Tag: law

It is not a “witch hunt” if there are really witches

Our local paper had a political cartoon today with a dude exclaiming to his wife:

“Just think — if Donald Trump can be indited for misappropriating funds to pay hush money to a porn star he slept with while his wife was home with their newborn baby … WHAT’S TO PREVENT THAT FROM HAPPENING TO *ME*?”

And the cartoon answer? “Me, dear. Me, and the second amendment.”

But that skips the reality of the potential charge — what’s to stop that from happening to you? Are you running for office and getting undocumented campaign contributions to pay someone off? Are you misappropriating business funds (and falsifying records to cover up the misappropriated funds)? If not … then you CANNOT misappropriate funds (and lie about it) full stop. For the small percentage of Americans for whom the answer is “why, yes I am running for office”? Then the answer is YOU. Make your bribe and extortion payments from YOUR money. Dude isn’t being investigated for making a hush money payment. He’s being investigated for falsifying business records so he could use that for a hush money payment. He is being investigated for receiving illegal campaign contributions.

On a similar thought, I am certain Republican governors (attorney generals, district attorneys) are going to start threatening to prosecute former Democratic presidents. And, if they have jurisdiction and a real crime? Good for them! If Arkansas wants to finally investigate things like Clinton using the state cops to cover up his affairs? It’s about time! Because, unlike the quippy comments about unjustified political persecutions want you to think … Trump lived in New York for a very long time. If he committed crimes there, it’s reasonable for law enforcement in that area to investigate it. Just like it’s reasonable for the state of Arkansas to investigate things Clinton did while he lived there. It is, however, not reasonable for, say, the state of Texas to try arresting Biden for federal laws that they don’t like or things he did in Delaware. That would be political persecution.

The hush money thing reminds me of an experience I had early in my career — the company had a lot of rules around spending money, and there were employees who decided to exploit those rules. There were some things you could “expense” — basically use the corporate AmEx to cover & never have to account for. A local manager had an agreement with a supplier to submit invoices for items that qualified for expense purchasing — “LAN Cables”, “CD-R Media” — in spite of the fact he was actually picking something else up. I was sent to pick up the handheld radios he ordered, and I couldn’t because the invoice they wanted me to sign was for cat6 cables. I wasn’t trying to make a moral stand (at the time, I didn’t realize there was a moral stand to take) … I just didn’t see how I could submit an expense report with a receipt that didn’t match up with what we were purchasing. The manager explained it to me … and, yeah, I refused to partake in that scheme. I’m sure he sent someone else to subvert company purchasing policies for him. But he wasn’t the manager for long after the lies were discussed with his manager — a new site manager was brought in & they discovered that the office had purchased tens of thousands of dollars of “fun stuff” — pool table, big screen TV, sofas, alcohol — and outfitted a hidden room in the warehouse. Employees were taking computers, TVs, etc home too. None of those people were fired for buying a TV or computer — they were fired for stealing from their employer and falsifying purchase records. And it might have been possible for an over-zealous prosecutor to attempt to charge the company (or the company execs) with falsifying business records. There were falsified business records. But the company, and it’s executive team, didn’t know the records were false. The individuals who did the lying were punished, and the victims of the lies were left to clean up the mess. And that’s what seems to be happening to Trump — except he appears to be one of the “in the know” people and not an innocent employer who hired scammers and cheats.

Force majeure and the Township Solid Waste District

We attended a “Candidates Night” event last night where the two individuals on the ballot for a Trustee position spoke and took questions. Where most local elections don’t have much in the way of issues, this particular election may be a proxy vote for the single-hauler solid waste district because the incumbent was involved in the entire process and voted to establish a Solid Waste District that allows only one trash hauler. And indicated that she didn’t see anything wrong with the way the decision was approached.

There were two justifications provided for this decision — both financial. Individuals who have rubbish service will pay less for their service because the Township is essentially facilitating a bulk-purchase agreement. The company is going to drive the same number of miles but 100% of the houses will be their customer. The other stated motivation is reducing road repair costs. Not because the Trustees provided any evidence that rubbish trucks cause a significant amount of damage to roads (although I’ve been told it’s common sense that big trucks cause a lot of damage … there are four, I think, companies that collect rubbish in the area. Commercial rubbish collection is out of scope, so those companies are still going to be driving on some of the roads. What percentage of road damage is done by three rubbish trucks a week compared to vehicle traffic, delivery trucks, snow plows, freeze/thaw cycles? And that’s assuming the single hauler doesn’t need to increase the number of trucks/trips to collect all residential waste — which I doubt is true. We’re more likely to net remove one or two large trucks a week from the roads.). But when I asked what metrics would be provided to show that this cost savings would be realized, the incumbent candidate replied “I don’t think residents want to fund an expensive study about what roads needed repairs and how much it costs”. Which is a senseless non-answer — they’ve got a projected service department budget for next year. And hopefully the year after that. They’ve got historic actual numbers for decades. Take next year’s actual and compare it to the budget. How’s that compare to, say, the difference between last year’s actual and forecasted budgets?

But the oddest part of the night was when a resident asked about people whose existing contracts are a problem — either their current rubbish service will stop collecting trash a month before this single-hauler contract begins, their annual contract is up a month or three before the single-hauler contract begins and they’re not going to be able to renew, or their contract extends beyond the single-hauler start date. The first two scenarios are answered easily enough — the company that’s been chosen as the rubbish collector has agreed to start collecting “early” at rack-rate. So you “get” to buy service from the company you didn’t want at the price you didn’t want. The incumbent indicated that people whose contracts extend beyond the single-hauler start date won’t have to pay early termination penalties because of force majeure. Now maybe she’s actually seen residential contracts from each of the rubbish collectors that operate in this Township. We haven’t had rubbish service for years because we compost & recycle. The remaining trash (generally Styrofoam), we can drop off once a year at the county dump for like 1.50$. But in the contract we did have, force majeure was specifically protection for the trash hauler — they are not in breach for failing to collect rubbish in the middle of a hurricane, during a strike, etc. Courts tend to interpret force majeure clauses narrowly. If the hauler wants to push the issue … I doubt there’s a clause about government action freeing the resident from fulfilling their contractual duties. You’d be making an argument under common law contract doctrine.

But there’s no need to put yourself in a defensive position. The hauler will elect either to cease operation in the Township or incur penalties for continued residential rubbish collection. As a customer, you aren’t the one seeking to breach the contract. The hauler’s failure to act on their contractual duties may fall under a specific item within a force majeure clause. Or they may consider their duty voided under “frustration of purpose”. Call it “impracticability” because of the fines. It’s not like a resident needs to fight to compel their old hauler to continue their contractually-obligated duties that the hauler needs to defend their withdraw as a specifically permitted action. A resident needs the hauler to be the one who withdraws from the contract.