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keithgrosme · 6 years

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Lawsplainer: "Fruit of The Poisonous Tree" And The Special Counsel Investigation

I have a question.

I deserve this.

Don't be sour. This question is agricultural.

Of course it is.

It's about fruits and trees and some kind of poison or something?

Where did you pick that up?

Twitter and Reddit, mostly. People are saying that Special Counsel Robert Mueller's investigation is going to be derailed, and everyone's case is going to get thrown out, because it's all fruit of the poisonous tree.

Yes, that sounds like something that people on Twitter and Reddit would say.

So you're saying "fruit of the poisonous tree" isn't a thing?

It is a thing. But it is not anything like the thing being imagined here.

Look, I know you're a federal criminal defense lawyer and everything, but the fellow on Twitter seemed quite firm about this.

I'm sure.

Why not? I mean, if Mueller's team made mistakes or committed misconduct, couldn't that taint the entire investigation?

Not at all in the way people are arguing.

So what is "fruit of the poisonous tree," anyway?

"Fruit of the poisonous tree" is a metaphor used to describe part of the exclusionary rule.

The exclusionary rule, in brief, provides that when the government illegally seizes evidence in violation of your rights, it can't use that evidence against you in court. So, if the cops burst into your house and search it and seize evidence without a warrant, and no exception to the warrant requirement applies, the government can't use the illegally seized evidence against you when it prosecutes you for a crime.

The "fruit of the poisonous tree" doctrine is just an extension of that. It provides that if the government uses illegally seized evidence to obtain more evidence, that more evidence is also inadmissible in court. So, if the government raided and searched your house illegally, and seized evidence from your house illegally, then used that evidence to go get a search warrant for your office, the evidence seized from your office is inadmissible.

So why doesn't that apply to the Special Counsel investigation? People are saying Mueller's team broke the law and violated rights. Doesn't that make everything he does fruit of the poisonous tree?

No. The doctrine doesn't work that way.

It's true that people are arguing that Mueller's investigation is tainted because (among other reasons) a FISA warrant application to surveil Carter Page didn't adequately disclose the partisan nature of the information it relied upon, and that the entire investigation must therefore be shut down because of that and various other wrongdoing.

This argument is completely detached from the law for numerous reasons.

First, there's the concept of standing. "Standing" means that I cant' assert violations of your rights to get a court to exclude evidence. The "tree" has to be a violation of your rights for you to use the doctrine. So if the cops illegally search your house, and try to use the resulting evidence against me, I can't get it thrown out unless I had some sort of right to privacy in your house — as a tenant, for instance. But if the cops illegally search me, violating my rights, and then use the resulting evidence to get a search warrant for your house, and find more evidence there, then I might get that evidence suppressed because the "tree" is a violation of my rights.

In the Special Counsel's case, the only people who could conceivably claim "fruit of the poisonous tree" based on a bad FISA warrant application would be people whose rights were violated by that warrant — that is, Carter Page, and perhaps someone recorded talking to him.

Okay. What else?

Then there's the concept that the "fruit of the poisonous tree" doctrine allows exclusion of specific evidence resulting from violation of a particular defendant's rights. It doesn't require the shutting down of entire investigations.

Put another way, the question is whether the defendant can draw a direct line between a violation of his or her rights and a piece of evidence. The courts have rejected a "but for" theory of the doctrine. That is, the question isn't "would the police have done the things they did but for the violation of my rights." "The Court has never held that evidence is 'fruit of the poisonous tree' simply because “it would not have come to light but for the illegal actions of the police.'" So, for instance, even if the police become interested in searching my house because of evidence they seized illegally from me, so long as the warrant application to search my house does not include any of the illegally seized evidence, it's not fruit of the poisonous tree.

There's a related concept called attenuation. "Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance." The most common example of this is a voluntary statement. Generally, if the police illegally seize evidence, and then come and ask me about it, and I make a voluntary statement, courts consider the connection between the illegal seizure and the statement attenuated by my voluntary act, so that my statement is not suppressed. So, in the case of the Special Counsel, Papadopoulos and Flynn pleaded guilty to lying to the FBI during voluntary statements to them. Even if the Special Counsel got to that interview by violating rights, and even if those were Papadopoulos's and Flynn's rights, the voluntary statements would generally be treated as breaking the chain and would be admissible.

So the whole argument isn't plausible?

It's highly implausible on multiple levels. For instance, the theory seems to be that the FISA warrant for Carter Page did disclose that it was based on information from a partisan source, but didn't disclose how partisan the source was. We defense lawyers would love it if arguments like that worked — "yes, the government conceded their source was skeevy, but not how very skeevy" — but they just don't. The entire "fruit of the poisonous tree" argument about the Mueller investigation relies on courts acting in the way defense lawyers dream they would, but definitely haven't, at least since the Warren Court. Fourth Amendment rights, Fifth Amendment rights, the exclusionary rule — all of these things have been relentlessly marched back in the half-century since their high water mark.

So, basically, investigators can pull whatever misconduct they want, and if you can't draw a short line between the misconduct and a piece of evidence they want to admit against you, you're out of luck?

Not quite. There's a doctrine called "outrageous government misconduct." Basically, when the government's conduct in the case is so outrageous that it violates the due process rights of the defendants, the case can be thrown out. It's an extremely difficult doctrine to invoke and very rarely succeeds, and appellate courts usually reject it, so don't let me catch you citing it on Twitter.

To get a sense of how rare it is for this doctrine to be invoked, consider this case from the Ninth Circuit reversing a trial court's dismissal of a case under this doctrine. Bear in mind the Ninth Circuit is the most liberal and defendant-friendly circuit:

A prosecution results from outrageous government conduct when the actions of law enforcement officers or informants are "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). A federal court must dismiss a prosecution based on such actions. The standard for dismissal on this ground is "extremely high." United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991). Dismissals are "limited to extreme cases in which the government's conduct violates fundamental fairness." United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003). An indictment can be dismissed only where the government's conduct is "so grossly shocking and so outrageous as to violate the universal sense of 796*796 justice." United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir.2011) (quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991)).

Underplaying how bad a source was, or losing texts, would definitely not cut it as outrageous government misconduct.

So are you pleased that these people are wrong?

Hell no. I'd like to see a robust exclusionary rule, a robust application of the fruit of the poisonous tree doctrine, and a resurgence in the vigor of the Fourth and Fifth Amendments, which have suffered since the 1970s.

