Judge Troupis

Congressional Democrats: Rope a dope and other legal strategies

Mohammad Ali had some truly epic boxing matches — Thrilla in Manila, The Fight of Century and the Rumble in the Jungle all come to mind. Brutal combat of Ali v. Frazier (three times) and Ali v. Foreman. The one that stuck with me, and the one that is often said to be the greatest match of all time, was the Rumble in the Jungle: Ali v. Foreman in Zaire in 1974. Foreman was the most formidable opponent imaginable. He could, and did, knock-out virtually every opponent.

Ali had little chance against Foreman. So, Ali came up with a wholly unexpected strategy —the “rope-a-dope” stratagem. In boxing parlance, Ali simply backed up against the ropes and let the other guy flail away. The theory requires that the other boxer be lured in and then get worn down. It worked for Ali and now the Democrats appear to have deployed it anew on the unsuspecting Republicans.

In courtroom litigation the rope-a-dope strategy goes by many different names, but the technique is the same. Wear down the opponent. Endless motions, endless discovery, seemingly non-stop demands, aggressive letters and phone calls and generally being obstreperous. Endless “investigation.” Judges tend to step aside during such battles; assuming, as they do, that the lawyers run their own cases and both sides know what they are doing. (Hint: that is often not a correct assumption, but so it goes.)

It seems fairly obvious, doesn’t it, that the Congressional Democrats—many are lawyers, not so many boxers–are undertaking a virtually identical strategy?

Consider the “Russian Probe” — Rosenstein folly, Comey two-step, Mueller madness. No one really cares outside Washington. (Ok, a small rabid group cares, but that’s a nit.) How do we know this? Consider that the one thing all the pundits agree upon: the public was fed-up with Washington games last year and expressed that view by electing Trump. “Drain the Swamp” and all that … Now, Congress and the Washington bureaucrats are off ‘investigating’ the winner and refuse to discuss even the most basic substantive issues.

Here we are, mired in the spectacle of a sitting attorney general defending his manhood to the same people he worked with for 20 years. If this was an ordinary business, can you think of a single person who would put up with this? A single person who would not react by taking steps at this point to get back at those forcing him into such a defense? No man or woman I know with a spine would put up with such point-blank disrespect.

Why does this happen?

Perhaps it’s because the “swamp” is just that. It’s a seething, putrid, rotting pile of decomposing plant life. It knows nothing except to continue to survive in some form. It has no concern about what tomorrow may bring and no idea what that tomorrow will be. It goes on and on and on — rope a dope, litigate for no purpose except to litigate.

Still, that courtroom judge had it right. Each side knows the game. Don’t doubt that. Each understands that the purpose is no longer the Russians, election integrity or anything within haling distance of something admirable. This is pure and simple an attempt to avoid the real fights on policy — healthcare, taxes, immigration and spending.

The fight over policy has not even begun. The Democrats (and perhaps some Republicans) simply do not want to debate policy. One can argue why, but that’s not the point here. There is little doubt that the sole purpose of what is now going on is to make sure there is no such debate. Or, perhaps, that the debate not begin until we are again in a full-fledged election season next year. At that point it really doesn’t matter. It’s Washington gospel, after-all, that nothing passes in an election year.

As we each head-off into the summer vacation, the picnic in the park or the time on the boat, they dither and dance in Washington. They duck and dive. They dance like butterfly, sting like a bee. They talk endlessly. All this is the hallmark of Rope a Dope. It’s all a game. It’s all about power and no substance. It’s an endless series of moves and countermoves, paper on paper, investigation on investigation. It’s just getting old, isn’t it?

Reflections on our fathers and the origins of Memorial Day

The Civil War had ended just 36 months before the first Memorial Day. (“Decoration Day”) The wounds of war ran deep. Indeed, so deep that more than150 years later some still remembered and demanded symbolic recompense in the removal of Confederate statues in New Orleans and Confederate flags in North Carolina. In that light I found myself twice in recent weeks reflecting on what this day ought to mean.

