The Kern County Cake Case & Masterpiece Cake Case Compared

*Abbreviated version of published article with permission of the Los Angeles Daily Journal 2-13-18

In the case which pundits are calling “the Kern County Cake Case,” a California superior court judge held a two-hour hearing on Friday, February 2, during which a California state agency which enforces California’s anti-discrimination laws was pitted against chief counsel of a religious freedom advocacy group, the Freedom of Conscience Defense Fund. Department of Fair Employment and Housing v. Cathy’s Creations, Inc. dba Tastries, BCV-17-102855. The issue? Should a Bakersfield baker who operates a commercial business open to the public be required to make cakes for gay weddings? The Kern County judge, a home-grown jurist and “man of faith,” found for the baker. The court ruled that cake-making is artistic expression and that when used for a wedding, “there could not be a greater form of expressive conduct.”

Although the Masterpiece and the Kern County cases involve cake being sold from bakeries housed in aging mini-malls, and both matters emerge from states, some 21 in total, which have traditional anti-discrimination statutes barring discrimination in places of public accommodation including businesses open to the public, there are some notable differences.

The Masterpiece case resulted from over five years of litigation so far. The Colorado couple were turned away from their baker in July 2012, prevailed administratively and also in the Colorado courts over many years of litigation. The U.S. Supreme Court ultimately accepted cert in June 2017 and heard oral argument on the matter on December 5, 2017.

In comparison, the Kern County case is virtually a newborn. The Bakersfield couple were rebuffed by Tastries (aka Cathy’s Creations) some seven months ago, in August 2017. The couple filed a complaint two months later in October 2017, and two months after that, in December 2017, the Department of Fair Employment and Housing (“DFEH”) filed for a temporary restraining order and a preliminary injunction. The restraining order was summarily denied on the day of filing, with the court setting the preliminary injunction hearing for February 2.

The Colorado case started as an administrative complaint, while the California case was brought to life under a California civil-rights-police-power provision emanating from California’s Fair Housing and Employment Act and California’s anti-discrimination statute, the Unruh Act. The California agency is permitted to seek injunctive relief at any time in the agency’s civil rights investigation, should it conclude that discrimination is occurring and is ongoing.

According to the DFEH director, Kevin Kish, the agency believed it would prevail on the merits for injunctive relief because it had to show only that the Bakersfield baker admitted the conduct (denying gay people wedding cakes) and the practice would be continuing. “There was no point to waiting,” said Kish, “people in Kern County are entitled to equal access to public accommodations.” This statement exemplifies another difference between the Kern County and Masterpiece cases: The Colorado baker, as the case was being litigated, chose to stop making any wedding cakes and continued to sell other baked goods. As for the Bakersfield baker, she has never stopped her practice of selling exclusively for heterosexual celebrations and as a result of the ruling, she is exempted from the application of California’s anti-discrimination law.

That is how it is, at least for now. But the Kern County case is not over. All that has happened is that the state’s requests for preliminary injunctive relief have failed. Next up, the state agency can either appeal this judge’s order or file a formal complaint against the baker by October, one year from when the couple filed their complaint with the agency. It is most likely that no action will be taken by the state until the U.S. Supreme Court decidesMasterpiece, with a high court decision expected by June.

It is not that the Bakersfield baker or the state agency did not know or address the “cake-elephant” in the room. The state agency noted in its TRO application, “that a case involving a baker’s challenge to Colorado’s public accommodations is now pending.” The Bakersfield baker’s lawyers referenced Masterpiece at length. Cathy’s Creation’s lawyers, of the Freedom of Conscience Defense Fund (an organization affiliated with the Christian advocacy group Alliance Defending Freedom, which argued both the Masterpiece and the Hobby Lobbycontraception cases), filed a 384-page declaration which contained multiple items from the Masterpiece case. Curiously, the baker’s lawyer also included in his filing two articles for the Kern County court’s review from social science literature, specifically: (i) “LGB Families and Relationships, a 2013 National Health Interview Survey,” as well as (ii) a journal abstract on the demographic and other characteristics of “Self-identified Lesbian, Gay and Bisexual Adults” (which includes a section on how nearly one in four gay people examined in the study were found to be “atheist, agnostic or reported having no religion”). The final exhibit in the baker’s lawyer’s declaration was a press release from the White House dated January 16, 2018, marking that date as Religious Freedom Day.

