Unethical Quote Of The Week: Law Professor Orin Kerr

“If I understand the history correctly, in the late 1990s, the President was impeached for lying about a sexual affair by a House of Representatives led by a man who was also then hiding a sexual affair, who was supposed to be replaced by another Congressman who stepped down when forced to reveal that he too was having a sexual affair, which led to the election of a new Speaker of the House who now has been indicted for lying about payments covering up his sexual contact with a boy. Yikes.”

Prof. Orin Kerr on The Volokh Conspiracy.

Hatert as coachI thought more highly of Prof. Kerr, who belongs to the left end of the group of provocative libertarian legal scholars who make up the commentariat on the erudite blog, recently annexed by the Washington Post, than to believe him capable of abusing his authority with this kind of hackery. He is endorsing  the deceitful “logic” of Hustler publisher Larry Flynt.

Well no, Professor, I guess you don’t understand history properly, or government, or ethics for that matter. Clinton was not impeached for lying about a sexual affair, though that was the tactical spin placed on the impeachment by Clinton’s defenders.

Bill Clinton  was impeached for lying about a sexual affair under oath, before a judge, in court, an act that would get you, as well as any other lawyer, disbarred. If you don’t obey the law enough to be a lawyer, you don’t respect the law enough to be trusted to defend the laws of the land as President of the United States. He was also impeached for lying to a grand jury, another crime, and using his high office, his appointees and his staff to cover up his lies, which is obstruction of justice.

He was also impeached because he was President of the United States, the role model and exemplar for good citizenship, lawfulness and good behavior for the entire nation, and because the relationship in question occurred during his tenure in office, during the working day, and  with a low-level employee in violation of the principles under lying the sexual harassment law he had signed into law himself.

None of this was true of Newt Gingrich, Bob Livingston, and Dennis Hastert, the three GOP Speakers Kerr is referring to.

Marianne Ginther, Gingrich’s second, now ex-, wife, was not a staff member or employee, and Newt never discussed, or lied about, the relationship in court, or to the news media, while he was Speaker. That affair was, I would argue, strong evidence of Gingrich’s dubious character, but it was not relevant to his duties or obligations as Speaker. He could not, would not and should not have been impeached or indicted for his conduct in that affair.

Bob Livingston’s affair or affairs, which came to light in part because of Flynt’s cynical offer of a reward in order to intimidate members of Congress, apparently occurred long before he was Speaker, and perhaps before he was even in Congress. He was foolish to resign during the impeachment process. Livingston never lied, under oath or to the FBI, or to the press, or to the American people (“I did not have sex with that woman, Miss Lewinsky…”), about the affair in question.

Hastert ‘s current alleged criminal conduct, if indeed criminal it was, occurred as a private citizen after he was Speaker, regarding unproven criminal conduct he may have engaged in decades before he became Speaker. He also was not President of the United States.

Of course, Kerr’s statement can be read a lot of different ways, which is one of the things wrong with it. He’s a law professor; he’s supposed to use words with precision.

Is he saying, by “Yikes,” “Boy, we sure are electing a lot of slimy leaders in America!”? If so, I wouldn’t argue with that general, ridiculously general, proposition. Is Kerr’s meaning, “Wow, these Republicans were really courageous, doing their duty by impeaching the President for official misconduct and crimes while knowing their private life was vulnerable to attack!” ? I doubt that, but it’s a plausible interpretation, and more legitimate than what I think most people will take Kerr to mean. Similarly, he might be slyly noting that Newt Gingrich’s political career is over, Bob Livingston has vanished, and Dennis Hastert is facing jail, while Bill Clinton, whose official conduct was worse than any of theirs, is still lionized by Democrats and poised to move back into the White House. Regarding that, Yikes is an understatement. But it’s safe to assume Kerr doesn’t mean that either.

No, Kerr’s likely intent is to advance the false equivalence that has been part of Clinton spin since we  learned Monica Lewinsky’s name, and to bolster the false Democratic attacks on Republicans for hypocrisy (at least in regard to Hastert) He is also, perhaps, abusing his authority to relieve Hillary Clinton from proper accountability for lying on her husband’s behalf, thus clearing the path for the most corrupt and untrustworthy Presidential candidate in American history to become President of the United States.


