Disgraced behemoth Ed Schultz’s lawyer this week urged the United States Court of Appeals for the District of Columbia Circuit to reject his ex-business partner Michael Queen’s appeal for a new trial.
But at one crucial juncture during Tuesday morning oral arguments Nixon Peabody partner John Hayes sounded suspiciously like Bill Clinton parsing the definition of “is.”
But, hey, the analogy is somewhat unfair to Bill Clinton. At least the Big Dog didn’t know at the time Miss Lewinsky had saved her now famous blue dress.
Hayes had to know that the appellate jurist questioning him had the trial transcript right there. But he still initially falsely stated that “yes” he had asked the trial judge for Queen’s breach of partnership lawsuit to exclude 1200 emails between the parties on “lack of truthfulness grounds.”
Then Hayes started backtracking and stonewalling but to no avail.
The decision by United States District Court for the District Circuit Beryl Howell to exclude the emails at trial is central to Queen’s appeal. If the correspondence was allowed into evidence they would have established a legally binding partnership between the two men when Schulz expressly promised to pay him for getting him on television, his appeal argues.
That is one crucial argument why lawyers say Queen is entitled to a new trial.
His lawyers contended that she wrongly excluded them, in part because Hayes never objected on “truthfulness” grounds.
Instead, Howell ruled the emails inadmissible hearsay. Queen’s lawyers said at trial they should have been allowed under the “business records” exception to the hearsay rule. Business records can still be excluded if the defendant questions their truthfulness.
Hayes made other arguments but not that one.
Kind of like — just to use a random analogy — lots of people asked really cool questions at Barack Obama’s first press conference that could have caught the eye of cable news executives.
But Ed Schultz was not one of them. Even though MSNBC president Phil Griffin later said under oath that he recruited Schultz, then a radio host, independently of Queen’s effort to get him a show because he just happened to notice him questioning Obama from his front row seat at the press event.
But hey, it’s possible Schultz did ask the question but nobody in America heard it. Kind of like maybe Hayes really did offer the “trustworthiness” argument but it just didn’t make it into the official trial record.
In the 5th floor courtroom Tuesday morning after Hayes said “yes” and made the specific objection, Senior Judge A. Raymond Randolph simply asked, “Where is the objection in your record?”
“It depends on which set of emails we’re talking about,” he replied.
It depends what the definition of emails is?
“So, you didn’t make a specific objection that these are not trustworthy?” Randolph persisted.
“No, your honor, I can’t say specifically that we did,” he conceded.
Only moments earlier, of course, Hayes specifically said that he did.
Judge Janice Rogers Brown and Judge Sri Srinivasan, a possible Supreme Court nominee if Hillary Clinton wins, also seemed highly skeptical of Hayes.
All this could spell trouble for President Phil Griffin. If a new trial is granted he would be questioned under oath about his 2014 deposition testimony that one of the foremost civil procedure experts in the country has said likely constitutes perjury.
At the May 2015 trial, Griffin was not called to the stand. Instead, right after Michael Queen’s lawyer tricked Schultz into bragging that he did not ask a question at the conference, video of Griffin’s claim to the contrary was played for the jury.
Schultz won the trial. But quickly lost his show.
After the Tuesday morning hearing, this reporter tried to hand Hayes an actual personal check for $50 dollars made out to the super PAC that Ed Schultz ran out of a UPS store following his exit from MSNBC. That amount was precisely double Schultz’s total haul before he decamped for an even more prestigious gig working for Vladimir Putin’s television station.
But Hayes, who could easily star in “Dumb and Dumber, Part 2” with co-counsel Jeffrey Landa, wouldn’t take it.
It is anybody’s guess when the Court is going to issue its decision.
The usual suspects, of course, did not attend the hearing.
But, curiously, neither Washington Examiner media reporter Eddie Scarry, who wrote about the case twice last year.