“In Bunyan’s ‘Pilgrim Progress’ you may recall the description of the Man with the Muck-rake, the man who could look no way but downward, with the muck-rake in his hand; who was offered a celestial crown for his muck-rake, but who would neither look up nor regard the crown he was offered, but continued to rake to himself the filth of the floor. The Man with the Muckrake is set forth as the example of him whose vision is fixed on the carnal instead of the spiritual things. Yet he also typifies the man who in this life consistently refuses to see aught that is lofty and fixes his eyes with solemn intentness only on that which is vile and debasing. Now, it is very necessary that we should not flinch from seeing what is vile and debasing. There is filth on the floor, and it must be scraped with the muckrake, and there are times and places where this service is the most needed of all the services that can be performed. But the man who never does anything else, who never thinks or speaks or writes save of his feats with the muck-rake, speedily becomes, not a help to society, not an incitement to good, but one of the most potent forces for evil.” – Theodore Roosevelt, 1906
That was 1906, and 2018’s muckrake is a Twitter feed from the 45th U.S. president, who has used his account to fire people and to advance his alternate view of reality, prompting sources like CNN, the Washington Post, and BuzzFeed to tally his lies at 5 ½ a day or 2,000+ lies in 400+ days in office.
CNN’s Chris Cillizza reported on the forced resignation of homeland security adviser Tom Bossert on April 11, the 32nd senior staff to leave since Jan. 20, 2017.
“There are only 65 ‘A-Team’ positions in the White House total. Which means that in the 445 days Trump has been president, he has lost 49 percent of his A Team staff. In Pres. Barack Obama’s first two full years in office, 24 percent of his ‘A Team’ staff departed. For George W. Bush it was 33 percent. Bill Clinton? 38 percent,” Cillizza wrote.
That turnover had demoralizing effect for staff that remains, but also, the attrition rate is above – average worrisome.
Yet, “Trump tweeted a defense on Wednesday morning. ‘So much Fake News about what is going on in the White House,’ he wrote, adding the mood at 1600 Pennsylvania Avenue is ‘Very calm and calculated,’” Cillizza continued.
“No” was the president’s reply
On April 6, 2018, CBS News and CNN broadcasted snippets of Trump responding to questions from the press pool while he was on board Air Force One, one of which was whether he knew about Michael Cohen’s payoff of $130,000 to Stormy Daniels.
Trump said “no,” but his hesitant facial expressions did not support his words. The press pool kept at it and asked why did Cohen make the payment, to which Trump said, “You’ll have to ask Michael Cohen, Michael is my attorney. You’ll have to ask Michael.”
Trump’s “no” essentially erased the “client” in the attorney-client privilege, which arguably one can say that the attorney-client privilege is now abdicated by that “no.” It may be a simplistic way of looking at it, that when a client disavows what his lawyer did, then, it can be argued that the attorney-client privilege was waived.
But what Trump did not think of perhaps was how his “no” laid open for the FBI to search his former lawyer’s premises, with a valid, signed search warrant by a magistrate. No longer protected by an attorney-client privilege, the search warrant can be executed.
Furthermore, Trump tweeted, on April 10, following the search warrant’s being served: “The attorney-client privilege is dead” at 4:07 a.m. Did it die when Trump said “no,” and later declared, “Michael is my attorney, you have to ask him”? Some say Trump’s statements threw his attorney under the bus, since basic to any attorney-client privilege is a constant back and forth consultation and communication between the client and attorney.
Cornell University defines it further as “the privilege is asserted in the face of a legal demand for the communications, such as a discovery request or a demand that the lawyer testify under oath.” In which case, the communications between client and lawyer remain a secret, unless it falls under an exception.
Crime-fraud exception to attorney-client privilege
But is this privilege absolute? Cornell University’s Wex Lax Dictionary defines the exception to this privilege: “The attorney-client privilege protects most communications between clients and their lawyers. But, according to the crime-fraud exception to the privilege, a client’s communication to her attorney isn’t privileged if she made it with the intention of committing or covering up a crime or fraud.”