Meeting with a close friend with whom I have fought epoch legal battles, our conversation turned several weeks ago to our fathers. Mine, a Greek immigrant’s son and college student in 1941, volunteered and became a communications specialist in the Pacific. He would rarely reflect on his time in the Pacific, though he left a daily diary of those war years. He watched as ships around him burned and sank. He learned to fight and he felt the heat of battle in a foxhole. He never hesitated in his approval of the horrific, but necessary, end of that war. As he would have been in the first wave to touch ground in Japan, it is probable there would be no ‘today’ for me had the war ended differently.

History_Memorial_Day_34766_SF_HD_1104x622-16x9For my friend, WWII was much different. His father was a minister who volunteered for the Marines. He would never carry a gun, but he knew his place was among those soldiers. As the Japanese dug-in on the seemingly endless Pacific Islands, his father became a true hero. The order had gone-out from Japan that no Japanese soldier was to surrender. Each would fight to death (as they would have in Japan itself but for the emperor’s surrender), and it was in that light that my friend’s father was called. (A “calling” is a true act of faith. A belief that we are called to a moment, to an occupation, to a life.).

Late one night, the minister without a gun (he would never carry one during the war), crossed alone through enemy lines. He heard there was a cave where a group of Koreans enslaved by the Japanese to build the tools of war on that island were being housed. Those Koreans were all destined to die because the Japanese would never surrender. The minister entered the cave expecting a certain death, but as the Koreans spoke to him he spoke back in their language!

They were taken aback as he explained that they would all die in that cave. They asked who he was and he told them his name. Instantly, several of the men asked if he was, in fact related to a person of the same name who had ministered to them back home. “Yes”, he answered, “he’s my father.”

Those who had asked immediately explained to the others that this man must be trusted— his father had been such a good man. Many of those in that cave had actually converted to Christianity as a result of his father’s good works.

After a brief discussion, all of those Korean men followed the minister through the night, through the jungle and miraculously were not discovered. Forty souls saved by a man without a weapon, with only his faith.

These are the stories of real people doing heroic deeds to protect our freedom.
In distant times soldiers too performed great acts of courage but more often than not they were meant to preserve not ‘freedom” but instead, “privilege.” The privilege of a monarch. The privilege of a class. The privilege of a master. So, the fact that Memorial Day was founded not at the beginning of the Republic but only after a great price had been paid for the sin of slavery is instructive. Pre-Civil War, this was a great country, but it was not the country we now have. The Civil War was itself an act of faith in equality. It was an act that transcends time because it was an act to secure freedom for all, for all time. It was not an act taken, or a sacrifice made, for privilege.

Reflecting both on the removal of those Civil War symbols and the work of our fathers is an appropriate thing to do this Memorial Day. True freedom for all is an essential component of this country and it comes in many forms and comes in many different ways.

The stories of our fathers — mine and my friend — are of warriors in very different cloth, but each was a hero. Each represents what we have come to expect and often take for granted. They are stories worth remembering this Memorial Day.

ROADS: The Romans Did Them Far Better

Gallia est omnis divisa in partes tres.”

So begins Caesar’s great Commentaries on the Gallic War (“All Gaul is divided into three parts….”).   To this day, from Provence to Barcelona to Jerusalem and to Rome, one can still see the roads the Romans built. The wars of Rome were made possible by those roads and the Roman empire followed each conquest by building even more roads. It is commerce that even now we can appreciate. So, as the legislative wars of Wisconsin play out this summer over the “roads,” one might appreciate their importance and their triviality.

In our modern times the importance of roads remains, albeit perhaps soon to be less important with those mythical flying cars just over the horizon. (Back to the Future told it all, right?) To hear the cacophony of legislative and executive voices these days in Madison one might surely think the stakes are as high as those of Caesar’s time.

We have the Governor on one side adamant there will be no tax increase. (SPOILER ALERT—The Governor will win.)

On the other side we have the Assembly proposing all manner of new tax ideas. (SPOILER ALERT—They will lose.)

And now, we have a third side — the press says Wisconsin should finally accept the inevitable and begin converting to toll roads. A curious suggestion given that the support for this proposition comes from that bastion of fiscal responsibility to our South — the Land of Lincoln, and the home of bankruptcy.

