Patterico's Pontifications


L.A. Times Completely Misinterprets Yet Another Legal Opinion on the Attorney-Client Privilege as it Applies to Government Lawyers

Filed under: Dog Trainer,Judiciary,Media Bias,Morons — Patterico @ 11:23 pm

News flash for journalists: you aren’t lawyers. You clearly don’t have the slightest clue how to read a legal opinion. So just stop trying to interpret them — especially when your guidance is clearly coming from leftist activists who aren’t going to tell you the truth about what the opinion says.

Just stop already. I’m serious: you’re embarrassing yourself. Just stop.

We last ran into this problem here, when our old friend David Savage completely misrepresented a Sixth Circuit opinion addressing the lawyer-client privilege as it applies to government lawyers. The court repeatedly emphasized that its decision was limited to the criminal context, but Savage never mentioned that fact.

Today, Maura Reynolds makes the same error, but her mistake is (if anything) even more egregious than Savage’s prior error. That’s because the case she interprets strongly stands for the principle that the attorney-client privilege extends to government lawyers — yet ol’ Maura mistakenly says that the opinion “scoffs” at any such notion.


The complicated details come in the extended entry.


Roberts Memo Contradicts Premise of Hasen Op-Ed

Filed under: Dog Trainer,Judiciary — Patterico @ 10:41 pm

A new batch of Reagan-era memos by John Roberts was released on Thursday. (Via Supreme Court Nomination Blog.) Reading through these memos, I found one that contradicts the major premise of a recent op-ed in the L.A. Times by Election Law Expert Rick Hasen.

Here’s the background that you need to understand Hasen’s argument. In a case arising out of Mobile, Alabama, the Supreme Court had held that Section 2 of the Voting Rights Act (VRA) could be used to invalidate local election practices only if the government had a discriminatory intent. Civil rights groups were pursuing a change that would allow Section 2 to be used to challenge practices that had a discriminatory effect. Roberts opposed the change, because he believed that courts applying an “effects” test would establish a quota system. If a court found that a particular election system did not result in the election of sufficient numbers of minorities, it might invalidate that election system — even if the system was simply the standard at-large voting system employed all across the country, and even if the developers of the system had no intent to discriminate against minorities. Roberts argued that elections throughout the nation would be challenged in court, throwing our electoral system into chaos.

Prof. Hasen’s op-ed examined Roberts’s arguments against the inclusion of an effects test in Section 2 of the VRA, and extrapolated from those arguments that Roberts might today vote against Section 5 of the VRA– because that section incorporates an “effects test” of its own:

[T]he civil rights community pushed to have Section 2 of the Voting Rights Act of 1965 amended to allow . . . a “vote dilution” claim to go forward without proof of discriminatory intent. It would be enough to show that election laws such as Mobile’s had a discriminatory effect.

. . . .

Because Roberts viewed the “effects” language in Section 2 as an “intrusive interference” that is a “drastic alteration” of American government and “constitutionally suspect,” why would he look charitably on a renewed Section 5?

I would not count on him to uphold it.

But in a memorandum I have reviewed, Roberts made it clear that he viewed Section 5 as quite different from Section 2, and opined that an “effects test” made sense for Section 5 but not Section 2. The memo starts at page 16 at this link. Roberts said:

It is critical to an understanding of the Act to distinguish between §2 and §5 in talking about the intent/effects issue. Section 2 is a permanent provision, and no action is necessary to retain its protections. Section 5 applies only to selected jurisdictions and only to election law changes, while §2 applies nationwide and to existing systems and practices regardless of when they were established. Section 5 already contains an effects test, and we support its retention.

. . . .

There is no inconsistency whatever in having an intent test for §2 and an effects test for §5, as is the case with the existing Voting Rights Act. The different sections are addressed to different problems. It makes sense to have an effects test for election law changes in certain areas which suffer from a history of election law discrimination. Section 2 is not so limited. It applies not only to changes but to existing systems, and not only to certain areas but nationwide. The law has worked smoothly with an intent test for §2 and an effects test for §5. The Supreme Court in the Mobile v. Bolden decision saw no inconsistency in this, and our experience has revealed none.