Why would this exception apply in the Stormy Daniels case, the porn star who allegedly had an affair with Trump in 2006, but a week and a half before the 2016 election, was paid $130,000 in hush money to sign a non-disclosure agreement (NDA)? One signature appears on this NDA, Stormy Daniels, aka Stephanie Clifford, but no signature appears for Trump, the other party and only his lawyer, Michael Cohen.
Even though Trump asserted on Air Force One, “no,” and feigned ignorance of what Michael Cohen did, he and Donald Trump filed a $20 million lawsuit to enforce the NDA and to ensure the silence of Stormy Daniels.
The common good, public facts and truth
Why is Cohen an alleged violator of bank fraud, mail fraud, and campaign finance elections limits? What prompted that raid?
Cohen paid Stormy Daniels $130,000 a week and a half before the election, when the Federal Election Commission (FEC) limits campaign contributions to $5,000 per year per individual. The Washington Post’s Carol D. Leonnig, et. al, on April 9 reported: “Michael Cohen, the longtime attorney of President Trump, is under federal investigation for possible bank fraud, wire fraud and campaign finance violations, according to three people with knowledge of the case.”
Given that scenario, the fraud exception to the attorney-client privilege kicks in, including Trump’s denying knowledge of Cohen’s actions, both are dual factors to invalidating the attorney-client privilege that could have protected the president’s communications with his lawyer.
The Washington Post described what was seized: “Investigators took Cohen’s computer, phone and personal financial records, including tax returns, as part of the search of his office at Rockefeller Center, that person said.”
Was this serving the common good?
Recall the words of Theodore Roosevelt that we must undertake “the relentless exposure of and attack upon every evil man, whether politician or business man, every evil practice, whether in politics, in business or social life. I hail as a benefactor every writer or speaker, every man who, on the platform, or in book, magazine, or newspaper, with merciless severity makes such attack, provided always that he in his turn remembers that the attack is of use only if it is absolutely truthful. The liar is no whit better than the thief, and if his mendacity takes the form of slander, he may be worse than most thieves. An epidemic of indiscriminate assault upon character does no good but very great harm.”
Of late, the line between what is evil and what is good has been blurred by the use of the modern-day muck-rake, “Twitter,” whereupon the lies, repeated many times and liked many times, elevate the popular tweet to now a likely truth. Left unchecked, the lie is held to the same equivalence as truth, a very egregious form of intellectual dishonesty. It does not serve the common good — a principle that benefits the many — when dishonesty prevails.
Trump also characterized the attack on his personal attorney’s office as an attack on our country, prompting Senator Chuck Schumer on April 10 to say: “America has been around for over two and a half centuries, an investigation of your personal attorney is not an attack on our country.”
He also added, “In this country no man is above the law, not even the president. Mr. President, your comments were the disgrace.”
CNN reported that Cohen stated that the FBI was “professional, courteous and respectful” in the raids, counter to Trump’s depiction in his tweets. Following the Monday raid, the New York Times’ Matt Apuzzo reported Trump saying, “That is really now on a whole new level of unfairness.”
Was that unfair, as the president claims?
Not really, as there are search and seizure procedures to ensure that the search results are not tainted by improper actions. A “taint team” exists to examine what were seized during the three simultaneous raids, including what constitutes privileged communications between a client and his attorney and might still protected and this segregates the evidence into what is relevant evidence, specifically requested in the search warrant, and anything beyond the scope of the search warrant is returned back to Cohen, and within a specified time period, provided by the court.
But what about the president? Is he not tasked to “preserve, protect and defend the Constitution of the United States,” which includes defending against these felonies: “counterfeiting federal coins and securities, piracy and felonies committed on the high seas, and treason”?
