The DOJ’s claim that communications between Mr. and Mrs. Eric Holder are privileged reminds me of a sleazy attorney I once knew

Eric Holder and his wifeSince you’re all very well-informed, it won’t be news to you that Eric Holder’s Justice Department, in yet another effort to frustrate a Freedom of Information Act (“FOIA”) request about Fast & Furious documents, claims that Eric Holder’s communications with both his wife, a private practice physician, and his mother are subject to executive privilege:

The document details the Attorney General Holder’s personal involvement in managing the Justice Department’s strategy on media and Congressional investigations into the Fast and Furious scandal. Notably, the document discloses that emails between Attorney General Holder and his wife Sharon Malone – as well as his mother – are being withheld under an extraordinary claim of executive privilege as well as a dubious claim of deliberative process privilege under the Freedom of Information Act. The “First Lady of the Justice Department” is a physician and not a government employee.

Boy, did that parental privilege claim trigger a flashback for me. You see, exactly twenty years ago, I worked on a case opposite the most unethical lawyer I’ve ever seen, and he too made that claim on his client’s behalf.

I won’t name names, because the lawyer is still practicing and he’s an extraordinarily litigious guy, who will sue anyone and everyone on the drop of a dime.  Once he’s initiated the litigation, he clings like grim death to the case until the opposing party simply wears out and gives up. It’s a form of greenmail: settle now, on my terms, or I will bankrupt you for having the temerity to oppose my frivolous lawsuit against you. Most people gave up without much of a fight.  For convenience, I’ll call this human pit bull Attorney X.

Thankfully, there were a few people willing to stand up to Attorney X. Indeed, there’s a wonderful California Appellate Court decision, written by a judge I knew personally (I used to babysit for his kids) and therefore knew was one of the kindest, gentlest people in the world, but his opinion is neither kind nor gentle. It lambasted Attorney X for being an utterly unprincipled practitioner who always skates just on the right side of the law while nevertheless making a mockery of the entire system. My story of dealings with Attorney X precisely reflects this dynamic.

At the time, I was working for an attorney who had the backbone not to back down in the face of Attorney X’s greenmail-style litigation. (That attorney, incidentally, is a staunch conservative, and someone I credit with my political conversion.)  Every time Attorney X pushed, we pushed back harder.

A lot of this pushing took place during the discovery phase of the trial. Despite representing the plaintiff who filed suit (i.e., the one claiming to have a colorable lawsuit), Attorney X and his client refused to produce any of the documents we requested, even though they were manifestly related to the allegations in the complaint.

We’d serve a document request and Attorney X would come back with objections about attorney-client privilege (even though no attorney was involved in the communication), or attorney work product (even though there was no attorney work at issue), or relevance (even though the language of the request parroted a claim in the complaint), or any number of other manifestly spurious objections. So every time, we’d have to spend the money to file a motion to compel discovery.

I’m pleased to say that we won almost all of those motions.  Unfortunately, though, even though we won the motions, the discovery commissioner never imposed sanctions on Attorney X or his client. This was because Attorney X positioned himself as the little guy against the big guy (even though our clients had even fewer resources than he and his client did).  At least back then, San Francisco Superior Court bench was all about the 99% long before that Leftist idea surfaced in street protests.

Anyway, the only time I ever thought that we might actually lose a valid discovery motion was when Attorney X made the most spurious, risible, unprincipled objection I’d ever seen. To understand precisely what happened, you need to know that in a California civil case you can depose a third party and even ask that third party to bring relevant documents to the deposition. However, for certain categories of third parties who are asked to bring a consumer’s “personal records,” you need to go through a special notice procedure in order to protect the consumer’s statutory privacy rights.

