There Is Always a Reason to Be Mad

Also, do actual voters want pro-life Democrats?

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I’m not going to spend any time on impeachment today. Regarding the controversy of the moment, in any sensible political moment, John Bolton should be called to testify. We’re going to hear his account anyway in his memoirs, so why not hear it now, under oath, when it is most relevant to public debate? Also, in any sensible political moment, if it becomes clear that the Senate won’t call Bolton, he should tell the public what he knows anyway, during the trial. There is nothing to stop him from dropping a sworn statement into the public square. Instead, we’re faced at the moment with this absurd binary—either wait for the Senate to do the right thing or buy Bolton’s book, after the impeachment trial is likely over. 

Can’t anyone just go ahead and do the right thing? 

But I’m going to take a step back. If you follow my writing at all, you know that I’m worried about American polarization. Very worried. And one reason why I’m worried is that our media environment constantly provides each side with actual fuel for the raging fire of mistrust and mutual loathing. Also, actual voters don’t seem to like culturally moderate Democrats. ? Today’s French Press:

  1. Somebody’s always being evil, somewhere.

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  1. Avatar photo
    td12212

    The GOP glorifies and rewards ignorance. A case in point being Trump himself. Then you see Pompeo act like he did with that NPR reporter and you realize that this ignorance thing runs deeper than one would think. Then of course there are the crowds at Trump rallies laughing at his ignorant comments about everything from Greta Thunberg to disabled reporters. So yes, the reputation of ignorance is deserved.

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      Pat Riot

      I think a lot of the ignorance is *willful* though, and willful ignorance can be clever in its own way.

      I've always likened a lot of Trump's base to somebody given months to live by doctors. If a con man comes along and says that the doctors are wrong, everything is okay (and the doctors are just trying to get money or secretly hate America yadda yadda), then a non-surprising response would be to decide, rationally, that ignorance is better. If the con man derided the doctors, so much the better. If the con man made the doctors angry by saying outrageous lies, so much the better. Etc.

      Is somebody in that state, "ignorant"? I wouldn't quite call it that...

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        td12212

        You make a good point. In that case it would be "willful ignorance"...

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    Bill Dyer (aka Beldar)

    Mr. French wrote,

    "[I]n any sensible political moment, if it becomes clear that the Senate won’t call Bolton, he should tell the public what he knows anyway, during the trial. There is nothing to stop him from dropping a sworn statement into the public square."

    I do not believe this is accurate. Mr. French, you are an attorney (as am I); you've had clients (as have I); and to every one of such clients, you have owed a fiduciary duty to maintain the confidentiality of their client confidences (as have I). Included within that fiduciary duty of confidentiality is the continuing obligation to avoid accidental waivers of your principal's various privileges, including attorney-client privilege.

    Do you have the impression that your fiduciary duties of confidentiality ended when your employment ended? THEY DID NOT, and both the canons of legal ethics and their implementing regulations in every state so recognize. See, e.g., Rule 1.05(b) of the Texas Disciplinary Rules of Professional Conduct, and comment 8 thereto: "Following sound principles of agency law, subparagraphs (b)(2) and (4) subject a lawyer to discipline for using information relating to the representation in a manner disadvantageous to the client or beneficial to the lawyer or a third person, absent the informed consent of the client. The duty not to misuse client information continues after the client-lawyer relationship has terminated. Therefore, the lawyer is forbidden by subparagraph (b)(3) to use, in absence of the client's informed consent, confidential information of the former client to the client's disadvantage, unless the information is generally known."

    Bolton is a lawyer, like you and me, but let's stipulate that he wasn't acting as Trump's lawyer in any of Trump's various capacities, so the privilege at issue for him isn't attorney-client privilege. But he — like everyone else whose responsibilities put him close enough to the POTUS to qualify for executive privilege — is no less a fiduciary to his principal than an attorney in an attorney-client relationship. Executive privilege belongs to the Executive, just as attorney-client privilege belongs to the client, and in neither instance may the fiduciary (be he lawyer or be he senior adviser to the POTUS) take it upon himself to WAIVE the privilege through an uncompelled disclosure.

