warned the president, “Michael will never stand up [for you]” if charged by the government, according to The Wall Street Journal. But why would Trump have anything to worry about, unless … Trump committed a crime that Cohen knows about?
In an interview with the Journal, Goldberg elucidated his concerns about Cohen’s loyalty and the devastating impact it would have if he cooperated with the government. “The mob was broken by Sammy ‘The Bull’ Gravano caving in out of the prospect of a jail sentence,” Goldberg explained.
Again, this makes a lot of sense as a legal defense strategy for a businessman who has probably done a lot of illegal stuff. But as a public-relations strategy, isn’t Trump’s lawyer supposed to say he believes Cohen is innocent, and would be shocked to learn if he did something wrong, because of course Trump has never engaged in any illegal behavior and would never tolerate it among his employees? He’s probably not supposed to casually liken the president of the United States to the boss of a criminal syndicate.
Where to start? To begin with, Goldberg’s statement should get him in front of a bar disciplinary committee. Why is he telling the Wall Street Journal what he advised his client? That’s bright line legal misconduct, and when a lawyer behaves like that, he has no credibility with me. (Yes, he should be fired.) There is probably no powerful, active, wealthy or well-known figure in the United States who wouldn’t be concerned if his or her lawyer “cooperated” with authorities, meaning that they revealed client confidences. The information need not be criminal to be embarrassing. Lawyers are bound by their profession not to reveal their clients’ confidences. Any lawyer who would trade client confidences for his or her own interests is an unethical lawyer (and any prosecutor who would try to induce a lawyer to do this would also be engaging in an ethics violation.).
Goldberg comparing Cohen to a mob informant is jaw-droppingly stupid, but it is merely a loyalty analogy, and perhaps a reflection on Goldberg’s assessment of Cohen as a sleaze, one with which I heartily concur. (On the other hand, Goldberg does not appear to be much better.) However, Chait’s assumption that Trump’s lawyer saying ‘You shouldn’t trust this guy, he’ll throw you under the bus to save his own skin’ is not evidence of crimes by Cohen or Trump.
As I read Chait’sarticle, I assumed that eventually the author would explain exactly what dire crimes he thought Cohen and Trump were guilty of committing. He doesn’t. He doesn’t know what they are, he’s just sure that the President did them. After all, if he didn’t, why would he have to worry about his lawyer flipping?
This presumption of guilt is the beating black heart of the resistance.
2. Res Ipsa Loquitur. The involvement of New York’s prosecutors in the raid on Cohen’s files has been cited, amusingly, as evidence that no over-zealous prosecution by the Special Prosecutor was involved. It is fair to say, however, that New York’s prosecutorial culture is rife with anti-Trump animus and political bias. Here, for example is this news:
Attorney General Eric T. Schneiderman of New York is moving to change New York state law so that he and other local prosecutors would have the power to bring criminal charges against aides to President Trump who have been pardoned, according to a letter Mr. Schneiderman sent to the governor and state lawmakers on Wednesday.
The move, if approved by Gov. Andrew M. Cuomo and the Legislature, would serve notice that the legal troubles of the president and his aides may continue without the efforts of Robert S. Mueller III, the special counsel investigating possible Russian interference in the 2016 presidential election.
Under the plan, Mr. Schneiderman, a Democrat, seeks to exempt New York’s double jeopardy law from cases involving presidential pardons, according to the letter, a copy of which was obtained by The New York Times. The current law and the concept of double jeopardy in general mean that a person cannot be tried for the same crime twice.
Getting Trump is apparently worth the price of undermining core Constitutional protections designed by the Founders to prevent abuse of government power and the persecution of citizens. Schneiderman wrote in the letter that he and his advisers were “confident” the legislation would withstand any constitutional scrutiny. I am confident that it would be struck down, and that any judge or justice trying to rationalize such an outrageous measure would wear the neon label of a political hack for the rest of his or her professional life.