I am, however, deeply annoyed that political factions that have lauded "law and order," deified law enforcement and insulated them from consequences, and generally denigrated the criminal defense function and the concept of defendants' rights are suddenly pretending to be devoted defense advocates.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/02/12/lawsplainer-fruit-of-the-poisonous-tree-and-the-special-counsel-investigation/ via Blogger http://keithgros.blogspot.com/2018/02/lawsplainer-fruit-of-poisonous-tree-and.html

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keithgrosme · 6 years

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New Post At Reason About President Trump And Special Counsel Mueller

I write things elsewhere sometimes.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/02/08/new-post-at-reason-about-president-trump-and-special-counsel-mueller/ via Blogger http://keithgros.blogspot.com/2018/02/new-post-at-reason-about-president.html

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keithgrosme · 6 years

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Make No Law Episode Two: The Schoolhouse Gates

In Make No Law podcast Episode Two: the Schoolhouse Gates, I interview Mary Beth Tinker, who won an important victory for student free speech rights, and remains an activist for free speech rights to this day. What was it like in 1965 to defy the school district's rule against black armbands? Listen and find out.

Here are some of the cases and resources mentioned in the podcast:

Supreme Court decision in Tinker v. Des Moines

Oyez page on Tinker v. Des Moines, including oral argument recording

Tinker Tour USA: Mary Beth Tinker's student free speech organization

Ninth Circuit amended opinion (with dissent from refusal of rehearing) in Dariano v. Morgan Hill Unified School District, the Cinco de Mayo flag shirt case

My 2010 post about the Dariano case

Supreme Court opinion in Morse v. Frederick — an example of the retreat from Tinker's protection for student free speech rights

Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/01/31/make-no-law-episode-two-the-schoolhouse-gates/ via Blogger http://keithgros.blogspot.com/2018/01/make-no-law-episode-two-schoolhouse.html

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keithgrosme · 6 years

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Make No Law Episode One: Fighting Words

In Episode One, with the launch of the Make No Law podcast, I look at "fighting words" the exception to the First Amendment established in the 1942 case Chaplinsky v. New Hampshire. What got Walter Chaplinsky so riled up, and why were the cops so eager to prosecute him for an inconsequential outburst? Listen to find out.

On iTunes

Here are some of the documents and cases discussed in the episode:

Supreme Court decision in Chaplinsky v. New Hampshire

The Billy Gobitas letter

Supreme Court decision in Minersville School District v. Gobitas

Judging Jehovah's Witnesses: Religious Prosecution and the Dawn of the Rights Revolution, by Shawn Francis Peters

1941 ACLU pamphlet "The Persecution Jehovah's Witness"

Supreme Court opinion in West Virginia State Board of Education v. Barnette

Supreme Court decision in Cohen v. California

Supreme Court decision in Texas v. Johnson

Supreme Court decision in Snyder v. Phelps

Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/01/31/make-no-law-episode-one-fighting-words/ via Blogger http://keithgros.blogspot.com/2018/01/make-no-law-episode-one-fighting-words.html

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keithgrosme · 6 years

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Announcing "Make No Law": Popehat's First Amendment podcast on Legal Talk Network

I'm thrilled to announce "Make No Law," a First Amendment podcast on Legal Talk Network. You can see the announcement page on LTN here. The podcast will be available on iTunes and Google Play, and you'll be able to stream it at LTN and here.

Make No Law explores the legal, social, and historical background of important First Amendment cases, with interviews with participants and experts. Each episode looks at a particular case, both lawsplaining it and putting it in its context. In future episodes, I hope to answer listener questions about free speech issues and take suggestions for topics. My goal is a podcast that's interesting, informative, and accessible to non-lawyers and lawyers alike.

We'll be launching with two episodes:

Episode One, "Fighting Words": What made Warren Chaplinsky so angry on that April day in 1940 that he called a cop a fascist and racketeer? Why was he prosecuted for such a trifling thing, and what did he have in common with a boy writing a letter to a school district in another state five years earlier?

Episode Two, "The Schoolhouse Gates": I interview Mary Beth Tinker, free speech activist and the victorious plaintiff from the crucial student free speech case Tinker v. Des Moines.

And we'll be aiming at releasing episodes monthly. Coming soon:

Episode Three, "On The Job": How do the courts balance the free speech rights of government employees with the need to maintain discipline in government workplaces? I interview Richard Ceballos, a Deputy District Attorney who faced retaliation for questioning a search warrant, and whose case articulated a troubling rule for government employees.

Episode Four, "Disparagement, Contempt, and Disrepute": I interview Simon Tam of the band The Slants about his recent Supreme Court victory and the trademark process that, despite what he and his fans thought, told him his band's name was racist and unacceptable.

We're launching, barring disaster, on January 31, 2018.

I'm deeply indebted to the superlative team at Legal Talk Network, who are responsible for the podcast sounding like something more than me shouting into a soup can. Executive producer Laurence Colletti, producer Kate Nutting, and particularly redoubtable sound engineer and composer Adam Lockwood turned this from an idea into a show. It's been a privilege to work with them.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/01/24/announcing-make-no-law-popehats-first-amendment-podcast-on-legal-talk-network/ via Blogger http://keithgros.blogspot.com/2018/01/announcing-make-no-law-popehats-first.html

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keithgrosme · 6 years

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Anatomy of a Scam: The End

This series is about my investigation of a mail fraud ring that attempted to scam my firm, the history of its bad actors, and the methodology that I used to look into it. You can see the whole chapter index here.

More than seven years ago, I became irritated at a fraudster trying to scam my office and started to write about him. Seven years and fifteen posts later, the slow-grinding wheels have ground their last on the case. Earlier this week, David Bell — the central figure of this Anatomy of a Scam series — was sentenced to 108 months in federal prison after his guilty plea to mail fraud and wire fraud. There's no parole in the federal system any more; Bell will do at least 85% of that time, or about seven and a half years. He'll be on "supervised release" — the modern federal equivalent of supervised parole — for three years after that, and will be at risk of being sent back to prison if he's caught engaged in fraud again. He's scheduled to surrender in March.

This is not a typical result. There are tens or hundreds of thousands of con artists out there, and they frequently escape detection. When they are detected, they frequently escape prosecution, and when they are prosecuted, they frequently escape with mild sentences on lesser charges, leaving them free to victimize again. This sort of hard-time outcome is rare despite the amount of harm these people inflict. The government simply doesn't have the resources to mount this sort of investigation against any but the worst of the worst.

But I don't want readers to take that grim message away from this series. Rather, I want people to see that they can take initiative themselves — that they can use the techniques and research tools I've discussed in this series to track down the people trying to scam them, to spread the word about them, and to inform law enforcement about them. The best defense against con artists isn't the government, because government doesn't have the resources. The best defense is self-reliance, healthy skepticism, involved communities, and public-spirited private investigation that can be broadcast far and wide through modern tools.

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keithgrosme · 6 years

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Lawsplainer: Attorney General Sessions' Threatened Action on Marijuana

WAKE UP WAKE UP THEY'RE COMING FOR ME I NEED BAIL MONEY

wat

THE FBI THEY'LL BE HERE ANY MINUTE BECAUSE I ATE THAT NO-GLUTEN BROWNIE AT AN OSCARS PARTY IN LOS FELIZ

What the hell is going on?