    This is PRECISELY why Bolton still insists upon a subpoena, and why he will ensure that his principal has had notice of, and an opportunity to attempt to quash, that subpoena in order to protect the executive privilege which belongs to the POTUS. The same rules and rationales regarding compelled disclosures apply for both types of privileges, as a matter of the common law of agency and, especially, fiduciaries.

    Regarding his book: Bolton has submitted his manuscript to the White House for NSC review and clearance, to ensure that it doesn't compromise national security. But the same submission to his former principal, to whom he owes continuing fiduciary duties (including the protection of that principal's executive privilege), gives the POTUS effective notice and opportunity to object: If the book would not moot any privilege claims, then the POTUS may have no grounds to object, but if it would, then the POTUS at least has the opportunity to object. But that review process has not been completed.

    And it's entirely possible that the subpoena-compelled testimony of Bolton in connection with the impeachment trial would oblige him to disclose client confidences that he hadn't voluntarily disclosed in his book.

    Finally, Bolton may also have contractual obligations regarding the preservations of confidences with which he was entrusted as the fiduciary of the POTUS — a nondisclosure agreement.

    There are indeed cases involving privileges — typically involving attorney-client privilege rather than executive privilege, about which there's comparatively little precedent — in which the principal has been able to obtain equitable injunctive relief, even without an NDA, to prevent a former fiduciary with continuing fiduciary obligations (like an ex-lawyer) from mooting the principal's practical ability to assert privilege and thus avoid a compelled waiver.

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      John D. Wright

      I think some would make the point that the two types of privileges are not as similar as you are making them out to be. I am not a lawyer so I'm not saying I know this as a fact.

      Some are saying though that this privilege is a protection for your words. Meaning even if the president died and you were called to testify you yourself could exercise executive privilege just as the president could. Second, your privilege does not cover anyone else so if the president refuses to testify and exercises executive privilege and you chose not to concerning that same conversation then you could testify. It is a protection for your conversations. It is not a presidential protection.

      That is the case some are making. Again I am not a lawyer. I'm just saying that there are people saying that the privilege is unlike client attorney privilege which is a client privilege that covers both parties (lawyer and client).

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      Paul Montagu

      Not in any particular order, but I don't see how an NDA is enforceable for a public official because it runs against public disclosure laws. Also, those officials answer to The People and shouldn't be shielded from those kinds of agreements. It's why Omarosa could write her book despite signing an NDA.
      https://www.lawfareblog.com/why-white-house-cant-stop-omarosa-manigault-newman-talking
      I don't see an issue with attorney-client privilege because Bolton served as NSA, not an attorney.
      I also don't see an issue with executive privilege. Jonah covered that in his earlier piece, and impeachment should surmount executive privilege objections. Goodman-Weissman cover it pretty well, too.
      https://www.justsecurity.org/68318/why-the-white-house-may-not-dare-fight-on-executive-privilege/
      The only other issue is national security, which Bolton should be able to navigate around, given his experience.

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        Bill Dyer (aka Beldar)

        Mr. Montagu: I mentioned attorney-client privilege because it is the evidentiary privilege that has generated the most caselaw, by far, and because the obligations it imposes on an attorney-fiduciary are comparable to those that executive privilege imposes upon a high POTUS adviser. Jonah Goldberg's piece made the same assertion — an assumption, actually, made without discussion or support — that Mr. French has made (i.e., Jonah assumes Bolton can do whatever he pleases), and I left a comment there like the one I've left here to explain why I believe that is wrong.

        What you're missing, and what Mr. French and Mr. Goldberg have missed, is that the decision to breach confidentiality — and thereby make moot the principal's opportunity to assert and enforce a privilege — belongs to the principal, not the agent.

