Don Corleone's Guide to Attorney-Client Privilege

So the President of the United States is very concerned, and very confused, about attorney-client privilege. Let me try to explain, using the example of Tom Hagen from The Godfather. Why The Godfather? Two reasons. First, I want to. Second, I have a terrible suspicion that some of Trump's misunderstanding comes from watching the Godfather movies. (He does love TV.) Trump reportedly believes any meeting that has a lawyer in the room is protected by attorney-client privilege, and oh my sweet God is that not true.

Tom Hagen, as you know, is the Corleone family's unofficially-adopted son, a lawyer who doubles as the Corleone Family's chief lawyer and its consigliere, or criminal adviser-in-chief. No real Mafia organization has ever used an attorney as consigliere. It's just a pun (consigliere means "counselor," which Americans use to address lawyers), and a bit of narrative efficiency. Puzo uses one character to do two or three different jobs (Puzo's consiglieres also do the job of Mafia underbosses) so that he has one well-developed character instead of three sketchier minor characters. But Mafia consiglieres are most definitely not attorneys.

That said, how much of what Hagen does in The Godfather would be covered by attorney-client privilege?

None of it. Basically, not a damn thing.

Now, I am not a lawyer. I am also not a racketeer. But I think I've got a basic layman's grasp of the principle involved here, which is: You are not allowed to use your law degree to commit crimes. Get real.

Criminals are allowed to have lawyers. But lawyers are not allowed to be criminals. The Crips can have an attorney. But attorneys cannot join the Crips.

What this means, in practice, is that if you are accused a crime, even if it's something you actually did, you can hire a lawyer to defend you. And that lawyer cannot tell the authorities about things you reveal while preparing your defense. Attorney-client privilege protects your conversations with your attorney because otherwise you couldn't use an attorney. (A defense lawyer who tells the prosecution incriminating things about you is worse than no lawyer at all.)

On the other hand, if you are planning a crime and you ask your lawyer to help you plan it so it will work better, that is not attorney-client privilege. That is, what's the phrase, a criminal conspiracy. In the same way, if you're committing an ongoing crime and you involve your lawyer in it, there's no privilege involved. That's not an attorney. It's an accomplice.

So, let's say hypothetically that Don Corleone, the Godfather, is accused late in his life of a murder he committed in his youth, in which case he can retain Tom Hagen to defend him. Hagen would not be conspiring with him; he would be defending him in exactly the way the law envisions, and they would enjoy attorney-client privilege. This would allow Don Corleone to admit, privately to Hagen, that he actually did shoot Don Fanucci to death back in the day; he wouldn't have to lie to his lawyer and pretend to be innocent. Then Hagen and Corleone could effectively strategize about what case the prosecutors might have and what evidence there might be. Hagen could ask the Don what he did with the murder weapon, and Don Corleone could tell him, so Hagen could decide how likely it was that the police had found it. (Answer: probably not.) He could ask if the Don had used accomplices who might rat him out. (Answer: no. Tessio and Clemenza suspected, but weren't involved and didn't know anything.) This isn't pretty, but it allows the accused criminal to defend himself in court. And the prosecutors could not then haul Hagen into court and force him to tell them what Corleone said about the gun. That's how attorney-client privilege works.

If on the other hand, Hagen and Don Corleone have a conversation about beheading a horse in order to intimidate a Hollywood producer, that is not an attorney serving a client. That's two gangsters conspiring to commit a crime. Hagen can't play the attorney-client privilege card.

Hagen and Don Corleone actually know this, which is why they behave like criminal conspirators rather than attorney and client. Corleone carefully gives his instructions to Hagen in private, with no witnesses and nothing written down, so there is no evidence. (The horse-beheading is presented as a kind of gangster magic trick, where we can't see either man give the order or even see when Hagen had time to communicate any instructions to confederates. "Could you have your car take me to the airport?" is the construction of an alibi.)

Later on, when Don Corleone is incapacitated, Hagen sits in on a five-person strategy meeting where at least three murders are ordered. Hagen can't claim attorney-client privilege for any of that. Passing the bar is not a license to kill. Hagen is sitting there when his foster-brother Sonny orders a disloyal subordinate named Paulie Gatto killed. If the Gatto murder ever went to trial, Hagen would not be a lawyer but a defendant. Then Hagen is part of a more involved discussion about whether and how to kill a rival mobster and his pet police captain. Hagen is not only party to that decision but party to a detailed discussion of methods. He cannot pretend attorney-client privilege here either, for a simple reason: he is committing multiple felonies.

