The attorney-client privilege does not cover statements made by a client to their lawyer if the statements are meant to further or conceal a crime. For this exception to apply, the client must have been in the process of committing a crime or planning to commit a crime. The exception may apply in some types of civil cases as well, such as when a client is planning to perpetrate fraud or another tort.

~Crime-Fraud Exceptions/JUSTIA.COM

To understand the magnitude of the Supreme Court’s decision in Trump v. United States, in which six justices declared a president of the United States has absolute immunity when conducting “official business” delineated in Article II of the Constitution, one need only examine the verbal gyrations Special Counsel Jack Smith employed to comply with the newly imposed standard.  It goes far beyond the question whether a sitting president can be charged with a crime.  Equally important, it inhibits the ability of a prosecutor to submit evidence if it involves communications between the president and his staff, even if that exchange was equivalent to the crime-fraud exception in the case of any other defendant.

It is ironic an administration that threatened to withhold federal funds for jurisdictions described as “sanctuary cities,” where municipal laws protect undocumented immigrants from deportation or prosecution, argued the Oval Office should serve the exact same purpose.  Most legal scholars would contend this violates a basic principle of American jurisprudence, that no person is above the law.  If the CEO of a private business plans a crime with subordinates in his office or corporate boardroom, records of those conversations are permissible evidence.  Why then is the president of the United States, the CEO of a public enterprise, not subject to the same standards.

In his opinion, Chief Justice John Roberts makes the distinction on the basis of what he refers to as “official acts.”  But the Constitution does not delineate acts, Article II, Section 2 is titled, “Powers.”  And where an individual has authorized “power” there is also the potential for “abuse of power,” a fact completely ignored by the 6-3 majority which blessed the “absolute immunity” argument.  How ludicrous is this omission?  Imagine Trump v. United States becoming a defense for the chief executive of any other institution.  Consider the following hypothetical filing in defense of a corporate CEO.

The phrase “no one is above the law” dates back to the Magna Carta.  For centuries we have assumed that meant any person, regardless of their station in life, could be judged on a single set of laws which applied to everyone.  That standard stood until the Supreme Court, in Trump v. United States, laid out a new standard.  Many believe it now gives the president rights and privileges unavailable to other citizens.  However, what if the basic premise “equal justice under the law” is not what changed.  Rather, the Court, probably unintentionally, changed the law repealing what amounts to a broader interpretation of the crime-fraud exception which covers advisors as well as legal counsel.  Should this apply, not just for the president, but for the chief executive of any organization for which the defendant is being prosecuted for an “official act” within his powers under his company’s corporate charter and by-laws?

Our client is charged with conspiracy to sabotage the operations of his largest competitor.  We have presented a job description, drafted by the board of directors and approved at the last stockholders meeting.  Under powers, the CEO is authorized to take such actions as required to ensure the company’s competitive advantage.  Therefore, any discussion related to that authority falls within the definition of an “official act.”

To make their case, the prosecution produced taped conversations and emails between my client and members of his executive team.  Furthermore, every single one of these events took place either in our client’s office or in the corporate boardroom.  How does that differ from the Oval Office or cabinet room?  Since the Supreme Court ruled that communications between a chief executive and his senior advisors are inadmissible, especially those that occur within the privacy of the defendant’s workspace, we demand the same standard apply to our client.

In summary, we ask this court to acknowledge that the basic principle of “no man is above the law” is still the standard and, therefore, when the Supreme Court created a new crime-fraud exception, it applies equally to our client as it does to the president.  Thank you.

When asked about this interpretation of Trump v. United States, Justice Clarence Thomas told reporters he needed some quiet time to ponder the question.  Maybe a week on Harlan Crow’s yacht would be sufficient.  Or as Thomas might refer to it, his “sanctuary.”

For what it’s worth.
Dr. ESP

The federal bureaucracy has a mind of its own. Federal employees are often ideologically aligned—not with the majority of the American people –but with one another, posing a profound problem for republican government, a government “of, by, and for” the people. As Donald Devine, Dennis Kirk, and Paul Dans write in Chapter 3, “An autonomous bureaucracy has neither independent constitutional status nor separate moral legitimacy.”