19 thoughts on “Unethical Quote Of The Week: Law Professor Orin Kerr

  1. Jack,
    If he’s a libertarian, by any meaningful definition of the term, he’s not suggesting what you think he is. He likely hates Clinton as much or more than you, so there’d be no use shoveling shit on only one side of the aisle. Settle down.

    Either way, happy Sunday!


    • 1. Wait, what is he suggesting then? You can’t just say, “you’re wrong” and not put out what you think is right. He obviously means something.

      2. “Settle down” is condescending, and I’ve banned first time commenters for it. You have no idea how settled or unsettled I am. Don’t do that again.

      3. If it echoes the pro-Clinton hacks who make the equivalent of that fatuous point, I really don’t care what his motive is. Words have meaning.

      4. The libertarian spin is, presumable, “oh, let people have sex with whoever they want to, whenever they want to.” It doesn’t matter: Kerr is a lawyer. He knows how material the testimony under oath factor is.

  2. Jack,
    I’m sorry about “settle down;” I meant it playfully, but you’re right.

    As to the rest, I never said you were wrong which is why I never offered a direct counter-interpretation. I don’t know the man personally or professionally and, aside from perusing the headlines of his other articles, can only make guesses as to his political leanings. This is why I specifically used the words “if” and “likely” to suggest a hypothetical.

    If I had to guess, I would say it was a more a comment about the moralizing that (more often) comes from the Right and how it’s often not echoed in the lives of those who most fervently advocate it. I tended to agree with Newt Gingrich on a lot of policy matters, but not when he began digressions into matters of conscience; mostly because I had no interest in living a world where morals were dictated by men like him (that is just a statement of opinion, I have no larger point or motive in saying it)

    I’m not suggesting that it makes the quote more ethical (I agree with your take; he sounds like an arrogant prick), only that I doubted he would argue Clinton was justified in his behavior. Perhaps it’s the wording I use, or that my posts tend to be short “what ifs” as opposed to longer, flushed-out critiques, but I keep trying to tell you that almost nothing I write is adversarial — which is why your responses sometimes seem rude to me (that’s only my interpretation). I’m not a political gadfly, perennial contrarian, or someone who enjoys advocating the devil simply to stir up trouble. What’s more, I have no political axes to grind, nor do I hold any real interest in argument. I prefer discussions, but those are often not possible online, so I’ve taken to avoiding delving into finer points of issues in open forums.

    Again, I apologize for this (and other other instance) where I’ve come off as condescending, pretentious, or overly critical. I’m fully willing to admit you’re often more educated on the finer points of the issues discussed here, so I limit myself to making points only where I think you’re over-reaching or, as I’ve mentioned before, drawing (what I consider to be) imagined connections.

    Anyways, all the best to you and your kin.


  3. Jack, I’m disappointed in your post. I expected better from you. You miss the mark for at least three reasons.

    1) The purpose of the post was to note that all of our leaders were so badly flawed at that point in time — and much worse than we thought, in light of the Hastert revelations. I think most readers understood that point. You misunderstood that point, it seems. But when you recognized the possibility you were misreading the post, instead of apologizing for any misunderstanding or being cautious about the criticism, you simply assert that if you are misunderstanding the post, then that makes the post even worse. But that makes no sense. Putting aside the question of who is to blame if you misunderstand a sentence, and assuming the blame always falls on the writer, the post should be much better because it is not making the wrong argument that you are condemning it for making.

    2) You assume that the post is making some kind of pro-Democrat partisan point. But note that I’m a Republican who has worked for a Republican Senator, donated to Republican politicians, and been affiliated with Republican Presidential campaigns. To accuse me of “hackery” because you draw an unintended implication of a post — an implication that, to the extent it has partisan overtones, would be contrary to my partisan interest — seems pretty far out of line.

    3) The “error” you allege is that in describing four different cases in one sentence, I left out a fact that you think should be included in order to make a judgment about a question that you would like the post to be about, even though that’s not what the post was about. But because I wasn’t trying to make the point you imagined, I left out the context of all four of the cases, not just one. Consider Hastert’s case. Hastert was not just indicted for “lying.” He was indicted for two federal felony crimes. The first was not just “lying,” but rather the serious federal felony crime of making a knowingly false statement to an executive official in the course of an investigation. As you know, that crime is often considered similar to perjury. Hastert also was indicted for the intentionally evading the reporting requirements for financial transactions. I didn’t mention any of those details in my one sentence summary because it wasn’t needed for the point I was making.

