Trump and the Death of Democracy

I have focused on the sexism, racism, homophobia, and xenophobia that is deeply and expressly embedded in Trump’s rhetoric, and the bias he tuned into, in many supporters, to become elected. This morning I have read the wise words of Michael Lerner, a rabbi, who I’ll paraphrase this way: The Trump supporters really are disgusted, fed up, angry. . . they keyed into THAT part of Trump’s message, rather than where he pointed the finger. They are fueled by the pain of believing we live in a meritocracy. (see <a href="http://“>THIS ARTICLE in the NY Times)

Trump supporters who belive in meritocracy mythology believe if one works hard and is smart, one is rewarded accordingly, if only the government would stop getting in the way of that ideal. So, they play by the (extensive) rules– they always did–and they have seen, in response, their income is less, their debt is high, and politicians have sold them out. They are losing bigly in this country. Trump may be sexist, racist, homophobic, and xenophobic, but at least he seemed to understand WHY that message of hate was halfway palatable to some of them. What fueled the howling anger at the liberal elitist DC politics as usual was not hatred of the Other. It was a dream of a fair shot denied, and if the “Other” (the vulnerable and weak) were taking the brunt of the blame, that was unfair. But at least someone was pissed alongside them.

My solidarity with my shaken friends prompts my own fury in the days after the election. But I understand already that my tormented rage does not do me, personally, any favors. I have alienated my friends, family, and co-workers. I am risking my reputation for respectful debate. Yet I am being as moral as I can.

To that end, and by means I can live with, today I begin a journey of understanding democracy better.

The rhetoric Trump used that runs counter to democratic values.

On the First Amendment right to free press: Twitter statement to The Wall Street Journal: ‘They better be careful or I will unleash big time on them’

On the First Amendment right to freedom of religion:
Trump told Fox News that the U.S. government should close mosques where “some bad things are happening.” He said, “Nobody wants to say this and nobody wants to shut down religious institutions or anything, but you know, you understand it. A lot of people understand it. We’re going to have no choice. Some really bad things are happening.”

On the Fourth Amendment right to freedom from unreasonable search and seizure and the Fourteenth Amendment due process guarantee (against, for example, racial profiling by police)
“Our local police — they know who a lot of these people are. They are afraid to do anything about it because they don’t want to be accused of profiling,” Trump said on Fox News on Monday. Trump pointed to how Israel used profiling and “done an unbelievable job.”

On the Free Exercise and Establishment Clauses of the First Amendment, and the Fourteenth Amendment’s Equal Protection Clause, which forbids states from treating individuals differently based on unalterable characteristics, such as race, nationality, and gender. The Supreme Court has imposed the same obligation on the federal government through the Fifth Amendment:
Trump promises ‘A total and complete shutdown of Muslims entering the United States’ .

On the Eighth Amendment prohibition against cruel and unusual punishment and The Geneva Convention global illegality of torture:
“We’re fighting a very politically correct war,” he said “and the other thing is with the terrorists: You have to take out their families.”).

‘I’d bring back a hell of a lot worse than waterboarding’

On free elections (accepting election result) “I would like to promise and pledge to all of my voters and supporters and to all of the people of the United States that I will totally accept the results of this great and historic presidential election,” Trump said, adding, “If I win.”

Trump’s rhetoric runs counter to democracy because it showcases a total disregard for the Constitution…not merely those parts of it rendered possible through a “living document” judicial activism ideology, but even those parts of the Bill of Rights that Originalists also claim as literal to the document. The democratic ideals enshrined there are at stake in the next four years. Trump’s ascendancy was like finding out your country has a terrible illness. It is a time to learn, to study the underpinnings of democracy, and to use everything learned in the fight against the death of democracy.

1. FN1

2. FN2

4. FN4


6. FN6
7. FN7

8. FN8

Immigration Law: How does one attorney convince another attorney to say, “No, I never advised my client of the deportation consequences of his plea agreement?”

Is it possible to enlist the support of a criminal defense attorney ostensibly against her own interests, convincing her to sign an affidavit which states that she did not tell her former client of the deportation consequences of the plea agreement the client signed? The attorney’s first words, should you ever reach her, may be: “I do not want to be faced with a criminal malpractice suit.”