The feds! They're coming after us for our marijuana!

Wait. Is this about Attorney General Jeff Sessions saying he will rescind Obama-era Department of Justice memos about federal prosecution of marijuana transactions that are legal under the laws of various states?

Yes! Yes. That. The rescindition, with the thing, and Sessions. And marijuana.

Okay. And do you know the context?

YES! Yes. Yes. A bit. A bit. No. Not really.

Okay. Let's talk about what it means.

So I'm not getting arrested by the ATF right away?

You don't . . . the ATF doesn't . . . you know, just hold on a second and let's go through this.

Okay.

So. Let's start with basics.

Many states make it illegal to possess or distribute marijuana. Until recently it was all states. It's also a crime under federal law. Even simple possession of marijuana — that is, possession for personal use, not to distribute to someone else — is a federal crime.

Wait, you were a federal prosecutor back in the 18th Century or something. Did you actually prosecute people for marijuana?

Yes. I'm not proud of it. I prosecuted people for involvement in marijuana cultivation and distribution operations — operations involving 500 plants or more. It was wrong, and I'm actually ashamed of it.

For many years there wasn't a conflict between state and federal law. Both prohibited marijuana. But then states, one by one, began making marijuana legal — first for medical purposes, then for personal use.

What did that do to the federal law?

It did nothing. Marijuana remained illegal under federal law. Under the Supremacy Clause to the United States Constitution, the states can't immunize people from federal prosecution — they can make things legal under state law, but can't make things legal under federal law. Cultivating marijuana and distributing it were a federal felony. Only policy, prosecutorial discretion, and resource allocation would save you from being prosecuted federally for marijuana distribution that was legal under state law.

That sounds like a recipe for uncertainty and disaster.

It was. Under the Obama Administration, the United States Department of Justice issued a series of memos with guidelines for federal prosecutors to help them decide whether and when to launch federal prosecutions of marijuana offenses that might be legal under state law. The first, in October 2009, was called the Ogden Memorandum, named after a Deputy Attorney General. It said that federal prosecutors "should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with state laws" permitting medical marijuana use. Instead, it said that federal prosecutors should focus on only those marijuana cases that reflected high federal interest: cases involving possession of guns, violence, sales to minors, ties to criminal enterprises, financial shenanigans, and distribution of other illegal substances.

But in 2009 the state laws were only about medical marijuana, right? What about when personal use marijuana became legal in some states?

There were more memos about that, called the Cole Memoranda. Deputy Attorney General Cole issues a series of memoranda further articulating Department of Justice policy in the face of emerging state laws legalizing personal use of marijuana. The upshot was this: the Cole Memoranda said that as long as states effectively regulated marijuana usage to assure compliance with state personal use laws, the Department of Justice would focus its resources on federal interests: sale to children, connections to organized crime, transportation from one state to another, use or cultivation on federal property, and use of financial systems to launder or conceal proceeds. Other parts of the federal government followed suit: for instance, the Treasury Department's Financial Crimes Enforcement Network (FINCEN) issued guidelines for financial institutions for dealing with customers engaged in state-legal marijuana businesses.

So if you want to grow or sell marijuana in states where it's legal, you're safe from federal prosecution as long as you obey state law, stay away from kids and organized crime, and the federal prosecutors obey the Department of Justice guidelines?

In theory. Plus, Congress got into the act.

In 2016, in the Rohrabacher-Farr amendment to an appropriations bill, Congress prohibited the Department of Justice from using federal money to "prevent" states from implementing laws making medical or personal use of marijuana legal. Courts have found that this amendment may prohibit federal prosecutions for marijuana activities that are legal under state law.

Since then, Rohrbacher-Farr has been included in each appropriations bill and continuing resolution.

So what does all this mean for people who want to use or sell marijuana in states law allow it?

First of all, practically speaking, federal prosecutors can't do much about marijuana use. Federal prosecutors only have the resources to prosecute a tiny number of cases compared to state prosecutors, and the vast majority of their time is taken up with other priorities: serious white-collar crime, immigration crime, guns, violent crime, and so forth. Typically federal prosecutors have guidelines that discourage taking any but the biggest marijuana cases — cases involving hundreds or thousands of kilos or many hundreds of plants.

Second, between the Ogden and Cole Memoranda and Rohrabacher-Farr, federal prosecutors haven't made serious attempts to thwart state laws making marijuana legal. They've made a few gestures consistent with the Cole memorandum — for instance, by sending letters to landlords of marijuana dispensaries that were operating in violation of state law, threatening that they could face prosecution or forfeiture for allowing their property to be used for marijuana activities in violation of state law.

But that could change.

How does Attorney General Sessions figure into this?

Sessions is a staunch foe of marijuana legalization. He asked Congress not to include Rohrabacher-Farr in appropriations bills back in 2017. He's previously sent mixed messages about the Ogden and Cole Memoranda. And now, reportedly, he wants to rescind the Ogden and Cole Memoranda and change Department of Justice policy on federal prosecution of state-legal marijuana activities.

Okay. But what does that really mean?

As long as Rohrabacher-Farr remains in every federal appropriations bill, it's largely symbolic — the Department of Justice will still be prohibited from spending money on prosecuting people for marijuana activities that are legal under state laws. And, practically speaking, it's utterly impossible for the Department of Justice to prosecute more than a very tiny fraction of marijuana cases. They don't have the resources. A big U.S. Attorney's Office might file around 1200 indictments a year — that's all indictments for all types of cases and crimes. Of that, maybe a dozen, tops, might be about marijuana. They can't change that without sacrificing other priorities. They could abandon every other type of case and still not do a tenth of the marijuana cases that local authorities do. Moreover, marijuana legalization is quite popular, and federal interference in it is quite unpopular, so there's not a whole lot of upside.

That said, if Sessions revokes the Ogden and Cole memoranda — and especially if he also succeeds in convincing Congress not to include Rohrabacher-Farr in the next appropriations bill or continuing resolution — he'll inject a substantial amount of uncertainty into the situation. Even if getting prosecuted federally for marijuana is so rare that it's like getting struck by lightning, getting struck by lightning remains terrifying and often fatal. This will have relatively little impact on personal users, but it could have a significant impact on the development of the legitimate business side of marijuana cultivation in states where it is legal. Landlords who might rent to dispensaries, businesses that might service them, financial institutions that might handle their money, professionals that might advise them — those legitimate, high-profile, highly-risk-averse institutions will all be deterred from involvement in the industry. The process of turning marijuana from a street drug to a legally regulated commodity will, at least, be slowed down.

But I won't go to jail?