Here is a list of the third parties who are subject to special notice for a deposition subpoena:

“Personal records” means the original, any copy of books, documents, other writings, or electronically stored information pertaining to a consumer and which are maintained by any “witness” which is a physician, dentist, ophthalmologist, optometrist, chiropractor, physical therapist, acupuncturist, podiatrist, veterinarian, veterinary hospital, veterinary clinic, pharmacist, pharmacy, hospital, medical center, clinic, radiology or MRI center, clinical or diagnostic laboratory, state or national bank, state or federal association (as defined in Section 5102 of the Financial Code), state or federal credit union, trust company, anyone authorized by this state to make or arrange loans that are secured by real property, security brokerage firm, insurance company, title insurance company, underwritten title company, escrow agent licensed pursuant to Division 6 (commencing with Section 17000) of the Financial Code or exempt from licensure pursuant to Section 17006 of the Financial Code, attorney, accountant, institution of the Farm Credit System, as specified in Section 2002 of Title 12 of the United States Code, or telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, or psychotherapist, as defined in Section 1010 of the Evidence Code, or a private or public preschool, elementary school, secondary school, or postsecondary school as described in Section 76244 of the Education Code. (Calif. Code Civ. Proc. sec. 1985.3)

In English:  If the third party is employed in the medical, legal, financial, or educational field, and if the subpoena asks for a consumer’s documents or other information from that third party, the subpoena is subject to special procedures in order to ensure that the consumer’s privacy rights are respected.  The specialized notice procedure is called “a 1985.3 notice.”

Well, we served an ordinary deposition subpoena (including a document request) on the mother of Attorney X’s client. This was entirely reasonable because the complaint mentioned the mother, Attorney X’s client derived her alleged claim through her mother, and the mother was a major player in many of the events Attorney X had asserted in the complaint. As a matter of both fact and law, Attorney X had no valid objections to make to the discovery request.  He therefore made an invalid objection:  He contended that we had failed to serve the deposition subpoena properly because we hadn’t complied with sec. 1985.3’s stringent notice and timing requirements.

As required by law, I wrote Attorney X a long meet-and-confer letter carefully explaining that a mother does not fall anywhere within sec. 1985.3’s parameters. Attorney X was unmoved. I had no choice but to file a motion to compel the deposition.  Attorney X’s opposition was gibberish — and how could it be anything else? He had absolutely no law whatsoever to support his claim that a mother falls within sec. 1985.3’s parameters.

The way it works in California courts is that, the day before the hearing, the court will issue a tentative ruling. Sometimes, both parties abide by the ruling and there’s no hearing. Sometimes, however, one party or another will oppose the ruling, and then both troop into court for a hearing. And rarely, very rarely, the court will refuse to issue a tentative ruling at all but instead will insist that the parties show up. This usually means that the judge is very uncertain about which way to rule.

To my great surprise, the tentative demanded our appearance. How in the world could the discovery commissioner need oral argument on this one? “Mother” is neither specified in sec. 1985.3 nor is it implied. What’s left then?

What apparently was left was a discovery commissioner who just couldn’t wrap his mind around the concept that there wasn’t some sort of privacy principle governing the mother-child relationship in the context of a lawsuit alleging that my client had stiffed the mother and child out of some money. After futile argument, I urged the commissioner just to read the statute himself, something he apparently hadn’t done before and he agreed to do so.  The commissioner sat down with the big code book balanced on his knees, and clutched tightly in both hands. He bent his head towards the text and, with his lips moving, began reading slowly and silently to himself.

After a good five minutes of this, he sat up, turned to Attorney X and said “She’s right. It doesn’t say mother in here. The motion to compel discovery is granted.”

Whew! At that point, I thought, “Surely the commissioner will impose sanctions against Attorney X for making a manifestly frivolous objection to a reasonable discovery request.” Wrong again! When I requested sanctions, the discovery commissioner said that it was a close call (!) and refused.

Right about now, I’m thinking that the discovery commissioner, someone I assumed had either stayed at San Francisco Superior Court or retired, in fact moved to the Department of Justice and was the one who came up with the Eric Holder “spousal executive privilege” objection to a FOIA request.

Oh, and if you’re wondering about that lawsuit, we won and we won big.  We were fortunate enough to get a trial judge who listened very carefully to all the evidence and realized that Attorney X and his client had no case. Not only did our clients walk away vindicated, we also got more than $1 million in attorneys fees (including fees for all the time wasted in those discovery motions).  Woo-hoo!!!

