13 Books Every White-Collar Lawyer Should Read

Of the making of lists of books, there shall be no end. Nevertheless, here is one more.

Set out below are 13 works that every white-collar lawyer – defense counsel, prosecutor or judge – should read.

Why take on such a presumptuous project? Three good reasons.

First, lists start conversations. Although law is (or was) a “learned profession,” relatively few lawyers in my experience have read broadly or deeply since college.  The press of work does not allow otherwise.  Our professional learning is utilitarian, narrow, cramped and quickly (or gratefully) forgotten.

Second, the proponent of such a list (that is, me) must review, reconsider or even reread works first encountered years or decades in the past. If the list does not help you, it may help me.

Third, the list makes us think why it is, exactly, we do what we do. The usual concepts – justice, productivity, money, honor – are not well-explored in the day-in, day-out of law practice.

A few caveats are in order.

First, this is a personal, idiosyncratic (or eccentric) list. If you want a survey course, go to a community college.

Second, I have made little effort to be “fair,” at least at that term is understood politically today. I have not tried to equally represent time periods, genres, genders or ethnicities. I realize that the list is populated with white males, most of whom are dead or will be soon. Could someone make a list of 13 books written by others? Very much so, and more power to them.

Third, a great many books are not eligible by my own fiat for this list. How so?

I have excluded all biographies and autobiographies of lawyers, even though there are some superb ones. Two that come to mind, for example, are Evan Thomas’s The Man To See (1992) (about Edward Bennett Williams) and Louis Nizer’s  My Life In Court (1961).

I have also excluded all how-to books, even though there are a number of excellent ones.  My favorite is Herbert J. Stein and Stephen A. Saltzburg’s Trying Cases to Win (2013) (one volume).

There is a lot of dreck written about white-collar criminals and the white collar “mind,” and it was for the most part a pleasure to exclude that sub-genre. Nevertheless, there are some admirable works including, very recently, Harvard Business School professor Eugene Soltes’s Why They Do It  and Duke professor (and former Enron prosecutor) Sam Buell’s Capital Offenses.

Like the poet Dante, you have been warned before you enter the gates. Let us turn to 13 books that every white-collar lawyer should read.

 

A short Gitane, no? A big retainer, yes?

Albert Camus, The Fall | Best known for The Stranger, French novelist Albert Camus (1913-1960) careens in and out of literary fashion.  Admittedly, French existentialism is sometimes little more than navel-gazing with bad breath, but Camus at his best is incandescent (and, at his worst, is far better than Stalinist puppets like Jean-Paul Sartre and Simone de Beauvoir).

The Fall (1956) is narrated by a disgraced lawyer sitting in a Dutch bar. His insights into how we fall from grace and face daily judgment are dark but powerful.

Good vision.

F. Scott Fitzgerald, The Great Gatsby | There is only a little bit of crime in The Great Gatsby (1925) : Jay turns out to be in the “numbers racket,” and Myrtle is the victim of vehicular homicide. The compelling white-collar aspect of this greatest of 20th-cntury American novels is its study of money and power, as the narrator, Nick Carraway, sets out in the opening:

When I came back from the East last autumn I felt that I wanted the world to be in uniform and at a sort of moral attention forever; I wanted no more riotous excursions with privileged glimpses into the human heart. Only Gatsby, the man who gives his name to this book, was exempt from my reaction — Gatsby, who represented everything for which I have an unaffected scorn. If personality is an unbroken series of successful gestures, then there was something gorgeous about him, some heightened sensitivity to the promises of life, as if he were related to one of those intricate machines that register earthquakes ten thousand miles away. This responsiveness had nothing to do with that flabby impressionability which is dignified under the name of the “creative temperament.”— it was an extraordinary gift for hope, a romantic readiness such as I have never found in any other person and which it is not likely I shall ever find again. No — Gatsby turned out all right at the end; it is what preyed on Gatsby, what foul dust floated in the wake of his dreams that temporarily closed out my interest in the abortive sorrows and short-winded elations of men.

Witness statement.

Saint Paul, Letter to the Romans | On the road to Damascus, Saul famously became Paul.  The most powerful of the Pauline letters is the one he wrote to the new Christians living in Rome.  Even for the non-Christian or the secular, his analysis of law and grace is unparalleled, especially in chapter 7:

15 For I do not understand my own actions. For I do not do what I want, but I do the very thing I hate. 16 Now if I do what I do not want, I agree with the law, that it is good. 17 So now it is no longer I who do it, but sin that dwells within me. 18 For I know that nothing good dwells in me, that is, in my flesh. For I have the desire to do what is right, but not the ability to carry it out. 19 For I do not do the good I want, but the evil I do not want is what I keep on doing. 20 Now if I do what I do not want, it is no longer I who do it, but sin that dwells within me.

21 So I find it to be a law that when I want to do right, evil lies close at hand. 22 For I delight in the law of God, in my inner being, 23 but I see in my members another law waging war against the law of my mind and making me captive to the law of sin that dwells in my members. 24 Wretched man that I am! Who will deliver me from this body of death? 25 Thanks be to God through Jesus Christ our Lord! So then, I myself serve the law of God with my mind, but with my flesh I serve the law of sin.

In our own law practices, we may ask of ourselves what we seek to understand about our clients:  Who do we serve with our mind, and who do we serve with our flesh?

Time to do a deal.

