When bad clients happen to good lawyers

Damian P. Uncategorized

Yesterday, lawyer Jay Sekulow appeared on Fox News Sunday to defend President Donald Trump.  It did not go well for him.  (The real fun starts around the 3:00 mark.)

From all indications, Sekulow’s appearances on other Sunday-morning interview shows didn’t go much better, and twitter’s blue checkmarks piled on:

The thing is, while Sekulow may have come across like Eugene Levy in Armed and Dangerous, the guy undeniably has some serious skills as a lawyer:

All told, Sekulow came off a bit like a Washington novice, which he’s definitely not. His face and his name are well known in the nation’s capital and among conservatives generally — but not for this kind of work. He’s an experienced litigator on behalf of conservative causes, especially causes dear to the religious right. White-collar defense lawyers, particularly those who defend political figures, form a small community in Washington, and Sekulow is not part of it.

Sekulow made his first big Washington debut in 1987 in the Supreme Court when he helped the evangelical group Jews for Jesus defeat a measure that banned the distribution of religious literature at Los Angeles International Airport.

His performance was unimpressive, American Lawyer magazine wrote at the time. Sekulow was “rude and aggressive,” the publication wrote, “so nervous that at times he appeared nearly out of control.”

Fortunately for Sekulow, it was an easy case to win. The ordinance barred “First Amendment activity” at the airport, presenting clear constitutional problems. And win Sekulow did — in a unanimous decision striking down the measure.

“I left the courtroom feeling like the Beatles must have felt leaving Shea Stadium,” he wrote in 2005.

The victory turned Sekulow, a self-described Messianic Jew, into a crusader for religious expression and a celebrity on the Christian right, a status that has only grown since then. Over three decades, he built a legal and media empire by representing religious groups, antiabortion advocates and other conservative organizations in high-profile court battles.

With televangelist Pat Robertson, Sekulow launched the American Center for Law and Justice — a conservative response to the American Civil Liberties Union — which litigates evangelical causes, often with great success. He has appeared before the Supreme Court on 11 other occasions and has filed numerous amicus briefs in cases related to civil liberties.

Even with Robertson’s backing, you don’t make it before the Supreme Court 11 times without being really good at your job.  Agree or disagree with his political and legal positions, Sekulow has a history of being a very effective advocate.

So what went wrong yesterday? It looks like Sekulow made a few mistakes often made by lawyers, though rarely with so many people watching:

1. He is trying to practice law in a legal area with which he has no experience.  Sekulow may be a skilled constitutional lawyer, especially for religious-freedom cases, but he seems hopelessly out of his depth in defending the President from impeachment or even possible criminal charges.

2. He is way too emotionally attached to his client.  Lawyers, like doctors, have to maintain some degree of professional distance from their clients.  You must advocate for their position in keeping with the law and professional decorum, but taking cases too personally can lead to smuggling drugs to a jailed client, or even providing support to terrorist organizations.

Like a depressing number of religious-right figures, Sekulow has practically sold his soul to Donald Trump.  A man who has never lived up to their personal standards, and is a latecomer to their political views, is now the great savior who got them a conservative Supreme Court Justice and promises more victories to come.

Trump’s approval rating is at 38.8% and falling, but he still has the true believers in his corner.  And they seem so personally invested in their hero that they’ll do anything for him, even making themselves look ridiculous and incompetent on television.

Serious question: has anyone ever done business with Donald Trump and come out better for the experience?  Anyone?

Disfellowship of the ring

Damian P. Uncategorized

When a Nova Scotia couple called off their engagement, the husband-to-be asked for the return of an engagement ring which apparently cost as much as two Nissan Micras.  His ex-fiancee refused, and a small claims court adjudicator sided with her:

A woman who broke up with her fiance after a fight over wedding expenses can keep the engagement ring, a Halifax adjudicator has ruled.

Devin Sherrington had sued his would-be bride, Lauren Arbuckle, in small claims court for the 3.25 carat diamond ring, worth as much as $19,000.

Sherrington, a personal trainer, and Arbuckle, a hairstylist and make-up artist, had planned to marry in 2016. But he postponed the wedding amid arguments over its cost, small claims adjudicator Gregg Knudsen said in a written ruling released Wednesday.

[…]

Arbuckle — who texts showed had originally wanted to elope but Sherrington wanted “a party” — then ended the relationship altogether, Knudsen said.

Knudsen said it wasn’t Arbuckle who broke the engagement — and that was the key issue in deciding who keeps the ring.

