Tag Archives: Adam Schiff

The House is Coming Down

08 Friday Feb 2019

Posted by in Articles, Uncategorized

≈ Leave a comment

Tags

, , , , , , , , , , , , , , , , , ,

The Democrat controlled House is beginning to pursue investigation of President Trump independent of Robert Mueller. Adam Schiff, House Intelligence Chairman, plans to expand the scope of his inquiry to determine whether Trump’s business interests are influencing his foreign policy decision in nations other than Russia. Additionally, the Ways and Means Committee, for whom Rep. Bill Pascrell has been speaking, has announced its intention to collect and examine President Trump’s tax returns. Notably, other House Democrats, such as Speaker Nancy Pelosi, have urged patience on that front.

ap_19038604315746_wide-33f85eab3122accc557ea08aa6be66a38793af9d-s1600-c85.jpgJ. Scott Applewhite/AP

Will the Investigative Torch Pass to the House?

13 Tuesday Nov 2018

Posted by in Articles, Uncategorized

≈ Leave a comment

Tags

, , , , , , , , , , , , , , , , , ,

With Jeff Sessions gone as Attorney General and Matt Whitaker positioned as acting AG, one has to wonder how much longer Mueller will be able to carry on his investigation unhindered. It may be the Special Counsel will have to pass his baton over to the House. But will  House Democrats vigorously investigate?

This article from Vox, written by Ezra Klien, correctly points out that because Democrats took the House but not the Senate, they will have trouble passing legislation into law. Much of what power is left to them is in the  investigation of President Trump. With their new found majority, Democrats are taking over vital investigative committees in the House. New York Democrat Nita Lowey, will chair the Appropriations Committee, and has “a laundry list of potential areas for inquiry. . . . [including the] family separation policy and hurricane relief in Puerto Rico.” California Rep. Adam Schiff will lead the House Intelligence Committee, which has already been engaged in the Trump investigation.

However, Democrats may be reluctant to shift their focus to investigation. Nancy Pelosi, House Democratic Leader, has said that any investigations will be “strategic” aimed at “seek[ing] the truth.” And Rep. Zoe Lofgren, a Democrat from California, expressed a similar sentiment, stating: “if Mueller sends us an exploding bomb, we may have an obligation to deal with that. But absent that, I don’t think the country will be on board with impeachment, and nor should we.” She feels that focusing on the investigation will distract from what “really matters to people.” It may be Democrats are unwilling to focus their energy of uncovering a truth that, even if it leads to impeachment in the House, will fail to cause removal by the Senate.

pelosi.jpgJ. Scott Applewhite

Adam Schiff’s legislative warning shot on pardons … and more from “Impeachable Offenses?” on SLATE

19 Thursday Apr 2018

Posted by in Uncategorized

≈ Leave a comment

Tags

,

Today, Slate senior editor Jeremy Stahl wrote an informative piece about Congressman Adam Schiff’s effort to dissuade Mr. Trump from using pardons to derail investigations.  Mr. Schiff introduced a bill that would require disclosure to Congress of all files “obtained by a United States Attorney, another Federal prosecutor, or an investigative authority of the Federal Government” about any case involving a pardon recipient in which the president or any of his relatives are implicated as a subject, target, or witness.

Though Schiff’s bill seems unlikely to pass, its obvious objective is to signal to Mr. Trump that abuse of the pardon power will not go unexamined by congress, and indeed can be impeachable.  Mr. Stahl was kind enough to quote Professor Bowman at several points.

Also, on Monday, Slate syndicated a revised version of this website’s post arguing that “It’s Too Late for a New ‘Saturday Night Massacre.'”

We’re grateful for the exposure.

 

 

Donald Trump, Jr. & the Attorney-Client Privilege

07 Thursday Dec 2017

Posted by in Uncategorized

≈ Leave a comment

Tags

, , ,

Donald Trump, Jr. was questioned at length on December 6, 2017 by the House Intelligence Committee concerning, among other things, his June 2016 meeting at Trump Tower with Russians offering dirt on Hillary Clinton.  He was also questioned about his discussions thereafter with his father concerning that meeting.  Donald Jr. refused to answer, claiming attorney-client privilege.  Congressman Adam Schiff (D-Calif.) expressed incredulity at this claim inasmuch as neither Trump Sr. or Jr. is a lawyer.  Donald Jr. responded by claiming that the privilege arose because there was a lawyer present.

NOTE: I wrote the following earlier today (12/7/2017) based on the understanding that there was only one lawyer present.  I see that it is now reported that lawyers representing both Donald Sr. and Donald Jr. were present.  If so, that changes the analysis significantly, even though it remains unclear whether a valid claim of privilege exists.  A solid analysis by Andy Wright of the problems presented by the two-lawyer scenario appears today on Slate and Just Security.

The most famous definition of the attorney-client privilege was provided by Dean J.H. Wigmore:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser
in his capacity as such, (3) the communications relating to that purpose, (4) made in
confidence (5) by the client, (6) are at his instance permanently protected (7) from
disclosure by himself or by the legal adviser, (8) except the protection be waived.

Broadly speaking, the privilege applies to communications from a client to a lawyer in a situation where the client is seeking legal advice from the lawyer.  In order to be privileged, a communication must be confidential – meaning that it cannot be made in the presence of a third party, that is, someone who is not a client or employed by the lawyer to assist in representing the client.

In the Trump situation, the only way the attorney-client privilege could apply is if the lawyer was, at the time of the conversation, retained by both Trump Sr. and Trump Jr. to represent them.  It is possible, though profoundly inadvisable, for lawyers to represent two clients.  This is particularly true when the interests of the two parties may diverge.  If, for example, Donald Jr. did some things in the Trump Tower meeting that would subject him, but not his father, to legal liability, no sensible lawyer would agree to represent or advise both.  It seems quite unlikely that whatever lawyer was present in the conversation or conversations at issue here represented both Trumps.

If that was the case, then the whole conversation is outside the attorney-client privilege.  If the lawyer represented Trump Sr. only, anything Trump Sr. said would not have been said in confidence.  So no privilege would apply to Trump Sr.’s statements, or for that matter to anything said by anyone else present.  If the lawyer represented Trump Jr. only, the same would be true.  Anything Trump Jr. said would not have been said in confidence, so no privilege would apply to his statements or those of anyone else present.

The remarkable thing about the exchange between Rep. Schiff and Donald Jr. (at least as reported) is that  no one, including Schiff, seems to have had the legal knowledge or the fortitude to press the point.  It’s not surprising that a congressman in the midst of interrogating a witness, even one like Schiff who is a lawyer, would fail to recall all the details of the attorney-client privilege.  But Schiff was not the only lawyer-congressman in the room.  And congressmen have staff whose job it is to prepare for obvious turns of events like a witness claim of privilege.

Before he was allowed to leave the hearing, Donald Jr. should have been asked about the identity of the lawyer and the nature of the relationship between that lawyer and the Trumps.  The existence of an attorney-client relationship and its subject matter is not itself privileged.

If, as I strongly suspect, the facts would not support the existence of attorney-client privilege, the committee chair should have insisted that the question be answered.  A refusal should have produced a move for immediate sanctions against Donald Jr. It is possible, of course, that follow-up inquiries along these lines have been initiated by Schiff or someone else.

If not, letting this lie will be a clear signal of lack of seriousness by Republicans and Democrats alike.