But the players are not so limited. The Road Builders, authors of the most recent Wisconsin Constitutional amendment (you forgot that, didn’t you?), are mad at everyone. Why, you ask? Well, they are, of course, quite familiar with getting their way, given they are perhaps the largest contributor to Wisconsin political candidates now that WEAC has been dethroned. If it takes more taxes to build more roads, then those who are to be paid to build the roads (i.e. road builders) support the taxes….DAH.

Let’s not forget the people of the State. In an unscientific survey one might conclude that the Road Builders are not the public’s most loved constituency. After-all, when is the last time you saw a road contractor actually displaying the name of the company at their job site? (For the record, Lunda Construction does not count, because they are a “bridge-builder” and everyone in Black River Falls (Lunda Construction’s home) is a really nice person.)

Not to be cynical, but perhaps various road builders have concluded that taking roughly one thousand years to complete the South Beltline/Verona Road project and an even longer time to complete the Milwaukee Zoo Interchange might not endear those contractors to the public they serve.

Being an equal opportunity cynic on road matters, take a drive out Mineral Point Road. As you head West and bounce on the endless concrete patches from West Towne to the Beltline, you might wonder why that road looks so new and yet acts so very old. (Even the Appian Way of ancient Rome is in better shape.) As you then pass through the elaborate intersection past Menards and Target/Junction Road, look to the South. There you will see the most beautiful circular descending bike path in America. The Guggenheim Museum of Frank Lloyd Wright fame will come to mind as you admire the magnificent multi-million dollar circular bike path with its wrought iron rails and sculpted concrete.

There is one thing you will never see on Wright-Guggenheim bike path — a bicycle. It connects to nothing and to nowhere. What’s a few extra million when someone else pays it?  Ah, the efficiency of your road dollars at work ….

But let’s not simply deride the kings of fiscal responsibility and common sense who run Madison, as Verona (otherwise known as the City of Epic) is the home of Wisconsin’s first bike “roundabout.” The MacIver Institute for Public Policy spent a day there and the video of how well that project has turned out is downright SNL hilarious.

My best guess is that while legislators will bay at the moon and the Road Builders will claim the world will end, this road funding brouhaha will end soon. It makes for good local theater.

However it ends, I think we can all safely say that unlike Roman accomplishments, in two thousand years the roads built here in our State will be dust. These are not the affairs of Roman legend, and despite what the Democrats may say, Governor Walker is not Caesar’s tyrannical heir.

On the Benefits of Chaos: Trump at 4 Months

I recently returned from a week-long trip to Washington where chaos reigns. Well, that’s no surprise—chaos is a Washington constant—but this was chaos at a new level. Not bad, just a reality.

Of course “chaos” as a mathematical theory simply acknowledges the obvious, yet oft disturbing concept, that a butterfly in South America may cause a tornado in Arkansas—the “butterfly effect”. In established systems (e.g. climate & traffic) where final outcomes are particularly sensitive to slight changes at the outset, chaos theory posits that predicting an outcome in the future from the present state of affairs may simply be impossible.

So, we have in the first four months of the Trump era a previously well-known and predictable system—establishment politics, now beset by a new and unpredictable set of actions. “Chaos” as no longer a scientific principle, but a political fact. Appointments not made, firings on the rise, legislation on every major front (healthcare, taxes, maybe the wall), foreign leaders dining at Mara Lago and regulations revoked. This is the stuff of legend and the stuff of mathematics.

It is more than a bit amusing (one might say “frustrating” or “frightening”) to watch. Those I spoke to in Washington were appalled at the election outcome (professional politicians, pundits, pollsters and hangers-on obliterated at every turn) and now can hardly have a conversation without complaining loudly. And, it matters not at all if one is a Republican or Democrat—the effect of chaos is uniformly unpleasant to those who traverse the halls of the Federal bureaucracy. They really do not have a clue how to deal with this changed reality.

We’ve all heard that disaster looms on the horizon with Trump in the White House. Truth be told, we all do feel that on occasion. Blame it on the media if you like, but the reality of Washington this month is very much gloom and doom with or without the inevitable fertilization provided by the daily media spin. But, we ought to take solice in the reality of mathematics.

