Even Donald Trump deserves the protections of Attorney-Client Privilege

An open letter to my liberal criminal defense lawyer colleagues:

I know, I know -- you really don't like Donald Trump.  And even though you are a criminal defense lawyer, you don't mind him being charged or even convicted.  

I'm not going to try to change your mind on any of that.

But... what prosecutors and judges are doing in order to obtain that charge and conviction should give you great concern.  Specifically, according to this New York Times article, the government has forced one of Trump's lawyers, Evan Corcoran, to testify before the grand jury and to give up his work product, including written and voice notes.

This is absolutely insane.

From the Times:

Government investigators almost never obtain a clear lens into a lawyer’s private dealings with their clients, let alone with such a prominent one as Mr. Trump. A recording like the voice memo Mr. Corcoran made last year — during a long drive to a family event, according to two people briefed on the recording — is typically shielded by attorney-client or work-product privilege. Some details of the notes were reported earlier by The Guardian.

But in March, a federal judge ordered Mr. Corcoran’s recorded recollections — now transcribed onto dozens of pages — to be given to the office of the special counsel Jack Smith, who is leading the documents investigation.

The decision by the judge, Beryl A. Howell, pierced the privilege that would have normally protected Mr. Corcoran’s musings about his interactions with Mr. Trump. Those protections were set aside under what is known as the crime-fraud exception, a provision that allows prosecutors to work around attorney-client privilege if they have reason to believe that legal advice or legal services were used in furthering a crime.

But using crime fraud to obtain Corcoran's lengthy voice memos to himself about his interactions with the former president is a huge stretch of that doctrine and may be used in the future to get your notes with your clients.  We should all be pissed.  

 Unfortunately, the order by Judge Beryl Howell (a former narcotics prosecutor, who helped create and defend the Patriot Act) is sealed so we can't see the reasoning.  But the Times has this:

Judge Howell’s memorandum compelling Mr. Corcoran to answer questions in front of a grand jury and to produce his notes described the lawyer as essentially a casualty of Mr. Trump’s months of gamesmanship with investigators and National Archives officials about returning the documents, according to a person familiar with the memo’s contents.

As The New York Times reported in April, Judge Howell wrote in the memorandum, according to the person familiar with its contents, that Mr. Trump’s earlier actions and “misdirection” of archives officials’ efforts to retrieve what turned out to be more than a dozen boxes of records were a “dress rehearsal” for the May subpoena.

 If prosecutors can get a criminal defense lawyers' notes and impressions every time a client offers some misdirection, then get ready for a flood of motions asking for our privileged files.  

This isn't the way, even if the target is Donald Trump.

Jury Out in Carollo Trial

 By John R. Byrne

A few weeks back, the blog covered courtroom photograph-gate from the Joe Carollo trial. It's now in the jury's hands. The plaintiffs, businessmen William "Bill" Fuller and Martin Pinilla, allege that Carollo used City machinery to target their businesses because they supported his political opponent. Plaintiffs are seeking $100 million. According to records obtained by the Herald, before trial began, the City had already paid $2 million in attorneys' fees to Carollo's lawyers.

There were some unusual happenings during the trial and the Herald covers some of the highlights here. 

UPDATE: Jury found Carollo liable. Owes $60M in compensatory and punitive damages.

Go Heat.

"Suffer and suffer until you get what you want."

 Coach Spo sounds like a criminal defense lawyer!  GO HEAT:

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And Rumpole, even though you are a Heat hater, you may come around after seeing that Spo quoted one of your favorite speeches after the game:

Heat Coach Erik Spoelstra referenced Teddy Roosevelt’s Man in the Arena speech in his post game comments. One of best speeches ever. Here is excerpt. @HeraldSports @MiamiHEAT #MiamiHeat #Heat pic.twitter.com/WXyMo7RLr3

— Michelle Kaufman (@kaufsports) May 30, 2023

A new alliance on the Supreme Court...