Understanding scandals — it’s not what’s done, it’s who’s done it that counts

His Girl FridayI haven’t been much of a Chris Christie supporter lately.  In the beginning, I admired his ability to stand up to the teacher’s unions.  Since then, I’ve decided that this was less a principled position and more a reflection of a highly aggressive personality.  Outside of the unions, he’s too much of a RINO, and I’m suspicious about his Saudi ties.  He’d be a better president than Obama, but that’s a low bar.  If he ended up on top of the Republican ticket opposite Hillary, I’d vote for him, but primarily because Hillary would finish the job Obama’s done, and anything is (I think) better than that.  So that’s my view about Chris Christie.

What I want to talk about here is the scandal.  It seems that nothing has ever happened before that’s been as thrilling as the fact that a Republican governor’s employee had a nearly unspoken agreement with another of the governor’s employees that, if a Democrat mayor ticked them off, they’d use their power to create traffic havoc in his town.  (For punsters, we finally have a “toll-gate” scandal.)  A 91-year-old lady whose ambulance got stuck the traffic jam died later, and her death could be attributed to the delay.  (Only God knows for sure.)  The whole affair is nasty, unprincipled, and petty.  The employees deserved to be fired, and Christie fired them.  The media is having what Matt Drudge describes as a feeding frenzy.  Fine.  It’s their job to sell the news.

But what about a few other scandals that probably could have sold news too?

A Secretary of State, despite repeated pleas from an ambassador in one of the world’s most dangerous areas, refuses to heighten security.  The ambassador and three others die.  The media does minimal reporting and then ignores the story.

A nation’s diplomatic mission in a foreign country is attacked.  Four people die and unknown numbers of confidential documents vanish.  The besieged nation’s President Secretary of State speak once and then both refuse to explain their whereabouts.  Rumors are that the president went to bed early to prepare for a campaign event.  The media does minimal reporting and then ignores the story.

A president deputizes one of his employees to go on Sunday talk shows to explain that an attack on its diplomatic mission, which left four dead, including an ambassador, occurred because of a 10-minute YouTube video that was perceived as being uncomplimentary to Islam.  To add an air of verisimilitude to this otherwise unconvincing narrative, the administration trumps up charges to arrest the video’s maker, in what many see as a blatant attack on free speech in the service of Islam.  The media does minimal reporting and then ignores the story.

An Attorney General arranges to have hundreds of guns smuggled into Mexico.  There are two theories about this, neither good. The first is that the guns were supposed to be traceable, so as to track gun and drug crime coming out of Mexico, but that the AG’s incompetent employees forgot to add the necessary electronics.  The second is that the AG deliberately released weapons into Mexico to support his anti-gun campaign.  “See,” he would say.  “We told you that our nation’s guns are despoiling the world.”  In any event, the guns with the AG’s name on them killed one of his own border agent as well as hundreds of Mexican civilians.  The media does minimal reporting and then ignores the story.

A nation’s troops, most notably its Marines, sweat, and bleed, and die in a terrorist-ridden town in Iraq.  Their success there helps turn a years’ long war around, paving the way for a simulacrum of democracy in a country whose people lived for decades at the mercy of a sadistic tyrant.  It’s not true democracy, but it’s close enough; people are experiencing relative freedom for the first time in their lives; and the government is relatively friendly the liberating western nation.  At the end of WWII, faced with this situation, the victorious nation stuck around for another 60+ years to hang onto that victory.  This time, though, the president walked away without a second glance and without any effort to secure hard-won gains.  Two years after the president declared, not victory, but “war over,” that same town has once again fallen to the terrorists.  The president is silent.  The media does minimal reporting and then ignores the story.

A nation’s people learn that the government is spying on their every communication.  It started before the current president, but has escalated madly during his administration.  Even some media outlets learn that the government has been spying on their telephone calls.  One would think that this outrage would encourage them to reconsider their blind faith in the current administration.  It does not.  After a few huffs and puffs, the media does minimal reporting and then ignores the story.