Scott Turow, Personal Injuries | As a novelist of popular law-oriented contemporary fiction, Turow towers over most others. His 1999 novel Personal Injuries is agonizing (and agonizingly familiar to white-collar lawyers) in its description of lawyer Robbie Feaver’s downfall.  As Publishers Weekly noted at the time:

Unlike most of his fellow lawyer-novelists, Turow has always been more interested in character than plot, and in Robbie Feaver, a lawyer on the make who ends up fighting for his life, he has created his richest and most compelling figure yet. For years, Robbie has been paying off judges and squirreling away part of the riches he earns as a highly successful trial lawyer. When the IRS happens upon the money trail, and a top prosecutor leans on him to turn state’s evidence and finger some of the corrupt justices, Robbie calls on George Mason, veteran Kindle County lawyer, to represent him and win the best deal he can. A complicating element in the case is Evon Miller, Mormon-born FBI agent in deep undercover, who is assigned to watch Feaver and finds herself, against her better inclinations, drawn to him–for Feaver is a character of almost Shakespearean contradictions. A charming, brash womanizer who nevertheless shows superhuman reserves of love and patience to his dying wife at home, he is always several jumps ahead of the prosecutors, the FBI and the reader, winning sympathy, even admiration, where there should be none.

Read the full review here.

Paging Captain Jean-Luc Picard.

William Shakespeare, Macbeth | There are lots of lawyers, law-language and legal proceedings in Shakespeare’s work, but for the white-collar lawyer there is no match for Macbeth. Its themes of power, overreach, ambition and guilt form part of the Western consciousness and are timeless:

Will all great Neptune’s ocean wash this blood clean from my hand? No, this my hand will rather the multitudinous seas incarnadine, making the green one red.

(Macbeth 2.2.57-60 — otherwise known as a Fed.R.Crim.P. 11 “colloquy”).

 

Beach reading. Russian beach.

Fyodor Dostoyevsky, Crime and Punishment | What, exactly, to say about  Crime and Punishment (1866)? As noted by translator David McDuff:

Few works of fiction have attracted so many widely divergent interpretations as Crime and Punishment. It has been seen as a detective novel, an attack on radical youth, a study in “alienation” and criminal psychopathology, a work of prophecy (the attempt on the life of Tsar Alexander II by the nihilist student Dimitri Karakosov took place while the book was at the printer’s, and some even saw the Tsar’s murder in 1881 as a fulfillment of Dostoyevsky’s warning), an indictment of urban social conditions in 19th century Russia, a religious epic and a proto – Nietzschean analysis of the “will to power.” It is, of course, all these things – but it is more.

Like all of us, Raskolnikov – the nihilist student who without any real reason kills an old  woman – is guilty of original sin and saved, so to speak, only by suffering. What are the things that bring home to white-collar lawyers the notions of original sin and expiation by suffering?  For me, they may be the first meeting with the client; or the second meeting with the client (when the omissions from the first meeting come out); or the decision to plead or go to trial; or the moment when the jury returns with a verdict.

 

And the good lawyer?

Craig Nova, The Good Son | White-collar lawyers often represent wealthy, powerful men (at least, they hope the people they represent are wealthy).  Nova’s depiction of power and wealth, fathers and sons, is extraordinary.  If anybody needed good counselors, it’s Nova’s white-collar people in The Good Son (1982).

From novelist John Irving’s 1982 review:

Pop MacKinnon – ”a coarse, charming man, a lawyer, and a good one” – wants his sons to follow his path: to be lawyers who know how to hunt and marry well; to be gentlemen who join that unassailable aristocracy which is earned by tough, no-nonsense cleverness and is protected by money. Son John disappoints Pop; he is killed in World War II. So son Chip – a fighter pilot who was shot down in the war but survived as a P.O.W. – becomes the title character of ”The Good Son,” Craig Nova’s fourth novel. In this dark, deep story of a father and son who love (and love to fight) each other, the good son is the one who will defeat, or even kill, his father with the father’s own weapons.

In this exquisitely delineated battle between father and son, both men are consumed and changed; each gets his own way but both victors pay a price. ”When my boys were younger I sent them to Yale,” Pop Mackinnon says, ”because I wanted all the nonsense knocked out of them. A passing appreciation of books and so on, but no more. I wanted my sons to have sensible ideas.” Pop means the law: ”because law is the thing, the most sensible of all, because it works like a boa constrictor, the best of all snakes. My favorite. A boa doesn’t actually squeeze anything. The snake just wraps itself around a man or a lamb or some unfortunate creature and waits for whatever it’s wrapped around to exhale: the boa then takes up the slack. It’s a procedure, and the law is nothing else if it’s not a procedure. You can trust a snake, especially a nice Harvard one, so that’s why, after the war (after having all the nonsense knocked out of him in New Haven) I sent Chip to law school in Cambridge.”

Read the entire review here.

Peter Taylor (1917-1994)

Peter Taylor, “The Gift of the Prodigal” | Taylor was one of the best American short story writers of the 20th century, and “The Gift of the Prodigal” (published in the New Yorker in 1981 and included in Taylor’s 1996 collection The Old Forest and Other Stories) is a jewel. Narrated by an aging widower in Charlottesville, the short story turns the New Testament parable and has the prodigal, his son Ricky — twice-divorced and frequently in trouble with the law or lovers — bringing a gift to the father as none of his other grown children can.

 

L.A. Law it is not.