No. Unless the feds decide to file one of their extremely few marijuana prosecutions to make an example of you — if you run a prominent cultivation operation, or run a bank handling a cultivation operation's money, or something like that — your primary criminal risk will still be about compliance with state law. Your main concern will be that businesses and institutions will be slow to support an activity that the citizens of your state have chosen to make legal.

So what are you watching for?

Three things. First, I'm looking for the language of Sessions' revocation of the Ogden and Cole memoranda. Will he simply revoke them, or will he announce a new policy? That new policy will suggest the future risks of federal prosecution. It would not surprise me if this is mostly cosmetic: Sessions may issue a memorandum that has anti-marijuana propaganda but doesn't really change federal priorities or resource allocation.

Second, I'll wait to see if other policies change — for instance, whether FINCEN revokes its financial institution guidelines in reaction to any memo from Sessions.

Third, I will watch to see whether Rohrabacher-Farr is included in each appropriations bill and continuing resolution. If it is, that's still a substantial impediment to a federal anti-marijuana surge. If it's left out, then that signals significantly increased danger.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2018/01/04/lawsplainer-attorney-general-sessions-threatened-action-on-marijuana/ via Blogger http://keithgros.blogspot.com/2018/01/lawsplainer-attorney-general-sessions.html

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keithgrosme · 6 years

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Sociopathic Behavior by Lawyers

Sociopathic Behavior by Lawyers When being pursued by an army of attorneys you will undoubtedly catch them making mistakes. In the case that has been filed against me by John Defeo of Condon Tobin Sladek Thornton, there has been multiple affidavits and exhibits filed that seem to go out of the way to lie and or contradict themselves. Some of the comical ones are by Anthony Palazzo when he tries to convince the court his multiple arrest for cocaine possession are not part of the public record. The self confessed cocaine use and possession by Anthony Palazzo can be found here. The latest filing by the army of paper hanging monkeys contains an affidavit by John Defeo of Condon Tobin Sladek Thornton stating that he swears:

A true and correct copy of that article is attached as Exhibit 2 to my affidavit.

He lied in this affidavit and he submitted exhibits that have been edited to support their motion for contempt by removing the "opinion statement" which is the second line of this blog. They also did not attach the disclaimer page which is incorporated into every page of this blog. What he submitted is far from a "true and correct copy" of any article I have written much less preserving the layout and design of this blog. I have other exhibits they have filed in other hearings that preserve the "opinion statement". It would appear that John Defeo intentionally went out of his way to present false exhibits to the court in order to further the case of ShopperLocal and Eli Global against me. I wonder if they have a bonus outlined if they can have me incarcerated. He goes on to claim in his affidavit:

Finally I should add that I in no way lied of misrepresented anything to this Court, as Rushing states.

He lied in the very affidavit that he is claiming not to have lied to the court in. I claim that he lied in his previous filings which would take thousands of words to dissect and point out the lies. If he claims that an error was made it should fall on deaf ears. I cannot see how he can hide behind that when he made these statements in an attempt to have me incarcerated. This is sociopathic behavior, attempting to achieve an objective regardless of the truth or social acceptability. I would imagine sociopaths make good attorneys. I know they make good salespeople. Some people may think my activities on this blog ar sociopathic as well. They might be, I am not a psychiatrist that could make that determination. I do know this it would not of gotten to this point if Anthony Palazzo did not intentionally go out of his way to derail settlement discussions between Ashley Sims and myself. Ashley Sims had offered as settlement my last paycheck which I rejected because of Anthony Palazzo's vile emails and threats. I was willing to do that until Anthony Palazzo intervened during that process. Contacts that Anthony Palazzo have initiated have always been caustic and vexatious. His first contact with me was threats of lawsuits after they withheld my last paycheck. Then further threats of lawsuits and irreversible consequences that I will need a very good attorney. This is the same guy that is upset he was called a coke head after admitting he has used cocaine and gone to drug treatment. If he really has recovered from his cocaine problem he would not care if he was called a coke head or a drug addict. These would be badges of honor for him as they would allow him to reach out to others that have had problems and help them overcome their addictions. You have to put others before yourself to successfully recover from drug and alcohol addiction. Based on filings by the Eli Global / ShopperLocal bunch he has not recovered. It is a common accepted synopsis that drug addiction is never cured. Claims of him not being addicted to cocaine may be true. He may of went to treatment to mitigate his criminal case and law license suspension. Superficial, shallow and sociopathic. Every filing these people make against me do not discourage me. It only strengthens my resolve. It may cause hardship for me especially when they threaten jail and fines for writing about them but for me to go away because they do that lets them win and trample me at the First Amendment Rights I served to protect. I bet not a single one of these attorneys spent a single day in the military or have a real comprehension of what it means to protect the constitution as they only seek to trample it. I am open to discussing making this go away I just don't think they are willing to offer anything close to an amicable resolution. Eli will write checks, I will go to court in the end they get nothing Eli gets nothing and this blog will remain in perpetuity as well as other websites of mine. Originally published on http://localshopperscams.blogspot.com/2018/01/when-lawyers-lie-is-it-sociopathic.html via Blogger http://keithgros.blogspot.com/2018/01/sociopathic-behavior-by-lawyers.html

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keithgrosme · 6 years

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Eugene Volokh on A Prosecution For Insulting Facebook Posts

Over at Reason, the Volokh Conspiracy's new home, Eugene Volokh has a post up about the criminal prosecution of a California man for, among other things, insulting Facebook posts.

My law partner Caleb Mason is defending that case. This is an apt moment to remind you that my law firm has no role in or control over this blog and the content is the sole responsibility of the people who write here.

You may remember Caleb from his First Amendment win in a federal criminal case in 2016, or the time he published a law review article using Jay-Z's 99 Problems to explain Fourth Amendment issues.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/12/29/eugene-volokh-on-a-prosecution-for-insulting-facebook-posts/ via Blogger http://keithgros.blogspot.com/2017/12/eugene-volokh-on-prosecution-for.html

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keithgrosme · 6 years

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Notice of Intent to Sue: John Defeo, Chris Jordan, Anthony Palazzo and their Employers

Notice of Intent to Sue: John Defeo, Chris Jordan, Anthony Palazzo and their Employers This is my formal notice of intent to sue John Defeo of Condon Tobin Sladek Thornton individually and Condon Tobin Sladek Thornton for actions of their member John Defeo. Through Condon's agent John Defeo they caused tremendous hardship in my home when they submitted fraudulent affidavits to the Camden County Superior court with attached implied threats of fines and imprisonment. I will also be naming Anthony Palazzo, Chris Jordan and Hunter Maclean for their parts in of abuse by their employer, Condon Tobin. Defeo has lied, Palazzo has lied, Jordan is the paper hanger. Sounds like significant litigation to chill my life because I responded to Anthony Palazzo's threats to me by calling him and the scammy company, Shopperlocal, he works for out. I really do not have the time for this but I definitely have the desire even if I have to take a couple years off from work to do it. I will be working on situating myself to do so before the statute of limitations toll. Originally published on http://localshopperscams.blogspot.com/2017/12/notice-of-intent-to-sue-john-defeo.html via Blogger http://keithgros.blogspot.com/2017/12/notice-of-intent-to-sue-john-defeo.html

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keithgrosme · 6 years

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John Defeo et al Manipulate Evidence to Cause Harm

John Defeo et al Manipulate Evidence to Cause Harm Chris Jordan filed a motion for contempt against me recently in the Camden County Superior Court with an affidavit signed by John Defeo that states "A true and correct copy of the article is attached as exhibit 2 to my affidavit". He is referencing the article where I call them out for lying to the court in their answer to my motion to strike and taking jabs at a self confessed cocaine abuser. When Defeo submitted his affidavit with "A true and correct copy of the article..." it appears he intentionally left out the disclaimer line in the heading which is found on every page of this blog.

