Justia columnist and former counsel to the president John Dean comments on the sharp post-election increase in the number of petitions that have been sent to the White House by Americans, seeking certain states’ secession from the Union—totaling 22 states, thus far. (Generally, the Obama White House, via its “We the People” digital forum, welcomes any American to start or sign a petition addressing an issue that concerns him or her, and in some cases, the Administration has responded.) But Dean explains why the secession petitions are—and should be—doomed to fail, as well as being patently unconstitutional, unpatriotic, and illegal. To claim otherwise, as would-be secessionists do, Dean notes, is to utterly ignore the Civil War and the Fourteenth Amendment. Dean also paints a frightening picture of what post-secession America would be like, in the states that had seceded, if the petitioners were to somehow get their wish.
Justia columnist and former counsel to the president John Dean takes strong issue with the Norquist Pledge, which Washington lobbyist Grover Norquist has asked Members of Congress to sign. The Pledge says, “I [insert name] pledge to the taxpayers of the state of [insert name], and to the American people that I will: ONE, oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses; and TWO, oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.” The Pledge has become significant in the context of raising taxes as a solution to the potential “fiscal cliff” crisis. Dean contends that the Pledge is not only a bad idea, but also one that violates the Constitution. Moreover, Dean points out that, as the pledge is not a valid contract, for it is missing key elements that contract law requires, it is also not enforceable as such.
Justia columnist and former counsel to the president John Dean takes strong issue with Republican polarization and obstructionism. Moreover, Dean explains why and how these strategies have worked for Republicans over the years, tracing them back to Newt Gingrich and his supporters, who innovated a three-day work week for Representatives, with their families living in their home districts—the result of which, Dean points out, was that Representatives did not get to know one another well, and there was little chance of collegiality. Now, too, Dean observes, Republicans are also employing obstructionist and divisive tactics. Dean urges that, in light of these developments, it's urgent that journalists and other s chronicle and expose these strategies. Dean is confident, though, that in President Obama, the obstructionists have met their match.
Justia columnist and former counsel to the president John Dean comments on the life and times of former Senator George McGovern, who recently passed away. In addition to chronicling the key events of McGovern's life, McGovern’s passionate campaign to eradicate hunger, and his own friendship with McGovern, Dean also comments on the perhaps unlikely friendship between McGovern, a Democrat, and Republican Senator Barry Goldwater—the kind of cross-party bond, forged to serve the good of the nation, that Dean notes that we are, unfortunately, unlikely to see today.
Justia columnist and former counsel to the president John Dean notes that Mitt Romney attended both law school and business school, and contends that Romney forgot to think like a lawyer at the recent Hofstra debate. Before commenting specifically on Romney, Dean addresses the controversy about whether lawyers think differently than other people. One position is that thinking like a lawyer is simply thinking clearly and critically; the other position is that thinking like a lawyer is a unique skill that only those who have learned that skill in law school possess, in part because lawyers are taught to follow past precedent, even if they think it is wrongly decided—which is not the case in other professions. Dean notes that lawyers must also meet the requirements of the bar, and follow the jurisdiction’s Rules of Professional Conduct. While Romney is an attorney, Dean argues, he is much more of a businessman, and Dean notes that GOP businessmen have, over history, fared poorly in the Oval Office, and cites both Herbert Hoover and George W. Bush as examples.
Justia columnist and former counsel to the president John Dean argues that Mitt Romney’s win in the first presidential debate will prove to be a Pyrrhic victory, which will also help the Democrats. Dean discusses presidential debates from their very beginning, with Kennedy versus Nixon in 1960, up to the present. In commenting on the first Obama/Romney debate, Dean describes the “incumbent’s trap,” which he defines as the ability of the challenger to force the incumbent to defend his record—for even a strong record can be criticized, and as Americans, we can be unrealistic about what we expect our presidents to accomplish while in office. Meanwhile, the challenger can promise voters the moon. Numerous incumbents, Dean notes, have fallen into this very trap, though in Clinton/Dole, Clinton managed to avoid it by dominating the debate. Dean then analyzes the Obama/Romney debate—arguing that it needed much more moderation and fewer open-ended topics. Ultimately, though, Dean contends that Obama’s loss there will have a silver lining: Post-debate, the Obama team can now correct the many instances where Romney stretched or outright ignored the truth, and Democratic voters will be reminded that an Obama win is far from a foregone conclusion.
Justia columnist and former counsel to the president John Dean comments on the current, unfortunate state of American government—paralyzed by inaction, even in the midst of a troubled economy. In his analysis of the situation, Dean draws upon Thomas Mann and Norm Ornstein’s work It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism. Dean deems the book to be a very important one to read, especially for Republicans, for part of the current problem, according to Dean, and to Mann and Ornstein, is the intransigence and the growing extremism of the Republican Party. Another part of the problem, they argue, is the sorry state of contemporary American journalism. Dean distills some of Mann and Ornstein’s suggestions for addressing the problems that they isolate—and notes that just five changes in the way American journalism is done now could make a profound difference.
