Lawfare

These are strange and often unprecedented times — made even more so as Manhattan District Attorney Alvin Bragg indicts former U.S. President Donald Trump on allegations of campaign misconduct.

As of this writing, we haven’t seen the actual indictment, but when it is unsealed, we will know for certain what the charges are. For now, the charges are believed to revolve around alleged payments made to two women, both porn stars, who allegedly had affairs with Donald Trump in 2006.

Bragg has made no bones about his bias toward Trump and made waves soon after his election to office by saying he would not prosecute certain crimes, among them prostitution. Consider that this DA will not prosecute paying for sex in the form of prostitution, but will prosecute paying someone not to talk about sex that was consensual. These are strange and unprecedented times indeed.

I am not unconcerned about the morality of a public office holder, especially of one who sits in the Oval Office. I don’t care for such behavior one bit, but the original allegations of infidelity dating back to 2006 are denied by Trump.

My chief concern in this writing is the alleged crime being prosecuted, namely, that Trump’s campaign somehow benefited from these women being paid for their silence, and that therefore a campaign finance reporting violation occurred.

Such a legal theory raises the question as to why Hillary Clinton merely paid a small fine for paying to have the infamous and discredited Steele Dossier prepared and disseminated to benefit her campaign. Shouldn’t we also be concerned whether Joe Biden benefited from the shutdown of the Hunter Biden laptop story during the 2020 presidential campaign? No wonder conservatives feel we are looking at a two-tiered system of justice!

As an attorney myself, I have had clients believe they were aggrieved by others, but I had to advise them that the courts were not their true recourse.

One client told me he wanted to sue someone out of principle. I told him I wouldn’t do it. Lawyers have rules of professional conduct that govern our profession. Filing suit purely for the purpose of revenge is no more than revenge. Within the realm of civil law, the Alabama Code also contains the Litigation Accountability Act, allowing someone to sue to recoup their own damages if they can prove that suit was filed against them frivolously.

On another occasion, a client correctly believed he had been wronged, and we started the process of litigation, at which point he told me he was going to file a police report and also try to press criminal charges. Once again, I had to take a deep breath and tell my client what he did not want to hear, namely, that the rules of professional conduct stipulate a lawyer may not threaten criminal action against someone in order to gain the upper hand in a civil action. Sometime later I discovered that he filed a police report without me knowing. Needless to say, I am not his attorney anymore.

As an attorney, my job is to zealously pursue and defend my clients’ interests, but I also know that sometimes I must advise my clients that what they feel is not the same as what they can go to court for. It is for this reason that lawyers are sometimes referred to as counselors because we are actually giving counsel, both pro and con.

New York City may be a more liberal venue than beautiful north Alabama, but the even and unbiased application of the law is still supposed to be the rule, and sometimes the clients aren’t the only ones needing to hear things they don’t want to hear. Sometimes lawyers need to be told things that go contrary to their own notions.

A good lawyer must occasionally step back, look objectively at a case or prosecution, and make sure that he doesn’t have his own grievances, emotions, politics, or prejudices wrapped up in it. Somebody should have done that with Alvin Bragg. Someone should have told him that the practice of law is not for vendettas and that lawyers should not be engaged in “lawfare.”

I take pride in being a licensed officer of the court. Pride of profession is there for anyone who practices law and adheres to its legal and ethical standards. Bragg is supposed to be held to the same rigorous standards and rules of conduct.

My sense is that Bragg may have a reckoning coming his way.