Chaos theory does not predict a bad outcome. No, instead it provides a certainty that while we may not know the outcome, the dynamics of the system will ultimately provide an outcome that we can explain. Not predictable in the present, but fully explainable in the future.

That is where we are now. The Trumpian butterfly (“Monarch” to some) batting its wings furiously. It feels like chaos, because it is chaos. It’s not time to judge if this is good or bad. It’s time to watch for the tornado.

Hoosier Dreams: Coach Trump takes charge

By Jim Troupis, retired Dane County circuit judge 02-01-17

“Look, mister, there’s … two kinds of dumb. A … guy that gets naked and runs out in the snow and barks at the moon. And a guy who does the same thing in my living room. First one don’t matter, the second one you’re kinda forced to deal with.” — Hoosiers

Perhaps all great political contests are spelled out in Hoosiers; just as all life lessons may be gleaned from The Godfather.

It took President Trump less than 240 minutes to fire an Obama apologist, a/k/a Acting Attorney General Yates. Not quite sure why it took him so long — probably a delay in the press release. If you do it my living room….

youre-fired

You are so fired!

For most, this “You’re Fired” moment was pure Trump. But it was really much more.

To begin, a lawyer’s obligation runs first and foremost to the client. Every Code of Ethics applicable to attorneys requires absolute loyalty to the client. (“… a lawyer shall abide by a client’s decisions concerning the objectives of representation and … shall consult with the client as to the means by which they are to be pursued.” — Model Rule of Professional Conduct, American Bar Association, Rule 1.2(a).)

That obligation is no different for a public lawyer whose client is, after all, the government itself. Every lawyer joining the U.S. Department of Justice signs a document that explicitly states these obligations. Here is what it says:

As an incoming Department of Justice attorney, it is important for you to remember that you are not only a federal government employee but also an attorney representing a client (in most circumstances, the Executive branch of the United States…) with all the professional responsibilities that entails.

Ms. Yates was required to defend her client, the President, and defend the law.

So, what happens when a lawyer disagrees so vehemently with the client that she can not, in good conscience, express the view the client demands in a Court? Rule 11, for example, of the Federal Rules of Civil Procedure, imposes an obligation on counsel not to make a frivolous argument to a Court, even if the client demands it. When the client tells the lawyer she must make a frivolous argument, the lawyer simply resigns.

Even after she resigns, the lawyer still has an obligation to protect her former client’s interest. No “tell-all” books are allowed. Your obligation includes never telling anyone the reason you resigned. (“A lawyer shall not reveal information relating to the representation of a client….” Rule 1.6). Ask any judge, anywhere, at any level, and they will confirm these rules.

If an attorney violates the rule protecting the attorney/client privileges — revealing confidences—that attorney would face discipline, even to the point of losing her license to practice law. Ms. Yates held a press conference as her “tell-all” book!

But, as with all things Obama, the rules just don’t apply. Instead, this Acting Attorney General is simply fired — no professional consequence. The media, many of whom are themselves attorneys, stand by in one last gasp of the Obama rules.

Not surprisingly, the reasons given by Ms. Yates are as phony as the act itself. The Executive Order, she says, is indefensible because the earlier opinion of her office approving that Order did not take into account the political motives of its author, the President. Seriously? This from a Justice Department that loudly argued for Courts to ignore President Obama’s statements about the intent of Obamacare. Ignore what they said in passing President Obama’s signature law, but, now, she argues, President Trump’s motives control.

The feigned outrage of an unethical lawyer is a sad postscript to an era of Department of Justice lawlessness.

Of course, perhaps soon it will be different. Recall that once the prior coach was fired, the Hoosier team succeeded as never before. So too, we can hope, a Jeff Sessions Department of Justice will return to the rule of law.

The Bully and the Coward

By Jim Troupis, retired Dane County circuit judge

democratsamsonIt’s a scene played-out in every culture and among virtually all animals and through all of time. The bully, the preening peacock shouting, huffing, threatening and demanding. Yet, so often, the bully masks an inner cowardice. Unable to win in a fair fight, the bully eventually must flee, as the coward the bully truly is.