“I find the postponement was an indefinite postponement, sufficient to treat the engagement as over. Ms. Arbuckle may have ended the relationship but Mr. Sherrington ended the engagement,” said Knudsen.

“It is the conditional aspect of the gift, the marriage or the intent to marry, which is the critical issue. The determination of the entitlement to the engagement ring is based upon who broke off the engagement and who didn’t.”

In the end, Knudsen said text messages exchanged by the two showed Sherrington had told Arbuckle she could keep the ring anyway.

The adjudicator did, however, order Arbuckle to pay Sherrington $2,914 for her share of a trip to Mexico they had taken together.

The battle over the ring may ultimately be moot: Arbuckle has filed for bankruptcy, so the ring is in the possession of the trustee in bankruptcy.

Disagreements about money have destroyed many a marriage – or in this case, an engagement.  Sounds like an expensive lesson for everyone involved.

Yesterday’s liberal is today’s racist

Damian P. Uncategorized

Not too long ago, the essay that cost Hal Niedzviecki his job would have been considered remarkably progressive.

The editor of Write magazine, published by the Writers Union of Canada, committed the mortal sin of telling white authors to make their books a little less white.  But it’s not the “alt-right” that got upset about it:

The Writers’ Union of Canada has issued an apology and the editor of its magazine has resigned after publishing an opinion piece titled “Winning the Appropriation Prize” in an issue devoted to Indigenous writing.

“I don’t believe in cultural appropriation,” began the editorial by Hal Niedzviecki in the spring issue of Write magazine. “In my opinion, anyone, anywhere, should be encouraged to imagine other peoples, other cultures, other identities. I’d go so far as to say that there should even be an award for doing so – the Appropriation Prize for best book by an author who writes about people who aren’t even remotely like her or him.”

He wrote that CanLit was “exhaustingly white and middle-class” because its producers are generally so and people tend to write what they know. “I say: Write what you don’t know. Get outside your own head. Relentlessly explore the lives of people who aren’t like you … Win the Appropriation Prize.”

Some people were enraged, and the fallout was swift: TWUC issued an apology, a board member resigned, TWUC’s Equity Task Force issued a list of demands – and Mr. Niedzviecki left his position.

“I had no intention of offending anyone with the article,” Mr. Niedzviecki told The Globe and Mail Wednesday, after resigning that morning – his choice, he says.

“I absolutely understand why people are upset. I think that I was a little tone deaf, and I was failing to recognize how charged the term cultural appropriation is and how deeply painful acts of cultural appropriation have been to Indigenous people.”

But a quick fix is not the answer, says the contributor whose tweetstorm Tuesday brought attention to the issue – pointing to deeper problems at the organization and in CanLit.

“I would like for [TWUC] to look at the practices by which they run their organization and look at the way it enforces systemic oppression and try and figure out ways to counteract that,” Alicia Elliott told The Globe from Brantford, Ont.

The TWUC Equity Task Force issued a statement, saying it was “angry and appalled” by the column, and shocked that it was published – saying it was an indication of structural racism, “brazen malice, or extreme negligence.” It issued a list of demands, including that the next three issues be turned over to Indigenous and other racialized editors and writers, affirmative action hiring for the next editor and future office staff and a future issue dedicated to bringing historical context to the issue.

Like Boys Don’t Cry director Kimberley Peirce, confronted by mob of shrieking yahoos for the mortal sin of casting a female actress as a trans man in 1999, Niedzviecki learned the hard way that his cultural liberalism won’t protect him anymore.

Adopting practices from a culture other than your own used to be height of openness and tolerance.  Now it is “cultural appropriation” and akin to genocide itself.  Only a native person can tell a story involving native peoples, and if you suggest otherwise you deserve to be hounded out of your job.

If they could take a moment to stop punching each other to talk about their beliefs, I think the social-justice warriors and the neo-fascists would find they have surprisingly much in common, especially when it comes to keeping their respective cultures walled off from infection by people with different colored skin.

Of course, as a straight white man, it’s probably easy for me to say all of this.  Were I a native person, struggling with the legacy of residential schools and persistent, horrific inequalities and injustices, perhaps I would feel differently.  Historically, white people have given the First Nations little reason to believe their intentions are benign.  People should try to understand what native Canadians have experienced and how they feel.

If any attempt to do so is denounced as “cultural appropriation,” however, it’s not going to happen.

