LOOKING BACK/LOOKING FORWARD

By objective measures, we’ve each enjoyed productive careers.  As we’ve said, none of us are rich, but we live comfortably and we’ll avoid abject poverty as old men.  Regular vacations on the French Rivera aren’t in our futures, but we’ll be fine.  Still, sometimes we ask, “What if we’d done things differently?” 

We all remain satisfied with choosing a legal career. Each of us enjoyed success as a lawyer.  We don’t regret going to law school or into practice. How we went about the details of our careers, we think, merits reflection, and doing so might provide insight others can use on the front end of their professional lives, whether in law or something else. Additionally, our readers have shown us the kindness of following this blog and engaging with us on critical issues of the day.  Sharing more about who we are provides our readers with more information about how we got to where we are.

HENRY’S TAKE:

I don’t really have a dog in this fight.  I might not advise a young person in my shoes today to do the same things I did at the beginning, considering market forces and the present state of the specialty I chose.  With the way my career unfolded, however, I can’t see charting a different course.  Things fell into place.  My spiritual sense gives a feeling of joy and gratefulness.  My common sense says leave well enough alone.  Given my personality, outlook on life, and way of doing things, nothing I see now I might have done would have produced something better than clerking for two of the nation’s best federal judges, practicing in a firm that concentrated on civil rights and made a difference in many lives, and a 31 and ½ year tenure as a federal magistrate judge.  Different circumstances might have allowed me to serve as a district or appellate judge, but I have no regrets about that. 

WOODSON WRITES:

If, in declaring he doesn’t have a dog in this fight, Henry means he has no regrets, I suppose I could say the same.  I was offered and seized many professional opportunities.  I became personally acquainted with four Arkansas Governors (Winthrop Rockefeller, Dale Bumpers, David Pryor, and Bill Clinton).  Two of them (Bumpers when he was U.S. Senator and Clinton when he was Arkansas’ Governor) solicited my political advice.  My peers elected me the first African American Pulaski County Bar President and University of Minnesota Law Alumni President.  But, looking back, I would have done some things differently.  I see specific actions that would have made me a better lawyer, prevented mistakes I made, and smoothed my path.  I allowed my impatience with racial inequality to overcome better judgment, resulting in circumstances that later haunted me.

After graduating from law school at Minnesota, I interned with Minnesota Legal Services.  A legal services internship affords a new lawyer a wide variety of experiences, such as litigating against lawyers representing corporate landlords, home builders, real estate developers, and retailers.  Not only does he or she gain exposure to a host of substantive legal areas, the new attorney must interact with all sectors of the profession.

Exposure to this variety of subjects and lawyers enhanced my ability to represent my clients and better understand the legal landscape.  I cut this process short in the mistaken belief I needed to get back to Arkansas quickly and join a civil rights firm.  Everything I found in Arkansas in 1976 would still have been here three years later.  Had I waited, I would have been a better lawyer and less vulnerable to significant mistakes I made later.  Similarly, had I been content to methodically build my practice with one or two partners, focusing more on character and less on academic pedigree while building a large general practice firm, I could have created greater stability in my practice and my life.

ROB SAYS:

Like Henry and Woodson, I had opportunity.  I became the first black partner in my 150 plus lawyer downtown Houston firm.  I know now, however, I didn’t put total focus on skill development.  I didn’t develop an understanding of learning a craft.  I didn’t do all the things excellence requires.  Only now do I comprehend what getting really good at something takes. 

My public speaking facility and a solid legal education at the University of Texas made me a reasonably competent trial lawyer from the start.  But the economics of big firm practice prevent new lawyers from getting many trials, so I followed the program, taking a few cases to trial and doing training exercises.  What I didn’t do was hang around the courthouse watching masters of the craft (and some who didn’t know what they were doing).  Yes, I would have missed

some ball games while finishing my work, but so what?  What I didn’t do was take pro bono cases so I could gain trial experience at the expense of my time, not the money of my clients or my firm.  What I didn’t do was stay an hour later at the office two days a week reading trial tactics literature authored by expert practitioners.

I recognize I have good skills.  I know now, though, I could have been great had I gone the extra mile.  I would have had more to sell to clients, I’d have hauled in more clients, and I might have finished my career with a reputation as a “go to” lawyer for clients with real problems. 

COLLECTIVELY:

By acknowledging our failings, we don’t suggest the world treated us unfairly.  We’re not victims.  We know, however, the value of going under the microscope and honestly taking stock of what’s there.  We hope our looking back gives others looking forward useful hints for avoiding regrets.   