To date, there has been much commentary on the Kern County judge’s opinion, especially by scholars who have been following Masterpiece. One of the cake-watching constitutional law professors is Gowri Ramachandran of Southwestern Law School, who stated that “the court’s sharp distinction between a not-yet-baked cake versus an already-made cake is absurd. The not-yet baked cake is constitutionally protected speech and the identical pre-made one is not.”

But as further litigation and/or appellate review may ultimately reveal, the Bakersfield couple picked a tiered cake from the display-sample case — of a style and type previously produced by the store. They asked for no writing or message. How can creating a cake from what is akin to a “pattern book” constitute protected expression? Even if one concedes that some cakes involve creativity and artistry, purchasing a cake from a pattern book or store display is akin to buying a pre-made, “off-the-shelf” ware. This was addressed extensively during the oral argument of the lawyer for the Colorado baker at the Supreme Court. The baker’s lawyer explained that free speech “compulsion” occurs when the cake artist is forced to design a made-to-order cake; she was not describing an already-designed cake in which the bakery generates a cake “just like the one on display.” This is precisely the line-drawing “chaos” to which Justice Stephen Breyer alluded in the Masterpiece argument.

The Kern County judge’s opinion stressed the competing “feelings” of the parties, and surmised that of the competing harms, the baker was poised to “suffer greater harm” because in exercising her religious beliefs she faced economic consequences. This empathic “take” was redolent of the inquiries of a few of the justices during the Masterpiece oral argument. Chief Justice John Roberts reminded the lawyer arguing on behalf of the Colorado Civil Rights Commission that when the Obergefell decision was upheld, the court “went out of its way to talk about the decent and honorable people who may have opposing views [about same sex marriage].“ Justice Anthony Kennedy also honed in on the feelings of the baker who would have to teach his family (those who work at the bakery) that state anti-discrimination law supersedes their religious beliefs.

The Bakersfield baker’s religious beliefs have been widely reported including where she was quoted as saying, “a ceremony, when you are getting married in the eyes of the Lord ... [is] a whole lot different than coming in and wanting a cookie.” She has stated that “[w]e are happy to make birthday cakes and cupcakes ... for everyone.”

But here’s the rub: Neither the Colorado couple nor the Bakersfield couple were actually buying cakes for a typical wedding reception happening the same day or evening of the wedding ceremony. The Colorado couple were married on the East Coast and afterwards hosted a reception for family and friends in Colorado. The Bakersfield couple were married in December 2016, 10 months before they held a post-wedding reception in October 2017.

If the U.S. Supreme Court in Masterpiece follows the lead of the Kern County court and holds that people with sincerely held religious beliefs against gay marriage who operate businesses in the public square can be exempted from making wedding “reception” cakes for gay people, what would prevent the religiously minded from declining to make birthday cakes for children of gay couples or anniversary cakes for gay people?

The facts on the ground demonstrate that the owner of Cathy’s Creations has discomfort in having to construct a cake at her own bakery knowing that the end-user of the cake will do with it something to which she religiously disapproves. This is puzzling because a website for the bakery (showing wares for sale at the shop) also includes a photograph of a plate of Cathy’s Creations’ bordello-corset cookies, which too could be used at an event to which the owner would likely object.

The Bakersfield case, regardless of the future outcome in the continuing litigation (since the court there ruled only on the question of injunctive relief), portends a new crossover area for employment and religious freedom specialty lawyers. If the Masterpiece decision holds (like the Bakersfield case) that religious-minded bakers have a “carve out” and are exempt from neutral public accommodation laws, then imagine the cases that will follow. Courts at all levels will be asked to make distinctions on whether baked goods are pre-made or sold off-the-shelf, or whether the making of a treat incorporated expressive design features even where the designs are “pre-conceived” and offered in sample-pattern books or display cases. Such a focus on the constitutionality of cake-making requires a look back to the cakes of the constitutional era.

From the time of the framers, cake has been a mainstay of American culinary life. Recipes from colonial times show that cake-making (including cakes for weddings then called “bride cakes”) involved taking pounds of butter “worked into a cream,” and adding lots of sugar and flour to the mix and applying heat. Not much has changed with the basic recipe and cooking applications, except that 18th century Americans made the cakes months in advance of the wedding, used lots of nutmeg and fruit, and regularly doused the confection with brandy so that it would remain mold-free by the time it was served. To take a page from the originalists, is it conceivable that the framers, many of whom ate cake (and some at the tavern which still stands near Philadelphia’s Independence Hall where the constitution was drafted), understood cake or cake fabrication to be speech?

