PowerLine -> Weinstein – Is There Anyone Who Didn’t Know? Initial thoughts on Trump’s Iran speech: Do all roads lead to a pull-out? [UPDATED]

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PowerLine -> Weinstein – Is There Anyone Who Didn’t Know? Initial thoughts on Trump’s Iran speech: Do all roads lead to a pull-out? [UPDATED]

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Daily Digest

  • Is There Anyone Who Didn’t Know?
  • Initial thoughts on the Weinstein employment contract
  • Previews of Coming Attractions
  • Initial thoughts on Trump’s Iran speech: Do all roads lead to a pull-out? [UPDATED]
  • The Weinstein contract
Is There Anyone Who Didn’t Know?

Posted: 13 Oct 2017 03:58 PM PDT

(Steven Hayward)

Back in 2015 when Wikileaks revealed the contents of the Sony email hack (apparently performed by the North Koreans?), there was a minor scandal about that fact that the producers of the PBS series “Finding Your Roots” had edited out the fact that Ben Affleck had lobbied to have removed from the documentary that he is descended from slaveowners. Ironic now that Affleck is being swept up in the back eddies of the Weinstein scandal.

Because it turns out that in the crucial email thread between PBS series honcho Henry Louis Gates and Sony executive Michael Lynton, the subject of Weinstein came up in a revealing way. Here’s the whole thread, rearranged and cleaned up a bit from the original and with the best parts highlighted, with the Affleck stuff transitioning in the middle:

On Jul 22, 2014, at 7:19 AM, Henry Louis Gates, Jr. wrote:

Would you consider coming to Cambridge to present Harvey Weinstein with the Du Bois Medal on September 30th? Meryl is receiving one, Steve Mc Queen, Shonda Rhimes, Maya Angelou, and Valerie Jarrett. Maybe Poitier.

From: Lynton, Michael
Sent: Tuesday, July 22, 2014, 10:24 AM
To: Henry Louis Gates, Jr.
Subject: Re:

I would do many things for you, almost anything, but not that. 

On Jul 22, 2014, at 7:38 AM, Henry Louis Gates, Jr. wrote:

Sorry, bro! After he received this huge award from the black filmmakers, he was unanimously selected–though after considerable discussion about his personality.

On Jul 22, 2014, at 11:04 AM, “Lynton, Michael” wrote:

no worries, just not on my watch.

On Jul 22, 2014, at 8:47 AM, Henry Louis Gates, Jr. wrote:

I know.  I’ve had my moments with Harvey, too, believe me. 

On Jul 22, 2014, at 11:50 AM, “Lynton, Michael” wrote:

not like mine, maybe I should step down from the board.

On Jul 22, 2014, at 8:50 AM, Henry Louis Gates, Jr. wrote:

OH, NO!  Please don’t do that, Michael.  I would be devastated.

On Jul 22, 2014, at 11:55 AM, “Lynton, Michael” wrote:

ok, will stay quiet on the subject. 

On Jul 22, 2014, at 9:01 AM, Henry Louis Gates, Jr. wrote:

As long as you stay on the board, you are free to say this is crazy!  I hardly know Harvey; you are my friend.  I really would be devastated if you left. By the way, I need your advice:  I’m on a flight to L.A. for the TCA Press Tour.  We launch season two of Finding Your Roots tomorrow at noon, and four celebrities, including Nas, are showing up.  Here’s my dilemma:  confidentially, for the first time, one of our guests has asked us to edit out something about one of his ancestors–the fact that he owned slaves.  Now, four or five of our guests this season descend from slave owners, including Ken Burns.  We’ve never had anyone ever try to censor or edit what we found.  He’s a megastar.  What do we do?

On Jul 22, 2014, at 12:09 PM, “Lynton, Michael” wrote:

Of course, I will stay on the board if you want me to.  On the doc, the big question is who knows that the material is in the doc and is being taken out.  I would take it out if no one knows, but if it gets out that you are editing the material based on this kind of sensitivity then it gets tricky.  Again, all things being equal I would definitely take it out.

On Jul 22, 2014, at 9:11 AM, Henry Louis Gates, Jr. wrote:

Good; relieved.  As for the doc:  all my producers would know; his PR agency the same as mine, and everyone there has been involved trying to resolve this; my agent at CAA knows.  And PBS would know.  To do this would be a violation of PBS rules, actually, even for Batman.