Would he not be interested in making sure that if these federal crimes were committed under his watch, then, would he not promote the discovery of evidence and the resulting adjudication of these crimes, using our court systems or arbitration, and not the subsequent $20 million lawsuit to ensure silence against Storm Daniels, to enforce the NDA?
Robert Reich, the author of “The Common Good,” wrote, “Even before Donald Trump became president, comedian Stephen Colbert joked that the statements of politicians only approximated the truth – ‘truthiness,’ as he called it. The mainstream media, for their part, have occasionally slanted the news out of fear of offending major advertisers or powerful interests in government. New York Times reporter Judith Miller notoriously colluded with the George W. Bush administration in propagating its blatant lie about Saddam Hussein’s supposed weapons of mass destruction. All of this paved the way for Trump – his ubiquitous lies, his ongoing attacks on journalists, and his assault on scientists and researchers. They also served as prelude to ‘fake news,’ some of it coming from foreign sources intent on undermining trust in our democracy.“
I have always maintained that we all, as responsible and informed citizens, are the public guardians of American democracy. As long as we remain ignorant as not read, to discover the facts, from both sides of the political parties, more and more of us will be fed “fake news,” using today’s muck-rake, the tweeter.
On Tuesday, April 10, we watched how Mark Zuckerberg testified before the U.S. Senate while many of the Senators did not even understand the dynamics of Facebook. How may we expect these senators to regulate that which they do not understand to protect our privacy and what is disseminated during election time? To his credit, Zuckerberg admitted his team purged 400 Facebook accounts related to Russian operatives. But he was quick to add there are more that may have escaped their technicians’ scrutiny.
“We must not normalize public lying. The common good requires vigilance against it, and the summoning of public shame when we find it. It is a central obligation of politicians as well as journalists, researchers, scientists and academicians to inform the public of the truth, and to identify lies without fear of retribution. It is the civic responsibility of all of us to check the facts we read or hear, to find and depend upon reliable sources, to share the truth with others, and hold accountable those who lie to us or suppress the truth,” Reich wrote on resurrecting truth in his book, “The Common Good.”
As to Trump’s tweets that the FBI showed favor to Hillary Clinton and is being unfair him, it is hardly the truth. Why? Trump’s appointee, Geoffrey Berman, who contributed to the campaign, and the top federal prosecutor appointed on an interim basis by AG Jeff Sessions, recused himself from this investigation. The warrant was then signed off, as CNN reported, by senior Justice Department officials within Deputy Attorney General Rod Rosenstein’s office.
Rosenstein is a career public servant for the Justice Department for over 27 years, whose prior records included prosecution of public corruption cases as a trial attorney for the Public Integrity Section of the Criminal Division. Amongst the many programs he was part of included the credit card fraud coordination and international assistance programs, and tax enforcement activities of the Tax Division, the U.S. Attorney’s Office and the Internal Revenue Service. He is a career public servant reputed to be a straight arrow and a stickler for the “rule of law.”
If nothing else, Trump can be assured that the law enforcement officials will “cross their t’s and dot their i’s” to ensure they are doing everything by the “law enforcement book” on policy and procedures, to ensure his rights are protected, as well as Cohen, who some say is really Trump’s fixer.
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Prosy Abarquez-Delacruz, J.D. writes a weekly column for Asian Journal, called “Rhizomes.” She has been writing for AJ Press for 10 years. She also contributes to Balikbayan Magazine. Her training and experiences are in science, food technology, law and community volunteerism for 4 decades. She holds a B.S. degree from the University of the Philippines, a law degree from Whittier College School of Law in California and a certificate on 21st Century Leadership from Harvard’s Kennedy School of Government. She has been a participant in NVM Writing Workshops taught by Prof. Peter Bacho for 4 years and Prof. Russell Leong. She has travelled to France, Holland, Belgium, Japan, Costa Rica, Mexico and over 22 national parks in the US, in her pursuit of love for nature and the arts.
