Geoffrey Berman Is Nobody's Lapdog

I was wrong.

When reports emerged last year that President Donald Trump took the highly irregular step of personally interviewing Geoffrey Berman to be U.S. Attorney for the Southern District of New York, I called the former Greenberg Traurig partner a “tainted nominee.”

“Because how do you escape the distinct sense that the chosen one will have been hand-picked, vetted to make sure he'll show appropriate loyalty and deference to his patron?” I wrote.

Geoffrey Berman, I apologize. In securing the search warrants for the FBI to raid Michael Cohen's office, you showed the independence and integrity that are hallmarks of our finest law enforcement officials.

Cohen's lawyer, Stephen Ryan of McDermott Will & Emery, blasted the raid.

“The decision by the US attorney's office in New York to conduct their investigation using search warrants is completely inappropriate and unnecessary,” Ryan said in a written statement. “It resulted in the unnecessary seizure of protected attorney-client communications between a lawyer and his clients.”

Maybe. But a magistrate judge also signed off on the warrant, finding probable cause.

Popehat blogger Ken White lays it out well.  “Now, magistrate judges sometimes are a little too rubber-stampy for my taste,” White wrote. “But here, where the magistrate judge knew that this would become one of the most scrutinized search warrant applications ever, and because the nature of the warrant of an attorney's office is unusual, you can expect that the magistrate judge felt pretty confident that there was enough there.”

White also said a warrant to search an attorney's office would have required approval from Berman—it could not be the handiwork of a few rogue AUSAs.

According to The New York Times, which first reported the raid, investigators are looking into possible bank fraud as well as Cohen's payment to adult film actress Stormy Daniels.

President Trump promptly called the raid “a disgraceful situation.” And Berman may now find himself in the crosshairs of the Fox News/ Breitbart/ Alex Jones hate machine, along with Special Counsel Robert Mueller III and Deputy Attorney General Rod Rosenstein. Or maybe he'll get fired.

But if he does, he can leave with his head held high. He has maintained the independence of his office when it would have been easier to protect the man who hired him. But that's not the job. U.S. attorneys serve at the pleasure of the president, but they do not serve the president.

Thank you Geoffrey Berman for remembering that.

For more, see FBI Raids the Offices of Trump's Personal Attorney, Michael Cohen

 

Lessons from Legally Blonde

Here's a shameless proud mama moment: My daughter has the lead in her high school's production of “Legally Blonde: The Musical.” As a result, I'm now thoroughly familiar with every line and note in the show, which includes immortal quips like “Law school is for people who are boring and ugly and serious.”

Much of the plot is ridiculous—sorry, but a super-selective, Big Law firm would not let law students play key roles in the defense of a (paying) client in a high-profile murder trial.

But there's one thing that “Legally Blonde” does intuitively grasp: The most effective litigators are not intellectual snobs who live in a bubble.

Consider how some of the Harvard Law students describe themselves in song.

Aaron Schultz: “I won a Fulbright and a Rhodes. I write financial software codes. … Some say that I'm a pompous creep. Somehow I don't lose that much sleep. Why bother with false modesty? Harvard's the perfect place for me.”

Sound like anyone you know?

Or take Enid Hoopes: “I did the Peace Corps overseas, inoculating refugees in family clinics that I built myself from mud and trees. I fought to clean up their lagoons and save their rare endangered loons, then led a protest march against insensitive cartoons.”

Elle Woods, the heroine, responds to Enid, “I love your top! It's so fatigue chic.” And goes on to offer that she's a Gemini with a double Capricorn moon and was Sig Ep Sweetheart. “Oh! And just last week at Fred Segal, I talked Beyonce out of buying a truly heinous cable-knit tube top. Whoever said tangerine is the new pink is seriously disturbed.”

[Stunned silence]

But of course Elle ultimately saves the day. She's the only one the client, exercise guru Brooke Wyndham, can relate to. (“Thank god someone on this legal team gets me!”) And Elle is also the only one to whom Brooke will reveal the truth.

Especially in the criminal context, getting a client to be honest can be an issue.

Scott Greenfield, of counsel at Hull McGuire and author of the criminal defense blog Simple Justice, writes of one client who told him, “I thought you would try harder if you thought I was innocent.” Other excuses he's heard include “I was embarrassed,” “I forgot,” and “I didn't think it mattered.”

“Some prefer to embellish their stories by emphasizing the things they think show their innocence,” he continued. “Some tell you all the things they believe the cops did wrong, or their legal analysis of the situation, omitting the details of their own conduct that don't serve their ends as well.”

But part of effective advocacy is cutting through all that clutter to nail down critical facts. And that's something Elle in Legally Blonde is able to do, where her colleagues with different (and more conventionally lawyer-ly) life experiences failed.

In its own way, Legally Blonde is a call for diversity. Not of race or ethnicity, but diversity of background in general.

Indeed, it is Elle's decidedly non-academic knowledge of hair care that's key to discrediting otherwise damning witness testimony in one of the best fictional cross-examinations ever.

“Water deactivates the perm's ammonium thiglycolate and completely ruins it,” Elle says as she confronts the daughter of the murdered tycoon on the stand. “It's the cardinal rule of perm maintenance. Your perm is still intact so you couldn't have showered that day. Why would you lie about being in the shower? Why would you lie about not hearing the gunshot?”

The daughter confesses, Brooke goes free, and Elle winds up as class valedictorian.

But there's a darker truth in Legally Blonde as well, one that for my daughter's sake I wish was as fanciful as the rest of the show.

The brilliant Harvard professor/ law firm managing partner Callahan—who announces, “I hire four new interns every year. From this class I will select four young sharks whom I respect, and those four will have a guaranteed career”—is a sexual predator.

He gets Elle alone, tells her she could be a great lawyer, and then tries to kiss her.  When she slaps him, he says, “I thought you were smarter than that.”

Elle responds, “Is this the only reason you gave me an internship?”

Callahan answers, “It's been nice working with you, Ms. Woods. You can show yourself out.”

He's never held accountable, although the client fires him and has Elle successfully represent her at trial.

I'd like to think in real life, in the wake of the #MeToo movement, there would be consequences for the professor. But honestly, I don't know. There might just be a settlement and an NDA.

When I asked my daughter if she would report him, I was heartened by her response: “Of course,” she said. “He can't do that.”

 

What I'm Reading

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Prior Salary Can't Justify Gender Wage Gap, En Banc Ninth Circuit Says

Stephen Reinhardt's last opinion is a standout.

Posthumous Judging: Appeals Courts Allow It, but Not the Supreme Court

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After FBI Raid, Squire Says It Severed Ties to Trump Lawyer Michael Cohen

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Sex For Legal Work Gets Former San Antonio Lawyer 80-Year Prison Sentence

Do not have sex with your clients. Period.