I’ve filed (faxed, with original FedExed for delivery tomorrow) another Trump-related legal-ethics complaint. This one is against Marc Kasowitz, the private lawyer who is leading Trump’s defense. The complaint is available here. (Regarding the prior complaint, my earlier post.)
The complaint is based on the report in the New York Times about Kasowitz’s communications with White House staff members:
His visits to the White House have raised questions about the blurry line between public and private interests for a president facing legal issues. In recent days, Mr. Kasowitz has advised White House aides to discuss the inquiry into Russia’s interference in last year’s election as little as possible, two people involved said. He told aides gathered in one meeting who had asked whether it was time to hire private lawyers that it was not yet necessary, according to another person with direct knowledge.
From Richard Grunberger, The 12-year Reich: A Social History Of Nazi Germany 1933-1945 (1971; Da Capo reprint 1995):
Techniques for promoting Nazi newspapers are best illustrated by Julius Streicher’s own local daily, the Fränkische Tageszeitung, which sent this circular to all readers reluctant to renew their subscriptions:
Your intention expresses a very peculiar attitude towards our paper, which is an official organ of the National Socialist German Workers’ Party, and we hope that you realize this. Our paper certainly deserves the support of every German. We shall continue to forward copies of it to you, and hope that you will not want to expose yourself to unfortunate consequences in the case of cancellation.
“I really, really like the work in Congress, I really do, but I love my family more. People may try to make it more than that, but it’s really that simple,” [Jason] Chaffetz said on MSNBC. “I just turned 50. I’m sleeping on a cot in my office.”
Chaffetz on No 2018 Run: ‘I Just Turned 50, I’m Sleeping on a Cot in My Office,’ Talking Points Memo xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx
Everyone familiar with the academic literature on statutory interpretation is aware of the vehicles-in-the-park hypothetical. It was formulated by the legal philosopher H.L.A. Hart to illustrate the argument that the words in which a law is written must have “a core of settled meaning”—a set of standard instance in which no doubts are felt about [the law’s] application”—but will also have “a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.” Harvard law professor Lon Fuller denied the existence of any core area in which the law’s applicability was clear; for Fuller, the law’s applicability turned not on linguistic semantics but on the law’s purpose. Thus, he asked whether, under the hypothesized prohibition against vehicles in the park, “mount[ing] on a pedestal in the park a truck used in World War II…in perfect working order” would fall within the law’s core or its periphery.
Less well known is a separate hypothetical offered by Fuller to support his challenge to Hart. Fuller posits a law making it a misdemeanor “to sleep in any railway station.” He then supposes that two people have been arrested for violating this law: one who dozed off while waiting for a train, and another “who had brought a blanket and pillow to the station and had obviously settled himself down for the night[,]” but who had been arrested before he fell asleep. “Which of these cases,” Fuller asked, “presents the ‘standard instance’ of the word ‘sleep’?” And would it be faithful to the law to say that the law had been violated by the second person but not the first?
The hypothetical is thought-provoking because applying what is assumed to be the literal meaning of the law—that it prohibits being asleep in a railway station—would yield a conclusion that seems nonsensical: that the law was violated by the dozing passenger but not by the guy who was bedded down but still awake. The hypothetical has been discussed by some very smart legal scholars and philosophers over the years, including Kent Greenawalt, Fred Schauer, John Manning, Scott Soames, and Andrei Marmor, and with few exceptions (mainly Robyn Carston) they have accepted that assumption. Schauer put it as well as anyone: “Sleep is a physiological state, and as a matter of physiology Fuller’s businessman was sleeping. Period.”
But in fact (you can guess where this is going, can’t you?), the assumption’s validity is doubtful at best. It is entirely consistent with actual usage to use sleep in a railway station to mean ‘use a railway station as a place to sleep’ rather than ‘be asleep in a railway station.’
No linguistics in this post, just law. The post is about a legal-ethics complaint that I’ve filed with the District of Columbia Bar against three lawyers in the Office of White House Counsel, including White House Counsel Don McGahn.
The complaint relates to the episode in March when, two days after the House Intelligence Committee’s public hearing with Jim Comey and Admiral Mike Rogers, Rep. Devin Nunes (chairman of the Committee) held an impromptu press conference at which he breathlessly announced that “he had been shown evidence that ‘on numerous occasions, the Intelligence Community incidentally collected information about U.S. citizens involved in the Trump transition.'” (NYT [watch video]; press release.) Nunes then rushed to the White House to present this information to the president, who said that it “somewhat” vindicated his claim that President Obama had wiretapped him. Nunes was widely seen at the time as carrying water for Trump, and that view was confirmed when it was reported that the information in question had been provided to Nunes by the White House.
It was later reported that two lawyers in the Office of White Counsel had been involved in disclosing the information to Nunes. One of those lawyers, Michael Ellis, had until only a few weeks earlier been the House Intelligence Committee’s general counsel. Ellis is the primary target of the complaint, and the principal allegation against him is that his reported actions violated violated legal ethics that arose because of his previous work the House Committee’s lawyer.