These are the images of this past week, and much of the past several years, of liberals, progressives and many Democrats. Consider the lack of debate allowed today on a college campus. Why? Is it because the campus is ruled by bullies? Preening and demanding—always shouting down others—and even passing rules that bar others from appearing.

The college campus examples are legion; climate change, religion, abortion, sexual orientation and speech generally all come to mind. Even a Nobel Laureate, Secretary of State, Member of a Parliament or past President whose views may run counter to the professors or students, is likely to be barred from speaking.

Consider the vicious language and intimidation in Wisconsin’s capitol in 2011. The bully was ever present. Repeated over and over was the image of a protestor in someone’s face, shouting and demanding, and never allowing others even to speak. It seems so obviously an act of a bully. Intimidation is the rule.

Then we have the flip side of a bully—the coward. When challenged, the coward finds a way out. The coward never is willing to come face to face to win the argument. No, it’s either brute force or nothing. So rather than debate the merits of Act 10 in Wisconsin, the bully, now coward, leaves the State, as the Democrat Senators did.

Perhaps it’s the famous image of the playground where the conclusion is “If I can’t win, I’m taking my ball and going home.”

I recalled all of this during the extraordinarily impressive swearing-in of our 45th President. That picture, four former Presidents of the greatest power in the history of the world each having chosen, or now choosing, to pass their power to the next President. The Chief Justice solemnly swearing-in the President on a Bible held by Abraham Lincoln — extraordinary by any standard.

This was not a moment simply special to the participants, it was a moment special to the world.

The picture of this past Friday was something all the world’s people crave. Not that the leaders of those people crave-it—some do, some don’t. Rather, it represents the hope of tomorrow. It is a demonstration of a belief that we can do something great and unexpected. It is a demonstration to the world that, in the process, animates human consciousness.  All that was on display and one could not help but be moved by it. Unless, you’re a bully and a coward….

That is what Congressman Pocan represented this past week, along with 70 or so of his colleagues. Bullies, turned cowards. Unable to win an election, they figuratively and literally take their ball and go home.

Perhaps this is our future where an entire political party chooses to reject our very system of rules. Unable to persuade their fellow citizens of their cause, they choose to shout loudly and preen. And, when they are challenged to respect the rules, they turn and flee, like the coward in battle.

The coward/bully Congressmen were not missed. Instead, they missed something special. They are the losers and cowards, and they and the public know it.

Reflections on a quiet day in the woods:
Snowmobiling in Wisconsin and Trumpian times

By Jim Troupis, retired Dane County circuit judge

Winter is a time of hibernation. Adding weight becomes the natural process. (Oprah, you’re wrong. Well not entirely, if there’s money to made there’s an Oprah opportunity).

The birds no longer sing. The mosquitos, flies and sundry creatures seem to have disappeared. (Excepting, of course, the ubiquitous stream of box-elder bugs crawling up our walls.) And, wonder of wonders, the “We need your donation for the XYZ charity, political favor, once in a lifetime vacation,” phone calls of the holiday season seem to have died down. (I still can’t figure out who the “no-call” list really bars. Even my cell phone is infected these days.)

All of this is pure fancy, of course, if, like me, your definition of a quiet day in the Wisconsin wilderness is a snowmobile weekend: hurtling through the woods with 8,000 decibels of quiet, gleefully risking life and limb in a race to the next Pub. As I dodged the oncoming sleds, traveling at roughly 100 mph around the latest blind curve (having recently left the tavern in the woods, not to be confused with the now closed Tavern on the Green — except the noise here is far less annoying than a New Yorker’s accent), it occurred to me that this is all a Trumpian dream.

snowmobile-rentalsc2

After-all, loud and brash virtually defines the snowmobile in the wilderness. What better way to define our incoming President. And the wilderness — all quiet and serene — certainly defines the state of affairs before this Friday’s Inauguration. If you doubt me (as my children do with abandon) just ask the ignoble CNN reporter in the front row of the President-elects first press conference. I believe he is still shouting that he is “entitled” to a question. Yeah, right, in your dreams. Apparently CNN did not get the memo summarizing the political dynamic so enshrined by the know-it-all party: “We won. You lost. Elections have consequences.” Barack Obama (2008).

