Author: TSA Press

After a “will he or won’t he” game worthy of the laziest Hollywood rom-com, former UN Ambassador and National Security Advisor John Bolton has informed the public that “I have concluded that, if the Senate issues a subpoena for my testimony, I am prepared to testify.” It’s a concession that means… well, probably nothing.

Bolton had danced around his obligation to honor any hypothetical congressional subpoena to testify in the ongoing impeachment investigations (not that defying with congressional subpoenas bears much practical consequence these days). His attorney Chuck Cooper argued in the past that court opinions waving off former White House Counsel Don McGahn’s flimsy arguments didn’t apply to Bolton because his role as a national security figure placed him in a separate bucket than a run-of-the-mill lawyer. The argument that Bolton’s national security conversations deserve separate treatment goes that if executive privilege — the idea that president’s should be able to bounce insane and potentially politically damaging ideas off their advisors all the time without the brainstorming process becoming public — means anything, it definitely means that national security strategizing should be kept under wraps until the administration reaches a final decision. It’s the kind of “protect how the sausage is made” privilege that meant something when presidents might say, “let’s go commit war crimes” in the privacy of the Oval Office before being talked into a new round of mediated negotiations by diplomatic professionals, but probably means less when the exact opposite happens.

Today, Bolton decided to give up that argument, even though the courts never opined on the specific contours of his claim because Dr. Charles Kupperman, who unlike Bolton was actually subpoenaed and advanced this argument, had his case dismissed as moot when the Dems dropped the subpoena rather than let Judge Leon potentially rule against them. Nonetheless, Bolton’s willing to testify now even though he conveniently withheld this decision until after the House passed its articles of impeachment. His new statement even cabins this concession to the existence of a Senate trial.

the House has concluded its Constitutional responsibility by adopting Articles of Impeachment related to the Ukraine matter. It now falls to the Senate to fulfill its Constitutional obligation to try impeachments, and it does not appear possible that a final judicial resolution of the still-unanswered Constitutional questions can be obtained before the Senate acts.

In other words, Bolton isn’t prepared to help the House uncover more potential wrongdoing — and the House could absolutely draft more articles of impeachment making this a critical distinction — but will spill his guts to the Senate if Mitch McConnell is willing to hold a trial that allows witnesses to testify… which he has no inclination to allow. Bolton’s just fluffing his reputation knowing that he has a remarkably slim chance of being called upon explain what he meant when he called the administration’s Ukraine policy a “drug deal.”

Bolton, who like most war hawks dodged the draft in Vietnam, is all about the cut and run. Today’s announcement is just another in a long line of occasions in his adult life where he talked big armed with the knowledge that he almost certainly wouldn’t have to take responsibility for his decisions.

If the House Intelligence Committee is looking for free advice, they should probably subpoena Bolton today. Trying to square his statement today with a subpoena from the House would put him in an Iraq-level quagmire. His failure to consider the possibility that the House could draft additional articles of impeachment seems to undermine his effort to limit this concession to a Senate subpoena. His efforts to distinguish the two would provide a laugh at the very least.

But it’s a great story to tell. About the day his name appeared above the fold right next to a headline announcing an imminent war with Iran! Everything’s really coming up Bolton.

Earlier: Michael Flynn And The Lessons Of Oliver North
State Department Names New Top Lawyer Now That Trump’s Already Threatened War Crimes
McGahn Ruling Gives Bolton Cover, Exposes Bolton’s Cowardice

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

When Crypto Asset Management and its founder, Timothy Enneking, were censured and fined by the SEC in 2018, he acknowledged that he was not a securities lawyer. But do you know who were? The securities lawyers at Faegre Baker Daniels Enneking and CAM hired to be their securities lawyers. Given how things turned out—CAM’s Crypto Asset Fund got shut down by the SEC and the company and Enneking hit with a $200,000 fine—it’s safe to say they didn’t go a great job. How not great a job will now be up to a court to decide.