(Bold emphasis mine.)

Roberts repeatedly and forcefully argued in the memo that the incorporation of an effects test in Section 2 would be an unwarranted intrusion on elections across the country, while simultaneously arguing for the retention of Section 5 — effects test and all.

I don’t know whether Prof. Hasen saw this memo before writing his op-ed. His op-ed refers to “newly released papers” including “questions and answers for senators and documents aimed at defeating the new Section 2.” The memo I describe in this post is a set of questions and answers regarding Section 2. Also, the complete set of documents shows that the documents were released in two waves: one on August 1 and a second wave on August 11. Although I found a copy among the documents released on August 11, it was apparently among the documents released on August 1, since it is quoted (accurately, as it turns out, despite my previously expressed suspicions to the contrary) in an August 7 article by David Savage.

If Hasen deliberately omitted a reference to language that directly contradicts his core premise, that would place his op-ed within the finest traditions of the Los Angeles Times. But I don’t want to jump to that conclusion. I have written Prof. Hasen to ask whether he had reviewed this memo before publishing his op-ed, and whether he agrees with me that the memo I describe contradicts the core premise of his op-ed. I’ll let you know what he says.

New York Times Corrects Doctored Quote — But Where Did It Come From??

Filed under: General — Patterico @ 9:40 am

Is the New York Times deliberately doctoring quotes to benefit the left? (Again, that is.)

The paper’s corrections section contains this correction:

An article yesterday about state and city investigations of a loan made by a Bronx social service agency to the liberal radio network Air America quoted incorrectly from comments made on the air by Al Franken, the host of an Air America program. Referring to Evan M. Cohen, a former official of the network whom Mr. Franken accused of having engineered the loan, from the Gloria Wise Boys and Girls Club, Mr. Franken said: “I don’t know why they did it, and I don’t know where the money went. I don’t know if it was used for operations, which I imagine it was. I think he was robbing Peter to pay Paul.” (He did not say: “I don’t know why he did it. I don’t know where the money went. I don’t know if it was used for operations. I think he was borrowing from Peter to pay Paul.”)

Note the differences. The word “robbing” was changed by the paper to “borrowing,” and Franken’s agreement with the idea that the money was used for operations (“which I imagine it was”) was removed entirely. These changes reinforced the impression that only those crazy right-wing bloggers had suggested that the money might have been stolen to pay for the network’s operations. As the article said:

Nonetheless, word of the investigations ignited a firestorm of criticism on the Internet, especially among conservative-leaning blogs that have essentially accused the network of robbing from the poor to pay its bills.

In fact, Franken himself admitted that he believed that had occurred — but that fact was edited out of existence through the doctored Franken quote.

So how did this happen? Here’s where it gets interesting.

The original article attributed the inaccurate quote to a “transcript of the broadcast made by the Department of Investigation.” This led me to believe that the Times‘s mistake had simply resulted from a lazy reliance on a sloppy transcript. But a spokeswoman for the Department has told Michelle Malkin that no such transcript exists:

According to Emily Gest, a spokeswoman for the New York City Dept. of Investigation, the “transcript” of Al Franken’s remarks cited by the New York Times in this article apparently does not exist. “There is no official transcript,” Gest informed me. “You should expect to see a correction in the Times.”

This evidence supports the suspicions of my readers DWilkers and Doc Rampage that the quote was doctored by the New York Times.

Where did the quote come from? Is there an “unofficial” transcript that the spokeswoman forgot to tell Malkin about? Or did the reporter listen to the tape himself? If the latter, then we have a real scandal here, because anybody who listens to the audio can clearly hear that the Times quote is flatly wrong.