James Ellroy, The Black Dahlia |  Although Ellroy’s later work is sometimes frenetic and turgid, his earlier works – especially The Big Nowhere (1988) and The Black Dahlia (1987) – are taut, violent, overwhelming portraits of L.A. noir.  The Black Dahlia is based on the 1947 murder of Elizabeth Short in Los Angeles.  There are not many true “white collar” criminals in Ellroy’s early work, but few novelists set out the dark hearts of law-enforcement, prosecutors and defense lawyers better.

 

No need for a jury consultant.

Alexandr Solzhenitsyn, The Gulag Archipelago  | With the demise of the Soviet Union, Solzhenitsyn has receded from the preeminence he had as a dissident, exile, novelist and philosopher in the 1970s.   He was, however, one of the great moral figures of the 20th century. Now condensed into a more manageable one volume, The Gulag Archipelago  (1973) describes the Soviet “gulags” – the prison camps for political prisoners and others – from the very beginnings of the Revolution to the 1950s.  With Communism vanquished, we too often forget what totalitarianism really was. One of its characteristics is the pretense of law used to deprive people of liberty for the benefit of the state.  We in the white-collar world are well advised to not forget the grim fact.

 

Twelve books in one.

John Milton, Paradise Lost | In 1667, John Milton undertook to “justifye the wayes of God to men.”  Rebellion and the fall, heaven and hell, perfect justice and marring sin — all remain as vibrant as they were centuries ago.

 

 

 

T.S. Eliot, Murder In The Cathedral | Murder In The Cathedral  (1935) is a play in verse, not a book, but it made the list anyway.

Not a street crime.

Eliot, one of the great modern poets and the author of “The Waste Land,” deserves to read for this story of the Christmas Eve murder of the Archbishop of Canterbury, Thomas a’ Becket:

Now is my way clear, now is the meaning plain:
Temptation shall not come in this kind again.
The last temptation is the greatest treason:
To do the right deed for the wrong reason.

And, of course, there is the 1964 film Becket with Richard Burton as the Archbishop of Canterbury and Peter O’Toole as King Henry II:

 

Still got pop.

George V. Higgins, The Friends of Eddie Coyle | Nobody in American fiction did the  dialogue of criminals, law-enforcement and lawyers better than George V. Higgins. Higgins, a one-time AUSA in Boston, apparently honed his craft early by listening to thousands of hours of undercover tape recordings.  His first novel, The Friends of Eddie Coyle (1970), is a foundation of contemporary crime fiction.

I have written before about Higgins here . . .

George V. Higgins and the Archeology of White-Collar Crime

and also here . . .

Why Innocent People Plead Guilty: Judge Rakoff, Eddie Coyle, Albert Camus and Sweet Dreams of Oppression

Finally, I would be remiss if we did not watch the the wonderful trailer from the 1973 film starring Robert Mitchum as Eddie Coyle:

Here endeth the reading.

 

 

 


Risk, Reward and Pain: Doctor Lessons from An Opioid Trial

Nope. No opioids here.

Opioid medications continue to be in the news, as demonstrated by the recent nationwide state attorneys-general investigation.  This situation only demands more attention from physicians and other healthcare providers who may face significant criminal sanctions.

Brandon Essig

My law partner Brandon Essig recently wrote in Medical Economics:

Over the past three decades, opioids have become a standard and effective component of pain management for many practitioners. They are effectively and safely prescribed in every conceivable clinical environment—primary care facilities, hospitals, pain management clinics and even dentist offices. They are prescribed to treat chronic and intractable pain, such as advanced stage cancer pain or severe burns, but they are also prescribed to treat soft tissue injuries and even prophylactically for post-operative situations where the practitioner knows that the recovery typically, but not always, involves pain. 

However, the medical community in the United States, and indeed society as a whole, is also now facing the reality that the side effects of opioid medications can be devastating. When misused and abused, opioids can have the same ill effects on society as any other illicit drug—addiction, crime, overdose, massive public health costs and death. In other words, society is now grappling with the dual realities of opioid medication: 1 – its use as an effective pain management tool is proven and here to stay; and 2 – its dangers and risks are also proven and must be contained. 

Medical practitioners who prescribe opioid medications as part of their treatment of patients in pain are caught in the middle of this struggle. Unfortunately for them, one of the primary ways society has chosen to address the dangers and risks of opioids is through legal action—both civil and criminal—against the healthcare practitioners who prescribe them to their patients. Therefore, physicians and other practitioners who prescribe controlled substances are participating in what is perhaps the most high-risk practice of medicine today. 

Read the entire article here.  (The byline also bears my name, but all I did was review the draft with a see-through in hand).

The opioid issue is not going away.  As  Caleb Hawley notes, “we all got problems/we all got pain”:

 

 

 


A Meditation On Father’s Day

           

            At age 56, I am now four years older than my father was when he died. 

            For many years, I rarely thought of Daddy.  Primarily, I thought about him every January 6, the anniversary of the day he died. Annually, this is a day upon which my mother and I have the same conversation, rehearsed and hushed.  I loved him, and one might expect me to have thought of him more often, to have honored him, but I did not, at least not until recently.  Before you draw too many conclusions, though, bear in mind that I could not see him clearly.

            Have you ever looked through the wrong end of a telescope?  The object at which you gaze looks tiny, and slightly blurred at the edges.  The object – a tree, a person – is as impossibly distant as the moon is impossibly close when you turn the telescope right way around.  When my father died, I had just turned twelve.  Although precocious in some ways, I saw him with a child’s eyes, and never after that did my eyes change, at least the eyes with which I saw him.  Time passed; I aged, and everything around me changed and aged; but not the eyes with which I struggled to see him.  Time passed, but my eyes for my father remained unchanged, a child’s eyes in man’s body.  I went further and further down the wrong end of the telescope.