On Jul 22, 2014, at 11:28 AM, “Lynton, Michael” wrote:

then it is tricky because it may get out that you made the change and it comes down to editorial integrity.  We can talk when you land.

On Jul 22, 2014, at 9:30 AM, Henry Louis Gates, Jr. wrote:

Will call.  It would embarrass him and compromise our integrity.  I think he is getting very bad advice.  I’ve offered to fly to Detroit, where he is filming, to talk it through.

On Jul 22, 2014, at 12:28 PM, “Lynton, Michael” wrote:

yeah,, the past is the past…..

On Jul 22, 2014, at 10:30 AM, Henry Louis Gates, Jr. wrote:

And he wasn’t even a bad guy.  We don’t demonize him at all.  Now Anderson Cooper’s ancestor was a real s.o.b.; one of his slaves actually murdered him.  Of course, the slave was promptly hanged.  And Anderson didn’t miss a beat about that.  Once we open the door to censorship, we lose control of the brand.


Initial thoughts on the Weinstein employment contract

Posted: 13 Oct 2017 02:18 PM PDT

(Paul Mirengoff)

Earlier today, Scott wrote about Harvey Weinstein’s employment contract. Reportedly, it provides that if Weinstein “treated someone improperly in violation of the company’s Code of Conduct,” he must reimburse the company for settlements or judgments. Additionally, “[Weinstein] will pay the company liquidated damages of $250,000 for the first such instance, $500,000 for the second such instance, $750,000 for the third such instance, and $1,000,000 for each additional instance.”

The contract stipulates that if Weinstein pays as required, it constitutes a “cure” for the misconduct and no further action can be taken. This language is intended to ensure that Weinstein can keep his job no matter how many times he is sued for actions that violate the Code of Conduct, as long as he writes the checks.

I used to practice employment law. No one I ever represented or sued, combined the power and the sleaziness to get contractual provisions like the ones Scott described. Moreover, it’s been some time since I practiced law in this area. Thus, my initial thoughts about the contract should not be construed as expert analysis.

Nonetheless, Weinstein’s contract strikes me as legally problematic, to say the least. Weinstein is alleged to have committed serial acts of sexual harassment — some so egregious they may have amounted to assault or even rape. The contract does not protect Weinstein if he’s indicted or convicted of a crime, so for purposes of discussion, let’s focus on sexual harassment that falls short of criminal conduct.

The law bans it. Specifically, it is against the law to condition an employment decision on submission to sexual advances. It is also against the law to engage in sexual harassment that makes the work environment “hostile.” Weinstein violated the first of these prohibitions if certain allegations against him are true. I’m not sure about the second prohibition.

If an employer learns that an employee is engaging in either form sexual harassment, it must take reasonable measures to stop the offending conduct. This is true even if the conduct has not yet risen to a level that makes the work environment “hostile,” in the legal sense of that word.

Reasonable measures to end harassment may begin with counseling and other soft remedial steps. In severe cases, the employer may be required to take more drastic action at the outset. If the harassment is serial, or if it involves even just one instance of extreme behavior, the only reasonable measure might be to terminate the offending employee or official.

Weinstein’s contract seems intended to take that option away from the employer. In effect, it fines him for sexual harassment that results in a settlement or judgment but prohibits discharging him. This certainly doesn’t seem like a reasonable measure to end the harassment.

It might be argued that the contract applies only to violations of the company Code of Conduct that doesn’t violate non-criminal laws. On this reading, the contract would not preclude the company from firing Weinstein to remedy his sexual harassment. But given the clear “carve-out” language for behavior that results in indictment or conviction of a crime, it might be difficult to argue that there is an implicit carve-out for non-criminal conduct that violates the law.

Can a company escape, via contract, its legal obligation to fire sexual harassers when that is the only reasonable response to his sexual harassment? I don’t think so. Rather, it seems to me, a company violates the law by not firing a sexual harasser under these circumstances.

In this case, the contract provisions in question represent very strong evidence that the company did not take reasonable action to prevent sexual harassment. If anything, the company’s approach enabled it. The company’s exposure might be greater by virtue of the contract. I don’t see how it is reduced.

Assuming that Harvey Weinstein’s sexual harassment has been such that the only reasonable response is to fire him, can Weinstein enforce a contract that bars the company from doing so? Again, I don’t think so.

My understanding is that, as a general matter, a party cannot enforce a contract that is contrary to an express provision of law or contrary to the public policy behind a law. Typically, there are exceptions — e.g., where the party seeking enforcement is less morally blameworthy than the party against whom the contract is being asserted or where the violation of law did not involve serious moral turpitude and non-enforcement would be disproportionately harsh in proportion to the extent of illegality.

