As the Swamp Turns
Dov Fischer
by

It never ends, does it? The daily cable-news soap opera installment. A new crisis every day. Sex. Money. Secret tapes. A stripper whose upper torso gives new meaning to the term Silicon Valley. And then her media-frenzied lawyer steeped in his own fun-to-watch divorce. Bring out the popcorn. Pull out some Raisinets. Refill the Coke and Pepsi. Sneak in a few plastic straws. Another day’s episode of “As the Swamp Turns.”

Children separated from their parents. Parents sent back with their children — and then telling the authorities: “Naah, we’ll go back, but leave the kids separated here.” Kids who do not even belong to the parents. Russians— even red-headed Reds. Secret courts. Spies. Married paramours exchanging mysterious messages: “Andy.” “Secret plans.” An “Insurance Policy.” Smells at a Virginia Walmart. Secret tape recordings.

The only thing missing is the “other woman” with the unwanted and hidden pregnancy, suddenly revealed — and the drama of whose baby it is.

Enter Bill Clinton!

It now is clear that “As the Swamp Turns,” the daily cable-news soap opera/circus, definitely will not end before November. We will get our full two seasons of programming with an option for the Democrat-Media-Entertainment-Academia Complex to extend for two more. Cable news is about ratings, not news. When the important news is flat, CNN shifts into Malaysian Airlines Flight 370. Bermuda Triangle? Black hole? Thus, Stormy Daniels is a natural for them — and, yummy for ratings, now she is getting divorced, too. And the latest — the nonsense over the Michael Cohen secret recordings of his client, then-business-magnate-and-builder Donald J. Trump.

How long will this nonsense continue? It now is clear that it will continue at least through the November elections. If the endless stream of garbage actually helps CNN and MSNBC, in tandem with the Washington Post and the New York Times, to flip the United States House of Representatives to the Democrats, then assuredly this will go on for another two years in a bid to flip the White House, too, in 2020. By contrast, if the GOP holds the House and builds on its Senate majority, proving that the two years of soap opera either backfired or just left the American voter disgusted and tuned-out, then the Democrat-Liberal-Media-Entertainment-Academia Complex will retreat, regroup, and reconsider whether the 24-month drumbeat of Resistance Madness requires an alternative tactic. But for now, we are smack-in-the-middle of the second season of “As the Swamp Turns.” The reruns still have not begun — and Roseanne Barr is available for a cameo, ideally alongside Whoopi Goldberg (whose real name, by the way, is Caryn Elaine Johnson; she is as much a “Goldberg” as I am a “Caryn Johnson”).

The latest episode in our cheesy saga sees attorney Michael Cohen’s lawyer, seasoned Clinton hack Lanny Davis, releasing to CNN a recording of Donald Trump clandestinely taped by Davis’s client, Attorney Cohen. Got that? In the recording, Trump clearly can be heard saying: “Rdghaj dkjdb cash odfvj check alsmlmk lxn zlxk —”

And then, as in all good soap operas, the tape suddenly and mysteriously terminates. Rose Mary Woods? A murder? Sonny at the toll booth? An Energizer Bunny or Duracell AA battery run out of juice? We will never know. That’s what makes it so… fun! But the words now will reverberate in our minds and in American history, alongside other great memes embedded in our national consciousness: “Don’t fire until you see the whites of their eyes” and “We have nothing to fear but fear itself” and “That’s one small step for man, one giant leap for mankind.”

We now can add: “Rdghaj dkjdb cash odfvj check alsmlmk lxn zlxk —”

So let’s get real.

People occasionally ask me: “You are an Orthodox rabbi and an attorney? Those fields are so different! How did you get into such different fields?” And I answer that Orthodox rabbis, unlike clergy of other faiths, actually are practitioners not only of pastoral care and spiritual succor but also of law — lots and lots of law. We study years of Talmudic law and the laws of Judaic Codes — the Shulchan Arukh, Maimonides’s Mishneh Torah, centuries of Rabbinic Responsa applying those laws to contemporary issues — and they spell out the kosher-food requirements (covering everything from rules for de-veining slaughtered animals to avoiding forbidden mixtures of dairy and meat foods), the Sabbath laws (revolving around 39 forms of primary forbidden labor and creative activity), and much else. When I went to law school, it felt like Orthodox rabbinic seminary all over again — only in English instead of Aramaic, for three years instead of five (and with user-friendly tools for researching).