            It was only when I became a father, and then approached his death-age and surpassed it, did I understand a little better who he was, and that I could quicken with memory that tiny figure moving in sepia grace at the wrong end of the telescope.

            Memory is a treacherous thing, and no less so than between father and son.  The danger is in adopting someone else’s memories – my mother’s, for example, who is aged but singular in her devotion to Daddy.  My own memories, though, I need to sift and poke through.

Baskin-Robbins

Baskin-Robbins

He was a CPA, but he and his brother also owned an ice-cream store, a Baskin-Robbins at a mall (which, in Tuscaloosa, Alabama in 1970 was as fancy as some Ben and Jerry’s superpremium exotic would be today).  At times, we would skip church on Sunday morning so that he could go to the store and take inventory.  The mall was empty and silent, and the walk-in commercial freezer blew out white cold air like some massive Antarctic creature.

One night, he and I went out to the mall on a store-errand.  I was probably ten.  A conservative man, both politically and financially, my father drove a Volkswagen Beetle.  The evening was warm, and I cracked my window to let in a breeze.  We got out, went to the store, came back to the parking place and discovered the car gone.  Although I had dutifully locked the car door, I had failed to roll the window back up completely.  At the time, in the twilight of the hippies, “dune buggies” were in great demand.  (Admit it – When was the last time you heard of a dune buggy?)  Volkswagen Beetles were ideal to be stripped-down and turned into dune buggies, the police told us.  They theorized that the thieves had been able to slip a twisted metal coat-hanger into the gap in the window I had left open; pull up the lock; and gain access.

           

A dune buggy

A dune buggy

           I was embarrassed, devastated and fearful at the prospect of forcing my father to pay for a new car, even if insurance was available.  (He had taken a staff job at the University of Alabama which, I figured out later, paid less than his previous, private-company job).  He never got mad about the Beetle, never blamed me and never considered it anything other than an unfortunate event.  I was grateful and did not know how to express my gratitude.

            Gratitude is not my strongest quality, and there were other things for which to be grateful.  There was a trip to Acapulco: we played tennis, and the breakfast pancakes had Mexican chocolate in them.  My tennis career was budding, and he hired a contractor to build a cinder-block backboard on one side of the driveway, painted dark green the way I imagined the high walls at Wimbledon might be.  There was a beach trip to Destin, Florida.  The motel where we stayed had a bar and, one afternoon when I went to get some ice from the sweating ice machine, I passed the bar.  The band was rehearsing: “Jeremiah Was A Bullfrog,” by Three Dog Night.  Also, Daddy had been a high school basketball player, and he encouraged my (undistinguished) play in the downtown YMCA youth league.

            That was the day he died, the Saturday of a Y basketball game.  The day was cold and clear.  He watched my game and brought me home (in yet another Beetle, this one green).  After my shower, I built a fire in the coal grate.  (An oddity, coal fires, but the house was old and the fireplace built for coal.  Some people do not like coal fires.  As a child, I loved them.  Pockets of gas would escape and explode in blues and purples around the black coals, demons escaping from rock).

            Daddy had complained of nausea and went to lie down in my parents’ bedroom.  I got the fire into a good, colorful roar.  The demons were looking good.  My mother must have known how impressed I was with my fire-making skills, and she helped my father up to the living room to see my handiwork.  Something was amiss.  Even I knew something was amiss when all he could do – he who was usually so effusive in praise for me – was to nod and murmur something I do not remember.

            He went back to the bedroom, I went back to watching the purple and blue demons crack and jump from coal to coal.  There was a commotion, my mother cried out and I ran down the hall towards their bedroom.  No Daddy.  My mother was saying something about He fell, and she was on the phone.  My words and hers all run together now.

            Whereishe?

             Inthebathroom.

            I stood there, rooted, terrified.  I did not know what had happened, but I did not want to look at him.  I was afraid to look at him.  I didn’t care: I was afraid.  I was also a failed Boy Scout, so I asked some inane question to cover up my cowardice. 

            Isithishead?  Headinjury? 

            But my mother was talking into the phone.  I took a breath, stepped around her and looked into their bathroom.

            My father was in his bathrobe, sitting in the empty tub, his legs hooked over the edge of the tub, feet dangling.  (Later, it was surmised he had gone into the bathroom, thinking he would throw up; had sat on the edge of the tub; and had tumbled backwards  into the empty tub when the heart attack hit).  His eyes were shut, but he was making a chuck-chuck noise through his nose, a violent snuffling.  His right arm rose in the air, as though one of the little coal-demons were yanking it upwards with thread.

            Perhaps he was dying at the moment; perhaps it was a body in some sort of death throes.  (I do not know and never asked.  The doctors gave us the obligatory He-never-felt-a-thing, which I doubted even then).

            My mother had called the ambulance.  Perhaps she knew full well and did not want me to see.  She told me to go out the front door and look for the ambulance.  Which, to my relief and shame, I ran and did.

            Neighbors, food, flowers, funeral.  My parents had many friends, and the house was filled with flowers.  To this day, I cannot abide the smell of flowers.

            That was forty-one years ago.  What to make of it this Father’s Day, for your benefit or mine?