Granted, our founding document (inclusive of the amendments) was never intended by the framers to be the last word, and former Chief Justice John Marshall said as much when he spoke of our Constitution “enduring for the ages” and its ability to adapt to future “crises of human affairs.” But even an evolution in interpretation — like those which ultimately acknowledged that equal protection applies not just to propertied white men like the Framers but to others with immutable and distinct characteristics to include people of color, women, gays and the disabled, or that expanded the conception of constitutional liberty to include freedom to make personal decisions about procreation and the education of one’s children — cannot be contorted into a vehicle which constitutionally protects the making of cake. To do so would be (riffing on Alexander Hamilton) precisely what the medium of the judiciary was designed to guard against, specifically linguistic contortions derived from human vagaries.

As a result, if cake making is not speech, then any “compelled speech” argument has no traction. Similarly, the free exercise claim has no tread. Requiring cake makers to serve all customers the same way and sell (or not sell) the same wares to all customers as required by a neutrally written public accommodation law, is more than rationally based to the government’s interest in preventing discrimination.

How should our Supreme Court rule in Masterpiece? Outcome predictions based on Supreme Court argument are faulty, as sometimes the seemingly antagonist question is a “trial balloon” or a fake-pass. Prognosticating methodology issues aside, I envision a decision in which the court recognizes a compelling state interest in “diversity and inclusion” with language about the importance of keeping the commercial-square “welcoming to all-comers.” I predict an outcome in which courts will not be asked to “slice the cake,” but will extend Obergefell’s “constellation of rights” — to cake.

Julie A. Werner-Simon was a federal prosecutor from 1986 to 2015. Email: jawsMEDIA.la@gmail.com

What’s in a Name? The Gutting of the CFPB

Acting director of the Consumer Financial Protection Bureau, Mick Mulvaney (who also serves as director of the Office of Management and Budget), once called the CFPB a “sick, sad” joke that “some of us would like to get rid of. . .” In the three months since he has taken charge of the consumer watchdog agency, Mulvaney has appeared intent on delivering his own punchline to that joke.

This week, Mulvaney released the CFPB’s Strategic Plan for fiscal years 2018-2022. Perhaps nothing is more striking than comparing the goals of this strategic plan to the goals of the original Draft Strategic Plan, which was prepared prior to Mulvaney’s arrival (and which is substantially similar to the 2013-2017 Strategic Plan). The original plan identified the CFPB’s goals as “[p]revent[ing] financial harm to consumers while promoting good practices that benefit them,” and “empower[ing] consumers.” The agency also took responsibility to “inform the public. . . with data-driven analysis of consumer finance markets and consumer behavior.” This vision of the agency’s role led to a number of important regulations and reports, including a groundbreaking study on mandatory arbitration clauses that concluded that these clauses broadly suppress consumer claims and the ability to obtain meaningful relief for injuries. The report resulted in a first-of-its-kind federal regulation prohibiting arbitration clauses containing class action bans in consumer financial products, which, unfortunately, Congress rescinded under the Congressional Review Act before it could take effect.

In Mulvaney’s version of the strategic plan, preventing harm to consumers does not appear to be a priority. In his introduction, Mulvaney emphasizes limiting the agency’s role, claiming that the original strategic plan exceeded the agency’s authority under the Dodd-Frank Act. As a result, the new strategic plan’s goals do not highlight consumer protection but rather “access to financial markets.” The goals pay lip service to “fair, transparent” markets, but it’s reasonable to question whether Mulvaney’s version of a “fair and transparent” market provides any real protection for the most vulnerable consumers, given his opposition to regulations that protect consumers from mandatory arbitration and predatory lending practices, and his efforts to curtail CFPB’s work with reviews of its adjudicatory and enforcement processes and it civil investigative demands.

Whereas the original strategic plan clearly emphasized the welfare of consumers, the new plan is more concerned with the welfare and competitiveness of the free market. Among its objectives for ensuring consumer access to markets is “to reduce unwarranted regulatory burdens,” and “facilitate access and innovation,” in financial markets. Unregulated “innovations” were a leading cause of the financial crisis that prompted Congress to create the CFPB in the first place. However, under the new plan, one of the CFPB’s most important objectives is to get out of the way of the financial industry, and hope that the free market will do something it has been proven incapable of doing in the past—protect consumers. This is made plain by the fact that the sections of the strategic plan discussing deregulation and the free market are nearly two-thirds longer than the section on protecting consumers from “unfair, deceptive, or abusive acts,” which warrants a measly two bullet points worth of pablum.