I don’t see how Weinstein could take advantage of these exceptions on the facts that have come to light.

I emphasize that these thoughts are preliminary and aren’t based on any research performed in preparing the post (I performed almost none). I hope, however, that they provide a solid framework for further analysis and discussion.


Previews of Coming Attractions

Posted: 13 Oct 2017 12:59 PM PDT

(Steven Hayward)

Power Line readers in several localities have a chance to participate in some of my mischiefs in the coming weeks. First, next Wednesday, October 18, I am hosting Mark Lilla at UC Berkeley, in what promises to be a lively event. We decided to title his lecture “After Identity Politics (You Must Change Your Life).” Hoo-boy!

If you’ve followed Lilla’s new book, The Once and Future Liberal, you will know that he has thoroughly angered the left with his critique of identity politics, even though Lilla is himself a staunch liberal. Though I have to add that his various books on intellectual history over the last 15 years are pretty good. The chapter on Eric Voegelin in The Shipwrecked Mind is especially good. In other words, Lilla is a liberal who is very much worth reading.

Here are the full details for the event, which goes off at 4 pm and is free and open to the public, though parking around Berkeley is always difficult and I expect the hall where we are holding his lecture will fill up—hopefully with some indignant leftists.

Second, for readers in the Portland, Oregon, area, on November 9 I am coming to town to speak at a fundraising dinner for the Washington County Republican Party, along with radio talk show host Lars Larson and state Rep. Knute Buehler, who I believe is contemplating a run for governor. It is a fundraiser so you’ll have to pony up to get in, but it’s for a good cause. Here are the details.

Finally, on October 31 I”ll be appearing in the other Portland area—Portland, Maine. Actually Brunswick, at Bowdoin College, where the Eisenhower Forum is hosting me for a lecture on the topic “How Liberals Are Failing Liberalism.” I forget the exact time and there is no link yet, but it will be late afternoon or early evening, and I’ll update the details when they are ready.

And yes, since that will be Halloween, I’m going to appear in costume dressed as a conservative white male, which is apparently very frightening and “triggering” for the campus left these days.


Initial thoughts on Trump’s Iran speech: Do all roads lead to a pull-out? [UPDATED]

Posted: 13 Oct 2017 11:15 AM PDT

(Paul Mirengoff)

President Trump has just given an address that outlines how he plans to proceed against Iran. The two main points are: (1) he will impose new sanctions to punish Iran’s Revolutionary Guard and (2) he will not certify the Iran nuclear deal.

The refusal to certify means that Congress has 60 days to act. Trump is asking it to adopt legislation, apparently already formulated, that would remedy the flaws in the Iran deal.

This legislation would become the basis for attempting, if possible with the help of our allies, to renegotiate (in effect) key terms of the deal with Iran. In the negotiations, we would, among other things, try to improve the inspection regime and eliminate the sunset provisions (the ones that allow Iran eventually develop nukes).

Crucially, it seems to me on first analysis, Trump said that if Congress doesn’t act along these lines in 60 days, he will “terminate” the deal. The president thus attempts to light a fire under a Congress which, absent his threat, almost certainly would not act. He also attempts to light a fire under our allies who seemingly have no real desire to renegotiate with Iran.

If we take Trump’s speech at face value, it seems to me that all roads lead to terminating the deal. If Congress doesn’t act, Trump says he will terminate the deal.

If Congress acts, it can’t rewrite the deal. All it can do is formulate demands that, if not met by Iran, will result in termination, assuming Trump follows the hard line he took today.

If faced with congressional action and presidential resolve, Iran might agree to certain minor fixes to the deal. But it’s difficult for me to imagine the regime agreeing, for example, to drop the sunset clause.

Only a restoration of the crippling sanctions once in place would have any hope of achieving this result. But that hope would be faint. In any event, it’s unlikely that we could ever rally our allies to impose the truly crippling sanctions that former president Obama lifted.

If my preliminary analysis is correct, then Trump has taken the first step towards pulling the U.S. out of the Iran deal. He has done more, in other words, than just “splitting the baby” — i.e, satisfying hawks by decertifying and satisfying moderates by not pulling out of the deal or enlisting Congress for that purpose. If we take the speech at face value, we are on the road to pulling out.