A nation’s tax-collecting agency, which is it’s most feared and powerful agency, turns out to have been engaged in a systematic effort to silence all conservative and pro-Israel speech.  The timing shows that the effort was manifestly intended to disrupt the 2012 presidential election, and it may well have done so, giving a squeaker of an election to the candidate from the Democrat-party.  All people of good will, regardless of party, should be horrified by this type of partisan overreach from a nation’s most powerful agency.  The media, however, is unperturbed.  It does minimal reporting and then ignores the story.

Beginning in 2009, a president tells his people a series of bald-faced lies.  The documentary evidence shows that he knew that they were lies when he told them.  That is, it wasn’t ignorance or wishful thinking on his part.  Instead, he was running a scam.  This giant fraud begins to unravel on October 1, 2013, and with every passing day, the public learns more about the administration’s lies, incompetence, and cronyism.  This knowledge is made manifest in the most painful of ways, as millions of people lose the security of insurance plans, doctors, and hospitals, even as they are being forced to pay more money for fewer benefits.  Although the media dutifully points out the problems in the first month, by the second month, it returns to lap dog status, crowing about thousands of sign-ups, with scant attention to the fact that it’s unknown whether those who signed up have actually paid  for new policies.  The same media downplays the certain fact that more people have lost beloved policies than gained lousy ones under the new system.

Yes, I tried to keep that nation’s identity anonymous, but you’ve figured it out.  The nation in which a president and his administration, through a combination of fraud, lies, and incompetence, have caused people’s deaths, wasted military deaths, destroyed a functioning health care system, spied on its citizens, and possibly corrupted election outcomes, routinely gets a pass from the media.  Our MSM does just enough reporting to lay claim to some credibility as a “news” outlet, and then ignores as hard as possible whatever issue could hurt a Democrat president.  The whole thing is declared “over” after Jon Stewart, through selective clips, announces that Fox News is insane.  The media heaves a sigh of relief, and goes back to guarding the administration.  That system, of course, doesn’t apply when a vaguely Republican governor is tied to a traffic jam (admittedly, a malicious, unprincipled traffic jam).  In that case, the 24-hour news cycle kicks into overtime.

Looking at today’s headlines, I’d have to say that the biggest scandal of them isn’t either Christie’s toll-gate or Obama’s just-about-everything-gate.  Instead, it is the fact that we have a Democrat lap-dog media that still has the temerity to call itself a “free press.”

Is Obama’s puppet master to blame for all the scandals?

Barack Obama -- small and helpless

Scandals, scandals, and more scandals.  My list so far includes:

1.  Benghazi:  politics before, politics and apathy during, and politics and a wall of lies and cover-ups afterwards.

2.  Fast & Furious:  a completely bungled effort to track cartels in Mexico or a deliberate attempt to gin up gun crime as a way to feed anti-gun fervor.

3.  IRS:  Deliberate targeting of conservative groups and individuals in order to disable them in the lead-up to a tight election.

4.  AP:  Justice Department eavesdrops on media, with recent news indicating that this wasn’t about national security but was a tit-for-tat step taken because the AP mis-timed releasing a story about a thwarted terrorism plot.

I feel as if I’ve forgotten something. I’m sure there’s something else, but I’ve reached the outer limits of my brain’s capacity for the scary, sordid, disgusting, and illegal.

Anyway, the above is a starter list, which shows a distinct trend-line:  the Obama government is about politics before country, revenge before law and morality, and cover-ups above and beyond everything.  That’s why the New York Times’ desperate attempt to blame Republicans for all these things makes for amusing reading.  Although the Times was absolutely outraged by the AP scandal (and I agree with their outrage), everything else is just business as usual.  Nothing to see here.  Just move along:

The Internal Revenue Service, according to an inspector general’s report, was not reacting to political pressure or ideology when it singled out conservative groups for special scrutiny in evaluating requests for tax exemptions. It acted inappropriately because employees couldn’t understand inadequate guidelines. The tragedy in Benghazi, Libya, never a scandal to begin with, has devolved into a turf-protection spat between government agencies, and the e-mail messages Republicans long demanded made clear that there was no White House cover-up.