The proposed amendments approved by Cabinet relating to the appointments of Vice Presidents, the Prosecutor General, Public Protector, promotion of judges and the terms of office of judges. The proposed amendments include the rejected Constitution Amendment Bill No.1 of 2016. Any amendments to the Constitution must seek to further entrench democracy and deepen the enjoyment of rights by citizens.

We remind political parties and Cabinet that the 2013 Constitution of Zimbabwe was bred out of popular and concerted advocacy by citizens and civil society and through its adoption in 2013 is an expression of the will of citizens. In our view, the proposed amendments seek to entrench the interests of individuals and dent the independence of an already captured judiciary.

As an umbrella body of civic society organizations in Zimbabwe advocating for democratic development, we reiterate that the preservation and full implementation of the Constitution is a duty of every citizen regardless of political preferences and that the Constitution, if fully implemented and adhered to, is a lasting solution to Zimbabwe’s problems.

We further reiterate that as calls for dialogue increase such dialogue must be anchored on preserving and strengthening Zimbabwe’s constitutional order guided by an agreed all stakeholders roadmap to the resolution of the Zimbabwe crisis.

In this regard, we hold the firm view that while citizens and stakeholders are allowed to develop and proffer transitional alternatives to the national crisis, such alternatives must never be anchored on mutilating the Constitution by suspending key democratic processes that allow citizens to choose leaders of their choice timeously. Attempting to address the national crisis by suspending the Constitution is counter to the very foundations of our nation.

In the same vein, restricting the dialogue process to political parties will only create a political pact that excludes the concerns of ordinary citizens. This therefore underlines the importance of a process accepted by all stakeholders and guarantor at the SADC, African Union or United Nations level.

We reiterate that efforts at arresting the multifaceted crisis facing the country must be hinged on a competitive national dialogue process which is seated on broad citizenry issues and key reforms agreed by stakeholders with clearly set timelines and a monitoring framework. We also raise our concerns over a national dialogue process that is facilitated by the National Peace and Reconciliation Commission on the basis of the following:

1. NPRC Commissioners are appointees of the President and save at his mercy who in this case is a conflicted party
2. The commission has, despite repeated calls and need, failed to rollout tangible national reconciliation initiatives
3. The issues at stake require an accepted and un-conflicted party to play the mediator role and a continental or international guarantor

We further reiterate the importance of creating a conducive environment that will allow stakeholders to freely share ideas on transitional alternatives and as part of confidence and trust building in the national dialogue, the Zimbabwe must immediately meet the following conditions:

1. End torture, abductions and enforced disappearances, murder, rape and maiming civilians by the military, state security agents and ruling party vigilante groups
2. Decriminalize the work of civic society and end the continued persecution and arbitrary arrests of civic society leaders
3. Ensure that peace and human security to prevail to allow for all stakeholders to freely express their views on the national dialogue process
4. The attempts to weaken democratic processes by amending the Constitution must immediately be hauled.
5. Promote fair media coverage for all stakeholders and allow divergent views to be shared on all media platforms. Tolerance to divergence is the hallmark of enriching the national dialogue process

We reiterate that efforts at arresting the multi faceted crisis facing the country are hinged on a proper national dialogue process that seeks to put the concerns of ordinary citizens on board and preserve Zimbabwe’s Constitution.

Addressing the Zimbabwean crisis implies addressing the concerns of the ordinary citizens who have had to bear the brutal effects of an economic meltdown stemming from a constitutional and legitimacy crisis.

Public office bearers must honour their obligations in upholding, protecting and defending the Constitution.

On our part as Crisis in Zimbabwe Coalition, we have set our minimum demands for the national dialogue process based on the defense and observation of the Constitution.

Our demands are highlighted below:

On the process:

1)    It is our conviction that the national dialogue process must involve all stakeholders and a national visioning process that has civil society, government, political parties, business, religious groups and labour unions among other critical stakeholders. The dialogue process should produce a clearly timed roadmap to the demilitarisation of civilian political processes and the restoration of normalcy by focusing on key political, economic and social reforms. In this regard, we call for FULL CONSULTATION of all stakeholders rather than cosmetic processes.

