Not Privileged

Communications in which a “client consults an attorney for advice that will serve him in the commission of a fraud or crime” are not privileged from disclosure.

– the January 6 Committee

This week’s featured post is really just another collection of short notes, but focused on the war in Ukraine.

This week everybody was talking about Ukraine

I pushed all my Ukraine notes into the featured post. But even if you’re not following the war, you should see this little girl entertain the other people in the shelter by singing “Let It Go” in Ukrainian.

and the State of the Union

Text and video are at

I think we can all agree that President Biden is not the orator President Obama was. But at least he’s not the bullshitter that Trump was. He has a good story to tell, and he needs to get more help telling it:

  • Biden deserves credit for re-unifying NATO after the demoralizing Trump years. The international response to Russia’s invasion of Ukraine makes a sharp contrast with Trump’s go-it-alone trade war against China, which accomplished nothing.
  • Thanks to the fact that 75% of American adults are now vaccinated, we can start getting our lives back to some semblance of normal. The vaccines were developed during the previous administration, but Biden can take a bow for getting shots in arms. (That’s precisely the kind of detailed organizing the previous administration was bad at.)
  • Thanks largely to the American Rescue Plan, the economy is bouncing back quickly from its Covid slump. As Biden pointed out: “unlike the $2 trillion tax cut passed in the previous administration that benefitted the top 1 percent of Americans, the American Rescue Plan helped working people and left no one behind. And, folks — and it worked. It worked. It worked and created jobs — lots of jobs. In fact, our economy created over 6.5 million new jobs just last year, more jobs in one year than ever before in the history of the United States of America.”
  • The Bipartisan Infrastructure Plan is actually going to rebuild America in ways that Trump talked about, but never delivered on.

Biden took some credit for Ford and GM’s decisions to invest billions developing and building electric cars in the US; and for Intel’s decision to invest $20 billion outside of Columbus. He quoted Intel’s CEO (who was present) saying that they could invest $100 billion if the Innovation and Competition Act passes.

Much of the rest of the speech was about proposals stalled in Congress: cutting the cost of prescription drugs, combating climate change, subsidizing child care, insisting that corporations pay taxes, cracking down on monopolies and oligopolies, giving Dreamers a path to citizenship, protecting abortion rights and voting rights, and more.

It’s a balancing act: taking credit for what’s been done while holding out hope that we can do more. And this is where Biden’s rhetorical failings hurt him. It’s too easy to lose sight of what’s been done in the face of what hasn’t been done, or to write off what hasn’t been accomplished yet as pie in the sky.

At least one poll shows Biden getting a bounce from the SOTU/Ukraine combination.

The February jobs report came out, and continued to show the progress Biden pointed to. The economy added 678K jobs in February, as unemployment fell to 3.8%. It was 3.5% when Trump proclaimed “the best economy ever“.

The Boebert/Greene heckling of Biden was a new low in SOTU behavior: Boebert heckled Biden (about the 13 servicemen who died during the Afghanistan withdrawal) just as he was talking about the death of his son Beau, whose brain cancer may have been caused by pollution from military burn pits.

Previous congressional heckling incidents, like Joe Wilson’s “You lie!” directed (falsely) at President Obama in 2009, were violations of decorum and showed disrespect for the presidency as well as Congress. But Boebert violated basic human decency. You don’t heckle a guy who is talking about his dead son. I don’t care if it’s the president speaking to a joint session of Congress or a drunk sitting next to you at the bar. You just don’t do it.

and Trump’s crimes

John Eastman, the author of the Mike-Pence-can-overturn-the-election theory, is fighting to keep his papers and emails away from the January 6 committee, claiming they are covered by attorney/client privilege. This week the committee submitted its rejoinder to that claim.

Much of their filing concerns the nuts and bolts of attorney/client privilege. Specifically, Eastman has not documented that he had such a relationship with Trump or the Trump campaign at all, and if he does, he will still need to show how that relationship applies to each of the requested documents, rather than claiming a blanket privilege. (Example: My nephew is a lawyer. But conversations we have during family dinners are not privileged unless I have engaged him professionally and he is giving me legal advice at the time. And even in that case, he could still report to a grand jury that I did indeed eat the brussel sprouts.)

But that’s not the most interesting part of the filing, because even if Eastman could establish all that (the burden of proof being on him in this situation), that’s not the end of the story.

