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What Should Be the Response to the Panama Papers? NOTHING – the Use or Publication of the materials Potentially VIOLATES the Attorney-Client Privilege!

There is a fascinating article in the Orange County (CA) Register written by James Poulos about:

What GOP should do about Panama Papers

I have a modest proposal about that:  Nothing.  The Panana Papers are a gross violation of the most important legal privileges in existence – one that in most states does not end with the death of the client (see the litigation over the late DC Madam and her legal papers for example) in most states in the USA.

The attorney-client privilege is designed to ensure that the right to counsel is not a hollow promise.  No court can demand (subject to carefully crafted exceptions such as helping the client commit a present or future crime or defraud someone or knowing perjury) the attorney to “rat out” his client.  Even if the client admitted to a past crime.  Even willful murder.  Even where a body being found would provide closure to a grieving family.  The privilege wins.  Even if the client is deceased in most states.   You might as well repeal the Sixth Amendment right to counsel if there is no privilege.  The attorney must go to jail before disclosing privileged information.  The privilege is essential to a legal system consistent with due process.

BUT isn’t that what these off-shore accounts designed to do?  Evade taxes?  Maybe money laundering?  Not necessarily.  From the Orange County Register article:

In an unparalleled release of documents and data, the so-called Panama Papers have thrown open for public scrutiny the secretive world of offshore accounting – used in many instances by business interests with legitimate aims and traditional practices, but also by corrupt figures in public and private life trying to hide dirty money, launder cash, mask ill-gotten gains and often to evade various forms of taxation.  (emphasis added by me)

The leaker (even if the law firm did it) and/or the investigative reporters are not a court or other authority that can demand the law firm reveal illegality under the strict exceptions to the privilege.  No due process or privacy considerations for these clients.  Their private financial transactions are now public knowledge.

Instead those involved are at best purveyors of stolen and illegal information.  I am not even sure to what extent an attorney in the US could legally use this situation over the protests of the original client.  I wouldn’t touch it.  I would not use this information or any facts derived from anything found in the Panama Papers and the reporters, if they had any integrity would decline to do so as well.

But to the extent we as conservative/libertarians should comment on it, here’s what we must say:  Tax avoidance, as long as it is legal, is not tax evasion.  The President and the leading Democrat candidate for the White House both say some scary things:

Which brings us to the United States of America, where, so far, the Panama Papers have not made as big of a splash as abroad. But Democrats have seized on the opportunity to mount a relatively more populist case for tightening the screws on taxes. “There is no doubt that the problem of global tax avoidance generally is a huge problem,” said president Obama. “The problem is that a lot of this stuff is legal, not illegal.” He went so far as to say it shouldn’t be legal “to engage in transactions just to avoid taxes,” appealing to “the basic principle of making sure everyone pays their fair share.”

Hillary Clinton has mounted a similar response, vowing to ensure that nobody would be permitted to make off with the people’s money in her own administration. But this is a difficult development for her.  (Emphasis added by me, again!)

So we should not try to pay the least in taxes?  Isn’t it vaguely unpatriotic?  Seems ironic to say in early April of any year!  Compare and contrast President Obama with who might be the most scholarly (I would say learned but that would be a bad pun!) jurists never to sit on the United States Supreme Court:  Judge Billings Learned Hand of the Second Circuit Court of Appeals in the early part of the last century.  Here’s what Judge Hand said in judicial opinions about paying taxes:

#4  Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one’s taxes.

Gregory v. Helvering, 69 F.2d 809, 810 (2d Cir. 1934)

#5  Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich or poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.Commissioner v. Newman, 159 F.2d 848, 851 (2d Cir. 1947) – dissenting opinion

The tax lawyer I got these quotes from [Andrew Mitchel] thanked Frank Santoro.  I thank both of them!

So our goal should be:  Let’s stand for financial liberty and privacy and to pay as little in taxes as legally possible!  And take my advice:  Protect the Attorney-Client Privilege!  Boycott the Panama Papers.  If there is no market for dubious goods, there will be fewer leaks.


Article written by: Elwood "Sandy" Sanders

2060 GOP Convention: Jacob Royal Nominated on the First Ballot!

People are milling about to speak with the 101 year old Virginia Right blogger who was on duty in Richmond, covering the 2060 GOP Convention in the new Richmond Convention Center (built with public funds over Sanders’ protests) from the media row!