With the release of the CFPB’s new strategic plan, the writing is on the wall. Under its new leadership, the agency designed to protect consumers is poised to cast them to the mercy of the free market. As Mulvaney made clear in a recent USA Today op-ed defending his tenure at CFPB, he is “looking for a lighter regulatory hand.” Shielding himself in high-minded ideals of “humility toward those we serve, prudence in the exercise of our authority and respect for the law,” he is leaving the American people vulnerable to the whims of a “free market” that has time-and-again proven itself all too ready to take advantage of them and abandoning the core mission of the agency—found right there in its name—to protect consumers.

The Major LGBT Cases the Supreme Court Won’t Hear This Term as We All Wait for Cake

As the Supreme Court’s 2017-18 Term began, it looked like a banner term for LGBT-related cases at the nation’s highest court. The Court had already granted review in a “gay wedding cake” case from Colorado, Masterpiece Cakeshop. But the hopes for a blockbuster term have rapidly faded.

Here are some of the LGBT-related controversies that dropped off the Supreme Court docket this Term.

Evans v. Georgia Regional Hospital

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII.

The full 11th Circuit denied a motion to reconsider the case in July, and Lambda Legal filed a petition with the Supreme Court seeking review. At the heart of the petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII can be interpreted to ban discrimination because of sexual orientation. Despite the current circuit-split on this issue, the Court denied cert, putting off deciding this issue, most likely for the remainder of the current Term.

Pidgeon v. Turner

On December 4, the Supreme Court rejected, without explanation, a petition from the City of Houston seeking review of the Texas Supreme Court’s ruling in Pidgeon v. Turner, which had cast doubt on whether the City was obligated under Obergefell v. Hodges, to provide same-sex spouses of Houston employees the same employee benefits offered to different-sex spouses.

A decision by the Supreme Court to deny review of a case is not a ruling on the merits of the case. It means that there were not at least four members of the Court, the number required under the Court’s rules to grant a petition for review, who thought the Court should intervene in a lawsuit that is ongoing in the state trial court. The Court’s action is consistent with their tight control of the docket, under which the Court sharply limits the number and type of cases that it takes up for plenary review and rarely inserts itself into a case that has not received a final disposition in the lower courts.

Barber v. Bryant

On January 8, the Supreme Court refused to review a ruling by the 5th Circuit Court of Appeals, Barber v. Bryant, which had dismissed a constitutional challenge to Mississippi’s infamous H.B. 1523, a law enacted in 2016 that protects people who discriminate against LGBTQ people because of their religious or moral convictions.

H.B. 1523, which was scheduled to go into effect on July 1, 2016, identifies three “religious beliefs or moral convictions” and protects against “discrimination” by the state anybody who acts in accord with those beliefs in a wide range of circumstances. Among other things, the law would protect government officials who rely on these beliefs to deny services to individuals, and would preempt the handful of local municipal laws in the state that ban discrimination because of sexual orientation or gender identity, so that victims of discrimination would have no local law remedy.

Two groups of plaintiffs brought constitutional challenges against the law, and the district court issued a preliminary injunction against implementation the day before it was to go into effect, finding that it would violate the 1st Amendment. The state appealed, and the 5th Circuit ruled that none of the plaintiffs in two cases challenging the Mississippi law had “standing” to bring the lawsuits.

After cert was filed, the Supreme Court denied the petitions without any explanation or open dissent, leaving unresolved important questions about how and when people can mount a federal court challenge to a law of this sort. H.B. 1523 went into effect on October 10 and the challenge continues in the district court.

Whitaker v. Kenosha Unified School District

Last March, the Supreme Court had been scheduled to hear a similar transgender student case, Gloucester County School Bd. v. G. G. ex rel. Grimm, but that case was dropped from the docket after the Trump Administration withdrew a Guidance on Title IX compliance that had been issued by the Obama Administration.

A similar case out of Wisconsin looked like it would provide the Supreme Court with an opportunity to address the merits. The case of Whitaker v. Kenosha Unified School involved the legal rights of transgender students under Title IX and the Equal Protection Clause of the 14th Amendment.