I wonder who is in contempt now?

This appears to me that Shopperlocal, Eli Global, Chris Jordan and John Defeo are willing to fabricate evidence in a deliberate attempt to lie to the court and cause me harm. This throws litigation privilege completely out the window. I hope it is criminal. I can't wait for this hearing.....

Originally published on http://localshopperscams.blogspot.com/2017/12/john-defeo-et-al-manipulate-evidence-to.html via Blogger http://keithgros.blogspot.com/2017/12/john-defeo-et-al-manipulate-evidence-to.html

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keithgrosme · 6 years

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Someone Else is Interested

Someone Else is Interested There seems to be some interest on content about a certain cocaine abusing general counsel.

This is not the only visit but is representative of all content surrounding Mr Palazzo. Originally published on http://localshopperscams.blogspot.com/2017/12/someone-else-is-interested.html via Blogger http://keithgros.blogspot.com/2017/12/someone-else-is-interested.html

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keithgrosme · 7 years

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Randazza: Section 2(a) Falls! First Amendment Wins!

He died for your sins. Today he spoke to us through the justices of the Federal Circuit

First Amendment Prevails as Final Portion of Trademark Act’s Censorship Regime Falls

by Marc J. Randazza

The U.S. Court of Appeals for the Federal Circuit just struck down the final pillar in the U.S. Trademark Act’s censorship regime.

15 U.S.C. § 1052(a) (known best as “Section 2(a)”) is a portion of the Lanham Act, the federal trademark statute, that prevents registration of certain kinds of marks. It used to bar registration of marks that “may disparage,” as well as marks that were “immoral or scandalous.” Earlier this year, the Supreme Court in Matal v. Tam, 137 S. Ct. 1744 (2017) found that the bar on registration of marks that “may disparage” violated the First Amendment. This decision got a lot of attention and caused much speculation as to whether the “immoral or scandalous” language of Section 2(a) would survive, since the two had so much in common.

In fact, the author of this Article did an in depth study of the issue in Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights. See also The USPTO Would Prefer Not to Follow the First Amendment, What's got “The Slants” case, CUMFIESTA, Fuckingmachines, Nutsacks, and Japanese porn?, and Decision on Asian American Band's Name is Wrong.

We no longer have to speculate as to how the courts might fuck this up — they didn't. Section 2(a)'s unconstitutional provisions have finally fallen, absent an appeal. And, the final one fell on largely the same arguments I raised in 2006 in "The Fuck Brief." Unfortunately, my client in that case elected to forego an appeal. However, most of the arguments made it into the Amicus Brief filed by the First Amendment Lawyers' Association in the In Re Tam case.

Today, the Federal Circuit in In re: Brunetti, Case No. 2015-1109 (Fed. Cir. Dec. 15, 2017) found that the “immoral or scandalous” restriction on registration is unconstitutional for largely the same reasons the “may disparage” restriction was. The case started with the applicant, Brunetti, attempting to register the mark FUCT. The USPTO found this mark to be synonymous with “fuck,” making it vulgar, and thus running afoul of Section 2(a). The Federal Circuit affirmed that FUCT was immoral or scandalous, but then found that this portion of Section 2(a) was unconstitutional and thus could not prevent registration of the mark.

The Brunetti Decision

Background and Legal Issues

The Brunetti decision is heavily influenced by the Supreme Court’s Tam decision. As in Tam, there was a question as to whether the “immoral or scandalous” restriction was viewpoint-based. Such restrictions are almost always unconstitutional. The Brunetti court found that the “immoral or scandalous” restriction was likely viewpoint-based and failed to pass constitutional muster (Decision at 13.)

The Tam decision already effectively dispensed of some of the government’s potential arguments.[1] The two arguments that the Brunetti court primarily considered not at issue in Tam were (1) the federal trademark registration scheme (specifically the principal register) is a limited public forum allowing for content-based restrictions on speech, and (2) the “immoral or scandalous” portion of Section 2(a) survived the lesser level of scrutiny for restrictions on commercial speech.[2]

The Federal Register Not Found to be a Limited Public Forum

Depending on the type of public forum, the government may restrict speech on the basis of content. Traditional public forums, such as public sidewalks or parks, give the government the least leeway in restricting speech, while limited public forums, where the government only opens property for narrow uses by the public, allow for content-based restrictions.

The government argued that the principal register was similar to “metaphysical” limited public forums that courts have recognized in other cases, such as a university’s student fund or a workplace charity drive. The Brunetti court found that these forums were connected to specific government property, and thus had no relation to the principal register or the federal trademark scheme; after all, a mark by definition is used in commerce and cannot be tied to specific government property. (Decision at 24.) The principal register is merely a government database, and accepting the government’s argument on this point would mean turning every government registration program, such as copyrights and marriage licenses, into limited public forums and allowing wide-ranging content-based discrimination by the government. (Decision at 25.)

“Immoral or Scandalous” Bar Not Aimed at Commercial Aspect of Trademarks

The Brunetti court went on to reject the government’s argument that the “immoral or scandalous” prohibition of Section 2(a) was aimed at commercial speech. The primary test for determining whether a mark is “immoral or scandalous” is if the general public would find the mark “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable; . . . giving offense to the conscience or moral feelings; . . . or calling out for condemnation.” In re Fox, 702 F.3d 633, 635 (Fed. Cir. 2012). The court noted that this restriction is aimed solely at the expressive content of trademarks, rather than their commercial source-identifying function, and necessarily involves moral value judgments. (Decision at 27.) The court could have stopped after this determination, since the government agreed that the “immoral or scandalous” portion of Section 2(a) could not survive strict scrutiny, but it went on to find that the restriction could not survive even intermediate scrutiny.

The “Immoral or Scandalous” Bar Fails Even Intermediate Scrutiny

Intermediate scrutiny allows content-based restrictions on commercial speech if (1) the speech concerns lawful activity and is not misleading; (2) the asserted government interest is substantial; (3) the regulation directly advances that government interest; and (4) the restriction is not more extensive than necessary to serve that interest. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980).

