Prelude: Intent, Gross Negligence, And “Extremely Careless”

falling bowling ball

By now I intended to have published a thorough essay deciding the question of whether conservatives, and their claims that James Comey was part of a Justice Department conspiracy to save Hillary from indictment, were more unethical that Clinton supporters in the news media and elsewhere pronouncing her “exonerated” because she’s not facing trial. Alas, pressing matters have intervened, but no matter: I will present it soon. Meanwhile, however, allow me to clean up a relevant controversy.

Much of the mockery of Comey’s explanation of the FBI’s recommendation, since accepted with a big “Whew!” by Loretta Lynch, arises from his assertion that while Hillary’s handling of classified information was “extremely careless,” it did not arise to the standard of “gross negligence” specified in the relevant statute. Too many pundits and commentators to mention have snorted at this, arguing that there is no practical difference. Comey did not help, when he was asked the question in his Congressional testimony, by explaining the difference as one of enforcement: in a century, he said, no conduct similar to Clinton’s has ever been found to meet the “gross negligent” standard sufficiently to warrant prosecution. Attorney General Lynch, when she was asked the same question by Rep. Jim Sensenbrenner (R-Wis), just repeated how she accepted the recommendations of Comey not to indict Clinton.

There is a difference, however. I don’t know why neither Comey nor Lynch could articulate it, but it exists, and I will now make it clear.

For this analogy I owe thanks to a D.C. lawyer, ethics expert and law professor friend of long-standing with whom I was recently discussing the Clinton matter. He has a gift for  analogies, and said this…

“Intent, is when you drop a bowling ball out of an office building window, aiming so that it will kill somebody by falling on the victim’s  head.”

“Gross negligence is when you toss a bowling ball out of an office building window without looking in order to get rid of it, knowing full well that it is mid-day and very likely to fall on someone’s head.”

“AH HA!” I interrupted. “Then ‘extreme  carelessness’ is when you toss the bowling ball out of an office building window without looking, in order to get rid of it, because it’s 3 AM and you mistakenly/ignorantly/ stupidly  assume nobody will be walking on the sidewalk at that time of night!”

“Exactly!” he said.

More to come…

Make America’s Children Props And Billboards Again! Or Rather, Let’s Not…

trump rally Westfield

I hate this.

Using children as props for adults to make their own political or commercial statements is unfair, demeaning and an abuse of power. Oh, maybe putting kids in T-shirts with messages they neither understand nor have consented to convey is not as bad as this exploitation of children for publicity value, perhaps, or this exploitation of kids by their parents, a website and a shameless comedian.  And I know that politicians using his own children as their clueless and unconsenting mouthpieces has a long and shameful history, with such landmarks as President Jimmy Carter trying to use his young daughter Amy as the agent of his own position during a Presidential debate with Ronald Reagan, to Ted Cruz’s employment of his daughters in a campaign video that inspired Washington Post political cartoonist Ann Telnaes to portray the little Cruz girls as monkeys.

Nevertheless, I do hate this stuff, and I’m calling for a cultural consensus that using children as billboards, mouthpeices or props for advocacy purposes, no matter what the cause or context, is wrong. I would like to see politicians, advocates, organizations and movements that use children in this manner pay a steep price in lost contributions and support, until the message is learned that the tactic will not be tolerated. I would like to see any parents who volunteer their kids for this demeaning duty to be properly and decisively shamed.

The photo above is an easy place to start; after all, this was at a Donald Trump appearance in Westfield, Indiana,  and a substantial percentage of the public hates Trump already.

It’s not like the kids are wearing shirts spelling out “GIVE PEACE A CHANCE,” though that would be equally unethical.

_________________

Pointer: Prof. Mike McGregor

Ethics Dunce: “Late Night” Host Seth Meyers

meyers-giuliani

Seth Meyers is a comedy writer and performer, and his job, on the show following the Tonight Show, is to be funny, not to use the program as a platform for his political views. His predecessor twice-removed, David Letterman, increasingly ignored that line as time went on and he moved to CBS. This stratified his audience, and abused his role, but massaged Letterman’s massive ego. (Meyers’ immediate predecessor, current Tonight Show host Jimmy Fallon, may not always be funny, but he knows his place.) Meyers is relatively new to the job, and this week went much, much farther than Letterman ever went, while being supremely smug about it. Here were his hilarious comments last night:

MEYERS: So there were some incendiary and counterproductive responses to the tragedy in Dallas, but there were perhaps no worse response than that of former New York City mayor Rudy Giuliani, who complained, in perhaps the most galling and offensive way possible, that those peacefully protesting for police reform should shift their focus.