~Project 2025/Page 20

As you know, this is what the MAGAverse has labeled “the deep state.”  Even if you believe this (air quotes) “profound problem,” they propose replacing 50,000 merit-based jobs across the executive branch with (ready for this?) their OWN federal employees who are ideological aligned–not with the majority of the American people–but with one another. And the ideological bent of this new regime is neither of, by, or for the people.  It will promote and implement whatever Donald Trump and his cadre of oligarchs (domestic and foreign) believe is good for Americans.

What those who ask, “How bad could this be?” do not realize, there is a living, breathing example of exactly how this will play out.  The former president and the Federalist Society created the equivalent of a MAGA ideological deep state in the judiciary where the Constitution be damned if it does not serve the needs of Donald J. Trump.  The media have done an adequate job of covering efforts by the Supremes to opine in Trump’s favor when it comes to his criminal activities (inciting insurrection and stealing classified documents), but have paid little attention to how lower court justices have done exactly what Project 2025 proposes for the executive branch.

Exhibit A is the recent ruling by U.S. District Judge James Wesley Hendrix  in State of Texas v. Merrick Garland, et. al.  This ruling is so egregious that this past Friday, Senate Minority Leader Mitch McConnell filed a 35-page amicus brief in favor of the defendants, drafted and certified by (drum roll) former Attorney General William P. Barr.  What could Hendrix have possibly said that motivated McConnell and Barr to side with Garland and other politically appointed officials in seven federal agencies?

The State of Texas claimed that much of the legislation passed during the first two-years of the Biden administration was unconstitutional because, in response to the COVID pandemic, then House Speaker and the Democratic Caucus authorized proxy voting by members of the lower chamber.  The House Parliamentarian affirmed the rule change. Hendrix summarized the case in the first sentence of his opinion.

For over 235 years, Congress understood the Constitution’s Quorum Clause to require a majority of members of the House or Senate to be physically present to constitute the necessary quorum to pass legislation.

Based on his extra-sensory perception of what thousands of dead or retired members of the House of Representatives “understood,” he ruled:

The Court concludes that, by including members who were indisputably absent in the quorum count, the Act at issue passed in violation of the Constitution’s Quorum Clause.

Of course, there is just one problem.  The quorum clause in Article I, Section 5, Clause 1 reads:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business.

Judge Hendrix, who claims to hold an “originalist” theory of the founding documents, or what I call the “Horton the elephant” philosophy best stated when the pachyderm avows “I said what I meant and I meant what I said,” interpreted the word “majority” as equivalent to “physically present.”  If there was any doubt the founding fathers implied such, why did they specify  “two-thirds of the members present” in Article I, Section 2: Powers of Impeachment and leave it out elsewhere.

In their amicus brief, McConnell and Barr correctly point out the controlling language, absent more specific instructions in Clause 1, is actually Clause 2.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Which raises the question, “Why, when the constitutional language is so clear about the authority of both houses of Congress to set their own rules, would a district judge ignore it to rule in favor of the plaintiff?”  Who benefits?  If higher courts agree with Judge Hendrix, several major accomplishments of the Biden/Harris administration, a record on which they proudly run, would be nullified.  Construction projects funded under the Infrastructure Investment and Jobs Act could be halted.  Manufacturing facilities supported under the Chips and Science Act would remain unfinished.  Recently announced reductions in Medicare pharmaceutical costs and conservation projects would disappear.  I can hear it now.  Trump and his MAGA outlets would accuse Biden and Harris of “cheating” in order to achieve their socialist, communist and fascist agenda.

Once again, a 49-year-old Trump appointed judge, who either cannot read English or chose to ignore it, could spend another 20 years on the bench issuing more equally erratic decisions.  My question?  If Judge Hendrix can move McConnell and Barr to submit a 35-page brief, why wouldn’t voters make every effort to ensure federal judicial vacancies are filled by individuals who will not be members of a “deep judiciary” that “are often ideologically aligned—not with the majority of the American people—but with one another?”

For what it’s worth.
Dr. ESP