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[In]Securities Guest Blog: A Political World by Aegis Frumento Esq
February 13, 2020
[In]Securities
a Guest Blog by
Aegis J. Frumento, Partner, Stern Tannenbaum & Bell
Aegis J. Frumento, Partner, Stern Tannenbaum & Bell
A Political World
The word "trial" has 3 common meanings: a legal proceeding to determine guilt or liability; a performance test; and a bothersome annoyance. The recent impeachment of President Trump was all three at once.
I'm a trial lawyer, so I know trials. They come in all forms and procedures. So let's start by putting away the old chestnut that you can't have a trial without witnesses. It just ain't so. Those of us who handle cases in court know very well the motion for summary judgment, also known as a trial on papers. You take your depositions and your documents, you package them all nice and neat, and you argue that there's no facts left to try because you've proved them all. If you've done a good job, it's over. No live witnesses needed. It happens all the time.
In the impeachment proceedings, the House Managers had depositions and hearing testimony from 17 witnesses, and reams of documents. At least some of those witnesses were Administration officials, and so their testimony technically counted as admissions by the President. We know because he has since fired them. Since no one contradicted their testimony, it was their word against nobody's, a perfect motion for summary judgment.
What would any additional witnesses have added? As Senator Lamar Alexander quite correctly said, "there's no need for more evidence to prove something that has already been proven." https://www.alexander.senate.gov/public/index.cfm?p=PressReleases&id=AA7E4960-6788-43A9-AF03-5DC456A0D448. Given the "mountain of evidence" the House Managers mustered, additional witnesses would have just been piling on -- evidence that we lawyers would call "cumulative." Even Mitt Romney only wanted to hear from John Bolton hoping he'd "raise some reasonable doubt" to justify an acquittal. https://www.washingtonexaminer.com/opinion/mitt-romneys-misguided-impeachment-vote. That, of course, was not why the House Managers wanted to call him.
No, there was no need to call Bolton or any other additional witnesses. They would have added nothing new, and they wouldn't have swayed anyone's mind. The House Managers didn't want more witnesses so they could better prove their case. They just wanted to make Trump look worse longer.
But let's not be shocked. The whole impeachment escapade was political theater from the start. The constitutional point of an impeachment is to remove the president from office. We always knew that would never happen. This impeachment always had as its ulterior motive to make Trump look bad in an election year. You know, like Trump strong-arming Ukraine into making Joe Biden look bad in an election year, which most of the Senate agreed he did. It gets tough to figure who's the goose and who's the gander in this drama.
And it's tough for me to get worked up about it. All politics is theater, and those who think that diminishes the seriousness of politics don't understand theater. Nietzsche was the first to observe that ancient Greek theater got us thinking about why one thing feels right and another wrong, long before anyone invented ethics and political philosophy. The original philosophers were as much drama critics. Politics and theater have been intertwined ever since. The line that runs from Antigone to Richard III to The West Wing to Veep parallels that from Cleopatra to Nero to Mussolini to Trump. Showmanship permeates it all, and one is no less "real" than the other.
There is a legitimate reason for this. Politics, by and large and more so with each passing decade, deals with what Yuval Harari has termed "intersubjective realities." Tucked between the objective reality of real things and the subjective realities of our own minds, intersubjective realities exist only because we believe and act as if they do. The more abstract ideas are, the more intersubjective they become. "Things" like money, or stocks, or corporations, would all vanish like Tinkerbell the moment we stopped believing in them.
High politics deals with stuff like that, called "the economy," "the national defense," "justice," "the budget," "the deficit," "globalization," "the border crisis." Political issues are real only to the extent that people can be convinced they are real, and nothing convinces like a good show. The Democratic House had to impeach Trump because only in doing so could it convince anyone that Trump is "a threat to democracy." Likewise, the Senate had to acquit him or lose all credibility as a governing party. And we all had to bear this trial of a trial like good citizens, or none of us would be convinced that we weren't living in a banana republic. And, now, of course, Trump will have his revenge on all who crossed him, because the Game of Thrones plotline of this drama still needs a denouement.