Between talking about Jesus and mildly flirting with the ladies, Sanders was getting around pretty good for a centenarian, but the amazing thing was how everybody reminded him about his blog post in 2016 about the remarkable kid from Iowa, Jacob Royal, who asked then New Jersey Governor Chris Christie about the school lunch meddling by Mrs. Obama!   And now Governor Royal going to be the next President of the United States!  The former student government president, Young Republican leader in college, state senator, congressman, and Governor of his home state will be nominated on the first ballot by enthusiastic conservative and libertarian delegates at the Richmond convention!

Here are excerpts from that great article at USA Today that started the whole politics thing for the fifth grader at the Iowa school:

“I don’t care what you’re eating for lunch every day. I really don’t,” the New Jersey governor and Republican presidential contender told a student during a town hall Monday. “If I’m president, back to whatever you want to eat.”

The question came from Jacob Royal, an Omaha fifth-grader and aspiring politician, who wore a navy pinstripe suit and a Republican lapel pin.

“What are you going to do about the lunches?” he asked. “They were fine when Mrs. Bush was the first lady, but now that Mrs. Obama is the first lady, they have gone down.”

And with that burst of wisdom, the political career of Jacob Royal now leads to here:  The 2060 GOP Convention!  Perhaps President Jacob Royal will bring liberty back to the United States.  “Now that’s a New American Century I’d like to see,” says blogger Sanders.  “I hope and pray, Lord Jesus willing, to vote for Royal on November 2!”

All the best to young Jacob Royal!  Keep fighting for liberty and learn all you can!  May Jesus bless you.


Article written by: Elwood "Sandy" Sanders

Two More Useful Ideas (One Appears to be a Bill Already) That Maybe Ought to be a Law!

I was recently honored to be published in the semi-annual newsletter of the Trusts and Estates Section of the Virginia State Bar (That is not an endorsement of the positions taken of course or of me in general) on an interesting (well, to me, enough to publish an article about it!) subject:  No-contest clauses in wills and trusts.  I’ll have to try to hunt up a copy of the newsletter available.

My article is concerned with these clauses which punish those who contest a will or trust provision with loss of whatever bequest in given to that beneficiary if they lose the contest.  The Commonwealth is surprisingly strict on these clauses, giving them full force and effect, albeit perhaps reluctantly (one of my points in the new case the Supreme Court of Virginia just decided on them is that neither the trial nor appellate courts seemed eager to use the clause to defeat the bequest challenged or in this case allegedly challenged) but most states have a probable cause standard – the clause has no power if there was probable or reasonable cause to believe the contest had legal merit.  (Some states allow a challenge if there is an allegation of forced documents or similar fraud.)

So I propose another law (I perhaps have more bill ideas than some legislators!):

“A provision in a will or trust or similar document purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.”

It’s based on a provision in the Uniform Probate Act (a proposed law by the Commissioners for Uniform State Laws) and is the law in for example Arizona.

Seems to me that no contest clauses can serve a useful purpose to discourage frivolous litigation by disappointed parties who did not get from a relative what they wanted or expected.  BUT it also hinders access to courts and that is a biggie for me.  So I could support this law in Virginia and have asked several delegates and senators to consider it.

The second idea is not mine.  The article was written by attorney John T. Midgett.  But it describes a reform of the augmented estate.

What?  My readers are asking…well read on

You might have heard the saying:  You can’t disinherit your spouse.  The reason you cannot is the augmented estate (at the ancient English common law it was called dower and curtesy and it said one third for the surviving widow but one half for the surviving widower) which is now a statute that provides for one-third of the estate to the surviving spouse (whichever gender) at the election of that spouse.  The spouse however has to renounce any bequest under the will or trust.  As the disclaimers at the end of commercials say:  Restrictions may apply!

What Midgett calls for is a 50% augmented estate (of both spouses’ estate) but he would make it a sliding scale based on years married and also allow more effective ways for an incapacitated spouse to make the election.  I think this is wise policy although I am not entirety convinced.

Delegate Jay Leftwich seems to have made this a bill in HB 231 for the consideration of the Virginia General Assembly.

HB 231 Augmented estate; elective share of surviving spouse.

Introduced by: James A. “Jay” Leftwich | all patrons    …    notes | add to my profiles

SUMMARY AS INTRODUCED:

Augmented estate; elective share of surviving spouse. Revises provisions of the Code related to the elective share of the surviving spouse of a decedent dying on or after July 1, 2017 to track revisions made to the Uniform Probate Code by the Uniform Law Commission. The bill calculates the elective share of the surviving spouse as a graduated percentage, taking into account both spouses’ assets and the length of marriage. Under current law, the surviving spouse is awarded 50% of the estate if there were no children and 33.3% if there were children. The bill also clarifies the process by which the elective share is to be claimed and provides instructions for the valuation of assets to encourage uniformity in the method of calculation of the elective share.