Communications in which a “client consults an attorney for advice that will serve him in the commission of a fraud or crime” are not privileged from disclosure.

The committee goes on to outline the crimes Trump and Eastman might have been plotting together. Particularly noteworthy is that what the committee is asking for — the judge to review the documents in question before deciding whether the privilege applies — doesn’t require the committee to prove beyond a reasonable doubt that a crime occurred. It only requires

factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.

The possible crimes in question are

  • obstructing an official proceeding
  • conspiracy to defraud the United States
  • common law fraud

The basic conspiracy here is one you have undoubtedly already heard about: Trump and his associates attempted to prevent Congress from carrying out its constitutional duty to count the electoral votes that had been certified by the states. They did this by

  • trying to convince Vice President Pence to illegally claim the power to refuse to count certified electoral votes
  • promoting a false narrative of a stolen election, which induced multiple people to perform actions based on their belief of the false narrative

A key point here is that we’re not just talking about a difference of opinion: Trump knew that what he was saying was false.

the President and Plaintiff engaged in an extensive campaign to persuade the public, state officials, members of Congress, and Vice President Pence that the 2020 election had been unlawfully “stolen” by Joseph Biden. The President continued this effort despite repeated assurances from countless sources that there was no evidence of widespread election fraud. On November 12, 2020, CISA issued a joint statement of election security agencies stating: “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” At around the same time, researchers working for the President’s campaign concluded that several the claims of fraud relating to Dominion voting machines were false.

In December, Attorney General Barr publicly announced that there was no widespread election fraud. By January 6, more than 60 court cases had rejected legal claims alleging election fraud. The New York court that suspended Giuliani’s law license said that certain of his allegations lacked a “scintilla of evidence.” On multiple occasions, acting Attorney General Rosen and acting Deputy Attorney General Donoghue told the President personally that the Department of Justice and Federal Bureau of Investigations had found no evidence to substantiate claims being raised by the President. Georgia Secretary of State Brad Raffensperger likewise rebutted many of the President’s allegations of fraud in Georgia. Despite these refutations and the absence of any evidence to support the allegations he was making, the President and his associates continued to publicly advance the narrative that the election had been tainted by widespread fraud.

The filing then goes into detail about one particular false claim: that “suitcases of ballots” were pulled from under a table in Georgia. It lists all the ways that both Georgia election officials and local media had debunked this claim, only to see Trump repeat it in Facebook ads.

On what Trump knew about his election-fraud claims, Bill Barr now says, “I told him all this stuff was bullshit.”

Trump is always bold about what other people should do. Now he’s telling audiences that he would not be afraid of war with Russia.

and states attacking gay and trans kids and their families

Texas Attorney General Ken Paxton has

authored a legal opinion declaring that providing gender-affirming care to minors is “child abuse” according to existing state law. Governor Greg Abbott then directed the Department of Family and Protective Services (DFPS), the state’s child welfare agency, to comply by investigating any reports of parents providing gender-affirming care to their children.

According to an ACLU lawsuit, Governor Abbott

has also declared that teachers, doctors, and the general public are all required, on pain of criminal penalty, to report to DFPS any person who provides or is suspected of providing medical treatment for gender dysphoria, a recognized condition with well-established treatment protocols.

Meanwhile, Florida is about to pass its Don’t-Say-Gay law. The bill has already passed the House and made it to the floor of the Senate, where it is expected to pass. Gov. DeSantis has said he will sign it.

Like so many red-state bills to control what can be said in schools, the law is vague and will have a chilling effect on any discussion of gender identity or sexual orientation, whether it is specifically violates the law or not. Like the Texas abortion bill, parents can enforce it by suing their child’s school, something no teacher wants to risk.

DeSantis’ press secretary is publicly accusing anyone who opposes the bill of being a pedophile:

The bill that liberals inaccurately call ‘Don’t Say Gay’ would be more accurately described as an Anti-Grooming Bill. If you’re against the Anti-Grooming Bill, you are probably a groomer or at least you don’t denounce the grooming of 4-8 year old children. Silence is complicity.

Like the anti-Critical-Race-Theory laws, Don’t Say Gay is based on fear-mongering about things that aren’t actually happening. Where is the evidence of some statewide epidemic of pedophile grooming based in the public schools? It’s crazy.