I don’t think this issue should die with this correction. I want to know how this “mistake” happened. I don’t know that the paper is deliberately trying to mislead its readers. But in light of the spokeswoman’s statement, the New York Times owes its readers an explanation of why the quote was incorrect in ways that benefit the leftist view of this scandal.

Michelle Malkin has the e-mail addresses of people you should write about this:

Anyone who still cares can write a letter of complaint to reporter Alan Feuer (, spokeswoman Catherine Mathis (, spokesman Toby Usnik (, and ombudsman Byron Calame (

You bet I still care. I have written the reporter and the ombudsman to inquire where this quote came from. So should you.

Seebach on Hewitt’s Demand and the Roberts Investigation

Filed under: Judiciary,Media Bias — Patterico @ 8:59 am

Regular readers will remember that Rocky Mountain News columnist and editorial writer Linda Seebach recently wrote me, to criticize Hugh Hewitt’s demand that journalists who wish to interview him about John Roberts do so on his radio show, live. I published her comments in this post. I further explained that Seebach’s views appear to largely square with my own, since I understand journalists’ desire to keep their interviews under wraps before publication — but not the insistence of some that their interviews not be taped at all.

Seebach has expanded her comments into a column for her paper. She kindly mentions this blog in the column, for which I thank her. She also includes in the mix a defense of a hypothetical investigation of the adoption records of a Supreme Court nominee’s children:

[A]s lawyers know, exploring hypotheticals is often fruitful, so let’s explore this one a bit fu[r]ther – not talking about Hewitt and Roberts, now, about but some hypothetical important nominee and his former colleague who is now a prominent radio personality.

Suppose the reporter has received a credible tip that there was something dodgy about the adoption of the nominee’s twin Chinese daughters. Perhaps a former paralegal at the law office that handled the adoption alleges that the parents bribed someone and the radio host would know.

That should be checked out. If true, it is definitely a story, no matter how awkward for the children. If false, it should be quietly buried, which it can’t be if it is being broadcast.

And suppose the hypothetical radio host knows, or believes, that the allegations are true. What’s he going to say when asked live, on the air? He might not have been expecting that question.

Seebach then poses a number of other hypotheticals:

Or, suppose he has heard the rumors, but believes they were started by a disgruntled former paralegal who was fired on suspicion of dealing cocaine in the lunchroom. What’s he going to say about that? If she was charged and convicted, maybe he’d say so, but otherwise, probably not.

And – human relationships being endlessly messy – suppose that is what he believes, but in fact the paralegal is innocent and was framed by her boss, the real dealer.

And suppose her boss is actually the on-air host’s mistress. Or his secret gay lover. Who is blackmailing him. (Wave hypothetical flag again.)

Most stories aren’t like that. But sometimes they are, and perhaps the paper got badly burned on one of them a while back, and so now it has a policy. In which case, the reporter’s refusal may have nothing to do with the nominee at all.

There are two points I’d like to make here.

First: I agree with Seebach’s point that secrecy during the course of a journalistic investigation may not only protect the reporter’s scoop, but can also aid in the discovery of the truth — and the suppression of falsehoods. This is an insightful point.

And it is consistent with my proposal in the postscript to my original post on Hewitt’s suggestion: Hugh should simply agree not to run the interview live, but reserve the right to tape and broadcast the interview after the journalist’s story ran. If the interview ended up unnecessarily repeating some libel, Hugh could choose not to run it, and no rational person would blame him. But if the journalist left out critical facts favorable to Roberts, Hugh could bust them.

There is no excuse for a journalist to object to that. And I know Seebach agrees.

Second: Seebach’s column is not necessarily a defense of the New York Times‘s attempt to unseal adoption records as part of a routine background check. But I am curious to know what she thinks about that.

I continue to believe that the Times‘s actions were an inappropriate invasion of privacy. Conducting such an investigation based upon a credible tip, without attempting to gain access to sealed records, would present a different question, in my opinion.

I have written Ms. Seebach to invite her to address the non-hypothetical issue of the New York Times‘s actions in the comments, if she wishes.

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