The court found that there was not a substantial government interest served by the “immoral or scandalous” restriction. The only interests the government articulated was “protecting public order and morality,” and shielding trademark examiners from drawings of genitalia. (Decision at 29-30.) The court pointed out that Supreme Court precedent, including Tam, establishes that the government does not have a substantial interest in protecting the sensibilities of the public or preserving people’s feelings.[3]

Even if this were a substantial interest, the prohibition on registration of “immoral or scandalous” marks failed to advance it. The court observed that the restriction does not prevent anyone from using such marks in commerce, and that “[i]n this electronic/Internet age, to the extent that the government seeks to protect the general population from scandalous material, with all due respect, it has completely failed.” (Decision at 35.)

Finally, assuming that the other elements of the Central Hudson test were met, the court found that the “immoral or scandalous” standard was so vague and open to interpretation that it was unnecessarily expansive. The court identified numerous marks that were registered in some cases and rejected in others with seemingly no consistent principles or standards. (Decision at 35-37.)

The “Immoral or Scandalous” Language Could Not Be Narrowed

After finding that the “immoral or scandalous” bar cannot survive as it currently exists, the court looked to whether a narrower interpretation of its language would make it constitutional. The concurring justices wanted narrowly to define “immoral or scandalous” as referring only to legally obscene content, but the court could not allow this because the restriction had a clear history of being applied to content that was not legally obscene or even sexual in nature, and no commonly used definition of “immoral or scandalous” is co-extensive with the legal definition of obscenity. (Decision at 39-40.)

What This Means for Trademark Owners

Finally, after years of unconstitutional action by the USPTO, there is no longer a bar on the registration of “immoral or scandalous” trademarks. Several applications for allegedly “immoral or scandalous” marks were suspended after the Federal Circuit’s decision in Tam, and the Brunetti decision should mean that these applications will now be able to proceed to registration. This does not necessarily mean they will, however. The USPTO may decide to appeal the Brunetti decision to the U.S. Supreme Court, and use that appeal as the basis for continuing to suspend these applications. It may also use such an appeal as the basis for suspending any new trademark application that an examiner determines to be “immoral or scandalous.” The government was the clear loser in the Brunetti decision, and I doubt it thinks it will fare any better on most issues with the Supreme Court. It may, however, attempt to push hard on obtaining a narrower definition of the bar on appeal that does not invalidate it outright, but instead restricts it only to legally obscene trademarks. This argument probably has the best chance of prevailing.

There is also the possibility that Congress, if it can be trusted to do anything in the current political climate, may introduce a new restriction to replace the “immoral or scandalous” bar. The Brunetti decision strongly indicates that a bar on registration of legally obscene marks would be constitutional, but Congress may attempt to impose a somewhat broader restriction. This is speculation for now, though, as there do not appear to be any rumblings from Washington about rewriting Section 2(a).

Brunetti does not necessarily create an automatic sea-change in the federal trademark registration regime. We will need to see what the USPTO does in the short term in response to the decision. If it allows previously “immoral or scandalous” marks to proceed to registration, then we should expect to see a flood of trademark applications for years' worth of a backlog of improperly-denied registrations. If the USPTO keeps sitting on its hands, however, that rush will likely be delayed until the Supreme Court (if it takes the case) decides the issue. However, should the Supreme Court decide to take this case up, it would be hard pressed to overrule this decision and keep the very recent precedent of In Re Tam intact. I find it very unlikely that SCOTUS would be inclined to reverse precedent that it just recently established, unanimously at that.

[1] The government reiterated its argument that the federal trademark registration scheme is a government subsidy, meaning it can discriminate based on content. While only a plurality of the Tam actually reached this issue, the Brunetti court found there was no indication from the other justices that this was a close call or that the Federal Circuit’s Tam decision on these issues was in any way wrong. (Decision at 16.)

[2] The government conceded that the restriction could not survive “strict scrutiny,” the usual (and extremely difficult to satisfy) test for content-based restrictions on speech. (Decision at 14.)

[3] The government tried to analogize this case to FCC v. Pacifica Foundation, 438 U.S. 726 (1978), which found that the government could restrict an afternoon broadcast of George Carlin’s rapid-fire recitation of “shit, piss, cunt, fuck, cocksucker, motherfucker, tits” for the purpose of preserving the sensibilities of vulnerable children. The Brunetti court dispensed of this by noting that registering a trademark does not foist the mark upon the nation’s youth, or even make them any more accessible. (Decision at 34.)

Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/12/15/randazza-section-2a-falls-first-amendment-wins/ via Blogger http://keithgros.blogspot.com/2017/12/randazza-section-2a-falls-first.html

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keithgrosme · 7 years

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I Have Almost Nothing Bad To Say About Matthew Spencer Petersen

I have almost nothing bad to say about Mr. Matthew Spencer Petersen, President Trump's nominee to be a United States District Judge for the District of Columbia.

Mr. Petersen is smart and well-educated. He is respected by his peers. He is, reportedly, good at his job as Chairman of the Federal Election Commission. When Senator John N. Kennedy (R-LA) asked him a series of increasingly brutal questions revealing his lack of relevant experience and knowledge about issues relevant to the federal judiciary, he responded with humility and self-effacement, not bluster or entitlement:

youtube

Mr. Petersen is manifestly not qualified to be a United States District Judge — that is, a federal trial judge. But that, in itself, does not reflect badly on him. Few people are qualified for that position. There are around 1.3 million lawyers in America and only around 2,800 federal trial judges. It's an elite job and there's no shame in not being qualified for it. It's unfortunate that he accepted the nomination, and I suppose that does not speak well of him, but it's hard to throw the first stone there — how many of us would turn down such power and such an honor out of an awareness of our own shortcomings?

But his nomination reflects very badly on this administration, on those Senators who will support him out of party loyalty, and on the American Bar Association, which rated him as qualified.

United States District Court Judges are appointed for life and are very rarely impeached. They commonly serve into their eighties or nineties. Though appointments to the United States Court of Appeals are considered more prestigious, a job as a district judge is much harder. Federal appellate judges have increasingly brutal caseloads, but those cases are presented to them with an established record (that is, the facts heard in the trial court to which they will apply the law) and each case presents a relatively limited set of issues, usually narrowed down by the parties. Appellate judges make very few, if any, on-the-spot decisions. Their job is intellectually challenging but removed from the tip of the spear: given these facts, and these arguments, and an extended opportunity to research precedent, what's the right answer?