The “compromise,” is that we are doing so in a measured way — one that is less easy for Democrats and U.S. allies persuasively to denounce. Trump is enlisting their aid by asking them to participate in a process that, in theory, could improve the deal to the point where the U.S. would stay in it.

In practice, the likelihood of substantially improving the deal seems slight. However, it is reasonable for Trump to give it a try, and reasonable for Democrats and our allies to participate in the effort.

I’ll conclude by saying that Trump’s speech was outstanding. In 20 minutes or so, he laid out the history of Iran’s evil-doing; excoriated the Iran deal Obama agreed to; and laid out his course of action going forward.

Will the administration follow that course or will key members persuade Trump to employ off-ramps? It’s difficult to say or even to guess who the key members of the administration will be down the road. I’m inclined, though, to think that Trump will follow the course he laid out so solemnly today.

These observations are preliminary ones. I’m sure we’ll have more to say upon further reflection.

UPDATE: President Trump’s speech leaves Senate Democrats in a very interesting position. If they block the legislation Trump wants, we likely will be out of the Iran deal by the end of the year. If they cooperate and legislation passes, they buy time.

Iran might refuse even to consider renegotiating, in which case very little time will have been bought. But Iran might play “stall ball,” entering into some form of talks that don’t go anywhere. In this scenario, the deal could stay alive for quite some time, maybe until the 2020 election season, or even beyond.

Thus, it seems to me that the Dems have a strong incentive to work with Trump and the GOP on legislation designed to improve the deal. At the same time, of course, the Dems face strong pressure not to cooperate with Trump on anything major.

It would be interesting to know what advice Obama and his former team will provide (or have already provided) to Senate Democrats. Obama’s desire, I’m pretty sure, is to keep the deal in place past the end of 2017.


The Weinstein contract

Posted: 13 Oct 2017 06:23 AM PDT

(Scott Johnson)

I can’t get enough of the Harvey Weinstein scandal. Speaking of intersectionality, which I never have, we find ourselves at a particularly bloody crossroads of Hollywood, media, crime, sex, law, culture and Democratic politics. And it’s not over yet. New storylines open up daily. Good grief! Get with Mr. and Mrs. Ammo Grrlll and tune in if you haven’t done so yet.

Now TMZ reports on the unusual contractual provisions in Weinstein’s employment agreement with his self-titled company. As the headline has it, “Harvey Weinstein contract with TWC ALLOWED FOR SEXUAL HARASSMENT” (caps in original).

TMZ claims it is “privy to Weinstein’s 2015 employment contract.” TMZ does not expressly state the contract was current as of Weinstein’s termination by the company this week, but it implies that it is, and it does not provide a copy of the contract. Rather, it summarizes certain provisions of interest:

TMZ is privy to Weinstein’s 2015 employment contract, which says if he gets sued for sexual harassment or any other “misconduct” that results in a settlement or judgment against TWC, all Weinstein has to do is pay what the company’s out, along with a fine, and he’s in the clear.

According to the contract, if Weinstein “treated someone improperly in violation of the company’s Code of Conduct,” he must reimburse TWC for settlements or judgments. Additionally, “You [Weinstein] will pay the company liquidated damages of $250,000 for the first such instance, $500,000 for the second such instance, $750,000 for the third such instance, and $1,000,000 for each additional instance.”

The contract says as long as Weinstein pays, it constitutes a “cure” for the misconduct and no further action can be taken. Translation — Weinstein could be sued over and over and as long as he wrote a check, he keeps his job.

The contract has specific language as to when the Board of Directors can fire Weinstein — if he’s indicted or convicted of a crime, but that doesn’t apply here.

There’s another provision … he can be fired for “the perpetuation by you [Weinstein] of a material fraud against the company.” The question … where’s the fraud? Lance Maerov, the board member who negotiated Weinstein’s 2015 contract, said in an interview — and we’ve confirmed — the Board knew Weinstein had settled prior lawsuits brought by various women, but they “assumed” it was to cover up consensual affairs. The Board’s assumption does not constitute fraud on Weinstein’s part.

Allahpundit comments on the contract in the Hot Air post “Pay to prey.” In this aspect of the story, we discover new frontiers in employment contracts and corporate corruption.

We sense the possibilities in this inexhaustibly rich story. A compelling movie series along the lines of the Bourne variations awaits its producer, all leading to The Weinstein ContractThe Weinstein IdentityThe Weinstein SupremacyThe Weinstein UltimatumThe Weinstein Legacy. In this series, however, extreme memory loss is the cure rather than the problem.


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