For cases prior to 2010, it wasn’t necessarily malpractice for an attorney to fail to mention the consequence of deportation. Rather, it was worth granting her former client a new trial.1 Even in cases after 2010, criminal malpractice is very difficult to prove.

Padilla v. Kentucky

“On March 31, 2010, the United States Supreme Court ruled in Padilla v. Kentucky that an attorney’s representation of a defendant is ineffective when the attorney, counseling a non-citizen defendant on whether to plead guilty to a crime for which deportation is mandatory, fails to advise the defendant that his guilty plea will result in the defendant’s deportation.”2

That rule was a change in the 6th Amendment right to counsel line of reasoning: “Prior to Padilla, it was well established that an attorney’s failure to inform a noncitizen that a conviction could result in deportation or removal was insufficient grounds for a claim of ineffective counsel. . . .”3

People v Ford

In New York, before Padilla’s central holding in 2010, the defense bar could rely on People v. Ford.4 There, the New York Court of Appeals explained that failure to warn a client of the possibility of deportation was not ineffective assistance of counsel:

Deportation is a collateral consequence of conviction because it is a result peculiar to the individual’s personal circumstances and one not within the control of the court system. Therefore, our Appellate Division and the Federal courts have consistently held that the trial court need not, before accepting a plea of guilty, advise a defendant of the possibility of deportation (see, People v. Boodhoo, 191 A.D.2d 448, 593 N.Y.S.2d 882; People v. Williams, 189 A.D.2d 910, 592 N.Y.S.2d 471, lv. denied 81 N.Y.2d 978, 598 N.Y.S.2d 780, 615 N.E.2d 237; Fruchtman v. Kenton, supra; Cuthrell v. Director, Patuxent Inst., supra; United States v. Parrino, 212 F.2d 919, 921 (2d Cir.1954), cert. denied 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663). We adopt that rule and conclude that in this case the court properly allocuted defendant before taking his plea of guilty to manslaughter in the second degree. . . . Nor did the failure of counsel to warn defendant of the possibility of deportation constitute ineffective assistance of counsel.5

The New Rule

In 2010, the Supreme Court changed the rules. “[In Padilla v. Kentucky, the] Court’s holding was the first time the Sixth Amendment right to counsel was extended to a consequence of conviction beyond the court-imposed punishment.”6 Now, the right to counsel includes advising a client of the deportation consequences of his plea, at least where the consequence is clear.7

Pre-Padilla Applied Retroactively

Unfortunately, many cases do not fit along a linear timeline. The issue may sit not pre-Padilla nor post-Padilla, but “pre-Padilla applied retroactively.” Countless 440 motions seek to apply the Padilla ineffective assistance of counsel rule retroactively.8 If on the one hand you want to say “it was ineffective assistance of counsel even then (when Ford controlled)” aren’t you obligated to also say, “Thus, it was malpractice even then”? The short answer is “Almost never.”

Not only was People v Ford controlling, but the malpractice standard is set very high in New York, such that even after Padilla, malpractice will not necessarily lie unless the defendant granted a new trial actually has one based on the elements of the original crime, and then is found not guilty. For a discussion see

The article, by the New York State Bar Association, explores the issue of malpractice AFTER Padilla v. Kentucky.9
It seems it would be even more unlikely for an attorney to commit criminal malpractice BEFORE Padilla was decided. For, there would be two onerous burden on defendants turned plaintiffs: providng actual innocence, and also showing that it was the norm in that community to advise clinets of deportation consequences. So what is the harm in helping former clients by swearing that the attorney did not provide such information?

Getting an Affidavit

It would seem necessary to get such an affidavit stating that the former attorney did not advise –or does not recall advising– her past client on the deportation consequences of his plea agreement. Otherwise, the client makes merely a bald assertion that no one advised him of the fact he could and would be banished from the U.S. if he agreed to plea to a reduced charge. The ‘reduced charge’ might have included an element of a Crime Involving Moral Turpitude, an offense for which deportation is applied. The client needs to ground his assertion that no one told him about deportation in more than just his own affirmation, and who better to support it than the attorney who was advising him?