 ... and it's not who you might think: Justices Gorsuch and Jackson.  Via David Lat (you should subscribe to his newsletter if you haven't already):

The two justices have joined forces in four opinions so far this Term, per Lydia Wheeler of Bloomberg Law: Tyler v. Hennepin County, where Justice Gorsuch wrote a concurrence that only Justice Jackson joined; Polselli v. Internal Revenue Service, where Justice Jackson wrote a concurrence that only Justice Gorsuch joined; Bittner v. United States, where Justice Jackson was the only member of the Court to join Justice Gorsuch’s majority opinion in full; and Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, where Justice Gorsuch wrote a concurrence that only Justice Jackson joined. In addition, Justice Jackson was the only justice to join Justice Gorsuch when he dissented in December from the grant of certiorari in Arizona v. Mayorkas (the Title 42 case that the Court recently dismissed as moot).

What’s behind this joining of forces? I agree with Professor Anthony Michael Kreis, who told Bloomberg Law that the justices’ shared concern about “protecting the little guy” reflects Gorsuch’s libertarian worldview and Jackson’s concern for civil rights. I also concur with Professor Dan Ortiz, who notes that their apparent support for the rule of lenity is consistent with Gorsuch’s concern about overreaching government and Jackson’s pre-robescent career as a public defender.

I also wonder whether it might reflect two other things. First, in their inaugural terms on the Court, both Justices Gorsuch and Jackson were surprisingly outspoken on the bench for junior justices (and got very different coverage for it, as noted by Ted Frank—mostly critical for Justice Gorsuch, and mostly “Yas Queen!” for Justice Jackson). As two justices less inclined to show deference to senior colleagues and more willing to express their views openly, it makes sense for them to team up in separate opinions that opine a bit more broadly than their colleagues.

Second—and this is entirely speculation on my part, but drop me a line if you have actual info—I wonder if the two might be personally friendly or copacetic. Cf. Justice Antonin Scalia and Justice Ruth Bader Ginsburg, who enjoyed an across-the-aisle friendship over many years together on the Court (even if it didn’t manifest itself in their votes or opinions). Maybe Justice Jackson can invite Justice Gorsuch, an avid outdoorsman who presumably enjoys wilderness-y stuff, to a viewing party for Survivor, one of her favorite shows. In her recent commencement speech at American University’s Washington College of Law, Justice Jackson cited Survivor for various life lessons, including “understanding that this game is about existing both in community and conflict”—wisdom that might explain her alliance with Justice Gorsuch.

"The taxpayer must render unto Caesar what is Caesar’s, but no more."

 That was Chief Justice Roberts channeling his inner Milton Hirsch in Tyler v. Minnesota. 

From the conclusion:

The Takings Clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U. S., at 49. A taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed. The taxpayer must render unto Caesar what is Caesar’s, but no more. Because we find that Tyler has plausibly alleged a taking under the Fifth Amendment, and she agrees that relief under “the Takings Clause would fully remedy [her] harm,” we need not decide whether she has also alleged an excessive fine under the Eighth Amendment. Tr. of Oral Arg. 27. The judgment of the Court of Appeals for the Eighth Circuit is reversed.

Meantime, the NY Times has this message for the Supreme Court:

The Supreme Court will soon issue rulings, on affirmative action, student debt relief, and the First Amendment and gay rights, that have the potential to affect the American public for generations. And yet public approval of the court is at a historic low. This was true even before the seemingly endless stream of reports over the past few weeks about the justices’ lax ethics. Since a conservative supermajority took control of the court in 2020, it has blown through the guardrails courts are expected to observe — showing little respect for longstanding precedent, reaching out to decide bigger questions than it was asked to and relying on a secretive “shadow docket” to make hugely consequential rulings with no public explanation.

Even Republicans who are happy with the Supreme Court’s recent rulings are voicing their concerns. “What I would urge the court to do is take this moment to instill more public confidence,” Senator Lindsey Graham of South Carolina said during the Senate Judiciary Committee hearing on ethics at the Supreme Court on May 2. “I think we’d all be better off if they did that.”