I also asked the same group of solons to consider this bill, too.  I would like to see more concern about divorce laws but this is the beginning of a start.  And Delegate Leftwich is a Republican from Hampton Roads (Chesapeake) area!

Now that my readers know a lot more about estate planning than they wanted to, perhaps even these issues can show intent to do sound government that does not cost gobs of money, set up new programs or nakedly advance progressive agendas.

 

 


Article written by: Elwood "Sandy" Sanders

Washington Post Reports: Freedom Caucus Surrenders. Stabs Constituents In The Heart.

gopeThese are amazing times. It is a rare thing that within just a few hours of writing an article I am given cause to retract it. Earlier today I wrote an article praising the Freedom Caucus for their strong principled stand for an open process and a principled, transparent, and deliberative House of Representatives. Whether through purchase or threat, the real power in the House of Representatives, the imperial chairman of the House and Ways Committee, Cantor Clone and Boehner Lieutenant, Paul Ryan appears to have broken the Freedom Caucus and bent them to his will.

In today’s article, What is the Freedom Caucus Really After, I may have misled my readers in the idea that these “conservatives” were something special and important. They are not. if the Washington Post can be believed.

‘Supermajority’ of House Freedom Caucus to back Paul Ryan’s speaker bid

Hard-line conservatives cleared a path late Wednesday for Rep. Paul Ryan to become House speaker when a majority of some of the most disgruntled House Republicans signaled that they would support his bid for the top job.

The decision to back Ryan by the 40-member House Freedom Caucus, which has risen in power and stature since its founding this year, came after the Ways and Means chairman spent much of his day courting its support.

“A supermajority of the caucus has agreed to support Paul Ryan,” said Rep. Raúl R. Labrador (R-Idaho) after a lengthy evening meeting.

If true, it is certain that conservatives have no friends in the House of Representatives. I want names, but I doubt I’ll get them. Instead, I expect to get excuses embroidered in the white flag of Paul Ryan’s promises. When Paul Ryan breaks these promises, these “freedom” caucus folks will grandstand and scream that they were lied to, that they’d been had.

No, Congressmen. You weren’t had. Your constituents were. Again.

I admit that this reaction could be premature – that the Washington Post could be wrong – that the Freedom Caucus could regather its’ wits. If they don’t, however, they ought not be forgiven. We did not embrace them as the lesser evil amongst a lesser evil. They were supposed to represent us.

Share this message in every district represented by a member of the House Freedom Caucus: You Elect Paul Ryan Speaker and You Are Done. Period. End of story.

 


Article written by: Steven Brodie Tucker

The Iran Deal is an Executive Agreement; Practicalism is Problem

Brian Schoeneman has published a brilliantly written piece over at Bearing Drift entitled, The Iran Deal is not a Treaty, wherein he endeavors to demonstrate that this whole Iran Nuclear Deal really is what the President says it is, an Executive Agreement. He begins his piece by offering up the arguments which he seeks to dispel, not to lay waste to or even criticize these perspectives, but merely to state them, honestly, in the unedited words of those who expressed them. I mention this, I suppose, out of respect for the proper form of argument, which I rarely see anymore these days, but which was executed perfectly in Brian’s piece.

Mr. Schoeneman goes on to detail the legal history and relevant rulings of the courts with regard to Executive Agreements; which is to say, that he explains to us exactly how bizarre and corrupt our government has become, even though, I suspect, that was not his intention. I have a few disagreements with a couple of his premises, but those counter arguments have been made at Bearing Drift by others, and if debating this article interests you, it ought to be debated where it was written.

I suggest that you read the article, because I will not quote it here. Instead, I intend to address a larger problem with the Republican Party which the Schoeneman piece perfectly depicts. This is not a problem that originates with the Republican Party, nor is the GOP Leadership the only group of people guilty of it. The problem is something I refer to as Practicalism. It’s a term I coined in my notes while studying philosophy at Virginia Tech. A term I used to describe something for which I didn’t have a word.

Practicalism is not a philosophy, but rather a way of thinking. I say that it is not a philosophy, because it has no adherence to any set of principles, nor does it necessarily consider principles. Instead, Practicalism is a word I use for people who think in terms, primarily, if not exclusively, of what is “practical”. Practicalism accepts whatever is commonly accepted. It adopts the language, ideas, and “reality” most prevalent within a system, a culture, or within the larger set of ideas, being that which is common. Anything which contradicts that which is commonly accepted is impractical and therefore unreasonable, or so the Practicalists believe.