            Perhaps we only understand aspects of ourselves when we understand aspects of our fathers, and the latter understanding comes only with time.  My time was ambered – that backwards-telescope problem – but now, with my own children, I can see my face in theirs and, more than ever before, Daddy’s face in mine.  I appreciate, perhaps, what he might have been thinking about a job, a child, the future.

            And perhaps we only look into a father’s face when enough time has passed to get us to the same age as he, so to speak: the same age as when something happened to you as a child, something critical or weird or shameful.  I was afraid at his death, fearful watching it, impotent.  No Boy Scout, me.  Guilt at not doing something Boy Scout-like.  Mouth-to-mouth?  Some kind of pounding on his chest?  Getting in the tub and holding him until he died?

            Whatever it was I should have done, I failed to do it.

            I believe the Gospel, and so I believe that he and I will meet again.  Sometimes, over the years, I have been terrified that he will judge me for my failure, there in a dying man’s bathroom in 1973.  What a judgment upon me that would be, would it not?

            Yet now I am older than he was on that day, and the telescope seems to distort his memory less now than it did before.  Peculiar, isn’t it?  Now, when I fear his judgment, memory replays how my failure to close that window caused that Beetle to get stolen, and how he acted towards his child.

            True, someone got their dune buggy out of it.  All I got was love.

            Happy Father’s Day.

           

 

[NOTE: this post was originally published in 2014 and has been updated]


Stethoscopes, Handcuffs and Pain

The ties that bind.

When does managing pain become a crime?

And, what can a healthcare provider do to stay out of trouble in these days of the “opioid epidemic”new federal legislation and the criminal prosecution of doctors?

I make a few suggestions here in Pain Management News:

That’s the question many physicians, nurse practitioners (NPs), certified registered nurse anesthetists (CRNAs) and physician assistants (PAs) are asking in the wake of a tidal wave of prosecutions related to pain medicine. This has been partly spurred on by the “opioid epidemic.” There has been a sharp spike in convictions—either by guilty plea or by conviction after a trial—of health care professionals involved in pain medicine.

The facts of each case are different, but the gist of each charge is that health care providers are operating a “pill mill,” where prescriptions are being provided “outside the usual course of medical practice” and “not for a legitimate medical purpose.” There also may be a charge that procedures or tests are not “medically necessary.”

Read the full article here, and our previous notes on related topics:

And my mens rea is unknown, too.

Mute Oracle: The Controlled Substances Act and Physicians’ Criminal Conduct

“In Flanders fields . . . .”
(via Zyance)

.

Pill Mills, Poppy Flowers, Dead Poets and the Human Resources Department

We’ll be right with you.

Electronic Medical Records and Federal Criminal Prosecution


Vermouth, Bitters and Black Coffee

The transatlantic bond.

In speaking of the martini, Winston Churchill supposedly observed   “I would like to observe the vermouth from across the room while I drink my martini.”  Here is a recipe for a “Churchill martini,” which is basically a glass of cold gin.

Hammering the martinis.

On the other hand, Julia Child supposedly went to the opposite extreme: a glass filled with vermouth and topped with gin, also known in this recipe as an “upside down martini.”

I am no Churchill or Child, on several counts, but I have never understood the anti-vermouth wing of the martini party.  A martini is a cocktail.  A cocktail, by definition, is “an alcoholic drink consisting of a spirit or spirits mixed with other ingredients, such as fruit juice or cream.”  Ignore the “fruit juice or cream” modifier.  The point is that a cocktail is a mixture of things, and a martini mixes gin with vermouth (by being stirred, one hopes, not shaken).

On the other hand, we can consider drinking vermouth by itself, a concept that does not offend because vermouth by itself does not call itself a “martini.”

Vermouth shooters?

Lettie Teague of the Wall Street Journal offers a thorough article on  The Best Vermouths for Sipping.  In particular, she notes the new drive towards drinking vermouth on its own, which is apparently the way that things started out:

A tall order, perhaps, but that’s how vermouth is usually consumed in Europe—not as a component in a Manhattan or martini, as in the U.S. Back in 1786, in Turin, Italy, Antonio Benedetto Carpano created vermouth to be sipped as an aperitif. He infused a white wine with herbs and spices, and it was an immediate hit, so popular that Turin cafes purportedly had to stay open day and night to meet the demand.

Such practices have a ways to go in the United States, but who knows?

Either way, Fred Astaire in 1943 was having none of it:

 

“Celery.”  It sounds . . . English.

Bitters are now a “thing” again.  (I like celery bitters with Plymouth or Death’s Door gin).

One may reasonably ask, with EpicuriousWhat Are Bitters, Anyway?

Basically:

Bitters are made from botanicals, like aromatic herbs, bark, roots, and fruit. These ingredients are infused into a flavorless alcohol base to create a potent flavoring. You know how you add salt to almost everything you cook for that extra flavor boost? That’s sort of like what bitters do for cocktails.

There are all sorts of ways to use them in cocktails, and there is even a book about bitters.  Originally, they were touted as having digestive and even medicinal properties.  Dropped into gin, I have certainly found them so.

No matter how you take your martinis, if you are over-served, you may need a pot of black coffee (via Julie London (on “Around Midnight” (1960)):


 


Congressional Investigations, Criminal Cases and The Knights Who Say “Ni!”

We are heading into what appears to be a summer of investigations along the Potomac, some of them in the House and Senate.  What are some of the things we might reasonably expect to see as investigations congressional and criminal cross paths?  And what does Monty Python have to do with it?