        And as to whether "impeachment should surmount executive privilege objections," that of course was the conclusion of U.S. v. Nixon on the facts of THAT case. Once privilege has been asserted and established, it's then up to the federal courts — not the fiduciary, nor his principal — to decide whether this conditional privilege should indeed be overcome. You're assuming that today's courts, assessing private communications between Trump and Bolton, will come to the same conclusion that the Supreme Court came to with respect to communications between Nixon and Haldeman et al. in the tapes case. Maybe you're right in that prediction. But U.S. v. Nixon isn't just significant for the result it reached, but for who it held should resolve the question of whether a conditional privilege may be overcome. That's why the courts must have a role here; that's why Bolton is insisting on a subpoena, so that his testimony will be compelled rather than voluntary.

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          Bill Dyer (aka Beldar)

          Here's what you should be asking yourself, Mr. Montagu, as a very well educated non-lawyer: Goldberg (another well educated non-lawyer) and French (a well educated lawyer) both presume, without having laid out a detailed explanation for why, that Bolton is free to speak if he chooses. But Bolton (a well educated lawyer) has always insisted upon a subpoena. He's still insisting upon a subpoena. Why would he be doing that if Goldberg & French are correct?

          He wouldn't be. So perhaps Bolton (and I) know something that Goldberg & French haven't taken proper account of.

          In their defense, I'll gladly stipulate that most of the media pundits I've seen or read opining on this subject are making the same set of assumptions that Goldberg & French are making. But I've yet to see one of them address this question at the level I'm suggesting it must be addressed at; none of them are going through the analysis of who's the fiduciary and who's the principal, of whether the fiduciary can ignore his principal's instructions and wishes, and of why the courts must have a role (at least a potential one) in either enforcing or quashing the subpoena that Bolton clearly believes (correctly, I submit) is essential before he can testify.

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            Paul Montagu

            Well, I appreciate the “well-educated non-lawyer” bit, William (and you remind me of a onetime contributor at Patterico ;) ), but I’m not seeing where there’s an attorney-client issue with Bolton. He didn’t take the job as an attorney, so why should he bound by the canon of the profession?
            As for the subpoena, his initial reason for challenging the House request was that he wanted the court to settle whether he should abide by the wishes of Trump or Congress.
            It’s not clear to me the reason for him wanting a subpoena at the Senate level. I can see several reasons, including the messing with the sales of his book. But maybe you’re right. We’ll see.

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    Paul Montagu

    I saw a 2-minute video of all of Kobe's game-winning shots, and it was impressive, and I saw his last appearance Kimmel, and I saw the highlights of his final game when it happened. He was not only a top-five talent, but he was top-five in working and developing his skills. In that respect, he was like Mike, and he couldn't find a better player to emulate.
    Here in WA State, he surprised tiny Cashmere WA on the other side of the mountains, showing up at a high school girls' b-ball game, to the delight of everyone.
    https://www.khq.com/news/kobe-bryant-attends-cashmere-medical-lake-girl-s-basketball-game/article_d5c7c44e-3551-11ea-9970-73fff43415fe.html
    I think that's how I'd like to remember him, as a superstar baller who showed up and supported other players.

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      David V

      Hello from the dry side of the state. Good to see another WA person on here.

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    JohnF

    One of the more sensible things I've done in my life is to avoid ever setting up a Twitter Account. Just as I learned many years ago never to send emails at 3:00 a.m. (after stewing all night about something that happened at work that day), I figure the world can live without my knee-jerk reactions to the latest knee-jerk reactions. For the same reason, I avoid watching any of the panels on FOX, CNN, or MSNBC. Although these programs have conclusively proven that assembling a panel of people with dissenting opinions does not necessarily lead to an overall "balanced" view (the dissenting opinions just become more rigid and louder), they still appear to be popular. People seem to crave the opportunity to cheer for "their team", whether that happens to be an actual sports team or the talking head that says the things they most want to hear.

    Similarly, David's separation of his Feed into "Right Wing" and "Left Wing" Twitter speaks to the pointlessness of it all. When you pretty much know what thoughts and opinions are going to come out in 280-character blasts from either side, what's to be gained from reading them?