But, alas, this is not a three-act play. In his Varieties of Religious Experience, William James tells of 19th Century New England transcendentalist Margaret Fuller, whose favorite phrase was "I accept the universe." "When someone repeated this phrase to Thomas Carlyle," James reported, "his sardonic comment is said to have been: 'Gad! She'd better!' " Because really, what choice do you have? The universe -- objective reality -- always has the last word. Your disbelief in climate change will not prevent a climate-change-aggravated storm from blowing down your house. Intersubjective realities are always at risk of going with the wind. So too those who build their lives on them.
I have no worse an opinion of Donald Trump today than I had in the 1980s when he first started swaggering through the New York City legal, banking and real estate worlds we both shared. He's always been crooked, and the crooked have this in common: They believe they will never suffer consequences. And they are right to believe it, because the boldest of them get away with it, time and again. Until the one time when, if they live long enough, they don't.
I'm not even thinking of Harvey Weinstein or Gabriel Matzneff. Yesterday's paper reported the bizarre indictment of one Larry Ray, who, just out of prison, moved into his daughter's college dorm and allegedly extorted and exploited her girlfriends (including by prostitution) out of millions. https://www.nytimes.com/2020/02/12/nyregion/larry-ray-sarah-lawrence.html. Ray had both mob and political connections, which is not so rare in New York. Ray was best man at, and even paid in part for, Bernie Kerik's wedding. Kerik was New York City's police commissioner before he went to jail on corruption charges. Kerik was appointed by, and Ray was chummy with, a certain famous New York City mayor. If you guessed that mayor was Rudy Giuliani, you're starting to catch on. All these birds are of a certain New York feather. Sooner or later, they all come to roost.
The current Leader of their flock will, too. The day after Trump's "acquittal," I was driving down the Henry Hudson Parkway on Manhattan's West Side. Something was missing, and it took me a few minutes to figure out what. For years, a mile of buildings facing the Hudson River had been labeled "Trump Place" in gaudy gold letters, six times in a row. The buildings are real and still there; but the name was fake and now it's gone. See, https://www.rollingstone.com/politics/politics-news/trump-place-799310/. I like the thought of the universe asserting itself by erasing the only thing Trump has ever coveted, his own name.
There will be more of that; there always is. So, let's not get overheated about the dramatic state of our politics. Trump will be Trump no matter what anyone says or does. He is today's master showman, but his strut through the political world will end, and probably badly. Like Marley with his clanging chains, Donald Trump has spent a lifetime weaving his own strong rope. He'll always have more than enough to hang himself.
ABOUT THE AUTHOR
Aegis Frumento is a partner of Stern Tannenbaum & Bell, and co-heads the firm's Financial Markets Practice. Mr. Frumento represents persons and businesses in all aspects of commercial, corporate and securities matters and dispute resolution (including trials and arbitrations); SEC and FINRA regulated firms and persons on regulatory compliance issues and in SEC and FINRA enforcement investigations and proceedings; and senior executives of public corporations personal securities law and corporate governance matters. Mr. Frumento also represents clients in forming and registering broker-dealers and registered investment advisers, in developing compliance policies, procedures and controls, and in adopting proper disclosure documents. Those now include industry professionals looking to adapt blockchain technologies to finance and financial market enterprises.
Prior to joining the firm, Mr. Frumento was a managing director of Citigroup and Morgan Stanley, a partner and the head of the financial markets group of Duane Morris LLP, and the managing partner of Singer Frumento LLP.
He graduated from Harvard College in 1976 and New York University School of Law in 1979. Mr. Frumento is a frequent author and speaker on securities law issues, and is often quoted in the media on current securities law developments.
NOTE: The views expressed in this Guest Blog are those of the author and do not necessarily reflect those of BrokeAndBroker.com Blog.