On the Economy:

2)    It is imperative to arrest the economic downturn in Zimbabwe based on a clear reform roadmap and implementation of pro-poor and inclusive economic policies. Efforts at economic transformation, stabilisation and growth should be aimed at achieving inclusive sustainable economic growth and development.

On Constitutionalism, Rule of Law, Human Rights and Human Security:

3)    The Government of Zimbabwe must uphold and guarantee citizens’ rights as enshrined in the Zimbabwean Constitution and other regional and international human rights treaties and statutes. Full implementation of the country’s constitution is equally important in promoting democracy in Zimbabwe.

4)    The Government of Zimbabwe must respect the fundamental right of access to information, freedom of expression as well as freedom of association.

5)    There is need to immediately operationalise a comprehensive programme on national healing, reconciliation and nation building that will depolarise society and entrench the respect for diversity, inclusion and tolerance in all facets of life.

6)    The army must desist from partisan politics and confine themselves to the barracks. There is an imperative need to de-militarise the Zimbabwean state.

7)    There is need for non-interference into the work of institutions that support democracy. This again calls for full implementation and respect of the country’s constitution. Also, government must not be seen to be criminalising the work of civic society organisations.

8)    CiZC holds the firm view that implementation of electoral reforms is critical as a way of doing away with disputed elections that often result in a legitimacy crisis which comes with negative impacts on democracy and economic development

Post published in: Featured

Firms, especially big, global Am Law firms, try to think about how to be recession- and downturn-proof with more balanced practices.

—David Walden, managing director of legal recruiter E.P. Dine, tells Law.com what he believes Biglaw’s strategic vision will be for the coming year. He says corporate restructuring, bankruptcy, finance, some litigation and intellectual property will be the hot practice areas in 2020. He said, “These all tend to be, as far as practice areas, in even higher demand now than they have been in the last 10 years due to expansive economies.” He also pointed to health care, data privacy and insurance spaces as areas with room for growth. Walden also noted that the practice areas likely to see a slow down are transactional and M&A.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Nothing like showing up the first day of work to find the whole office is already on fire.

The Trump administration just nominated former Williams & Connelly partner C.J. Mahoney to head up the State Department legal team — a post that’s sat vacant since Jennifer Newstead bailed last year to become the general counsel of Facebook, allowing her to continue shilling for Russian intelligence but with a much better paycheck.

It’s a post that probably could have used someone over the past several months. For that matter, it’s a post that could have sorely used someone over the past several DAYS, perhaps before the administration threatened to commit war crimes:

To paraphrase Calgacus, “America bombs a desert and calls it the next administration’s problem.” In his new role, Mahoney would have been the lawyer who would have quickly and forcefully pointed out the problems with the administration’s stance in a terse memo that would be just as quickly and forcefully ignored. An exciting job indeed.

The former Kozinski and Kennedy clerk would also step into a department that’s knee-deep in extorting Ukraine at the expense of national security and serving, for some unknown reason, as the chief advocate for the Soleimani strike as opposed to, say, the Defense Department. The latter issue may point to some internal cabinet power struggles that could present some legal complications. It’s not a position that many would envy.

But for Mahoney, who has served as Deputy United States Trade Representative since March of last year, no job can possibly be worse than trying to slap lipstick on the administration’s trade policy.

Truly, what are a few war crimes among friends?

Trump Picks Ex-Williams & Connolly Partner for Top State Dept. Legal Post [Law.com]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

I did okay with my predictions for 2019:  At least some people say that private equity M&A had a busier year than public company M&A; women made some (limited) progress moving up in the law; and litigation finance continues to thrive.

But I’m not one to rest on my self-satisfied laurels:  What about 2020?

I’m starting with M&A again:  I predict that private equity M&A work will fall off a little bit in 2020, and public company M&A will come to the fore.