If you're trying to solve the Sollozzo-McCluskey murders, you probably need to flip one of the five guys who were in the room when the plan happened. But a fictional detective might have some luck looking at some of the paperwork. Someone arranged for the trigger man (Michael Corleone) to go directly from the scene of the crime to a ship bound for Europe with a false passport. That means someone acquired the passport, and the boat ticket, before the murder. That's a conspiratorial act; it's done with foreknowledge of the crime, in order to abet it. It is part of the murder scheme. If Hagen purchased the passage, or the passport, through his firm, the police could raid his firm for that evidence. Attorney-client privilege would not apply.

Also, the Corleone Family clearly does a lot of boring, paperwork-based crime to run their operation. They pay off large numbers of judges and politicians. (Don Corleone is described as extraordinarily good at bribing and corrupting public officials.) They launder their illegal profits into seemingly legitimate enterprises. They evade taxes, for the inevitable reason that they cannot declare their annual income from gambling, loan-sharking, and extortion. To the extent that they do any of this through Hagen and his firm, those activities are not protected from law enforcement. They're crimes, and if the authorities in The Godfather got wind of them, Hagen's Manhatttan law office would be vulnerable to a raid by the FBI, directed by, well, by the US Attorney for the Southern District of New York, the same US Attorney's office that raided the real Michael Cohen's home and office yesterday.

Which brings us to where we are today. The FBI and Department of Justice are especially cautious about piercing attorney-client communications, and err on the side of assuming they're privileged. But attorneys whom they investigate don't have much cause to complain. Being a lawyer does not mean you're allowed to help your clients evade the law. You don't have a license to launder money. You don't get to violate tax laws for your clients, or election laws. In fact, slow down with me for this one here, you don't get to violate the law at all. Because first, it's the law, and second, you're a lawyer. You know, an officer of the court. You are even more bound to obey the law than the rest of us. But then again, what do I know? I'm not an attorney. I'm not even a crook.

cross-posted from Dagblog; please comment there, not here

Never Trust an Action Hero: Star Wars' Lost Politics

Star Wars: The Last Jedi has hit the cineplex and begun raking in the customary astronomical profits. But the film has some angry detractors among hard-core Star Wars fans (a minority, I think, but a loud one) who complain bitterly that The Last Jedi is unfaithful to the Star Wars tradition. I'm not going to talk about the new movie here, and I'm going to do my best to delete discussion of it in comments (no spoilers!) for at least the next week. But I'd like to talk about the old Star Wars movies, the originals and the prequels, and the ambiguity that George Lucas tried, but failed, to give them.

The original 1977 Star Wars movie, the one now retroactively called "A New Hope," is filled with references to earlier film classics and it ends with a big one. The final sequence, in which Princess Leia hands out medals in a big military assembly, is a very clear reference to Leni Riefenstahl's Triumph of the Will, the most visually-powerful Nazi propaganda film of all time. This is widely known, but poorly explained. Everyone agrees that this is a Triumph of the Will homage; very few people can persuasively explain why.

I think the best explanation is that this was George Lucas's failed attempt to add some moral complexity. After spending the whole movie very obviously associating the Empire with the Nazis (calling them "Stormtroopers" is not subtle), Lucas turns at the end and codes the Rebels as Nazis too. Whoa! Maybe I need to rethink things! Now, that move certainly does not work as intended, and basically never has. An audience of eight-year-olds is never going to catch the Leni Riefenstahl reference. Most people watching a summer popcorn movie aren't. And even if you do notice it, it doesn't work. The movie that comes before that scene is too joyful, too seductive, and too simple-hearted for that sudden moral twist to work. By the time you get to the end of the original Star Wars, everyone wants the good guys to be good and the bad guys to be bad, period. No arty little film-school reference, coming from left field with no preparation, is going to derail the audience at that point. No way.