    Personally, I'd like to see someone come out with an Application that enforces the "Social" part of Social Media (assuming that "Social" in this case is something that builds and reinforces Societal norms, traditions, values, and constraints). Ideally, it would enforce a minimum 500-character limit, require supporting sources, and check for spelling and grammar. Upon submission, Posts would be quarantined for 3-hours before appearing to give the author time to re-think or revise their opinion.

    Or perhaps it's just time for me to go yell at some kids who are on my lawn …

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      John D. Wright

      I find hearing both sides at least opens me up to all of the arguments and some of the facts I wouldn't hear just listening to one side. I'm very conservative but NeverTrump so I find listening to all sides helps me sift out the truth. And like anything, twitter is a river of garbage with the occasion gold nugget floating by.

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        JohnF

        I agree with you completely that it is important to hear from both sides in order to gain a balanced view of a particular issue. However, that doesn't take place in an effective manner when you just have people flinging partisan talking points at each other.

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    Pat Riot

    The tricky question is, do people support their true feelings, or do they support their coalition? In other words, perhaps you really just want lower taxes and think the Republicans will give you that, and don't have a strong opinion about abortion--but you "get onboard" with the ideas because you know your coalition requires it. Or vice-versa.

    And these days, the cable news channel and/or radio stations and/or local news stations people watch will drastically shape their views, and these sources are now more *partisan* than ever, meaning they sell a specific *package* of ideas as a single unit versus say driving an *ideological* agenda that could cut across party lines.

    It's been my own experience that issues like guns, abortion, immigration and climate change are factional concerns: relatively small parts of the population feel *strongly* about each of these issues *in isolation*.

    Like Mr. French here today, I too am worried about polarization in America more than anything else. In part because of the phenomenon described above: I think our market system is going to make it worse and worse because the various commercial concerns connected to politics will have every incentive to pick one side to the exclusion of the other.

    A serious, viable third party (seeded with, say, $10 billion in billionaire cash) is what is required to save our country.

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      John D. Wright

      Ranked choice voting. That will solve a lot of problems. We will suddenly go from two parties to seven. TV stations will no longer have just two customer bases but seven. Since one seventh of the viewing audience is unlikely to be a very profitable option, at least some of these stations will start being less loyal to one ideal.

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        scribe

        Yes to ranked voting! Eliminates the game theory considerations that dominate the primaries (“who is most electable”, “play to the base - pivot in the general”) and allows voters to vote for 3rd (or 4th) party candidates without
        “wasting” votes in a close election.

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      Ray Salemi

      I think the problem is that talk radio and Fox News learned they could make money selling rage.

      Also corporations that make money by raising money cannot be helping.

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    Soniak21

    But is it crazy to suggest Trump and his followers invite the "dumb hicks" stereotypes by embracing and glorifying the image of... dumb hicks? Cable news pundits who know better adopt corn pone personas because they think it will get them in good with the base. They vilify "coastal elites" and "experts" every chance they get. They love it when the president says things that are vulgar and ignorant because it makes him "authentic" and it's a good way to spit in the face of people who care about thoughtfulness and good manners. (Mr. French, you yourself have been smeared by people who think your thoughtfulness and good manners is a problem. They call it "David-French-ism.") In short, prominent Trump fans seem to think acting like a dumb hick is the way to be a "real American" - and then get all offended when they're painted as dumb hicks.

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      Ray Salemi

      Turns out “owning the libs” wasn’t as much fun as they had expected.

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      David French

      I'm going to write a whole other piece someday soon on the way that Trump supporters have often embraced the stereotypes. Tim Alberta has a good observation to that point in his most recent Politico magazine piece. But the vast majority of the normal everyday Trump supporters do not. The performance artists on cable, in talk radio, and at the rallies do. So there are Trump supporters who are repelled by the stereotype, and there are Trump supporters who embrace it and mimic that behavior, and sometimes they're the same person!