There is, as well, the sort-of drunken abandon of the trail. Where else but on an isolated lake in some distant Wisconsin forest is the listing of a “closing time” non-existent. The party ends whenever…. Isn’t Twitter a bit like that? What college kid has not been told, “Never text after drinking. Never, Never, Never.” And what ‘Ex’ has not regretted picking up the phone at 3 A.M.? Now, of course, it’s the Twitter’er-in-Chief (who for the record does not drink) choosing a target of the day. And there certainly is no closing time on those.

As I sit now safely in my man-cave, sipping a bit of the ‘recipe’, the entire exhilarating and frightening experience (they are a bit the same) of a snowmobile weekend seems as close to a map of the next four years as one can get. It is exhilarating — markets are up, animal spirits are alive, walls of the political castle appear to have been breached. It is frightening — a non-politician is the political leader, the CIA is pissed-off (not the best choice of a day-one enemy) and Democrats are like the proverbial cornered mountain lion (lashing out for no real purpose except survival).

It’s a marvelous time! You gotta love it! This quiet day in the woods promises to be the snowmobile ride of the century.

Fish or cut bait — the new political standard

By Jim Troupis, retired Dane County circuit judge

Every fisherman is familiar with the phrase—“Fish or Cut Bait.” As the New Year begins, it is indeed the year of Fish or Cut Bait.

Right, left or the middle, Europe or America, rural or urban, 2016 brought a realization that results count. Be honest, you didn’t think that would be the case, did you? You had come to believe the spin. And spin it did, like the proverbial whirling dervish.

troupis-fishRecall now the field at the end of 2015. Convinced we were that the Republican bench was deep and that depth was so very evident in the sheer number of candidates. As it turned out, the numbers meant nothing at all. It was as if the Cubs again were touting the number of pitchers coming to Spring training or Michael Kors was touting the sheer volume of potential designs to be offered. Interesting, isn’t it, in 2016 the Cubs no longer believed in the numbers fantasy — a real team would be better. As for Michael Kors, well his stock has never been the same since Heidi K. declared, “You’re out.”

By March the field had narrowed but still, who believed?

Looking back now it’s easy, isn’t it, to realize the Trump phenomenon was demonstrated day in and day out at the size of the rallies. But really? You see the prize was not the nomination — Trump had that by February — the prize was to be decided in November and who, really, thought he had a chance? Certainly not the Press and even more certain, not Hillary.

Perhaps it really was too obvious for us. Having become accustomed to a game of thrones where only members of the political family are elected, the nomination of an imp would be nothing more than an historical anomaly. To the trash heap of history he would go.

So, when the #nevertrump and Hillary camp joined forces to make ad hominem attacks the rule of the day in the Fall, it was assumed what had been planted earlier in the year would wither and die. After all, what modern figure has survived once declared a racist, homophobe, sexist etc. — with audio and video to confirm?

In the end, the issues did actually matter. Now that was something new! It seems the cynicism of the age, where late-night comedy shows had so long been the source of each day’s news, did not yield an outcome. Instead, the public decided unemployment mattered. Wage stagnation mattered. Soaring crime rates mattered. Uncontrolled borders mattered. Schools that indoctrinated but did not teach, mattered. And that is the most ironic outcome of the 2016 cycle.

By the time November 8 arrived, a majority it seems, did know what mattered. And, it wasn’t the sexual innuendo, contrived racism or foolish allegations of homophobia. It was that, in a republic, where the people would make a choice, they chose sanity over unending insanity foisted upon us all by a political class.

Now, as the New Year begins, the issue will no longer be the latest breathless scandal revealed to the minions by the perpetually offended; but rather, it will be substantive policy. How odd is that? A government judged by the substance, not by the soundbite. And that, of course, is the most ironic result of all. That a season (a decade, a modern era) dominated by personal attacks, will be judged by outcomes on substantive issues. That is the lesson we learned. Issues — immigration, health care, unemployment, wages, safety— really matter.

Now, we will see. The people demanded change on substantive matters. So now we will see, won’t we? It is time to fish or cut bait. The winners must now deliver. The fishing season begins, and we shall soon see what the net holds.