Lucas seemed to give up trying to cast doubt on his good guys' politics through the next two sequels. But he went back at it hard during the prequel trilogy, which is filled with moments where the heroes mess up catastrophically. The prequel trilogy is three movies about people losing their democracy. They start with a Republic and blow it. And, over and over, it's the good guys, the Jedi and their allies, actively blowing it. There's no moral equivalence; Palpatine and his flunkies are clearly evil. But time and again we have scenes that are pretty clearly meant to inspire moral confusion. Yoda introduces the Stormtroopers for the first time. Jar Jar, who is an idiot but a good-hearted idiot, votes Palpatine into power. These are meant to be moments where the audience steps back and says, "Whoa! The good guys did what now?" Those emotional beats don't land, any more than the Triumph of the Will reference landed in the original movie. Audience members don't respond the way Lucas seems to be asking them to. Maybe it's that the prequels are actually more ambitious, morally and artistically, than Lucas could execute. (To say they're ambitious is not to say they're good: many bad movies are the burning wrecks of ambitions that were beyond their makers' skill.) Maybe Lucas would have been able to pull it off earlier, but had lost a step. Or maybe this would have always been beyond his grasp as a story-teller, because getting across moral complexity has never been his thing. He certainly didn't pull it off. But equally certainly, he tried.

The message that George Lucas has repeatedly tried and failed to get across in his Star Wars movies can be boiled down to: never trust an action hero. If you are looking for rational democratic governance, a bunch of impulsive, shoot-from the hip adventurers are really not your guys. They're just not wired that way. And this is a fair point. The Jedi are not the same as the Empire or the Sith or, God forbid, the Nazis, but you can see why the Sith view the Jedi as such a valuable recruiting pool. The prequels very deliberately shows the good guys' action-hero impulses being played, repeatedly, by Palpatine's manipulations. But they're vulnerable to those manipulations because their heroic instincts are naturally a little un-democratic. That's not my spin. That's the plot of Episodes II and III.

Action-adventure stories like Star Wars naturally have a little bit of authoritarian bias built into their DNA, whatever their superficial politics. Or, to put it another way, these stories have a natural authoritarian lean that a storyteller has to work around. Remember, a lot of these basic stories come from monarchical societies. Celebrating a class of armed overlords is the natural groove path.

Part of this is that adventure stories mostly solve problems through violence. The good guys are never going to spend a Star Wars movie registering voters or hammering out a legislative compromise. Their basic approaches to problem-solving are 1) shoot it, 2) blow it up, and 3) cut it in half with a sword. And people enjoy that more than a story about committee work. (Our girl Senator Amidala gets fed up with the whole being-a-Senator thing and flies off to kick some ass, leaving the trusty and reliable Jar Jar with her vote. How's that work out?) Now, democracies do sometimes have to use military force, and most good adventure stories pay at least lip service to democracy and freedom. "Beating People Up for Freedom" is the unofficial Jedi motto. But that adventure story structure also lends itself easily, even naturally, to politics that glorify violence and believe in imposing control from above by force.

But more importantly, good adventure stories focus on a small group of individuals, and on things that a few individuals can do in a story. Star Wars makes a lot of World War II references, but it's not really set up for D-Day; a vast battle where every individual only makes a small contribution isn't really how these movies work. It's always going to be about a few central characters taking decisive action. And that makes for good storytelling. But if you don't watch it, that can quickly devolve into a narrative where a few Special Shiny Important People make all the decisions for everyone else. In fact, it's hard to raise the stakes of the story without doing that. Things go Game of Thrones so fast you might not notice.

Look: at the end of Star Wars, Luke Skywalker is a promising young pilot who manages to score a decisive hit in a key battle. By the end of Return of the Jedi, the question of whether anybody in the galaxy ever gets to vote hinges on how Luke Skywalker happens to work out his feelings. The superficial question "Should the galaxy be ruled by one man's decisions, or by the people themselves?" stealthily changes to "Which one man should make decisions for the rest of the galaxy?" Sure, the happy ending is foreordained, so we don't really worry that people are going to stay under the Empire's thumb. But we're spent the last few hundred years in the real world working to reach a point where a couple of super-elite individuals get to decide everyone else's destiny. Maybe we shouldn't be leaving these decisions up to a Skywalker. And in fact, the three prequel movies are about the folly of letting a Skywalker make these political decisions. Anakin Skywalker working out his feelings is the original problem.