Justia columnist and former counsel to the president John Dean comments on current and past efforts by the Republican Party to suppress non-white Americans from voting in Southern states. Dean reports that these kinds of efforts have been escalating since 2010, and that they now encompass some Northern states as well. Dean covers specific, highly credible reports of such tactics being used; notes how voting laws can play into that underhanded effort; charges some Republican judges with being unwilling to enforce the amended Voting Rights Act of 1965 (VRA); and explains why these dirty tactics are a stain on the history of the Republican Party. Dean also notes his own role, in the Nixon Administration, in conveying Nixon’s decision not to veto a VRA extension that gave 18-year-olds the vote, and explains how that decision ultimately led, indirectly, to 18-year-olds getting the vote. Dean also notes that Mitt Romney could never make the same decision to let 18-year-olds vote today, as so many young people are Democrats or Independents. Finally, Dean cites a number of reasons for which we should all be thankful for the VRA.
Justia columnist and former counsel to the president John Dean comments on the the work of legal scholar Donald Langevoort, a professor at the Georgetown University Law Center, specializing in business organizations and securities regulation, who uses cognitive psychology in his work in order to explain why attorneys at times have ethical lapses. Dean comments on various interesting aspects of Langevoort’s work, such as his explanation as to how lawyers can fail to see a problem that should have been obvious to them, and his work regarding the organizational and psychological factors that may influence lawyers’ perception and judgment. Dean also discusses a list of certain cognitive biases to which lawyers may fall prey.
Justia columnist and former counsel to the president John Dean concludes his two-part series of columns on how attorneys can avoid making errors when serving as counsel to a person or institution enmeshed in a scandal. With the Freeh Report strongly suggesting a cover-up of Jerry Sandusky’s child sexual abuse, Dean notes that the same question that arose in the Enron and Watergate scandals also arose regarding the Penn State scandal: Where were the lawyers? Dean offers some intriguing answers as to why lawyers may not function as they should in cover-up situations—noting that general counsels, though they are working for an institution, may tend to feel loyalty to the person, or persons, with whom they directly work, instead. Dean also introduces readers to the psychology of cover-ups, and especially the concept of the “loss frame,” drawing on the work of Richard Painter, Richard Kahneman, and Amos Tversky to explain why attorneys may get caught up in cover-ups. Dean also gives advice for those—whether they are attorneys or not—who find themselves in a loss-frame (roughly, a losing) situation, and notes what the ABA’s Model Rules counsel in such situations.
In Part One of a two-part series regarding attorney-client privilege and the Penn State child-sex-abuse scandal, Justia columnist and former counsel to the president John Dean comments on potentially serious attorney-client privilege confusion relating to the scandal. Louis Freeh—the former judge and FBI director, and the author of the Freeh Report that was commissioned by Penn State regarding the scandal—has raised serious questions about the roles of the University’s General Counsel and its outside counsel, respectively, with respect to the scandal. With the assistance of Thompson Hine partner Jim Robenalt, who answered a series of questions posed by Dean, Dean seeks to illuminate the relevant legal and ethical rules in this oft-misunderstood area. In addition, Dean notes some parallels here to Watergate, during which questions also arose about attorneys’ representation of entities, such as the presidency, rather than persons, such as the president.
Justia columnist and former counsel to the president John Dean comments on the baleful influence of the Supreme Court’s decision in Citizens United, which permitted corporations to exert power over elections through corporate campaign contributions. Dean describes the profound differences that Citizens United has already made in our political system, and suggests ways in which covert corporate spending can be policed, even despite Citizens United. His suggestions include aggressive state-level prosecutions, including under bribery statutes.
Justia columnist and former counsel to the president John Dean comments on Chief Judge John Roberts’s role in the Supreme Court ruling upholding Obamacare. Dean anticipated that Roberts would vote, as he did, to uphold the healthcare statute, and Dean notes some other learned commentators who had also anticipated Roberts’s stance. A major factor in Dean’s prediction as to where Roberts would come down was Robert’s own testimony in the confirmation hearings that led him to join the Court. Describing himself in those hearings as an “umpire,” Roberts made clear that he would apply pre-existing, well-grounded legal rules, and not create new ones out of whole cloth. To show how Roberts did just that, Dean sums up the various Commerce Clause precedents that were relevant in the Obamacare case, and explains how Roberts dutifully followed them.
Justia columnist and former counsel to the president John Dean does a Q&A with Ross Guberman, the author of the book Point Made: How to Write Like the Nation's Top Advocates (Oxford 2011). The interview covers how Guberman got into the teaching of legal writing and honed his skills in the field, the effect good writing can have on a case, and the methods and techniques that Guberman uses himself, and teaches others. Readers may be especially interested in Guberman's account of three mistakes that lawyers often make in drafting and presenting their arguments. Finally, Guberman previews his next book, which will comment on well-written judicial opinions.