In May, the 7th Circuit upheld a lower court ruling, finding that even though the Trump Administration had withdrawn the prior Title IX Guidance, both Title IX and the 14th Amendment require the school to recognize the plaintiff, Ashton Whitaker, as a boy and to allow him to use boys’ restroom facilities.  The school district petitioned the Supreme Court to review, even though Whitaker had graduated in June.

Two days after the Supreme Court announced it would not review the 5th Circuit ruling, the parties announced a settlement.  Under their agreement the school district will withdraw its cert petition.

***

Each month for the last 40 years, the LGBT Bar Association of New York publishes LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments affecting the LGBT community here and abroad.

Mueller And The Limits Of Attorney-Client Privilege

February 9, 2018

*This piece was originally posted on Crooks and Liars.

Last Friday, the Republican majority of the House Permanent Select Committee on Intelligence released “the Nunes Memo.” Weighing in at four pages, the Memo attacked the justification for a U.S. counter-intelligence investigation of Carter Page. It implied that the Trump-Russia investigation led by Special Counsel Robert Mueller was purely political and legally groundless. Consequently, large swaths of the media, legal and political classes, and public are again focused on the fate of Mueller.

There are comprehensive refutations of the memo’s attack, including this one. The best refutation comes from the Nunes memo itself, which says this in its last paragraph: “The Papadopoulos information [that Russia had dirt on Hillary Clinton] triggered the opening of an FBI counterintelligence investigation in late July 2016 by FBI agent Pete Strzok.”

Nevertheless, Trump claims the Nunes Memo vindicates him. Urged on by his allies in Congress, on FOX News, and in other right-wing cheering sections, Trump apparently wants to use the memo to halt the investigation - a process that probably would begin with firing Rosenstein.

Rosenstein draws Trump’s ire for reasons beyond merely appointing Mueller to run the Trump-Russia investigation, which Trump calls “a witch hunt.” Rosenstein also was one of several Justice officials who at one time or another approved procurement and/or renewal of the FISA warrant to investigate Carter Page’s ties to Russian intelligence.

Until he’s dismissed, however, Mr. Mueller will press on, in part because Rosenstein appears to be satisfied with Mueller’s performance. Most recently, in Paul Manafort's suit to nullify his indictment, the Department of Justice filed a motion to dismiss the suit that explicitly supports the work of the Special Counsel.

As Mueller moves along, he will probably encounter claims from the persons of interest in his investigation - e.g., Jared Kushner, Paul Manafort, Donald Trump, Jr., Rick Gates, Hope Hicks, and President Trump himself - that some of their communications are protected by attorney-client privilege, or executive privilege, or both. One or more of them probably will claim attorney-client privilege because, at various times, lawyers have been present and involved in their discussions and interactions concerning Trump’s engagement with Russians during the campaign.

Indeed, Donald Trump, Jr., has already refused to reveal to House investigators certain parts of his communications about his meeting with Russians at Trump Tower in June 2016: “In closed-door testimony before the House Intelligence Committee, Trump Jr. invoked attorney-client privilege to withhold details of a conversation with his father about that Trump Tower meeting with a Russian lawyer. The reason: Legal counsel happened to be on the call.”

More recently, Mueller apparently has become interested in another discussion about the junior Trump's June 2016 meeting with Russians. Mark Corallo, a former spokesman for Trump's private legal team, allegedly witnessed Hope Hicks engaging in conduct Corallo feared might itself be criminal: "Ms. Hicks said during the call that emails written by Donald Trump Jr. before the Trump Tower meeting - in which the younger Mr. Trump said he was eager to receive political dirt about Mrs. Clinton from the Russians - 'will never get out.' That left Mr. Corallo with concerns that Ms. Hicks could be contemplating obstructing justice, the people said."

Observers have noted that, while lying to the press is not itself a crime, ginning up a lie for the media or ordering the White House Counsel to fire Mueller might show evidence of the “corrupt intent” necessary to prove an obstruction-of-justice charge against Trump or others in his circle.

Even if these communications were directly to lawyers, or with lawyers present during the communication, attorney-client privilege might not bar Mueller from obtaining them. More significantly, the presence of lawyers in the room, or even the inclusion of lawyers in the discussion, might not bar Mueller from using the communications as evidence to indict and prosecute any of the people in whom Mueller is interested.