Here is what happens in both these fields: people, good and sincere people (well, mostly good, honest people — and some people on Santa’s other list) come to the rabbi or to the attorney and seek guidance as to whether a particular action is permitted.

Example 1: “Rabbi, I know I am not allowed to eat or even to drink water for the 25 hours of Tisha B’Av in the summer (or Yom Kippur in autumn), but my doctor has diagnosed me with the following health condition that apparently necessitates my drinking (or eating). Therefore, may I eat/drink on the holy day even though it would seem forbidden? And if I may, are there any parameters that limit how I do so?”

Example 2: “Counselor, I know I am not allowed to interfere tortiously with a prospective contract, but would I be allowed to steal away that business from my competitor by presenting to the buyer how I can offer a better product at a cheaper price? And if I may, are there any parameters that limit how I do so?”

Example 3: “Attorney, I know I am not allowed to have an affair with a Playboy model while I am married to a woman who is even more beautiful, more loving, more supportive, and smarter. But here’s the thing.… So, now, given what I have on my plate, is it OK to pay her? Is it OK for another guy to pay her, to buy her story?”

The thing about these conversations is that they all have the common denominator that a person, seeking permission legally to expand the perimeters of the permitted, is coming to the rabbi or attorney in good faith not to commit a wrong but to explore with a professional who is learned in exactly these matters as to whether something is permitted. “I am thinking of doing the following thing. Is it allowed? Because if not, I am not going to do it.” So what is wrong or untoward with engaging in such a conversation? That is a good thing. That is why attorneys are called “counselors” — not because they take kids to the swimming pool in day camp, but because they counsel.

There is a world of difference between a murderer coming to his all-star legal Dream Team and trying to figure out — now that he has murdered, say, his ex-wife — how to avoid getting convicted or, if convicted, sentenced — versus a person who has committed no wrongdoing whatsoever coming for professional guidance to remain squarely above and within the ambit of the law.

To encourage people to seek sound legal advice — to come right out and spell out what they are wrestling with so that their attorney can grasp the full dimensions of the legal quandary that requires sage guidance — our society has secured and assured certain rock-solid confidentiality privileges. The “clergy-penitent privilege, for example,” is pretty strong but not rock-solid, and it encourages people to confess to their priests and to unburden their souls to their pastors, priests, rabbis. The “marital privilege” assures that spouses safely can be open with each other during their marriage, secure that their communications are protected even if their love one day devolves into bitter divorce proceedings. The “therapist privilege” is similar to the clergy-penitent privilege, as is the medical information privilege. And the most sacred and secured privilege of all is the vaunted attorney-client privilege. That privilege achieves many goals. Among them, it fosters an openness that an attorney needs from her client in order to provide the best guidance and prepare the best representation and, if necessary, best defense. It also assures that everyone gets equal access to justice by feeling safe to meet with an attorney and not fearing whether one’s disclosures will get him into more trouble. It empowers people to ask the questions they must regarding questionable deeds they are contemplating so that an attorney they trust can advise them (i) what they must not do because that would be illegal, and (ii) how to achieve all or some of their desired ends within the proper rubric of the law.

That last privilege assumes that everything between an attorney and client will be lock-tight secret, guarded by the lawyer. Thus, just as — until Nixon — we never before had imagined a President wiretapping the White House and even himself, so it is that — until Michael Cohen— few of us conceived that a lawyer would record his client surreptitiously.

Wow! What a great soap opera!

Indeed, what sane person would retain the services of a lawyer who secretly records clients? “Let’s see, you are charging me $700 an hour. Can you at least assure me that all your secret recordings are being done on high-quality tape?” It is mind boggling. The comedian Jackie Mason wonders about the gynecologist who views a woman patient undressed — and then sends her husband the bill for his services. But this really is crazy. Your own lawyer taping you? Although some states allow single-party recording — that is, for one person to tape someone else without that other person knowing the conversation is being recorded — other states require the knowledge and permission of both parties to a recording. See, e.g., Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 45 Cal. Rptr. 3d 730 (2006). That is why, when you phone the utility company, you get that lame recording not only that the “menu has recently changed” (thirty years ago) but also that the call will be recorded for the purposes of training, improved customer service (and — most importantly — to avoid litigation over the recording).