By contrast, a district judge is a trial judge. Unlike many state judges, United States District Court judges hear both criminal and civil cases. Their criminal cases range from the mundane (a bank robber or a drug mule) to the extraordinarily complex (say, the Menendez prosecution). Their civil cases are even more varied — they handle everything from complex questions of patent law to antitrust to civil rights and constitutional law, plus many disputes under state law, which they hear as a result of various types of federal jurisdiction.1 They delegate some hearings and decisions to the Magistrate Judges they appoint, but are required to review the decisions of those Magistrate Judges. They preside over criminal and civil cases from start to finish, and will be called upon to make key decisions about them throughout. They dictate the length and breadth and nature of the trial through their pretrial rulings, and preside throughout the trial, making scores of in-the-moment evidentiary and procedural decisions each trial day. The job involves a potentially infinite amount of work — it can eat perfectionists alive.

An enormous amount of a federal judge's job is both facility with the law and judgment, borne of experience, about how litigation works. District judges have law clerks — typically people who just graduated law school. Those clerks, who usually serve for a year, often advise the judges on resolution of civil and sometimes criminal motions. For instance, if the defendant in a civil rights case files a motion to dismiss the civil complaint against him on the grounds that it is legally insufficient, a law clerk would commonly read the motion, the opposition, and the reply, research the arguments made therein, and prepare a memo outlining the arguments and the law and (depending on the judge) recommending a resolution. Once the judge makes a decision, those clerks will sometimes draft the judge's order. But those clerks have very little judgment or experience themselves, and have to rely on the judge for — lacking a better term — wisdom — that is, years of experience seeing the law applied to facts. Many of the most important and momentous rulings involve discretionary decisions that call for a great deal of experience: how much is reasonable to award this party in attorney fees in this civil rights case? Was this person's conduct "reasonable"? How long should a bank robbery trial take? How many witnesses should I let the plaintiff call to prove a particular fact? What's a reasonable amount of time for discovery in this case? Is this piece of evidence too prejudicial — that is, does its tendency to inflame the jury outweigh its probative value? How many times should I tell this jury to go back again and try to reach a consensus before declaring a mistrial? Is that expert qualified? Should I excuse that juror for cause? I have sentencing guidelines suggesting a sentence for this drug dealer, but how bad are they and what sentence do they deserve, in the scheme of things? Was this government misconduct outrageous? And in trial — unless the trial is to last for months — federal judges need to be prepared to make crucial decisions on the spot.

These decisions impact our fundamental rights. Our claims are won or lost. Our rights are vindicated or not. We are confined by the state, or not. Procedural and seemingly technical decisions often drive the outcome. And the best chance for the right result — the just result — is before the trial judge. There's a right to appeal, of course, but most wrong decisions won't be reversed. The standard of review (that is, the rule for how wrong the trial judge has to be for a judgment to be reversed) generally strongly favors the original result, appeals are lengthy and expensive, and the trial judge's original ruling has tremendous inertia.

That's why the qualifications of a federal judge are crucial. That's why it's important for a federal judge to have some facility with litigation. It's common for nominees to have civil litigation experience but not criminal litigation experience, or vice-versa, but some experience with adversarial proceedings is essential. An experienced cardiac surgeon can learn to be a vascular surgeon, and vice-versa, but a career psychiatrist (who is, after all, a medical doctor) isn't suited to be thrown into either type of surgery. If you send a career psychiatrist into surgery, no matter how good her interns are, no matter how much she studies up for a few months first, no matter how much she stops in the middle and calls surgeons for advice, somebody's going to suffer until she sort of gets the hang of it, perhaps after a few years.

Mr. Peterson is like a career psychiatrist sent to do a trauma surgeon's job. His excruciating questioning by Senator Kennedy revealed he was unfamiliar with some very basic legal concepts. Even though he's not a litigator, he has supervised litigation at the FEC, and went to law school, so I was honestly floored that he didn't know what Daubert was (it's the standard that governs how a federal judge decides whether expert scientific testimony is reliable enough for federal court, and it's why you don't see dowsers or phrenologists or psychics testify in federal civil or criminal trials) or what a motion in limine is (it's a motion asking a judge to make a pretrial decision about what evidence will or will not be permitted at trial, and is absolutely essential to federal trial practice, both civil and criminal). He didn't know what the Younger or Pullman abstention doctrines are — most lawyers would at least be able to say "those are doctrines governing when federal courts decline to resolve certain issues out of deference to states," even if they couldn't off the top of their heads connect the case to the particular subject of abstention.2 He's never tried a case and never tried a motion. These things don't make him an inadequate person. They don't even make him an inadequate lawyer — there are many law jobs involving niche issues that do not require facility with litigation. But they make him manifestly unqualified to be a federal judge. Making him one is a serious disservice to the federal judiciary, to the litigants it serves, and to the rule of law.

You can probably find similarly unqualified people in history nominated by Democrats and Republicans. I don't care. Being good at one law job (FEC Chair), being prominent, being connected, being politically astute, is not the same as being qualified for the federal trial bench. The ABA's "qualified" ranking undermines its credibility and reveals its deference to power and position.

I have almost nothing bad to say about Matthew Spencer Petersen. But I have nothing good to say about the people who nominated and supported him.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/12/15/i-have-almost-nothing-bad-to-say-about-matthew-spencer-petersen/ via Blogger http://keithgros.blogspot.com/2017/12/i-have-almost-nothing-bad-to-say-about.html

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keithgrosme · 7 years

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The Giving Season: Three Alternatives

So the season of giving is upon us. UPS packages from Amazon clutter every doorstep.

Giving gifts to the kids is still a joy. But the older I get, the more I appreciate simplifying things and exchanging meaningful donations to charity with the other grown-ups in my life. It's more in keeping with what Christmas means to me, it's less stressful, it feels good, it makes a difference.

Here are three ideas for the season.

First, the American Civil Liberties Union. (I've now alienated half the audience.) Their work is essential even when I do not agree with all of their choices and stances. Donations are being doubled through the end of the year.

Second, the Foundation for Individual Rights in Education, which vigorously fights for the free speech and due process rights of students and professors. (There goes the other half.) You can donate here or help CEO Greg Lukianoff meet his matching goal here.

Third, a personal favorite, Mercy Ships. This organization parks medical ships off the coast of Africa and provides live-changing medical procedures to people who otherwise would never have access to such care. Donate here. An entire family from my church — adoptive parents like us — served on one of these ships, and their stories are wonderful.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/12/07/the-giving-season-three-alternatives/ via Blogger http://keithgros.blogspot.com/2017/12/the-giving-season-three-alternatives.html

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keithgrosme · 7 years

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Lawsplainer: Donald Trump, Jr. and the Attorney-Client Privilege

I have good news!

I find that highly unlikely.

I have a new legal question for you!

Once again, my low expectations are rewarded.

Stop being grumpy. This is important. It's about Donald Trump and Donald Trump, Jr. and Congress and the attorney-client privilege and lawyers and stuff.

Ugggghhhh.