Why?

Funny you should ask.

Private equity firms must buy companies for a reasonable price; somehow make those companies more profitable; and then dispose of the companies quickly, to give investors a return on their money within a promised time.  That necessarily means that PE firms must flip companies quickly. 

But it’s hard to buy a company for a reasonable price today.  There’s a lot of competition among buyers.  There’s a lot of dry powder on the sidelines.  Multiples have expanded, and prices are high.  It’s tough to find a company to buy at a bargain-basement price and then quickly flip for a profit.

Public companies, in contrast, can afford to be long-term buyers.  Many public companies are strategic, rather than financial, buyers, looking to acquire targets for a business purpose beyond merely flipping the company.  Those public companies want to own the target for the long haul.  Even public companies that want to flip all (or part) of a target have more flexibility than private equity firms:  Public companies generally haven’t solicited money from investors with the promise of a return within a specified time.  Public companies can thus afford to buy and hold.

When target companies can only be purchased for relatively high prices, I expect private equity M&A to slow, while public company M&A continues.  That’s prediction one.

Prediction two:  We’ll see a brokered Democratic convention in 2020.

Yeah, yeah:  Every four years we hear that this will be the year.  It’s always a lie.  There hasn’t been a brokered convention since 1952.  The primary system basically guarantees that the nominee will be picked before the convention.  This won’t be the year.

I beg to differ.

The fact that there are many contenders in the Democratic race is not what I’m thinking about.  There were an awful lot of Republican contenders in 2016, and the convention wasn’t brokered.  Heck, there are always a lot of contenders — remember Fred Harris, Mo Udall, Sargent Shriver, and the rest of the Democrats in 1976? — and there’s still never a brokered convention.  We just quickly forget about the people who ran and lost.

But 2020 is the first time we’re seeing a candidate who isn’t really competing in the early states of Iowa, New Hampshire, South Carolina, and Nevada.  Michael Bloomberg seems to be passing on those contests and counting on making a splash on Super Tuesday.  I predict that Bloomberg’s tactic will upset the race.

Bloomberg will both effectively enter the contest late and change the thinking of folks who are competing in the early states.  With everyone aware that Super Tuesday could upset the apple cart, an unusual number of candidates may stay in the race until then, and beyond.

I suspect we’ll still have a fair number of Democratic candidates — billionaires Bloomberg and Steyer, who can afford to stay in the race forever, and perhaps three or four of the other candidates — still actively competing for the nomination in late March.  That makes this race different from the others. 

We’ll have a brokered convention.  This’ll be the year!

Finally, prediction three:  We’ll see a robust American economy in 2020.

I’m afraid this has become the conventional wisdom among economists, which makes this a boring prediction, but I’m making my prophecy for a (slightly) unconventional reason.  President Trump has some ability to influence the economy, by agreeing to trade deals, permitting federal payments to be made, and the like.  Since this is an election year, Trump has every interest in goosing the economy, and there’s no one in Congress to hold him back:  The Democrats tend to be free-spending, and Republican budget hawks have disappeared.  With reason to spend, and no reason for restraint, I’m predicting the economy does well, at least until the first Tuesday after the first Monday in November.

On the first Wednesday after a Monday in November, all bets are off.

This bull market’s getting awfully long in the tooth, and I predicted some years ago that it had to end eventually.  (Will I go out on a limb for you, or what?)  But I said it would continue through 2017, and I’m now extending that prediction through November 2020.

Those are my predictions for 2020.  And here’s my hope:  That you’ll have a happy and healthy new year!

Much has been made of the composition of the Federal Open Market Committee. Much parsing will be done of last month’s minutes to glean insights on future rate moves, and much will be made of the four new members of the panel who rotated on this year.

This appears to make sense: The members of said committee set interest rates, and with it the president’s mood, and since there are 11 members of it at any time—nine at the moment given President Trump’s inability to find anyone even remotely qualified by even the Republican Senate’s low, low standards to fill the other two seats—small changes in its composition would seem enough to tip the balance. This, apparently, is wrong, excited as we are for Neel Kashkari to be relevant again.