Another excellent example of what I refer to as Practicalism is the 14th Amendments’ infiltration into every aspect of American Life. The 14th Amendment, written to protect the rights of slaves, freed slaves, and the children of slaves, states in Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now, the words, “equal protection of the laws” has come to refer to everyone and in almost every circumstance or situation. The Amendment was clearly written to protect African-American slaves and their decedents from mistreatment under the Democrat Rule in The South, or wherever Democrats had amassed power. It was not intended to address the rights of women, homosexuals, diplomats, or illegal aliens. Yet, through the perversions of our Courts, the 14th Amendment has grown in scope and this new scope is now commonly accepted as the only correct interpretation of the amendment. Anything contradicting this popular and modern view of the 14th Amendment is considered to be wrong, by virtue of its’ being impractical.

Soldiers_military_combat_field_dress_uniforms_Iran_Iranian_army_013Republicans don’t want to deport illegal aliens, because it is impractical. It is hard, expensive, and it will hurt business (especially business as usual). Republicans don’t really want to overturn Roe v. Wade, because women have accepted that access to infanticide is a right, and it would be impractical to take away a right to which women have become accustomed. Republicans don’t want to talk about gay marriage, because the Supreme Court ruled on DOMA and “everyone” accepts that gays have the right to marry, and it would be impractical to oppose it. Republicans don’t want to stop Iran from getting the bomb, because most of the world despises Israel anyway and figures that world peace would be greatly increased if there were no Jews in the world; for, as we know, Jews are offensive to Muslims and offending Muslims causes war and war is impractical. Republicans aren’t going to cut back on spending or reduce the debt, because Maryland and Virginia now have economies entirely predicated upon federal government spending, and millions of people would be put out of work, and Maryland’s and Virginia’s economies would be upended, and it would just be all together impractical.

If “everyone” accepts that the President has the right to call a Treaty an Executive Agreement, then it is impractical to oppose it. That is the nature behind the thought of Brian Schoeneman’s piece. Do you really think Brian, or anyone over at Bearing Drift actually likes the Iran Deal? They don’t! Even the idea that because the super wealthy Wall Street and K Street crowds stand to make a fortune off the Iran Treaty, doesn’t mean that men like Brian Schoeneman or Shaun Kenney stand to make a penny off it. In fact, I suspect that neither of them like the Iran Deal. I suspect that most of their principles would lead them to be in utter opposition to the Iran Deal. But principles don’t matter when you are a Practicalist, when you practice Practicalism.

I listened to about 3 minutes of Rush Limbaugh on my way home from work. I listened to Mark Levin’s Friday evening show on my way to work. Even Mark Levin and Rush Limbaugh don’t understand the mindset they are up against. Everyone is looking for a sinister reason, a maleficent motive, an evil at the heart of the Republican Party which has caused it to disappoint so many of us who call ourselves Republicans, or who place our hope in Republican opposition.

It’s not that they are evil.

Mitch McConnell and John Boehner do not believe that it is practical to fight Obama while he is in the White House. It’s hard, difficult, troubling, and impractical. It’s not practical to pass a bill that the President could veto, so they don’t do it. It’s not practical to oppose Welfare or Federal Spending or bureaucratic overreach if most of the American People don’t even know that these things are a problem. It’s impractical. Why fight losing battles? Why take unpopular positions? It’s impractical.

This is why the Republican Party you gave control over the United States Congress is working more closely with President Obama than they are with the citizens that put them into power in the first place. Obama has the real power, not you. Therefore, listening to you is impractical. Working with Obama is practical.

You must understand the way these people think in order to understand why we are where we are. McConnell and Boehner aren’t really evil, even though they enable evil. They accept the world, the system, the rules, the common lexicon, and the common understanding as intrinsically valuable because they are common, because they are accepted. Principles and philosophies are impractical, to them.

So, when it comes right down to it, if Judges, Presidents, and Congressmen all agree that something is what they say it is, then to them, it is just crazy for anyone to challenge it. The majority accept it – deal with it. That is the America you live in. That is just how shallow and thin our thinkers and politicians have become.

Frankly, on some level, I think this is why Trump is so popular. He’s the most impractical man in the game. He just says whatever the majority of people wish was the case, and is riding a wave of unprecedented support. But that’s a topic for another day. This article is already too long and if most people refuse to read an article this long, then you can rest assured that such an article was impractical in the first place!

UPDATE: Shaun Kenney weighs in with the same thinking. Virginia Politics is a whore up for sale. Jeb Bush is willing to purchase us. Bush To Fundraise For Virginia Senate Republicans. Jeb Bush accepts the way our politics works and is working it. Jeb Bush is practical.

 

 

 

 


Article written by: Steven Brodie Tucker