    I could go on, but I hope these three points are sufficient.

    Orin Kerr

    • I appreciate the clarification, Prof. Kerr, and I hate to disappoint. I also apologize sincerely for “hackery,” which was unfairly harsh. My problem was and is that having read about 12 statements from various progressive bloggers asserting that Hastert’s indictment showed the “hypocrisy” of Republicans who rightly attempted to hold the President to Presidential standards, I was, apparently, unable to perceive the distinction from your post, which sure read to me as a very similar attempt at false equivalency, and an especially damaging one, coming from a respectable and respected source. Should I have assumed that, being a respected source, you would never make the point the hacks were, no matter how similar the words appeared? I guess. Of course, since I identify you with more substantive observations than “what a sordid coincidence!” I feel a bit misused. Three Republicans and a Clinton who was impeached by them, being lumped together by a blogger who knows well that they have little in common, except in the eyes of those who are looking to excuse the one whose offense in governmental terms was by far the worst, and who has suffered for it the least. All for a Yikes.

      On balance, I don’t think it’s worth giving aid and comfort to a false narrative that not only refused to die, but that will be resurrected in the campaign.

      But thanks sincerely for visiting and setting the record straight.

      • Okay, I just read self-proclaimed Professor Kerr’s response to your arguments. My response to his point number 1 is “Huh?’ It was almost in English, but I have no clue what he was trying to say. The rest of his comment is ignored, since if the first paragraph is not in a language in which I am conversant, it is useless to me.

      • Jack writes:” “On balance, I don’t think it’s worth giving aid and comfort to a false narrative that not only refused to die, but that will be resurrected in the campaign.”

        Jack, I’m not much one for making those sorts of political calculations. The luxury of being an academic is that I can just call it as I see it regardless of which “side” it helps or hurts. Or course, I understand if your blogging is more politically strategic.

        • I accept that, Orrin, and I really didn’t consider it, to be honest.

          My little corner of the blogosphere is far, far less consequential than your august forum (as well as your blog, which I admired), and even my analysis occasionally has some impact. I don’t calibrate my opinions for that purpose—the chips fall where they deserve to fall—but I do try not to provide ammunition when I know it will be misused. Your approach may be more rational, all things considered. You have the best educated, legally sophisticated and erudite readership on the web—a bit less since the move to the Post, but still outstanding. You, Eugene and the gang have more reason than most to assume that you won’t be misread.

  4. If, as I imagine, this guy is an attorney, then his first sentence should have been “If I understand the history correctly, in the late 1990s, the President was impeached for committing perjury by a House of Representatives ”

    There is a difference between “lying about” and “committing a felony, specifically, perjury”. Who was in charge of the House at the time is largely irrelevant, as is who presided over the Senate trial. The vote, along party lines, to not really acquit but to fail to get sufficient votes to convict IS relevant, and should be addressed by SOMEBODY.

    • Yes, this is why I was (and am) frustrated by the way Orin chose to write it. My guess is that he tossed it off, and given the general acuity of his writing, felt that he deserved the benefit of the doubt and the presumption of good intentions. I don’t think my analysis was unjustified, based on the words and context, but perhaps based on the author.

  5. Jack, I’d like to address the “aid and comfort” issue. I’m a Democrat, about as far Left as I think Orin is Right, so maybe you’ll dismiss my opinion as concern trolling, and that’s OK with me. To the extent what I’m about to say constitutes political advice, I’d rather my side take it than yours, and yes, I do argue this point more often to those of my own stripe than to yours.

    In short, Orin and Eugene Volokh long ago earned my loyal readership in no small part by eschewing partisan cant and tactics. More importantly, their refusal to treat any of their priors as off-limits to testing by inconvenient facts earned my trust. Consequently they’ve convinced me to change my mind on issues, or at least incorporate aspects of their views into my own, more often than I can remember. And when they don’t convince me, they almost always leave me with a better understanding of what, at least on balance, I can’t agree with. I would think that other than the direct personal appeal of a candidate, nothing could be more valuable to a cause. If I knew of anyone on my side with comparable powers of persuasion, I’d be reading and recommending them religiously. It pains me that I don’t.