But don't take it from me. Take it from Yoda, who more than once during the prequels makes it very clear how badly he and his associates have failed. The never-trust-an-action-hero idea is not mine; it really does belong to George Lucas. He's just never managed to sell it.

 cross-posted from Dagblog (all comments welcome there, not here)

Jaws and Climate Denial

There is no better Fourth of July movie for my money than Jaws. I would watch it at least twice every Independence Day weekend if that wouldn't bore and annoy my spouse. It was designed and filmed so carefully that time has transformed it into a beautifully accurate period piece, capturing the New England beaches of my 1970s childhood in loving detail. Time has also turned it into something else it was not originally meant to be: a parable about the dangers of denying climate change.

Jaws is the story of a community whose economy depends on its natural resources. That's true of every community and every economy, but in this story it's simple and obvious. The town has a beach. Its entire economy depends upon tourists coming to that beach during the summer. If the summer people don't come, everyone will go hungry. Clear enough.

Then the natural world throws up a problem; there's a shark in the water, and that shark kills a swimmer. The local police chief wants to close the beaches, but doing that at the height of the tourist season means financial ruin for the townsfolk, the danger that they will, as one character puts it "be on welfare all winter."

Watching the movie, the right thing to do is obvious. But that doesn't mean it's easy. Closing the beaches would cause real pain for many people. It isn't a cheap or easy solution.

The town authorities cave and do the wrong thing, trying to wish the shark away. They change the first victim's cause of death to "boating accident." When a second person is killed, they balk at the price of commissioning a serious shark hunt by a professional and instead countenance an amateurish bounty hunt that brings in "a shark, but not the shark." That gives them just enough apparent evidence to dismiss scientific advice and open the beach for Fourth of July weekend.

Then, as one of my friends likes to say during the shark sequences: nom nom nom nom nom.

The last act of the movie leaves the island behind to focus on the daring shark-hunters' interpersonal struggles and their fight with the monstrous fish. But the ending of the town's story is clear: they have destroyed their economy, not simply for a few crucial weeks but for the entire summer and probably for years to come. No summer people are coming to an island where three people have been killed. And tourists aren't going to magically forget the shark attacks next summer either. Trying to deny the problem in order to protect the beach economy leaves the beach economy in ruins.

So it is with us. Our economy depends on exploiting fossil fuels. And burning those fuels has begun to create major problems. Reducing emissions will not be cheap or easy. It will have painful costs, and there is no point in underestimating those costs. Nor is it helpful to expect that people who will bear heavier losses than the rest of us should simply take those losses. It's dysfunctional to let individual create massive social expenses, but it's also dysfunctional to make individuals shoulder massive social expenses themselves.

But here's the thing: avoiding the necessary economic sacrifice in the short term only makes the price of the eventual economic sacrifice higher. If we don't take the emissions-reduction hit now, we will incur all the costs of a changed climate AND eventually have to reduce our emissions even further. We will hold on to Fourth of July weekend and lose all of our summers. The character talking about "being on welfare all winter" isn't talking about closing the beaches for two weeks. He's talking about the cost of cheaping out and not killing the shark.

The Jaws parable is playing out in North Carolina right now, where the State Legislature has ordered experts to change a report on how rising sea levels will affect the Outer Banks. (At the same time, Virginia is taking steps to protect its endangered coastline.) North Carolina is afraid that the news of rising sea levels will be bad for the Outer Banks's beach-tourist industry, so (like the Mayor and medical examiner in Jaws), they have had the alarming report amended. The problem for the Outer Banks is that, as they say, This was no boating accident. And waiting until the sea level has already risen too high to ignore means waiting until it may be too late for the Outer Banks to be saved.

Denying climate risk is like ignoring a debt; it simply gets harder to pay off. I understand why people on the Outer Banks are afraid that their property will lose value if the state projects a thirty-nine-inch rise in the sea level by 2100. But if no steps are taken to deal with the rising sea, property on the Outer Banks will someday lose all its value. You can't sell a hotel to the fish.

And sooner or later, every climate denialist will have to hear the hardest news of all: "Summer is over. You're the Mayor of Shark City."

P.S. It has come to my attention since I started this post that the admired Historiann has also recently posted about Jaws, and that she has only recently seen the movie for the first time. Welcome to Amity Island, Historiann. Amity, as you know, means friendship.

cross-posted from Dagblog