Previously, I shared a few lessons about congressional investigations.

First, the short-version video:

Jack Sharman – Learning in Congress from Legal Filmworks Unlimited on Vimeo.

Second, a longer how-to approach for lawyers and clients in a congressional investigation:

Lessons From An Ex-Congressional Lawyer

In particular:

We are in the summer months.  We have written before about  summer hearings:

As a former oversight-and-investigations lawyer for a House committee, I can testify: summer is the high season for O&I hearings.  Nothing is going on legislatively, O&I hearings don’t require lobbyists or constituents, it is hot as hell but most House and Senate hearing rooms have good air-conditioning these days and, if you get some hearings under your belt in June and July, you’ll have plenty as a Member to talk about in your district or state.

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

These  lessons were reinforced in my latest job in this arena: Special Counsel to the Alabama House Judiciary Committee for the impeachment investigation of Governor Robert Bentley.

Talk of President Trump and impeachment seems to have subsided for the moment with the appointment of former FBI Director Robert Mueller as a Special Counsel to investigate potential links between the Russian government and the Trump campaign.

What are some points to keep in mind as these investigations — congressional and criminal — move down their parallel tracks?

Jacket and tie, please.

The Grand Jury Is Grand. The criminal investigators will largely call the shots.  How so?

There are two reasons that there will likely be increased negotiation and tension between Congress and the Special Counsel.

Telling Tales. The first reason is one common to all federal criminal investigations: no prosecutor wants his or her witnesses making statements, especially public statements under oath. Sworn statements lock the witness into a story and can be used by defense counsel for cross examination in a potential criminal trial.

Federal Knights Who Say “Ni!” The second reason is that, much like the terrifying “Knights Who Say ‘Ni!'” in the 1975 film Monty Python and The Holy Grail who look down upon the coconut-slapping Knights of the Round Table, federal prosecutors do not usually hold congressional investigators in high esteem although they convey that view with varying degrees of politeness.  (Of course, I have expressed a differing view, sometimes with varying degrees of politeness). I learned this lesson both from my Whitewater time as Special Counsel to the House Financial Services Committee for the investigation of President and Mrs. Clinton’s dealings with Madison Guaranty and also from the recent impeachment investigation of Alabama Governor Robert Bentley.

INCENTIVE NOTE: If you make it to the end of this post, there is a “Knights Who Say ‘Ni!'” clip.

This clash between prosecutors and congressional investigators should not be too surprising. Congressional investigations and grand jury investigations serve different institutional and constitutional mandates. From time to time, there will be some tension.

Paging through for immunity.

Immunity? Congress could bugger up the criminal investigation by granting General Michael Flynn (or other witnesses) immunity in exchange for their testimony.  As noted by Philip Shenon in Politico, after the Iran-Contra prosecutions of Colonel North and Admiral Poindexter, that is unlikely to happen:

The special prosecutor was convinced that Congress was on the verge of sabotaging his politically charged investigation—one that led straight into the White House and threatened to end with a president’s impeachment. And so he went to lawmakers on Capitol Hill with a plea: Do not grant immunity to witnesses in exchange for their testimony if you ever want anyone brought to justice.

But the plea failed. And the special prosecutor, Lawrence Walsh, a former federal judge appointed in 1986 to investigate the Iran-contra affair during the Reagan administration, watched two of his highest-profile targets go free: former National Security Adviser John M. Poindexter and Poindexter’s deputy, Lieutenant Colonel Oliver North. Although both former Ronald Reagan aides were later convicted at trial of multiple felonies, the convictions were overturned, with appeals courts deeming the prosecutions tainted as a result of the testimony the men had given to Congress with grants of supposedly limited immunity.

Read the full article: How Congress Could Cripple Robert Mueller.

As a reminder: a grant of congressional immunity raises a potential “Kastigar” problem for a criminal prosecutor.  As the United States Court of Appeals for the District of Columbia Circuit said in United States v. North:

Because the privilege against self-incrimination “reflects many of our fundamental values and most noble aspirations,” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55, 84 S. Ct. 1594, 1596, 12 L. Ed. 2d 678 (1964), and because it is “the essential mainstay of our adversary system,” the Constitution requires “that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth.” Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602, 1620, 16 L. Ed. 2d 694 (1966).

The prohibition against compelled testimony is not absolute, however. Under the rule of Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972), a grant of use immunity under 18 U.S.C. § 60021  enables the government to compel a witness’s self-incriminating testimony. This is so because the statute prohibits the government both from using the immunized testimony itself and also from using any evidence derived directly or indirectly therefrom. Stated conversely, use immunity conferred under the statute is “coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege…. [Use immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect….” Kastigar, 406 U.S. at 453, 92 S. Ct. at 1661 (emphasis in original). See also Braswell v. United States, 487 U.S. 99, 108 S. Ct. 2284, 2295, 101 L. Ed. 2d 98 (1988) (“Testimony obtained pursuant to a grant of statutory use immunity may be used neither directly nor derivatively.”).