So yesterday, Donald Trump Jr. was being questioned by the House Intelligence Committee and refused to answer questions about a conversation he had with Donald Trump Sr. about meeting with Russians in Trump Tower in June 2016. He did the attorney thingy.

Did he.

You know what I mean. He said that he wouldn't answer because of attorney-client privilege, because there was a lawyer present during the conversation.

Sort of. That's the way some sources describe it. Other sources say Jr. invoked the privilege when asked about a phone call between him and his father with lawyers for both on the line.

So . . . was he right?

It depends.

I knew you'd say that. What is the attorney-client privilege, anyway?

Fine.

The attorney-client privilege is a rule that lets attorneys and their clients refuse to disclose confidential communications about legal advice. So if you hire a lawyer and tell that lawyer in private about something you did so that the lawyer can give you legal advice, neither you nor the lawyer can be forced to answer questions about what was said in that conversation. Generally the person invoking the privilege has the burden of showing that it should apply.

So was the conversation by Trump Jr. and Trump Sr. privileged, because there was a lawyer in the room, or their lawyers were on the call?

No, not necessarily. Just having a lawyer in the room, or on a call, doesn't make a communication privileged. The communication is only privileged if it's for the purpose of obtaining legal advice — if it's communicating things to the lawyer so the lawyer can give legal advice, or it's the lawyer communicating that legal advice. For instance, having a company's general counsel in the room or on the phone during a meeting about business issues doesn't make the meeting privileged, unless the purpose was to get the general counsel's advice.

You see this issue come up all the time in the modern era with email. Just cc'ing your attorney on an email to a non-attorney does not make the email privileged. The email's only privileged if it's to get legal advice — to tell the lawyer something they need to know to give advice, for instance.

So if Sr. and Jr. were just talking, and weren't conveying information for the purpose of getting legal advice from the lawyers who were on the call or in the room, the conversation would not be privileged. On the other hand, if they were exchanging information so that their respective lawyers could give them legal advice about what the lawyers heard, it could be. Jr. didn't really give enough information to judge.

But wait a minute. I thought a communication had to be confidential to be privileged. Doesn't that mean it just has to be one client and his or her lawyers, and nobody else in the room?

Yes, with an if, or no, with a but.

Yes, in general, the communication has to be confidential to be privileged. That means you have to intend that it be confidential and in fact keep it confidential. The presence of other people outside the attorney-client relationship prevents the privilege from attaching. That's the core of the rule. That's why people with entourages make very difficult clients.

But there are exceptions. Translators don't destroy the privilege — they are there to empower the communication. Nor do other people who are there for the purposes of facilitating the communication. So if Don Jr. generally communicates in clicks and grunts and only Don Sr. can coax him into complete sentences, Don Sr.'s presence to help Don Jr. communicate with his lawyer doesn't destroy the privilege. After that it gets cloudy. Having your spouse in the room may or may not destroy the privilege depending on the nature of the advice and the jurisdiction. Same with other family members — some courts find that the communication was still privileged because the family member agreed to keep the communication confidential and was there to facilitate the communication, some don't. It's a risk to have other people in the room, and many attorneys — like me — will send even a client's spouse out of the room during key parts of a conference.

The same thing goes with lawyers. If someone else's lawyer is in the room, that normally means that your communication with your lawyer isn't privileged.

But . . . . there's also a thing called the "joint defense privilege" or "common interest privilege."

Wait. Didn't Michael Flynn's lawyers withdraw from one of those just before he entered his guilty plea?

Exactly. They're very common in federal criminal defense practice.

The basic idea is this: when the feds are after you and your pals, you need to figure out what they might be after, and whether you did anything illegal, and what sort of trouble you might all be in. So you want to exchange facts you know, and your lawyers want to exchange legal theories and strategies. But normally if you exchange those with other people or their lawyers you'd be giving up the privilege. So everyone — you, your pals under investigation, and all your lawyers — enter something called a Joint Defense Agreement or Common Interest Agreement or Joint Information Sharing Agreement. You agree that you call have a common interest in defending the government's investigation, that you want to share information to promote that common interest for your mutual benefit, and that everyone agrees to keep strictly confidential what they learn from the other members of the agreement. If anyone decides to talk to the government they have to exit the agreement and still keep what they learned before confidential. The idea is that because of the obligations of the agreement, the information is only being shared with people with a legal obligation to keep it confidential, so the confidentiality of attorney-client communications is not lost.

This idea works in all types of law — criminal cases, civil cases, whatever — when a group of people and their lawyers have a common interest.

So if Donald Trump, Donald Trump Jr., and their lawyers were part of a Joint Defense Agreement, the presence of all of them on the phone doesn't stop the conversation from being privileged. But it also doesn't make the conversation privileged if it wasn't already — if it wasn't for the purpose of getting legal advice.

Does the Joint Defense Agreement have to be in writing?

It's not an absolute necessity — an oral agreement might suffice. Courts have sometimes upheld oral agreements or even found a common interest without an explicit agreement. But that's extraordinarily risky. Given the circumstances I would be absolutely shocked if the Trump lawyers did not have a rigorous Joint Defense Agreement in place.

The same Trump lawyers who said that they wrote a tweet confessing that Trump knew Flynn lied to the FBI?

You're right. I have no idea if the Trumps had a Joint Defense Agreement in place or if they even know what one is.

But competent federal criminal defense attorneys absolutely would.

So what's the bottom line — was Donald Jr. right to invoke the attorney-client privilege or not?

Well, if the purpose of the communication was to get legal advice from the lawyer or lawyers present, and if everyone present was part of a Joint Defense Agreement, then yes. We don't have enough information to tell. My first reaction to the news "they had a talk in a room with a lawyer in it" was that it sounded like nonsense, but the report of a call with lawyers for both of them on the call is significantly more plausible.

But there's a wrinkle.

What's that?

It's clear that you can invoke the attorney-client privilege to refuse to answer questions in court, or in a deposition.

But it's not clear what happens when you invoke the privilege before Congress. Congress is cagey about whether it recognizes the attorney-client privilege as applying to its inquiries. In typical Congressional fashion, it hasn't made a clear rule, but sometimes Congress acts as if it does not recognize the privilege, and sometimes it acts as if it can use some sort of balancing test — the need for the information versus the interests of the witness — to decide if the privilege applies. And it's not clear to what extent courts can review Congress' refusal to recognize the attorney-client privilege. It's kind of a mess.

So Congress could refuse to accept Donald Trump Jr.'s invocation of the privilege?

The resolution of that question is more likely to be political than legal.

Copyright 2017 by the named Popehat author. https://www.popehat.com/2017/12/07/lawsplainer-donald-trump-jr-and-the-attorney-client-privilege/ via Blogger http://keithgros.blogspot.com/2017/12/lawsplainer-donald-trump-jr-and.html

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