A setback for fascism

Damian P. Uncategorized

I predicted that Marine Le Pen would win over 40% of the vote in the French Presidential election.  Obviously I jinxed her.  You’re welcome, world.

This was a blowout of historic proportions.  Even Barry Goldwater and George McGovern won a greater share of the vote than Marine Le Pen.

Compared to her father’s performance in the 2002 French Presidential election, however, her 2017 performance looks pretty good.  In France there is still a taboo against voting for the hard-right Front National, but the taboo isn’t nearly as strong as it was fifteen years ago.

Also, in 2002 French voters turned out in huge numbers – 80% turnout – to beat back the fascist candidate.  This time around, abstentions and spoiled ballots were at a level unseen since 1969, due in no small part to far-left supporters who insisted they saw little difference between Emmanuel Macron and Marine Le Pen.

Timothy Garton Ash explains why the Le Pen crowd could come back stronger, should Macron fail:

Thanks to France’s superior electoral system and strong republican tradition, the political outcome is better than the victories of Donald Trump and Brexit, but the underlying electoral reality is in some ways worse. Trump came from the world of buccaneer capitalism, not from a long-established party of the far right; and most of the 52% who voted for Brexit were not voting for Nigel Farage. After Le Pen’s disgusting, mendacious, jeering performance in last Wednesday’s television debate, no one could have any doubt who they were voting for. She makes Farage look almost reasonable.

From the country which gave us the 1789 example of violent revolution, we now have the personification of today’s worldwide anti-liberal counter-revolution. Le Pen is the very model of a modern national populist. She herself boasted in the TV debate that she is best placed to deal with this brave new world, “to talk about Russia with Putin, to talk about the United States with Trump, to talk about Great Britain with Theresa May”. (How sickening to see a British prime minister listed in that company.) There is every reason to believe that this wave of populist reaction against globalisation, liberalisation and Europeanisation still has a lot of pent-up anger behind it.

[…]

…Macron knows what needs to be done in France but is unlikely to succeed in doing it. To those who supported Le Pen you have to add the many who abstained, including leftwing voters who described this second round as a choice between cholera and the plague. The president-elect has no established party behind him, so it is totally unclear what majority will emerge from next month’s French parliamentary elections.

He is already being described as “Renzi 2.0”, a reference to the Italian would-be-reformist former premier Matteo Renzi. His super-ambitious target is to reduce public spending from 56% of GDP to just – wait for it – 52%. The obstacles to change in France are enormous, from powerful unions and a bloated public sector to farmers who make a habit of blocking roads with tractors. If Macron fails to reform France, in 2022 we may yet have a president Le Pen.

For now, ironically, Le Pen and the European hard-right may be dragged down by the emergence of another extremist:

Rule by toddlers

Damian P. Uncategorized

If you’re the parent of a young child, you know the dollar store is a blessing and a curse. A blessing because you can always find something inexpensive to keep your little one from being booooorrrred for a while. A curse because the child learns to expect something from every time you drop in to buy garbage bags.

My five-year-old knows how to play this game, and he’ll inevitably ask to buy something whenever we stop in to Dollarama. But sometimes he won’t find something he really wants, so he’ll just grab something completely at random from a shelf.  It may be something in which he’s never before expressed an interest, or he may already have one gathering dust at home. Doesn’t matter: he had his heart set on getting a new toy, any toy is better than nothing, and the world will come to an end if you say no.

This is exactly what I thought of when the American Health Care Act, a cobbled-together replacement for Obamacare, just barely passed in the House of Representatives this afternoon:

The arguments on the floor—and the House’s decision to vote before the bill could be scored by the Congressional Budget Office—suggest that even many of the people who just passed it don’t even know everything about the bill. That’s to be expected: A collection of amendments written to garner political support since the original draft of the AHCA could have sometimes obscure interaction effects, and many of those are still being uncovered, even as the bill moves on to the Senate. But the broad strokes are known, and even with the official CBO report not expected until next week, health-policy experts have most of the AHCA figured out.

[…]

All in all, the baseline projections of reducing coverage by over 20 million people and federal savings of $300 billion will still apply to the AHCA, which must be officially scored by the CBO over the next few weeks in order to pass by the reconciliation process in the Senate. If passed there and signed by President Trump, the Medicaid program will be slashed, and fewer older, low-income, and sick people will be able to afford insurance. The Patient and State Stability Fund will likely provide financial relief and affordable coverage for thousands of sicker Americans, but it still appears that more people of similar health status will be ejected into the ranks of the uninsured. Fewer people will be offered employer coverage as well, although it’s unclear how much changes in essential benefits will affect them. The amendments will mostly affect those at the extremes. “In terms of their marginal effect, it all depends on what states will take them up,” Guyer said.