When the government proceeds to prosecute a previously immunized witness, it has “the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” Kastigar, 406 U.S. at 461-62, 92 S. Ct. at 1665. The Court characterized the government’s affirmative burden as “heavy.” Most courts following Kastigar have imposed a “preponderance of the evidence” evidentiary burden on the government. See White Collar Crime: Fifth Survey of Law-Immunity, 26 Am.Crim.L.Rev. 1169, 1179 & n. 62 (1989) (hereafter “Immunity”). The Court analogized the statutory restrictions on use immunity to restrictions on the use of coerced confessions, which are inadmissible as evidence but which do not prohibit prosecution. Kastigar, 406 U.S. at 461, 92 S. Ct. at 1665. The Court pointed out, however, that the “use immunity” defendant may “be in a stronger position at trial” than the “coerced confession” defendant because of the different allocations of burden of proof. Id.

Committee assignment?

Constitutional Theater. Congressional investigations, in part, are political theater.  That’s okay.  As we have noted elsewhere:

The fact that there appear to be no rules in a congressional investigation underscores perhaps the primary fact that counsel should bear in mind: the committee’s investigation takes place in a political environment, not a litigation environment.  Although the investigatory process appears legalistic, it always unfolds in a political environment in which the actors have political goals that may or may not have anything to do with your client.

Because most people are familiar with Congressional investigations only through television, they assume that if they are caught up in an investigation they will be summoned to testify before a committee like John Dean or Oliver North, with cameras clicking amid vigorous partisan drama.  Although your client may indeed be called to testify in a public hearing — and you should prepare as though your client will be called — it is more likely that constraints of time, the demands of the media, and political pressure and compromise having little to do with your client will result in your client never being called.  If your client testifies, remember that in many instances the committee members’ “questions” are not actually designed to elicit information from the witness.  Rather, questioning is often more like speech-making designed to maximize camera time on the questioner or to score political points against the opposition.

When a congressional committee issues a subpoena, for example, it may (and will) do so with the knowledge and expectation that the recipient may not make even a good-faith attempt at compliance.  With regard to recent subpoenas sent to intelligence agencies by the House Intelligence Committee, for example:

Where NSA had previously complied with the House panel’s investigators, sources said that cooperation had ground to a complete halt, and that the other agencies – FBI and CIA – had never substantively cooperated with document requests at all.

Read the story by James Rosen: House Intelligence Committee sends subpoenas to intel agencies

Come to order?

Enforcing subpoena compliance is a legally and politically difficult maneuver for a congressional committee, especially where it seeks enforcement against the executive branch.  Customarily, the subpoena issues, then a bit of Kabuki theater ensues, and an agreement is reached, as in the case of General Flynn.  Although there are multiple reason why General Flynn . . .

5 Possible Reasons Why Michael Flynn Is Now Turning Over Documents

. . .  . may have decided to comply with the document subpoena from the Senate Intelligence Committee, one possible explanation is that his lawyer simply reached an agreement about the scope of responsive documents that was tolerable.

As a necessary aside, I object to the ATL description of the D.C. Circuit’s North opinion as a “three decade old precedent from a split panel [that] rested on a mushy determination that North’s congressional testimony ‘tainted’ the criminal prosecution.”  As Judge David Sentelle’s judicial clerk at the time, I reiterate the court’s observation:

The fact that a sizable number of grand jury witnesses, trial witnesses, and their aides apparently immersed themselves in North’s immunized testimony leads us to doubt whether what is in question here is simply “stimulation” of memory by “a bit” of compelled testimony. Whether the government’s use of compelled testimony occurs in the natural course of events or results from an unprecedented aberration is irrelevant to a citizen’s Fifth Amendment right. Kastigar does not prohibit simply “a whole lot of use,” or “excessive use,” or “primary use” of compelled testimony. It prohibits “any use,” direct or indirect. From a prosecutor’s standpoint, an unhappy byproduct of the Fifth Amendment is that Kastigar may very well require a trial within a trial (or a trial before, during, or after the trial) if such a proceeding is necessary for the court to determine whether or not the government has in any fashion used compelled testimony to indict or convict a defendant.

We readily understand how court and counsel might sigh prior to such an undertaking. Such a Kastigar proceeding could consume substantial amounts of time, personnel, and money, only to lead to the conclusion that a defendant–perhaps a guilty defendant–cannot be prosecuted. Yet the very purpose of the Fifth Amendment under these circumstances is to prevent the prosecutor from transmogrifying into the inquisitor, complete with that officer’s most pernicious tool–the power of the state to force a person to incriminate himself. As between the clear constitutional command and the convenience of the government, our duty is to enforce the former and discount the latter.

Read the entire North opinion here.

Open invitation.

Congressional subpoenas (such as the one to the right) are not the only examples of tension in legislative investigation.  In the impeachment investigation of Alabama Governor Robert Bentley, the issue of legislative authority to enforce subpoenas against the executive branch was front and center, as set out in the Special Counsel’s report:

The Committee Has Subpoena Power.

The Committee has inherent, constitutional authority to issue subpoenas pursuant to its investigative powers.  The investigative power of the legislature and, by extension, legislative committees, have been further derived from its broad legislative power.  This precedent, though it does not directly discuss legislative subpoenas, clarifies the broad powers enjoyed by the Alabama Legislature while showing great deference to the Legislature’s enactments.  Further, an extensive list of other states that have addressed the issue of legislative subpoenas has unanimously endorsed such an ability, with no court finding that its state’s legislature lacks this power.   

This Committee has broad power to investigate.