Which attorney dominated the 2019 news?

It’s time to solicit nominations for Above the Law’s annual LAWYER OF THE YEAR competition and we’ll conduct the competition as we’ve always done. Please submit your nominees to us by email (subject line “Lawyer of the Year 2019”). We will review them and pick a slate of finalists, and then you’ll vote on them in a reader poll.

The winner will past LOTY honorees that run the gamut from Chief Justice John Roberts (2012) to President Barack Obama (2008) to Bryan Wilson, “The Texas Law Hawk” (2015). Last year’s honoree, Michael Avenatti, was absolutely everywhere in 2018 from taking on presidents to trying to become one. And while he had a rougher 2019, there’s a decent argument that he was the most newsworthy attorney yet again.

What does it take to be nominated? As we’ve explained before:

What are the criteria for being our Lawyer of the Year? Since you’re doing the nominating and voting, it’s really up to you.

You can nominate a LOTY based on whatever reasoning you choose — e.g., because the lawyer in question is influential, infamous, awesome, or awful.

A few notes — we’ve laid out before: “As reflected in the past victory of Loyola 2L (2007), not all nominees need to be famous — or even named. As reflected in the past victory of Kyle McEntee and Patrick Lynch (2010), the co-founders of Law School Transparency, you can nominate multiple people if their achievements are closely related.”

The only real rules — and even these are loose — are:

• Please try to nominate actual lawyers (or, obviously, law students).
• Please try to nominate lawyers who are still living.
• Please submit all nominations via email, with this exact subject line: “Lawyer of the Year 2019.”

Let the nominations begin! Please submit your nominations by TUESDAY, JANUARY 14, at 11:59 p.m. (Eastern time). We’ll consider your thoughts and insights on the potential candidates and put out a ballot shortly thereafter to determine who will vie for the title of Above the Law’s Lawyer of the Year for 2019.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

A merger between two genetic sequencing companies has been called off in the wake of a challenge by federal regulators.

San Diego-based Illumina and Menlo Park, California-based Pacific Biosciences of California said Thursday afternoon that they were terminating a deal whereby Illumina would buy PacBio for $1.2 billion, originally announced in November 2018.

Shares of PacBio were up 2% on the Nasdaq shortly after markets opened Friday. Illumina’s shares were down about 1% on the Nasdaq.

“We believe this proposed combination would have broadened access to Pacific Biosciences sequencing technology, significant expanded and accelerated innovation and ultimately increased the clinical utility and impact of sequencing,” Illumina CEO Francis deSouza said in a statement.

The Federal Trade Commission last month took action to block the deal, with five members voting unanimously to authorize a restraining order and preliminary injunction against it. The agency alleged that Illumina was seeking to maintain a monopoly on next-generation sequencing systems and extinguish PacBio as a competitor.

“This deal threatened to let a monopolist extinguish nascent competition in a growing healthcare market: next-generation DNA sequencing,” said Gail Levine, deputy director of the FTC’s Bureau of Competition, in a statement following the companies’ Thursday announcement. “Customers across the United States and the world will now continue to benefit from the independent innovative efforts of these companies to develop faster, better and less expensive next-generation sequencing technologies.”

NGS is a rapidly growing area of diagnostics, particularly in cancers, as it enables clinicians to identify biomarkers amenable to targeted therapies. That, in turn, has enabled the development of “tumor-agnostic” drugs designed to treat tumors based on expression of genetic anomalies rather than which tissue of the body they affect.

Technically, Illumina and PacBio are involved in different areas of NGS, respectively known as short-read and long-read sequencing. Long-read NGS enables the retrieval of sequences that can be thousands of base pairs longer than those retrieved through short-read NGS. Still, while acknowledging the differences between the two companies’ technologies, the FTC still regarded the deal as anti-competitive.

Photo: Streeter Lecka, Getty Images