As the forthcoming CBO report will probably document, the basic framework of the law hasn’t changed that much. There are likely to be plenty additions to the AHCA as it goes through the more moderate Senate, and there will probably be tweaks that eliminate some of the current provisions in the House version. But as things stand, sick people and families that make less money will be less able to afford coverage than they are under the current law. Each change may necessitate a trip through the policy weeds to fully probe all of its effects, but the big picture doesn’t appear to be changing.

After years of moaning about Obamacare, Republicans were finally given the chance to do something about it, and were caught completely flat-footed.  But they had to do something for President Trump’s first hundred-odd days in office, so they threw together this disaster of a bill – which seems to accomplish little except rendering millions of Americans again uninsurable – so they could say they kept their promise.

In reality, the bill has almost no chance of making it through the Senate unscathed, but even if Trump and the GOP caucus hadn’t decided to throw a “Mission Accomplished” party in the White House Rose Garden this evening, they still would have come out of this looking callous at best and downright cruel at worst.

One of the things that drew me to conservatism is that it’s supposed to be prudent.  Conservatives are supposed to believe government should not embark on a major project – like, say, a fundamental restructuring of one-sixth of a country’s economy – without crunching the numbers, weighing the alternatives and making sure they get it right.

If the Republican Party hadn’t already exposed this as a myth by uniting behind a fundamentally unfit leader, the health care fiasco has ended all doubt.  And they will pay dearly in the 2018 mid-term elections, as long as Democrats don’t screw it up.

Aw dammit.

Dean of law

Damian P. Uncategorized

It happens to every lawyer: you find yourself in an argument with an Honours graduate of the Facebook College of Law – sometimes your own client, sometimes a self-represented litigant – who clings to an incorrect legal argument because he saw it on TV or on Twitter or something.  No matter what you tell him, it’s a lost cause – he just will not be moved, no matter how clearly you try to inform him otherwise.  (As Ed Koch allegedly said, “I can explain this to you. I can’t understand it for you.”)

Why, hello there, failed 2004 Presidential candidate Howard Dean. We were just talking about you:

 

 

 

 

 

 

 

If Dean was saying the First Amendment shouldn’t protect “hate speech,” or that freedom of expression isn’t so uncompromised in most other countries (including Canada) that would be one thing.

But that’s not what he’s doing. Regardless of what American lawyers and American courts actually say, he’s insisting that his interpretation of the First Amendment is correct, and he won’t hear otherwise.

The way he’s clinging to this reminds me of former London mayor Ken Livingstone’s insistence on taking every opportunity to argue that Hitler was a Zionist.  But, hey, at least the blinkered Dean never became President. Can you imagine if the most powerful man on earth were an ignoramus who absolutely refused to ever admit his mistakes or listen to people who actually know what they’re doing?

The mind boggles.

The Le Pen legacy

Damian P. Uncategorized

The great Claire Berlinski has produced a masterful account of French wartime complicity with the Nazis, the rise of the Front National, the bizarre family drama behind the scenes, and why Marine Le Pen – supposedly more moderate than her Jew-baiting, Holocuast-denying father, who founded the FN in 1972 – is so dangerous:

The Vélodrome d’Hiver, or Winter Velodrome — the Vel d’Hiv — was an indoor stadium on the rue Nélaton near the Eiffel Tower. On July 16, 1942, 4,500 French police and gendarmes, acting on the orders of the French administration, began carrying out plans to arrest 30,000 foreign adult Jews. This operation was given the codename “Spring Breeze.”

The arrests began at 4:00 a.m., but the initial results were disappointing. Many of the Jews on the list for detention, having been warned by the Resistance or hidden by neighbors, could not be found. The police, therefore, decided to detain 4,000 Jewish children instead. The Nazis had not asked for these children. Most had been born in France. The order was given by Maréchal Pétain’s minister, Pierre Laval. It was a wholly French innovation.

Some families were sent to internment camps near Paris, where the children, mostly aged between two and twelve, were separated from their families by the French police, drenched in water, and bludgeoned. Their parents were sent directly to Auschwitz.

Others were taken to the Vel d’Hiv. The few lavatories there were sealed, lest children escape through the windows. The children were left, alone, for five days in the unbearable heat, with only the scarce rations of food and water brought to them by the Quakers and the Red Cross.