“The Legislature is laden with a broad form of governmental power which is plenary in character, and subject only to those express limitations appearing in the Constitution.”[1]  This authority is “absolute or exclusive.”[2] The Legislature’s plenary power is not, as has been suggested by Governor Bentley throughout this investigation, derived from either the State or Federal constitutions; to the contrary, these documents serve as the only limitations upon the Legislature’s power.[3] “Apart from limitations imposed by these fundamental charters of government, the power of the [Alabama] Legislature has no bounds and is as plenary as that of the British Parliament.”[4]

Inherent in the power to legislate is the power to investigate.  In McGrain v. Daugherty, the United States Supreme Court held that  “[t]he power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for that purpose.”[5]  Relying on this precedent, the Alabama Supreme Court also has held that “the power to legislate necessarily presupposes necessity for investigation by members of each House.”[6]  This “inquiry power” is sweepingly broad.[7] It encompasses not only the authority to investigate into the propriety of existing and proposed laws but also into the departments of the government “to expose corruption, inefficiency or waste.”[8] Indeed, the United States Supreme Court has recognized that “Congress’s investigative power is at its peak when the subject is alleged waste, fraud, abuse, or maladministration within a government department.”[9]  States, too, have recognized that the legislature “is acting at the height of its powers” during an impeachment process.[10]  So long as it is “related to, and in furtherance of, a legitimate task” of the legislature, the inquiry falls within the permissible bounds of legislative investigation.[11] 

The federal constitution does not give Congress subpoena power, but the United States Supreme Court has repeatedly held that the power to obtain information through compulsion has long been treated as “an attribute of the power to legislate.”[12]  “[W]here the legislative body does not itself possess the requisite information—which not infrequently is true—recourse must be had to others who do possess it.”[13] And while “[i]t is unquestionably the duty of all citizens to cooperate with Congress in its efforts to obtain the facts needed for intelligent legislative action,”[14] “[e]xperience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.”[15]  Thus, a necessary component of the power of investigation is a process to enforce it.[16]

Like the federal courts, the majority of state courts “quite generally have held that the power to legislate carries with it by necessary implication ample authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for that purpose.”[17]  Relying on McGrain and general notions of the plenary authority of the legislature, courts across the country have upheld the constitutionality of legislative subpoenas as inherent in the broad legislative authority afforded to state legislatures.[18]

[1] Ex parte Alabama Senate, 466 So. 2d 914, 917 (Ala. 1985) (quoting Hart v. deGraffenried, 388 So. 2d 1196, 1197 (Ala. 1980)) (emphasis in Ex parte Alabama Senate).

[2] Id. at 918.

[3] In re Opinion of the Justices No. 71, 29 So. 2d 10, 12 (Ala. 1947).

[4] Id.  (citing Alabama State Federation of Labor v. McAdory, 18 So.2d 810 (Ala. 1944)).

[5] McGrain v. Daugherty, 273 U.S. 135, 165 (1927); see also Mason’s § 795(5) at 562 (the legislature has “the power in proper cases to compel the attendance of witnesses and the production of books and papers by means of legal process”).

[6] See In re Opinion of the Justices No. 71, 29 So. 2d at 13 (citing McGrain, 273 U.S. 135); see also Mason’s § 795(2) at 561 (“The legislature has the power to investigate any subject regarding which it may desire information in connection with the proper discharge of its function . . . to perform any other act delegated to it by the constitution.”).

[7] See Watkins v. United States, 354 U.S. 178, 187 (1957) (“The power of the Congress to conduct investigation is inherent in the legislative process.  That power is broad.”).

[8] See id.

[9] Todd Garvey, Congress’s Contempt Power and The Enforcement of Congressional Subpoenas: A Sketch, Congressional Research Service, April 10, 2014, at 3 (citing Watkins, 354 U.S. at 187). 

[10] Office of Governor v. Select Comm. of Inquiry, 858 A.2d 709, 738 (Conn. 2004). 

[11] See Watkins, 354 U.S. at 187.

[12] McGrain, 273 U.S.  at 161; see also, e.g., Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975).

[13] McGrain, 273 U.S. at 175.

[14] Watkins, 354 U.S. at 187.

[15] McGrain, 273 U.S. at 174.

[16] See id. (“The power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.”); Eastland, 421 U.S. at 491 (“[I]ssuance of subpoenas . . . has long been held to be a legitimate use by Congress of its power to investigate.”).

[17] See McGrain, 273 U.S. at 165.

[18] See, e.g., Conn. Indem. Co. v. Superior Court, 3 P. 3d 868 (Cal. 2000); Garner v. Cherberg, 765 P. 2d 1284 (Wash. 1988); In re Shain, 457 A. 2d 828 (N.J. 1982); Commonwealth ex rel. Caraci v. Brandamore, 327 A. 2d 1 (Pa. 1974); Maine Sugar Industries, Inc. v. Maine Industrial Bldg. Authority, 264 A. 2d 1 (Maine 1970); Chesek v. Jones, 959 A. 2d 795 (Md. 2008); Sheridan v. Gardner, 196 N.E. 2d 303 (Mass. 1964); Gibson v. Florida Legislative Investigation Committee, 108 So. 2d 729, 736 (Fla. 1958); State ex rel. Fatzer v. Anderson, 299 P. 2d 1078 (Kan. 1956); Du Bois v. Gibbons, 118 N.E. 2d 295 (Ill. 1954); Nelson v. Wyman, 105 A. 2d 756 (N.H. 1954); In re Joint Legislative Committee, etc., 32 N.E. 2d 769 (N.Y. 1941); Terrell v. King, 14 S.W. 2d 786 (Tex. 1929).

Read the Special Counsel report here.

And, here is your reward for getting all the way through this post: