Who doesn't want to read John Bolton's new book?

I have to admit I have been awaiting the arrival of Bolton's new book. I am not a fan of his by any means, but I am certainly not a fan of this Administration. I wanted to hear about the contents of Bolton's new book, but I am determined I will not spend one single penny on it and will not enrich Bolton by any means.

Turns out, it might not be an issue. Like most of you, I learned the District Court Judge Royce C. Lamberth denied the government's motion for an injunction to stop the distribution of the book, The Room Where It Happened. Most of the news reports only went so far and I was happy to see that the French media was giving it more attention.  

The Memorandum Order is fairly short and starts off with the conclusion, "[w]hile Bolton's unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy." The Memo gives a quick background, focusing on the fact that Bolton signed several nondisclosure agreements. The violation of Bolton's NDA may result in assigning "all royalties, remunerations, and emoluments that have resulted, . . ."  

In December 2019, Bolton submitted his draft manuscript to the National Security Council and over the next four months, Bolton made edits to the manuscript. On April 27, 2020, the Senior Director for Records Access and Information Security Management Ellen Knight stated she no longer considered his manuscript to contain classified material and that she might prepare a final written authorization for him to proceed. She didn't. Then on June 8th, John Eisenberg, Deputy White House Counsel and Legal Advisor wrote to Bolton, claiming his book still contained classified information. Bolton decided to deliver the "final" manuscript to his publisher without receiving the written authorization or giving notice to the government. He also decided not to seek any relief from the courts.

The Court applied a four-factor test in deciding whether the injunction should issue. The first question was "Is the government likely to succeed on the merits?" The Court said yes, Bolton "likely jeopardized national security by disclosing classified information in violation of his nondisclosure agreement obligations."

"This was Bolton's bet: If he is right and the book does not contain classified information, he keeps the upside mentioned above; but if he is wrong, he stands to lose his profits from the book deal, exposes himself to criminal liability, and imperils national security. Bolton was wrong."

As noted by the Court, establishing one factor of the test is not sufficient. The next factor was whether the government would suffer irreparable injury if the injunction was not granted. It noted that more than 200,000 copies of the book had been shipped domestically, and thousands internationally. The book has already been reviewed and excerpted. As stated by Judge Lamberth, "By the looks of it, the horse is not just out of the barn - it is out of the country." The Court declined to issue an injunction for a nationwide seizure and destruction of the book, noting how the Internet age made such actions futile.

The Court also concluded any injunction "would be so toothless as to not substantially injure anyone" and that the request was untimely. It found the government could not overcome a lack of redressability. Because the government failed to establish three of the four required elements, the request for an injunction was denied.

A new book by Trump's niece Mary Trump is also scheduled for release in July. Trump has raised the possibility of suing her to block the book, Too Much and Never Enough: How My Family Created the World's Most Dangerous Man. He claims she signed a NDA over 20 years ago when the family settled Fred Sr.'s estate. Since I wouldn't assume the book to contain classified information, Trump will have to rely on the strength of the NDA. Considering Ms. Trump is a psychologist, it should be an interesting read.

More good news from the U.S. Supreme Court for DACA recipients and others

In Deferred Action for Childhood Arrivals (DACA), the U.S. Supreme Court held the Trump Administration did not properly terminate the DACA program. The Court’s decision was split 5-4, with Justices Ginsburg, Kagan, Breyer and Sotomajor joining in the majority opinion written by Chief Justice Roberts. The decision relies on procedural errors, including the failure by the Department of Homeland Security (DHS) to provide an adequate reasons for terminating the program. The Court concluded the DHS was stuck with the original reasons for termination, which it found were arbitrary and capricious, and failed to address important factors. Chief Justice Roberts wrote:

 “Justice Holmes famously wrote that ‘[m]en must turn square corners when they deal with the Government.’ Rock Island, A. & L. R. Co. v. United States, 254 U. S. 141, 143 (1920). But it is also true, particularly when so much is at stake, that ‘the Government should turn square corners in dealing with the people.’ St. Regis Paper Co. v. United States, 368 U. S. 208, 229 (1961) (Black, J., dissenting). The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.” (Opn., pg. 17.) 

An Obama-era program, DACA was established in 2012 and is available to undocumented immigrants who came to the United States under the age of 16, have lived in the U.S. since June, 2007, were enrolled in high school or graduated, and have not been convicted of certain offenses. Over 700,000 individuals applied for relief, which included federal benefits. In 2014, the eligibility requirements were expanded to include parents of U.S. Citizens or lawful permanent residents. 4.3 million parents became eligible for forbearance. Approximately 202,500 Dreamers and their families are impacted by today’s decision. Those individuals who met the criteria became eligible for renewable, two-year grants of “deferred action” from removal. 

Former Attorney General Jeff Sessions claimed the program had been created “without proper authority.” Former acting Secretary of Homeland Security, Elaine Duke, said the program would be phased out. Former Homeland Security Secretary Kirstjen Nielsen later announced the program would be phased out, arguing the program increased the risk of undermining public confidence in the rule of law.

The plaintiffs argued the phase-out violated the Administrative Procedural Act. Amicus briefs were filed by 143 businesses and companies, including Tim Cook, CEO of Appeal claiming the phase-out will harm the economy. Apple employs 443 Dreamers from 25 countries and four continent. One amicus brief noted that the loss of the DACA program would result in increased costs of $6.3 billion to hire and retrain replacements.

Chief Justice Roberts expressly declined to address whether DACA or its recision are sound policies. Since the decision is based on procedural flaws, the Trump Administration could renew its efforts to rescind DACA, but that effort could take months or years. In that period of time, we may have a new administration or the current protests may encourage the Administration to rethink its earlier decision.

 Sara Horta, a DACA recipient living in Washington, DC said: 

“This ruling blocks Trump’s attempt to end DACA and unnecessarily place hundreds of thousands of DACA recipients on the pathway to deportation. Despite Trump’s efforts to villainize and attack immigrants, my community is strong and resilient and we will not go away quietly.  

We will not wait around for Trump and Stephen Miller to come up with another misguided plan to terminate DACA or enact other anti-immigration policies. Instead, we will make sure that Donald Trump is a one-term president and Republicans who rubber-stamped his racist agenda are also defeated in November.”

You can access the decision here: https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf.

A victory for LGBTQ employees

In an opinion written by Justice Neil Gorsuch in Bostock v. Clayton County, the U.S. Supreme Court held that federal law prohibits employment discrimination against LGBTQ workers. The Court examined Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination “because of [an employee’s] race, color, religion, sex, or national origin.” 

 Justice Gorsuch concluded the law covers discrimination based on sexual orientation or gender identity:

             “In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national orgin. Today we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or action it would have questioned in members of a different sex. Sex plays a necessary and undisguishable role in the decision, exactly what Title VII forbids.”

The decision was split 6-3. Chief Justice John Roberts joined the majority. Justices Alito, Thomas and Kavanaugh dissented.

Justice Gorsuch found discrimination occurs whenever an employer treats male employees differently than female employees. He pointed out two examples: In the first, both employees are attracted to men; however, one is a female, one  male. If the employer fires the male employee for no other reason than his attraction to men, the employer has engaged in sex discrimination. In a second example, the employer might fire a transgender person who was identified as male at birth but now identities as a female. If the transgender person is fired, it can constitute discrimination against one who changed gender identity in favor of one who was the same gender throughout. Justice Gorsuch stated, “Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”

While the LGBTQ should celebrate this victory with two conservative justices siding with the majority, the fight is not over. The Court is considering a case that would provide religious exemptions to Title VII. In a concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), Justice Gorsuch suggested that religious groups may enjoy an exemption from laws forbidding discrimination on the basis of sexual orientation or gender identity.

Even so, we should celebrate this decision, not only because it provides greater protection to LGBTQ workers. We should also celebrate the fact that the Court resisted pressure from the Trump Administration. It also shows the Court was able to set aside the justices’ individual biases and do the right thing.

Why can't I get justice?

After a party loses at trial, he or she will begin to assess their chances on appeal. That's where I step in.  Once question that frequently comes up is, "Why can't I get justice?" Sometimes I am surprised when they don't, as the law and facts seem to be on their side.

My response is to point them to the U.S. Supreme Court, where decisions are often split 5-4 among the justices. Do they really believe that five of those justices saw the law in one way while the other four saw itanother? Yes, political differences affect the Court's decision. Why should it work any differently with the lower courts?

When trial attorneys pick a jury, they have an opportunity to address the jury directly and try to uncover their biases during voir dire. This is part of the jury selection process that ends with the empaneling of a jury. Then the trial begins. More than likely, voir dire is an opportunity to focus the jury on the client's story and educate them as to why the client should win. 

It is rare that a juror will admit to being prejudiced or even racist. The attorney has to uncover that fact with subtle or indirect questioning. It could be that one side has a better, more charismatic lawyer. Or the party may not be particularly likeable. Sometimes it comes down to not being white and educated.

I remember a Chinese woman, who possessed all of the evidence to prove her case against a white male defendant. She had no clue why she lost. I listened to her story and looked at the evidence. I couldn't understand why she had lost either. I surmised that she made the jury work too hard to understand her thick accent and they simply turned off when she spoke. Her trial also came at a time when the press was promoting stories about how the Chinese were taking over real estate and businesses, and soon the Chinese would own America.

Prejudices can come in many different forms. A jury might not like a woman because she is too pretty or too fat. They may not like a man who isn't well dressed or too angry. I remember the case against a former gang member, who was injured in a vehicle accident, along with his infant son. The defense argued the man was not entitled to lost wages because his "job" was being a gang member, and any money he received would be spent on drugs and criminal activities. Another man lost his case because he was an undocumented worker and the jury may have felt that giving him money would reward him for not being a citizen.

We all have our prejudices, some more so than others. Most of us want to think of ourselves as fair citizens, but those prejudices can be unconscious. How do we form our opinions of others? Why do we like some people and not others? I am sure psychologists have spent countless hours studying the process. It was never part of my official legal educations. Perhaps it should have been, but it forms the foundation of my advice, if you are able to receive justice, you are lucky.

In Solidarity with Black Lives Matter

Before I was born, my mother's family suffered the loss of over 68 relatives in Thessaloniki, Greece. They died in their home town or in Auschwitz. My grandfather’s brother was sent to Auschwitz after he, as the leader of Jewish Council, refused to deliver young Jewish men to the Nazis in the town square. My grandparents had fled to New York City in 1917 and would be instrumental in bringing Jews to the US after WWII.  

My education on intolerance, racism and hatred started at an early age. My father, who had fought in WWII, possessed several photos that depicted the living skeletons the soldiers found in the concentration camps. From time to time, us kids would ask to see those photos to remind us that one can live peacefully in the world but it could all change in an instant, usually when the country’s economy was turning sour and people were looking for a scapegoat to blame for their problems.

My first experience came at an early age. I would be asked by my teacher to talk to her class about Hanukkah. I didn’t want to do it because it made me an object of wonder and suspicion. I became different than my classmates. Then a friend told me he could no longer play with me because I had killed Christ.  

Years later, a friend was getting married and her future father-in-law said he wanted to invite the Jews because they would have a BBQ in the backyard and roast them. My friend begged me not to upset her wedding plans but I could not attend. At one of my first jobs, my employer talked with another employee, describing the hidden horns of Jewish people.

Growing up I felt an affinity with minorities who suffered intolerance and racial hatred. It became a constant theme in my life. I faced misogeny when I was told what girls and women could do or not not do. As an attorney, I entered the legal field when women comprised 10% of the profession and I was frequently asked if I was a secretary. I faced it when it was almost impossible for women to feel safe in making a complaint about sexual assaults or even rape. Instead, we were blamed for our behavior and asked what clothes we were wearing. 

My ethnicity was not always recognized so I would hear ugly conversations of racial profiling and bigotry that one might not otherwise hear. If I were to consider my white privilege, and I did have benefits from it, that privilege was only superficial as I recognized that my acceptance into society could easily change in an instant. I lived with an uneasy alliance, knowing one day there might be a knock on my door, taking it all away. That was my reality.

But nothing in all my years on earth has frightened more than the last four years. It reminds me of the fear and hatred my grandparents must have faced. Early on, I recognized Trump as a malignant narcissist who controls the narrative of American life. I was surprised that Trump received the support and admiration he seems to command from his followers. He has promoted hatred and violence, and we have permitted it.  When he first came into office, I decided one way to fight against his agenda was to be nicer to others. A small step, no doubt, but it was something I could do. I enjoyed putting a smile on the faces of others. I loved being able to offer an open ear and heart to others, giving them some relief from their problems.

I am glad people are out in the street with the message that Black Lives Matter. I do think the protests are bigger than that. Minorities are suffering from COVID-19 at higher numbers than white people, and the federal response is - to me - sanctioned genocide. Minorities are risking their lives to perform jobs that cannot be done through Zoom meetings in our living rooms. 

I think people who have been silent are now speaking out against hatred and intolerance. We are tired of the governments efforts to normalize hatred and violence. Many of us are saying, no, this is not who we want to be as a nation or as a people. We are better than this. We have to speak out against the damage done to our rule of law and the destruction of our democracy. The soul of this country, as well as our individual souls, depends on standing up to hatred and refusing to allow this regime to continue. Please, don't give in to hate. Stand in support of our black brothers and sisters. AND VOTE!