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        Soniak21

        What I think you're saying at the end (and I agree 110%) is that the "dumb hick" thing is largely a pose. Lots of people who act that way are doing it for effect, and because (sadly) a culture has emerged where it's a badge of honor. Look forward to reading your take.

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    Butch Earl

    Excellent piece, Mr. French, I thank thee.

    Yesterday, I commented it did not take a genius to know who's version of the truth was the correct one when Nixon's defenders and/or Trump's defenders went/go after their opposition when the facts came/come out. The reaction of the Trumpists to Bolton is quite similar to the reaction of the Nixonians after the tapes were revealed. However, there is the other side of the coin.

    Russian interference in our elections was a serious matter and deserving of serious investigation for national security reasons. However, the very notion that fear of a possible President Hillary Rodham Patton would push a Breshnevite KGB apparatchik like Vladimir Putin to conspire to put a Republican in the White House is utterly preposterous. I suspect your friends in Tennessee know that. I doubt Don Lemon and his cohorts do as they've been pushing this junk for years now.

    Bandwagon jumping can cause serious injuries and I advise everyone to avoid calls from all the tribes to leap onto theirs.

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      td12212

      The Russians did meddle, with the stated motive of helping Trump into the white house per the Mueller report. Whether it was fear and loathing of Hillary or love of Trump is moot. Trump obviously likes dictators as well as apparently Bolton says in his book about Trump's personal favors to Erdogan and Xi. One also has to wonder about the many private calls and meetings between Trump and Putin. Any sane person would find that exceedingly odd. What do Trump and Putin have to discuss that is so private that no US government officials are involved? (The Russian side apparently seem to have more than just Putin at these meetings).

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        John D. Wright

        I think Butch is right in saying fear of Hillary was unlikely. I think the Russians know they can work Trump and that he will sell out the country for his own interests which they could affect. Trump is chaos so there is that too.

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    Joe149

    Great column, on both its main topics. On the topic of abortion, I must say I am frustrated that rarely do people talk about limiting unwanted pregnancies, via the many means at our disposal. Even in the presence of available abortion, this would save many lives, perhaps more even than abortions currently take.

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      David French

      Limiting unwanted pregnancies is one of the main reasons why the abortion rate is in decades-long decline. 1) there are fewer unwanted pregnancies; and 2) more unwanted pregnancies are carried to term than in years past.

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        Boomer Bob

        I think both sides agree limiting unwanted pregnancies is the very best option. If the US ever gets to federally funded universal heath care, do you think most conservatives would support the inclusion of contraception coverage?

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          Joe149

          Boomer Bob - I couldn't agree more, since even if abortions are illegal, they will occur. It's this kind of sensible compromise that seems impossible these days. Many other issues could be approached this way - immigration comes to mind as an obvious one, as does gun control. But each side is fearful of the extreme positions they hear from the other side (from their polarized media), rendering good-faith negotiations impossible.

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    Kevin Durant?

    “It features Don Lemon collapsing in laughter as Rick Wilson and Wajahat Ali mock the alleged ignorance of Trump voters with exaggerated southern accents”
    —————————————
    When you run a commercial that says means testing will kill grandma, who is that ad designed for? Smart people?

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      Ray Salemi

      To be fair, that is a forcefully stated policy criticism not a personal attack.

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      David French

      That's one of the irritating aspects of the stereotyping. It's not like either party is immune from pandering to the lowest common denominator.

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    Ray Salemi

    As long as being pro-life necessarily means being against a woman's right to choose I can't see why anyone would vote for a pro-life Democrat.

    Where are women supposed to go for support if the Democrats turn against them?

    Conversely, why would a pro-life voter trust a Democrat to use the law to drive their moral agenda when the entire party is necessarily against the anti-choice stance?

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      David French

      You have succinctly and effectively stated why conservative voters have helped kill the pro-life Democrat.

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        John D. Wright

        It really does make sense. If that is your number one issue and for many pro-life people it is by far, then "risking" going with a Democrat who may be pressured by the leadership to do the wrong thing isn't worth it.

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