Justia columnist and former counsel to the president John Dean comments on the “Watergate at 40” event, hosted by The Washington Post, that he attended this past Monday, June 11. The event was held in the Watergate Office Complex, where the infamous break-in at the Democratic National Committee (DNC) occurred. Dean describes the three panels at the event, which focused on (1) the investigation and cover-up; (2) Watergate’s legacy; and (3) Woodward and Bernstein’s role. In addition, the panel offered a tribute to Ben Bradlee, The Washington Post Executive Editor who played an instrumental role, along with Woodward and Bernstein, in breaking the story and placing a continuing spotlight on it, after government investigators had initially made some headway. Dean also relates an interesting anecdote regarding how the Watergate burglars turned off their Walkie-Talkies in the Complex to ensure silence, but as a result, were not alerted to the police's presence in the Complex.
Justia columnist and former counsel to the president John Dean comments on a new proposed New York statute, the Internet Protection Act, which would provide a remedy for those who are the targets of anonymous Internet attacks—including the victims of cyberbullies, and businesses harmed by competitors’ fake reviews. Dean notes that the Act has drawn much criticism, but he argues that the focus of comments on the Act should not be to attack the Act, but rather to offer constructive criticism as to how the Act can be made consistent with the First Amendment. Dean summarizes the First Amendment arguments that have been raised regarding the Act; cites two key Supreme Court anonymous speech cases; notes that it is often possible to unmask cyberbullies without breaking the law, but it takes time and money to do so; and contends that a constitutional way to address cyberbullying would be through a law allowing the unmasking of the perpetrators of Internet harassment, and the issuance of a protective order against them. Even the deterrent effect of such a law, Dean predicts, could be powerful.
Justia columnist and former counsel to the president John Dean comments on a criminal case in which he argues that a deeply unjust sentence was handed down. Dean contends that it is high time for presidential clemency for the prisoner, Clarence Aaron, especially as the record shows that the Pardon Attorney gave President George W. Bush’s staff inaccurate and incomplete information in the case. As Dean explains, drawing on reporting by The Washington Post and ProPublica, Aaron—a 23-year-old first-time offender at the time of his arrest—was convicted for his role in abetting a non-violent drug deal. Dean notes that other participants in the deal had made careers in the drug business, and received light sentences in exchange for pointing the finger at Aaron, who received three life sentences. Their testimony has, since then, been shown and admitted to be false, yet Aaron still languishes in jail. Especially now that Aaron has the support of the relevant U.S. Attorney, Deborah Rhodes, and the sentencing judge, Dean contends that it is high time that Aaron receives a pardon.
Justia columnist and former counsel to the president John Dean comments on a fascinating new twist in the Watergate story—evidence that Woodward and Bernstein spoke to Watergate grand jurors. The evidence was unearthed by Jeff Himmelman, who has written a biography of former Washington Post executive editor Ben Bradlee, who served during the Watergate years. It consists of a seven-page memorandum, dated 1972, that summarizes a conversation between Bernstein and a Watergate grand juror. The find prompted Bernstein recently to comment wryly, “Maybe they’ll send us to jail after all.” The memorandum is all the more notable because it is clear that Judge Sirica, who presided over the Watergate grand jury proceedings, did not believe that Woodward and Bernstein had obtained any information from any grand juror. Dean tells the story of how Woodward and Bernstein managed to avoid suffering consequences, despite their having intentionally had contact with at least one grand juror. He also provides a sampling of attorneys’ opinions as to whether the law was, or was not, broken, assuming that contact between Woodward and Bernstein and one or more grand jurors did indeed occur.
Justia columnist and former counsel to the president John Dean comments on a remark that was recently made by Keith Olbermann—the longtime news anchor and a friend of Dean’s—on David Letterman’s “Late Show.” Dean argues that the remark, “I screwed up,” has been seriously misinterpreted and placed in the wrong context. As Dean discusses, the remark’s meaning is particularly important because it may well play a part in a lawsuit regarding Olbermann’s termination last month from his position as the anchor of “Countdown With Keith Olbermann” and Chief News Officer at Current TV. Dean clarifies the context of the comment—noting that Olbermann meant that he’d screwed up in joining Current TV in the first place, not that he’d screwed up in his work there. Dean also raises a larger issue of the press’s picking up on language in initial court pleadings—such as Current TV’s in this case—when parties are not ultimately accountable for what they’ve said in those early pleadings.
In the second in this two-part series of columns, Justia columnist and former counsel to the president John Dean puts together substantial evidence suggesting that controversial Wisconsin governor Scott Walker possesses disturbingly authoritarian personality traits. Dean’s analysis draws from both his own 2006 book, Conservatives Without Conscience, and the work of Professor Robert Altemeyer. Here, in Part Two, Dean explains in greater detail, based on evidence from Walker’s life, why he believes that Walker is a “double high authoritarian”—a suggestion which, if true, would be very troubling, Dean explains, as those with such personalities tend to find it difficult to govern in a democratic fashion. With Walker facing a recall vote on June 5, voters will have another chance to assess their governor and consider whether they believe Dean is correct.