                            

  

Left to Right: Henry Jones, Woodson Walker, Rob Wiley

DRAINING WHAT SWAMP? HOW DOES STOCKING THE SWAMP SOUND?

PhotoCred: Ben Garrison

PhotoCred: Ben Garrison

Of all the bogus promises Donald Trump made in running for President, the pledge he would “drain the swamp” ranks as the most ludicrous in light of how he’s performed in office. The “drain the swamp” promise concerned, of course, cleaning up the cozy relationship between lobbyists and government regulators and reducing the influence of those dispensing “goodies” to government officials in exchange for favorable regulatory actions.  Trump pledged he’d name cabinet officials and staff of high integrity.  He even said he could best fix the problem because his years of personal involvement in the influence peddling industry taught him the lay of the land.  Presumably, “draining the swamp” included guarding taxpayer money from excesses of the administration’s own officials.

It hasn’t worked out that way.  Ethics lawyers in recent Democratic and Republican administrations, Norman Eisen and Richard Painter, call Trump’s first year in office the “most unethical” in modern history.  Anyone who thinks this view sounds like hyperbole or merely the ranting of Trump’s political opponents should look at the facts.

CABINET OFFICERS

*Tom Price --- the former Georgia congressman served as Health and Human Services Secretary for only 231 days before resigning in the wake of allegations he spent over $1 million in taxpayer money on travel on private jets and military aircraft.

*Ben Carson --- Carson remains on the job as Secretary of Housing and Urban Development, but questions linger about his order in late 2017 of a $31,000 dining set for his office.  A career HUD official filed a complaint after she said she was demoted because she refused to approve more than $5,000 for office decorations. 

*Scott Pruitt --- any day, events could force Pruitt out of his job as Environmental Protection Agency chief.  Trump said Pruitt has done “a great job” and has been unfairly targeted by liberals upset with his policies.  Still, Pruitt has been credibly accused of a long list of ethical transgressions, including (1) renting a room in a Washington condominium for the absurdly low price of $50 per night from the family of a lobbyist with business involving the EPA; (2) awarding large raises to administrative staffers the White House wouldn’t approve by using a special provision in the Safe Drinking Water Act usually reserved for hiring experts with special scientific training; (3) assembling a 20 person security detail at a cost of $3 million dollars; (4) spending $42,000 on a sound proof phone booth in his office; and (5) using tax dollars to fund first class air travel while flying coach on personal trips, putting the lie to his claim he need first class accommodations for security reasons.

WHITE HOUSE STAFF

Rob Porter --- the former Staff Secretary’s domestic violence transgressions have been well chronicled in this space and need no further explanation.

Lori Mashburn --- this Interior Department liaison apparently violated a specific ethics pledge she and other White House staff members signed promising not to involve themselves in the activities of their former employers  or clients.  Mashburn apparently attended a Heritage Foundation event in clear violation of the policy. 

Jared Kushner --- the President’s son in law, senior adviser, and Middle East troubleshooter denies wrongdoing, but credible reporting exists indicating he failed to disclose all required financial information (he still doesn’t have a permanent security clearance), mixed government and private business in his dealings with the Chinese, and participated, with his wife, the President’s daughter, in meetings with high ranking Japanese officials while she was negotiating with a Japanese company on a licensing deal for her clothing brand.

PRESIDENT TRUMP

The President’s transgressions begin with his continuing involvement in private businesses, giving at least the impression he benefits financially as a result of holding office.  Unlike nearly all previous occupants of the White House, Trump didn’t divest himself of his significant business interests before taking office, nor did he place them in a blind trust.  This opened the door to actual impropriety as well as its appearance.  The Trump Hotel in Washington, for example, reportedly has become a preferred destination for foreign officials doing business with the United States government.  However much money Trump and his family receive from lodging fees and meal costs paid to the hotel by these officials, the potential for influence peddling appears obvious.

Trump’s Mar-a-Lago property in Florida doubled its membership initiation fee to $200,000 after Trump won the 2016 election.  The resort’s managing director said Trump’s presidency “enhances” Mar-a-Lago membership.  Trump hosts events there for members at which the major purpose seems access to him.  Does anyone doubt Trump’s occupancy of the nation’s highest office contributed to the membership fee increase?  The fact membership has been reported nearly capped out almost certainly reflects an interest in attaining access to Trump.

Other ethical lapses abound in the Trump administration.  Make your own judgment about how bad they are and what Congress, the judicial branch, and the nation should do about them.   What do you recommend?

PROTECTING ROBERT MUELLER: ALLOWING THE SPECIAL COUNSEL TO GET TO THE TRUTH

Should President Trump fire special counsel Robert Mueller?  Should Mueller get more time to finish his investigation?  Not a day goes by now without a suggestion that Trump will soon set in motion events leading to the firing of the special counsel.  Since only Deputy Attorney General Rod Rosenstein can actually dismiss Mueller, presumably Trump would start by ordering Rosenstein to fire Mueller.  Should Rosenstein refuse, Trump would fire Rosenstein and replace him with someone who would fire Mueller, raising the specter of the 1973 Saturday Night Massacre. Richard Nixon had to dismiss both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus before finding someone in the Justice Department – Solicitor General Robert Bork -- who would carry out his order to fire special prosecutor Archibald Cox.  The Saturday Night Massacre, of course, ultimately led to appointment of another special prosecutor, Leon Jaworski, and paved the way for Nixon’s resignation in the face of certain impeachment.

Credible news reports indicate Trump ordered Mueller’s firing in June 2017 and tried again in December 2017.  The first time, Trump backed off because White House counsel Don McGahn threatened resignation if Trump went through with the dismissal.  In December, Trump discovered reports Mueller had subpoenaed some of his bank records weren’t

true and decided not to order Mueller’s dismissal.  These false starts don’t mean Trump won’t succeed in getting the special counsel fired.  Despite claims by Republicans, like departing House Speaker Paul Ryan, that they “don’t think” Trump will have Mueller fired, lots of people in Washington now believe it has become a matter of when, not if.

CONGRESS TO THE RESCUE

So what could stop Trump from successfully having Mueller axed, halting the Russia investigation?  One easy answer in theory that’s very difficult practically lies in congressional action.  Later this month, the Senate Judiciary Committee will vote on a bill sponsored by two Republicans – Thom Tillis of North Carolina and South Carolina’s Lindsey Graham – and two Democrats -- Chris Coons of Delaware and Cory Booker of New Jersey.  The legislation, identical to a measure introduced in the House by Pennsylvania Republican Charlie Dent and Vermont Democrat Peter Welch, would set specific standards for firing a special counsel and put review of such a firing in the hands of a three-judge federal panel.  Proposing, and maybe passing the bill, is easy.  Then the hard part starts.

First, as Republican Senator Susan Collins of Maine said recently, Trump would never sign such legislation.  It seems certain, in fact, he would veto that kind of measure.  Congress rarely overrides Presidential vetoes, especially ones of controversial bills like this one.  Veto overrides require a two-thirds vote in both chambers.  Given the current makeup of the House, assuming all 192 Democrats vote to override, passing the bill over Trump’s veto would require 99 Republican votes to get to the necessary two-thirds, 291 votes in the 435 member lower chamber.  In the Senate, assuming all 47 Democrats and the two Independents who caucus with them – Bernie Sanders of Vermont and Angus King of Maine, support an override, it won’t happen without 18 Republican votes to get to 67 for the two-thirds requirement.

Those numbers don’t even take into consideration the potential constitutional problems with legislation protecting Mueller.  Such a measure would thrust Congress into an executive branch personnel matter that might implicate separation of powers concerns.  Some constitutional scholars think impeachment represents the only way Congress can override such a Presidential action.  Senator Collins, in fact, agreed Congress would “send a message” if it passed such a law, but acknowledged it might not stand if challenged in the courts.

OTHER WAYS

Other things are now in the picture that potentially can keep the investigation going, even if Trump fires Mueller.  If Trump starts with firing Rosenstein, the Senate could require a promise from a new Trump appointee for Deputy Attorney General that he or she would have to appoint a new special counsel (AG Jeff Sessions has recused himself from Russia-related matters).

The recent FBI raid on the offices and residences of Trump lawyer Michael Cohen offers another vehicle for keeping the investigation

going, even if Trump succeeds in having Mueller sacked.  The United States Attorney for the Southern District of New York, Geoffrey Berman, initiated the Cohen raid after a referral from the special counsel’s office.  That part of the investigation, therefore, will continue, Mueller or no Mueller.  It’s been suggested this investigation imperils Trump more than the Mueller probe because it could lead to review of Trump’s real estate and other business practices going back years, not just his possible collusion with the Russians in interfering in the 2016 election.  

Finally, if all else fails, some of Trump’s alleged transgressions related to alleged collusion with the Russians, possible obstruction of justice, and money-related crimes might also have violated state laws.  Prosecutors in New York and other jurisdictions could pick up the investigation, though they might have to limit their probe in ways federal prosecutors do not.

Trump may well fire Mueller. As Trump likes to say, “We’ll have to see what happens.”  One thing that’s not happening is a complete shutdown of the investigation into Trump’s actions.  That will continue.