From there, they were sent to the internment camps of Drancy, Beaune-la-Rolande and Pithiviers. Then in August, the children were sent, alone — on French rail cars, by the French government — to Auschwitz. The youngest child sent to Auschwitz, under Laval’s orders, was only 18 months old. Laval, according to the historian Julian Jackson, told an American diplomat that he was “happy” to get rid of them.

Not one returned. All were exterminated.

There is no dispute about this. It is as well-documented a historical event as exists, confirmed by the records of the Préfecture de Police, countless eyewitnesses, and in particular, by the past four decades of historical research, which have comprehensively documented the eager collaboration of the wartime French government. Police Chief René Bousquet, who organized the roundup, impressed his German counterparts with his energy. France “did not have a knife at its throat,” writes the historian Philippe Burrin of these events in his authoritative history, La France à l’Heure Allemande. “Without the help of the [French] police, the SS was paralyzed.” The American historian Robert Paxton notes that France was the only country in Western Europe to use its own police force to round up Jews in territory that was not occupied by the Germans.

Everyone in France knew it then. Everyone in France knows it now…

[…]

…There were two weeks to go before the first round. Marine Le Pen was not on the verge of victory, but she was on the verge, astonishingly, of an outside chance. Then on Sunday, the ninth of April — the eve of Passover, 5777 — she found herself on the LCI television channel’s weekly show. It had been a chaotic day. The moderator of the show — you remember his name — was Olivier Mazerolle. The fatigue of the campaign was obvious in her eyes. Mazerolle tossed her an easy question (or he broadsided her, depending on your perspective). “Was Jacques Chirac wrong,” he asked, “to make his speech about the Vél d’Hiv?”

Now, it should have been a reflex, for a de-demonized Le Pen. The right answer, the only answer in France, for more than twenty years, has been: “Of course he wasn’t wrong, it is a matter of great pride that we are a France that squarely confronts its past.” In fact, this generation in France really has no idea there has ever been any other answer.

But the Devil got her tongue.

Instead: “I don’t think France is responsible for the Vel d’Hiv,” she said, as viewers’ jaws fell agape throughout France and its territories. “I consider that France and the Republic were based in London during the occupation. The Vichy regime was not France. I think that generally speaking, if there are people responsible, it’s those who were in power at the time. It’s not France.”

She tried to find firmer footing: France had “taught our children that they have all the reasons to criticize and to only see, perhaps, the darkest aspects of our history,” she added. “So, I want them to be proud of being French again.”

She realized, almost immediately, what she had done, quickly saying that this in no way exonerated those who participated in “the vile roundup of Vel d’Hiv and all the atrocities committed during that period.” But it was too late. The program had barely ended when a press release went out from her campaign headquarters to clarify her position. This is rare for the National Front, which usually holds there is no reason, a posteriori, to issue a communiqué explaining the president’s speech; their philosophy — usually — is that she means what she said and she said what she meant, and their leader is faithful, one hundred percent. The very fact of the press release indicated the recognition of an error, a grave misstep. By Monday morning, she was expressing regret. “If Olivier Mazerolle hadn’t asked me the question,” she said, “you can well imagine I wouldn’t have spoken of it.” (That sentence has two meanings. I’ll let you think about them.)

Unfortunately, this didn’t keep Le Pen from a second-place finish in yesterday’s first round of French Presidential voting, but she has no realistic chance of winning.  Early polls put her more than twenty points behind centrist Emmanuel Macron:

But she will almost certainly do far better than her father’s performance in 2002.  Jean-Marie Le Pen couldn’t break 18% of the vote in the second round; Marine has a realistic chance of doubling that.

The reaction of far-left candidate Jean-Luc Mélenchon (who won almost 20% of the first-round vote in his own right) is telling:

“I cannot say or do more at this time,” he added, notably declining to endorse a candidate in the second-round showdown between independent centrist Emmanuel Macron and far-right National Front leader Marine Le Pen.

His silence marked a departure from his vocal stance in 2002, when he urged his compatriots to turn out to vote for Jacques Chirac against National Front founder Jean-Marie Le Pen after the latter unexpectedly advanced to the second round, shocking France’s political establishment to its core.

Just as Jill Stein insisted that Hillary Clinton was every bit as bad as Donald Trump, the great anti-fascist crusader Mélenchon refuses to take a stand against the actual fascist who has a realistic chance of leading his country.  More evidence, as if any were needed, that the far left and far right are united against the center, even if they’d never admit it.