Attorney-Client Privilege - Its Basic Purpose and General Limits

The attorney-client privilege shields from disclosure confidential communications between a person and an attorney, where, essentially, the communication is for the purpose of procuring legal advice and intended to remain confidential. The purpose of the privilege is to promote uncensored communication between client and attorney, so the attorney can develop the best legal advice and strategy for the client and the client can develop an accurate appreciation of her legal situation and decide how best to respond to it.

The privilege, however, is not unlimited - a legal reality Donald Trump, Jr., might not understand. First, as many clients unhappily learn, it doesn’t cover all their communications on every subject with their lawyers. There are policy-based exceptions to its application. Second, a client can intentionally or unintentionally waive the protection of the privilege, often by failing to keep the communication confidential, but by other conduct as well.

Challenging A Claim of Attorney-Client Privilege

When a witness or target invokes attorney-client privilege, Mueller might try to neutralize the privilege if he considers the communication important to the investigation. If he objects to a claim of privilege, he’ll ask the judge presiding over his grand jury to conduct an “in camera” examination of the purportedly privileged communications - an examination by the judge in chambers that is closed to the public. The privilege-claimant will have to disclose the communications to the judge, who will decide whether they are privileged or whether they must be revealed to Mueller and may be used as evidence.

Watch for claims of privilege to be challenged by Mueller on four specific bases, among others: the “crime-fraud exception”; the non-confidential-communication waiver”; the "at-issue waiver"; and another pertinent exception that doesn’t have a succinct name. For want of a pithier label, let’s call it the “Bill Clinton/Ken Starr Exception.” The last exception might defeat a claim of executive privilege, as well as a claim of attorney-client privilege, but that's a topic for another day.

The "Crime-Fraud Exception"

Under the crime-fraud exception, attorney-client privilege doesn't apply to communications between a client and attorney for the purpose of committing, continuing, or advancing an illegal or fraudulent act. "The so-called “crime-fraud exception” removes the protection of the attorney-client privilege for communications concerning contemplated or continuing crimes or frauds. This exception encompasses criminal and fraudulent conduct based on action as well as inaction."

For example, if a person or persons in Trump’s circle consulted an attorney on how to lie to the Special Counsel, his lawyers, or his investigators about matters under investigation, in order to criminally obstruct the investigation, they could not claim protection of the attorney-client privilege for that communication. The communications with the attorney about how to obstruct the investigation very likely could be obtained by Mueller and used as evidence of obstruction.

The "Non-Confidential-Communication Waiver"

A critical component of a protected attorney-client communication is that it is made confidentially and intended by the client to remain confidential:

To remain privileged, a communication must be made in confidence and kept confidential. The test is (1) whether the communicator, at the time the communication was made, intended for the information to remain secret from non-privileged persons, and (2) whether the parties involved maintained the secrecy of the communication…..Typically, disclosure in the presence of non-privileged persons destroys confidentiality and prevents the privilege from attaching.

Privileged communication only occurs between the attorney and "the client." If “non-clients” are present during attorney-client communication, then confidentiality might be waived and the communication might not be privileged. (Note, however, that persons who aren’t the client or attorney can be present without destroying confidentiality, if they’re employees of the lawyer, such as associates, paralegals, or investigators working on the client's matter, or they're necessary to the communication, such as translators.)

For example, suppose multiple members of the Trump inner circle had a discussion in the presence of an attorney about how to account to Mueller for Donald Trump, Jr.’s meeting with Russian representatives in Trump Tower. Their conversation probably would not be privileged unless all of the participants were represented by the attorney present (unlikely, because of potential conflicts) or they each had their attorneys present during the conversation.

It's notable that the crime-fraud exception also might apply if they discussed how to criminally obstruct the investigation. However, even if they only discussed innocent ways to respond to Mueller's inquiries, the court might not find their communications confidential. If they're not confidential, then they can't be privileged, even though an attorney was present and participating and even if the attorney was representing at least one person present.

The “At-Issue Waiver”

“The attorney-client privilege may be deemed waived when the privileged communication is put 'at issue' in litigation. This occurs when the client affirmatively puts privileged communications at issue, for example, by alleging that she relied on the advice of counsel, misunderstood an agreement, or diligently investigated a claim.”
For example, if one or more of Mueller’s persons of interest claim their lawyer(s) told them to do or say something relevant to the Trump-Russia interactions or investigation, Mueller could assert that the attorney-privilege has been waived and ask the court compel them to disclose their communications with their attorney(s).