The former attorney may want to help with the 440 motion. She may not have been versed in immigration law, a complex field with no easy manual (crimes involving moral turpitude, for example, must be gleaned by poring through cases that happen to name the offense a CIMT—there isn’t a comprehensive, consistent list.) She may be fervently in support of due process, and want her former client to win his 440 Motion for a trial. But, she fears she may be sued for malpractice. So she doesn’t return calls, and she certainly doesn’t write an affidavit. Her fears are not unfounded. Still, she could be reminded, when you do get in touch with her, about the standards for malpractice in NY.

Application of the But/For Test

The “but/for” causal element in the tort of malpractice is set strictly in New York. A defendant must show actual innocence in New York to satisfy the “but/for” causal element of malpractice to prove his innocence.10

Thus, her former client cannot show actual innocence if the case is dismissed. He cannot show actual innocence with a new plea agreement (which is presumably lowered by the District Attorney to a level or including elements in which deportation is no longer a consequence) for which he pleads guilty. Her former client cannot show actual innocence if his attorney negotiates a dismissal based on statutory elements such as the Statute of Limitations. He only can claim actual innocence if he gets a new trial and succeeds in getting a Not Guilty verdict.

Finally, the former attorney may also be informed that if she did not advise the client of the immigration consequences to his plea, and she does not write an affidavit saying so, an evidentiary hearing will be her ex-client’s next step, where she will have to testify under oath in any case. Some attorneys may prefer such a scenario.


It is a good idea to try and get the affidavit which says the former attorney did not advise her client of the deportation consequences of his plea, so that the client is supported by more evidence than just his say-so. It is important that defense attorneys be engaged in the work of crafting a remedy for the countless clients who agreed to badly drafted plea agreements. Educating those attorneys about the low risk involved makes that more possible.

1. Whether a defendant whose plea allocution took place prior to 2010 and who now wants a new trial based on ineffective assistance of counsel pursuant to Padilla v. Kentucky remains to be seen. U.S., 130 S.Ct. 1473 (2010). Padilla holds that failure to advise a client of the deportation consequences of his plea is ineffective assistance of counsel. The retroactivity of that issue will be decided soon by the Supreme Court, which heard arguments on the question in November, 2012 in Chaidez v U.S. See See also Retrieved January 9, 2013.
2. People v. Garcia, 32 Misc. 3d 1232(A), 936 N.Y.S.2d 60 (Sup. Ct. 2011)
3. Michael Vomacka, Supreme Court Decision in Padilla v. Kentucky States Affirmative Duty to Inform Client of Risk Guilty Plea May Result in Removal, 25 Geo. Immigr. L.J. 233, 234 (2010)
(Internal citations omitted.)
4. People v. Ford, 86 N.Y.2d 397, 403-04, 657 N.E.2d 265, 268 (1995)
5. Id.
6. Id. (Internal citations omitted.)
7. See Padilla v. Kentucky, where the Court explained that the “terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla’s conviction….” 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284 (2010).
8. See FN 1, infra.
9. Padilla v. Kentucky, U.S., 130 S.Ct. 1473 (2010) and see
10. A list of cases which required that actual innocence must be alleged and proven were compiled for the Fordham Law Review article Criminal Malpractice: Privilege of the Innocent Plaintiff, by Susan Treyz, FN 57: See, eg., Carmel v. Lunney, 70 N.Y.2d 169, 173, 511 N.E.2d 1126, 1128, 518 N.Y.S.2d 605, 607 (1987) (“plaintiff must allege his innocence or a colorable claim of innocence”); Winkler v. Messinger, Alperin & HufJay, 147 A.D.2d 693, 693, 538 N.Y.S.2d 299, 300 (2d Dep’t 1989) (malpractice claim did not set forth viable cause of action because it did not allege plaintiff’s innocence of criminal charges); B.K. Industries, Inc. v. Pinks, 143 A.D.2d 963, 964-65, 533 N.Y.S.2d 595, 596-97 (2d Dep’t 1988) (client seeking malpractice damages for negligent misrepresentation in criminal case had burden to prove his innocence); Claudio v. Heller, 119 Misc. 2d 432, 433-35, 463 N.Y.S.2d 155, 156-57 (Sup. Ct. 1983) (no viable malpractice claim because plaintiff guilty in prior action could not allege causation in subsequent malpractice suit). Article Retrieved January 10, 2013 at