SNL’s Kate McKinnon on Don’t Say Gay: “I’m trying to make sense of all this. Does this Don’t Say Gay law have a purpose? … If the 90’s were right and ‘gay’ means ‘bad’, then this is the gayest law I’ve ever seen.”

and Judge Jackson

The outlines of Republican resistance to Supreme Court nominee Ketanji Brown Jackson are becoming clear: She’s too liberal, and her experience as a public defender makes her soft on crime.

I expect dog whistles about race, but no explicit racial attacks. One tactic seems obvious: Find a really bad Black man that Jackson defended, and try to associate her with his crimes. Ideally, she got him off, or got him a light sentence, and then he committed worse crimes later. Nobody will say “Black”, but his picture will be everywhere, as Willie Horton’s was.

Mitch McConnell is trying to make a thing out of her refusal to denounce proposals that would add justices to the Court. Since the Court plays no role in deciding such things, she has no reason take a position — or even form one, for that matter. McConnell might as well ask her opinion about NATO establishing a no-fly zone over Ukraine.

Tucker Carlson is demanding to see Ketanji Brown Jackson’s LSAT score, a request he didn’t make for any previous Supreme Court nominee. This is a standard racist tactic: When a Black person is up for promotion, suddenly there are issues nobody cared about before. For example, nobody ever cared about a president’s birth certificate until we had a Black president.

And as we saw with Obama, no evidence is ever quite good enough. When he released his short-form birth certificate, he was accused of hiding the long form. When the long form came out, how did we know it wasn’t a forgery? Then racists like Trump moved on to demand Obama’s Harvard transcript. (Of course we never saw Trump’s college transcript. That level of disclosure only applies to Black candidates.)

Inventing some new requirement is a way of making a Black job-seeker prove things that White applicants can take for granted, and implying that their candidacy is uniquely questionable. Demanding Judge Jackson’s LSATs (or then accusing her of hiding them) is a way of implying doubts about her intelligence. And if she releases her score, what then? Unless it’s a perfect 180 (which only 1 in 1,000 tests are), then Tucker can find a White guy who scored higher and ask why he’s not the nominee — as if LSATs were now the sole criterion. If she got a 179, she’s an affirmative action hire.

but I want to talk about a TV show

Namely: Severance on Apple TV+.

One of the fundamental motifs of horror is to literalize some disturbing metaphor. So Bram Stoker’s Count Dracula literalizes the metaphor that aristocrats suck the blood of the productive classes. Mary Shelley’s worries that technologists might metaphorically be playing God, together with her fears that our Creator might be no better than we are, become literal in Dr. Frankenstein. The savagery of middle school becomes literal in Lord of the Flies.

Severance continues that tradition. The Lumon Corporation has developed a procedure that severs work memories from personal memories, so you forget whatever you did at work when you go home (to the extent that you don’t even recognize co-workers if you meet them on the street), but you also forget your personal life when you’re at work. (Do you have a family? You don’t know.) The result is that the work-selves are entirely at the mercy of the corporation: In their experience, they never leave the office. Only the outside-selves can quit, but those personas don’t know any reasons why they should. (You might imagine that Lumon would take advantage of severance to have its workers do horrible things, but the show doesn’t go there: The work we see appears entirely meaningless.)

Several metaphorical fears are being literalized here: that we become different people at work; that the compartmentalization of our work lives is psychologically toxic; that our apparent autonomy is an illusion, because we’re denied the information we need to make prudent decisions; that while we may put the victims of capitalism out of our minds, they are not actually different from us; and a number of others.

and you also might be interested in …

This week I’m down-grading the pandemic to just another short note. New cases are back where they were in July, before the Delta surge, averaging 45K per day. Deaths are still running at 1500 per day, but are dropping at a rate of 31% over the last two weeks. Since cases are falling, deaths should continue falling for some time yet.

This cartoon speaks for itself:

and let’s close with a reminder that anybody can be criticized

McSweeney’s imagines negative classroom reviews of Jesus: “Feels like a class for farmers. Hope you like talking about seeds. Wheat seeds. Mustard seeds. Seeds, seeds, seeds.”

“I asked him to sign my accommodations form from the Disability Services Office, and he spit on the ground and rubbed the dirt in my eyes. I can see now, but it was still rude.”

“Only got the job because his dad is important.”

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