The "Clinton/Starr Exception"

This exception arose out of an attempt to quash a grand subpoena issued by Independent Counsel Starr in his investigation of Bill Clinton. In early 1998, Starr's jurisdiction expanded beyond financial transactions involving Clinton when he was governor of Arkansas to include "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law in connection with the civil lawsuit against the President of the United States filed by Paula Jones." Along the way, Starr issued a subpoena to Bruce Lindsey, who was Deputy White House Counsel and Assistant to the President, to compel Lindsey's testimony before Starr's grand jury.

Here is the key language from the case, which is In re Lindsey (Grand Jury Testimony), 158 F.3d 1263, 1272 (D.C. Cir. 1998):

"...Lindsey appeared before the grand jury and declined to answer certain questions on the ground that the questions represented information protected from disclosure by a government attorney-client privilege applicable to Lindsey's communications with the President as Deputy White House Counsel, as well as by executive privilege, and by the President's personal-attorney-client privilege...

The court held that Lindsey could not invoke attorney-client privilege on behalf of President Clinton:

When an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence. With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar. Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure. The constitutional responsibility of the President, and all members of the Executive Branch, is to "take Care that the Laws be faithfully executed."...

When government attorneys learn, through communications with their clients, of information related to criminal misconduct, they may not rely on the government attorney-client privilege to shield such information from disclosure to a grand jury.

This opinion (emphasis added) might partly explain why Don McGahn, the current White House Counsel, reportedly threatened to resign after Trump discussed firing Mueller with him. McGahn might have been worried that conversations he had with Trump about Rosenstein and Mueller (1) might show Trump has the corrupt intent to obstruct Mueller’s investigation, (2) could not be shielded from Mueller by invoking attorney-client privilege, and (3) might implicate McGahn himself in obstruction.

Regardless, targets of Mueller's investigation might have to check their privilege - their attorney-client privilege, that is - at the door to the grand jury room. Their claims of attorney-client privilege might fail as completely as the Nunes memo.

(Note to Readers: The discussion of the exceptions and waivers is adapted from Jenner and Block's "Protecting Confidential Legal Information: A Handbook for Analyzing Issues Under the Attorney-Client Privilege and the Work Product Doctrine." This is one of many useful, publicly accessible legal resources on the site of this law firm. Coincidentally, one of Jenner & Block's founders, Albert Jenner, served as minority counsel to the Senate Watergate Committee.)

Million Dollar Courts: Special Interests Bid for Justice

State courts—where 95% of all cases in the U.S. are filed—are powerful. Just last week, the Pennsylvania Supreme Court found that the state’s gerrymandered congressional maps violated the state constitution and ordered the legislature to re-draw the maps before the upcoming midterm elections. State supreme courts are typically the final arbiters on state law questions, from whether Kansas has adequately funded its education system to whether a tort reform law in Arkansas violates the state constitution. Many of these rulings, like the Pennsylvania redistricting decision, have national implications.

Because state courts determine cases with substantial financial and legal stakes, actors with frequent matters before the court, like business interests and plaintiffs’ lawyers, have a strong interest in who reaches the bench. In many states, these interests are increasingly attempting to influence the make-up of state court benches, particularly in the 38 states that hold judicial elections for their high courts.

A new report by the Brennan Center for Justice and the National Institute on Money in State Politics, Who Pays for Judicial Races?, highlights trends in the 2015-16 election cycle, and suggests that on three dimensions— (1) outside spending by special interest groups, (2) big-money races, and (3) “dark money”– state supreme court elections were more politicized than ever before. Since 2000, this series of bi-annual reports has documented the rapid growth of money in judicial elections, particularly the rise of outside spending by special interest groups, and has tracked the tone and substance of campaign television ads. In the 2015-16 cycle:

 

  1. Special interest groups increasingly bankrolled the bench. Outside spending by special interest groups shattered records, totaling $27.8 million and surpassing the prior high of $16.4 million in 2011-2012.
  2. Big-money influences were more widespread than ever before. Nationally, 27 state supreme court justices were elected in races exceeding $1 million in spending, up from the previous high of 19 justices in 2007-2008. Records fell: Pennsylvania’s 2015 election set an all-time national spending record, with $21.4 million in total spending.
  3. The Brennan Center uncovered an alarming new dimension to spending in judicial elections— the rise of "dark money,” so-called because it is impossible to identify the original source of such spending. Strikingly, in 2015-16, 54 percent of outside spending by special interest groups was “dark;” an additional 28 percent was “gray,” meaning that locating original donors would entail scrutinizing multiple layers of disclosures. In contrast, a meager 17.6 percent was transparent. Dark money obscures who is seeking to influence judicial races – and why—from the public, and hides conflicts of interest from litigants.