The only example of true government overreach was the seizure of The Associated Press’s telephone records, the latest episode in the Obama administration’s Javert-like obsession with leakers in its midst.

(A total aside here.  The myth is that reporters are, at heart, curious people who want to know what’s going on.  Although they’ve been temporarily blinded by ideology, once they catch the scent, they’ll be like the crazed reporters in His Girl Friday.  That’s just wrong.  Today’s reporters signed on, not because they like sniffing out information, but because they’re ideologues who want to pursue an agenda.  The Times perfectly exemplifies this.  It does not report on all the news fit to print.  It doesn’t report at all.  It simply works like a Leftist propaganda arm, reporting all the spin necessary to advance an agenda.  It’s utterly incurious and cares only when it, personally, gets poked.  And now back to your regularly scheduled blogging.)

Wow.  Just wow.  For one thing, it’s clear that the New York Times wrote this editorial before the head of the IRS went before Congress and confessed that the IRS denied what was going on before the election (a lie) and that it timed the release of information to bury it in the news cycle.  And then there’s all that other fascinating stuff that’s been oozing out from the single most powerful coercive entity in the federal government.

In every single statement she made, Lois Lerner, the IRS official who every so casually broke the story, lied.  Just some examples are the fact that the IRS didn’t target, maybe, 75 groups.  It targeted at least 470 groups.  And it wasn’t just wacky Tea Party groups that got caught it the cross hairs, it was any group that appeared even vaguely to oppose Obama’s policies.  The targeting wasn’t just confined to a rogue Ohio office, it went to the top.  And, indeed, the very top person got over $100,000 in bonuses and was promoted to head the — ahem — nonpartisan branch of the IRS in charge of enforcing ObamaCare.

We also know that the IRS illegally leaked information about Obama’s political opponents — which definitely has a kind of mirror-like Watergate quality to it.  Nixon’s henchmen stole data directly from his political opponents; Obama’s henchmen release data about Obama’s political opponents to Obama’s supporters.  And of course, speaking of stealing things, it appears that the IRS stole tens of thousands of medical records — this would be, of course, the same IRS that’s in charge of enforcing ObamaCare.

Worried yet?  I know I am.

Despite all this, Obama remains perched precariously atop ignorance mountain.  His line is consistent:

Either Obama’s lying, which is entirely possible, because he’s a compulsive liar, or he was as ignorant as he seems.  Those Leftist media figures who are not in total denial have latched on this as the excuse to protect their idol, now that they know there’s a lot of clay mixed in with his feet.  He’s a little too disengaged, he’s not a micro-manager, he’s too pure to know what evil lurks in the heart of men, etc.

John Fund, however, has a very different idea, and I think he may be on the right track.  His version of events posits that Obama has never actually been president.  We’ve been operating, instead, under the shadow presidency of consigliere Valerie Jarrett:

So if Obama is not fully engaged, who does wield influence in the White House? A lot of Democrats know firsthand that Jarrett, a Chicago mentor to both Barack and Michelle Obama and now officially a senior White House adviser, has enormous influence. She is the only White House staffer in anyone’s memory, other than the chief of staff or national security adviser, to have an around-the-clock Secret Service detail of up to six agents. According to terrorism expert Richard Miniter’s recent book, Leading from Behind: “At the urging of Valerie Jarrett, President Barack Obama canceled the operation to kill Osama bin Laden on three separate occasions before finally approving” the mission for May 2, 2011. She was instrumental in overriding then–chief of staff Rahm Emanuel when he opposed the Obamacare push, and she was key in steamrolling the bill to passage in 2010. Obama may rue the day, as its chaotic implementation could become the biggest political liability Democrats will face in next year’s midterm elections.

A senior Republican congressional leader tells me that he had come to trust that he could detect the real lines of authority in any White House, since he’s worked for five presidents. “But this one baffles me,” he says. “I do know that when I ask Obama for something, there is often no answer. But when I ask Valerie Jarrett, there’s always an answer or something happens.”

You really should read the whole thing.  That theory explains so much….