Mr. Graham is right: The nine justices — unelected and employed for life — are shielded from the usual mechanisms of democratic accountability, and so they depend on a high level of public trust like no other institution of American government. Their failure to take the steps necessary to restore that trust, steps that are entirely within their control, is undermining their legitimacy as one of the country’s most vital institutions.

Instead the justices are behaving as though the same laws they interpret for everyone else don’t apply to them. They’re not entirely wrong. In most other government jobs, people can be fired for disregarding laws or ethical obligations, but the justices can be confident that they will face no consequences. Federal laws that explicitly apply to them — involving, for example, financial disclosures and recusal standards — are not enforced, leaving the justices to self-police, and the highest court is not bound by a code of ethics as the lower federal courts are.

Chief Justice Roberts gives speech

And it's pretty interesting.  One thing he says was how hard the decision was to put up a fence aroudn the Supreme Court.  He also pushes back on the idea that Congress needs to enact ethics rules for the Justices. Here's the video of the event:

LIVE: US Supreme Court Chief Justice John Roberts will speak at the American Law Institute's annual dinner https://t.co/G0cfzaGspD

— Reuters (@Reuters) May 24, 2023

KBJ's favorite show is Survivor

 From the AP:

Supreme Court Justice Ketanji Brown Jackson called herself a “Survivor superfan” on Saturday and offered an audience of graduating law school students lessons from the reality TV show.

The show has been on television for 23 years and is now in its 44th season. Jackson said she has seen every episode since the show’s second season.

“I watch it with my husband and my daughters even now, which I will admit it’s not easy to do with the demands of my day job. But you have to set priorities, people. And that’s exactly the first lesson that I have for you today,” she told the graduating class of American University’s law school in Washington.

***

In her address, Jackson described “Survivor,” in which contestants are deposited in a remote tropical location and undertake challenges in the hopes of ultimately winning $1 million, as “great fun to watch.” But she also said it holds “a number of broader lessons that are helpful for becoming a good lawyer.”

One lesson, she said, is to “make the most of the resources that you have,” drawing a parallel to when she was a federal public defender and prosecutors always seemed to have more resources. Jackson said she knows “what it is like to commit to moving forward even when the deck is stacked against you” and also talked about a Survivor contestant with a prosthetic leg who nonetheless prevailed at a difficult challenge involving a balance beam.

“My advice to you is to do your best to shut out distractions, use your time wisely and figure out how to make the most of what you have,” Jackson said.

Other lessons from the show are to “know your strengths” and to “play the long game,” she said.

That last piece of advice could serve the liberal justice well on the Supreme Court, where her colleagues include six conservatives and two other liberals, making it unlikely her views will prevail in some of the term’s most contentious cases when they are announced over the next several weeks.

“Season after season, the players who tend to do really well are those who appear to come in with the understanding that this game is about existing both in community and conflict,” she said of “Survivor.”

Jackson said that players who go far are the ones that “choose optimism, lifting the spirits of the other tribe members, no matter what happens.”

“They try to stay as even-keeled as possible, not getting too carried away by dramatic wins or heartbreaking losses,” she said.

Senate confirms Nancy Abudu to 11th Circuit

 From Reuters:

The U.S. Senate on Thursday confirmed President Joe Biden's nominee to the 11th Circuit U.S. Court of Appeals, overcoming rare Democratic opposition from Senator Joe Manchin.

Nancy Abudu, a lawyer for the nonprofit Southern Poverty Law Center (SPLC) legal advocacy group, was confirmed on a 49-47 vote. She will be the first Black woman to serve on the Atlanta-based 11th Circuit.

Abudu's nomination drew strong Republican opposition, and she faced a new obstacle on Wednesday night when Manchin, a moderate Democrat from West Virginia, broke ranks to oppose advancing her nomination.