This substantial and secret spending poses serious threats to the integrity of state courts. Judges are constitutionally obligated to adjudicate cases based on their understanding of the law, but election pressures, exacerbated by special interest spending, may undermine judges’ ability to serve as impartial decisionmakers. Judges may feel beholden to the interests that contribute to their campaigns, particularly if contributors appear before them in court, or may fear retaliation in future elections if they rule against a wealthy interest. One study found, for example, that judges who receive more campaign contributions from business interests are more likely to rule in favor of these actors. The effect disappeared when the judges were ineligible for reelection, suggesting reelection pressures may warp judicial decision-making. Even the threat of attacks may distort rulings: multiple studies (Huber & Gordon, 2004; Berdejó & Yuchtman, 2010; Berry, 2015) have found that judges facing reelection rule more harshly in criminal matters than when they do not face elections, for fear of being attacked as “soft on crime.”

Special interest groups recognize that courts matter—it’s time for states to do the same. States should adopt policies to protect judicial decision-making, whether by reforming judicial selection or by implementing critical election safeguards. For example, states can replace elections with gubernatorial appointments from a list vetted by a judicial nominating commission of diverse membership, or can introduce a single, lengthy term for elected judges to prevent reelection pressures. If states retain elections, they should also strengthen recusal rules to prevent conflicts of interests, bolster disclosure laws to secure public accountability, and adopt public financing to insulate judicial races from special interest spending pressures. States can – and should – stop special interests from bidding for the bench.

How a growing army of lawyers is helping resist injustice (and you can too)

 

After the 2016 presidential election, many progressive lawyers, including me, were asking, “What can I do?” We launched We The Action to help answer that question. We The Action is a platform that makes it easy for lawyers to find and volunteer for projects with our progressive nonprofit partners, like the American Constitution Society (ACS) and dozens of others.

The benefit of a platform like We The Action became clear almost immediately after the election. In the face of mounting threats to our democracy, our civility, and our values, the response from progressive lawyers was (and continues to be) overwhelming. To highlight just one familiar example, when the immigration ban was announced one year ago, thousands of lawyers showed up at airportsacross the country. The outpouring of concern and activism was inspiring, but also challenging to organize. At the same time, nonprofits were inundated by requests from lawyers who wanted to help—the work of just responding to and organizing these volunteers required resources few organizations have. New nonprofits were popping up every day.

In this landscape of increasing need and overwhelming interest in getting involved, we needed a way for progressive lawyers to organize, to find ready ways to use their skills, and to fight for our country and the values we hold dear.

We The Action launched in July 2017 to make it easier to connect skills with needs through an easy-to-use platform; and to build a community of lawyers coming together with causes to fight for their country and the values we hold dear. Since launching, we’ve seen momentum build and interest grow. In just the last two months, we’ve seen a 90% growth in our lawyer volunteer community. And our network of nonprofit partners who post projects to our site grows by the week and now includes ACS, TIME’S UP and the National Women’s Law Center, Veterans Education Success, Run For Something, Access Democracy, and dozens more.

The way it works is simple: As a lawyer, you sign up for free on our website, browse projects that need volunteers on a variety of progressive issues, and volunteer for projects that interest you. It’s that easy. As a reader of this blog, you may be particularly interested to know that ACS has posted several popular projects to our site, including opportunities for lawyers to help vet the President’s nominees, analyze and respond to the Administration’s regulatory agenda, and help build a body of progressive judicial opinions.

Our work is making a difference. In just the initial months since our launch, our volunteer lawyers—many of whom have full-time jobs and busy lives—have donated hundreds of hours amounting to tens of thousands of dollars of volunteer legal services because that is what this time is calling them to do. More importantly, our growing community is joining with leading progressive nonprofits to advocate for a more equitable, inclusive, and just society.

I hope you will join us. Find a project you care about and sign up today at WeTheAction.org.

*Sarah Baker is the Executive Director of We The Action. Sarah worked at the White House from 2011 to 2017, serving as Special Assistant and Associate Counsel to President Obama, as well as Senior Policy Director to Dr. Jill Biden. Previously, Sarah was an Associate at Hogan Lovells, ultimately serving as the Senior Associate in charge of running the law firm's domestic pro bono practice.