In the Michael Cohen tape, it is crystal clear from the recording — again, listen carefully to the exact words: “Rdghaj dkjdb cash odfvj check alsmlmk lxn zlxk” — that the President was not engaged in any legal wrongdoing, not even close. (It also is a lesson and reminder that, even for the rich and famous, there are certain improper behaviors and practices that, sooner or later, will catch up with people. He was married, she was pregnant, and the marriage was going very well. ’Nuff said.) Although this sordid sleaze is the stuff of soap operas, none of this should be part of the daily American discourse. It has no bearing on anything pertinent.

Yes, it certainly is a matter of severe public concern when a President is revealed to have a history of forcing himself on women, raping at least one, dropping his zipper and trousers after having his state troopers bring another unsuspectingly into his hotel room, forcibly kissing and pawing another who comes to him in the White House desperate for help in finding a job after her husband tragically has died, and then getting bogged down as President of the United States with the intern in the Oval Office and the rest of that sordid affair. That is a matter of public concern. We do not want rapists as our leaders, and we want our President focused on matters of national urgency — like killing Bin Laden when we have him in our sights— rather than clandestinely fooling around with an intern while the First Lady is out of town, basically downgraded during her travels to Second Lady.

But President Trump has had his “eyes on the prize” from Day One. When we elected him, we knew — often to our disdain and dismay — about the schmutz, the dirty stuff, the trailer talk (appropriately in the trailer). But we also know that he moved on when he famously descended that Manhattan escalator. Hate him or love him, he has been focused these past eighteen months — in the way that his mind focuses — on the Good, the Bad, and the Ugly of Washington and the World and on making America great again… and not on the strippers of days past. He may be a Raging Bull but he is no Raping Bill. He is no Nixon. He is as transparent as a public person should be — no more, no less. One looks at the children he has reared, and — whatever one’s politics may be, and however much one may hate his offspring for their association with their father — these are wholesome kids, grown to wholesome adulthood. He has done well and role-modeled something of quality, too. A very complex guy.

If the Republicans hold the House and expand their grip on the Senate in November, the Democrat-Media-Entertainment-Academia Complex may have to do some serious soul-searching, contemplating how they overreached themselves into oblivion. The soap opera “As the Swamp Turns” may be canceled and consigned to reruns, appropriately on cable. But if the House flips, this will go on for another two years at least.

And you know that the same Seedier Media will be just as vicious and sordid whether they are salivating over the salacious silicon or, in another 6½ years from now, attacking as “mentally ill” a Christian President who believes fervently and humbly in G-d and who modestly avoids dining alone with women unless his wife is present. Indeed, when Mike Pence becomes President after President Trump’s second term, what ever will CNN, MSNBC, and the rest of the drek do for ratings?

Oh, well, there will always be Malaysian Airlines Flight 370.

Dov Fischer
Dov Fischer
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Rabbi Dov Fischer, Esq., a high-stakes litigation attorney of more than twenty-five years and an adjunct professor of law of more than fifteen years, is rabbi of Young Israel of Orange County, California. His legal career has included serving as Chief Articles Editor of UCLA Law Review, clerking for the Hon. Danny J. Boggs in the United States Court of Appeals for the Sixth Circuit, and then litigating at three of America’s most prominent law firms: JonesDay, Akin Gump, and Baker & Hostetler. In his rabbinical career, Rabbi Fischer has served several terms on the Executive Committee of the Rabbinical Council of America, is Senior Rabbinic Fellow at the Coalition for Jewish Values, has been Vice President of Zionist Organization of America, and has served on regional boards of the American Jewish Committee, B’nai Brith Hillel, and several others. His writings on contemporary political issues have appeared over the years in the Wall Street Journal, the Los Angeles Times, the Jerusalem Post, National Review, American Greatness, The Weekly Standard, and in Jewish media in American and in Israel. A winner of an American Jurisprudence Award in Professional Legal Ethics, Rabbi Fischer also is the author of two books, including General Sharon’s War Against Time Magazine, which covered the Israeli General’s 1980s landmark libel suit.
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