    • Leo: thanks for the epitome of a good first comment here.

      But I don’t see how this addresses the “aid and comfort,” which, if you read carefully, refers not to ideology but to ethics. I am speaking of aid and comfort to liars and ethics corrupters. Specifically those who continue to try to rationalize and excuse Clinton’s unethical and clearly impeachable conduct as President (I would have no problem with the acquittal, if the trial had been honest and fair). The effort to use an ‘everybody does it” argument to get Clinton off the hook promotes bad ethics and bad ethics analysis, and yes, I think Orin was careless in making a statement that appeared to endorse that spin, which is rising again in the wake of the Hastert indictment. Te spin is wrong. It isn’t wrong because Democrats are doing the spinning. It’s wrong because its dishonest and intended to confuse and deceive.

      If you are attempting to contrast Prof. Volokh’s forum with mine, you are way, way off base. I’ll eschew my usual reprimand of those who presume a partisan objective here based on one or a few posts, but I read the VC routinely, and I’d say its various contributors are more predictable in theirpolitical posts than this blog (and its sole contributor). Why? Because this blog is about ethics, not politics, because I’m a legal ethicist/ applied ethicist, not a political pundit, and because my goal is to get people to stop letting biases, political or otherwise, rationalizations, and emotions dictate how they assess right and wrong.

      I have encountered several progressive bloggers who I think approach VC for honesty, fairness, balance and rationality. E-mail me and I’ll send you the links.

  6. Jack,

    While your ethics point wasn’t lost on me, I did get the mistaken impression you were confessing unapologetically to a partisan agenda. On the other hand, I wasn’t suggesting any comparison between the partisanship of your blog and the Volokh Conspiracy. First, you’ll note I limited my remarks to Orin and Eugene. More importantly, I was only responding to what I thought was your criticism of Orin for being insufficiently partisan. Anyway, sorry for the misunderstanding, and thanks in advance for your offer of blog recommendations. I’ll take you up with an e-mail later today.

    • Leo: I’m curious: where did you see a partisan agenda endorsement? Is opposition to any advancement of the Clintons into positions of power the issue? Because I believe that that is a non-partisan position that is dictated by evidence, logic and ethics alone.

      Looking forward to your link request.

  7. Jack, it was an overall impression, but if I had to point to one thing it would be Orin’s comment that he’s “not much one for making those sorts of political calculations.” I took “political calculations” to mean “partisan political calculations,” and thus your acceptance of Orin’s remark as an acknowledgement that your calculations are partisan. I now infer from your explanation to me that what you acknowledged was only that you calculate the likelihood political developments will reinforce a narrative you object to for reasons unrelated to its partisan content.

    • Correct, and what I meant to communicate to Orin is that authorities, fair pundits and those seeking to enlighten the public and draw them toward objectivity and critical thought have an obligation not to negligently pour bullets for those seeking to warp understanding for political gain, on any side of the political spectrum. It’s not enough to say, “well, those who know me and who are smart will understand what I meant.” Confirmation bias is very powerful. We all have a duty to be very, very clear, and to play ethics chess.

  8. Your possible conclusions in the article are 99 times more belevable and make more sense then your warped conclusion which is totally illogical. Similar to most right wing zealots. On the original quote though based on your analysis I would have to give the quote a some what true.

    • 1. I love doctrinaire assertions with no arguments or reasoning to support them. It’s like a tell: I’ll just believe what I want to beliive, and be indignant when anyone argues differently.

      2.My conclusion was reasonable, and born out of respect for the professor. I’m assuming he’s too smart to make the statement he did without an agenda, because it is blatant misrepresentation.

      3. Anyone who reads a random selection of five posts here can figure out that I am no right wing zealot. You are lazy in reasoning and in conduct. No argument, snap judgments, and extreme bias, since using Kerr’s fake hypocrisy defense of Clinton, a US President, should nauseate left and right alike. It’s pretty simple, Glenn: if you aren’t trustworthy enough to have a law license, you aren’t trustworthy enough to be President, and the sexual issues of those who figure it out are completely irrelevant.

      If you want to get a comment posted again, make a substantive argument, if you can. Based on this, I doubt it.

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