RUDY GIULIANI (on video): If I were a black father and I was concerned of my child, really concerned about it, and not in a politically activist sense, I would say, “be very respectful of the police. most of them are good. some can be very bad. and just be very careful.” I’d also say, ‘Be very careful of those kids in the neighborhood and don’t get involved with them, because son, there’s a 99% chance they’re going to kill you, not the police.’

MEYERS: Okay, first of all, don’t ever start a sentence with the phrase, “if I were a black father.” If you are black father, you don’t need to say it. And if you’re not, you should probably just shut the fuck up. And if Giuliani’s willing to say that some police can be very bad, you would think he’d see the value in the Black Lives Matter protests. But instead, he condemned them.

Observations: Continue reading

Donald Trump Candidacy Ethics Train Wreck Passenger List Update: Georgetown Law Prof. Paul Butler Scores A Perfect Rationalization #28

We're real sorry about this, but these are not ordinary times...

We’re really sorry about this, but these are not ordinary times…

The human ethics train wreck named Donald Trump is now in the process of exposing how thin the veneer of professionalism is for many alleged intellectuals, scholars and lawyers. On an e-mail list of most of the legal ethicists in the country, one of them posted this in reaction to Justice Ginsberg’s unethical and unjudicial shots at Donald Trump:

“I love RBG way too much to be critical of her in any way . Long may she live!”

This opne expression of willful denial, from not merely a lawyer, but an ethics specialist! It is the epitome of one of my father’s favorite quotes, “My mind’s made up, don’t confuse me with facts.” I responded to the list that it was the most depressing statement I had ever read from any of the list’s participants.

Paul Butler’s op-ed in the New York Times isn’t much better. The Georgetown Law Center professor defended Ginsberg’s indefensible comments by arguing that these times are special, and thus suspend the ethics principles that must govern judges if the judiciary is to engender any respect or trust at all. He writes:

“Normally Supreme Court justices should refrain from commenting on partisan politics. But these are not normal times. The question is whether a Supreme Court justice – in this case, the second woman on the court, a civil rights icon and pioneering feminist — has an obligation to remain silent when the country is at risk of being ruled by a man who has repeatedly demonstrated that he is a sexist and racist demagogue. The answer must be no.”

No, Professor, the answer must be “yes.” Continue reading

Ethics Dunce: Supreme Court Justice Ruth Bader Ginsburg

Justice Ginsberg, not giving a damn.

Justice Ginsberg, no longer giving a damn.

Add one more bit of evidence to the pro- side of the debate over whether there should be a limit to Supreme Court tenure. Justice Ruth Bader Ginsburg, 83 and a cancer survivor, has now apparently entered the “What the hell: I’m going to say what I feel like saying” period of her life. How nice for her. The problem is that there are some things an ethical Justice should not and cannot say.

In an Associated Press interview published last week, Ginsberg opined that a Trump Presidency was too awful to contemplate, saying that she presumed Hillary Clinton will be the next president, and that she didn’t ” want to think about that possibility” of Trump being elected instead. Talking to The New York Times, she said, “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president. For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”  Then, in a CNN interview, she got specific:

 “He is a faker…He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Law professor Daniel W. Drezner, who teaches at the Fletcher School of Law and Diplomacy at Tufts University,  minces no words over at the Washington Post, nor should he. Like me, he agrees with Madam Justice on the substance of her remarks about, yechh, Donald Trump. Nonetheless, he writes, Continue reading

To Be Fair To Incompetent Elected Official Rep. Louie Gohmert (R-TX), His Nemesis, Rep. Corrine Brown (D-Fla) Is Incompetent Too.

Incompetence and idiocy in Congress is a bi-partisan ethics problem.

Rep. Louie Gohmert and Rep. Corrine Brown reportedly almost came to blows during last month’s cynical Democratic “sit-in” demanding that Sen. Susan Collins’ anti-Due Process, anti-Fifth Amendment, pre-crime “We have to DO something!” gun bill get a vote in the House despite being, you know, unconstitutional and totalitarian. Gohmert and Brown were screaming at each other and had to be separated.

Gohmert has proven himself to be an idiot, and idiots do not make competent members of Congress. To be fair, however, Brown is as least as big an idiot, and may be a crook as well.

Brown was charged with 24 counts of fraud late last week based on an investigation that found her and her Congressional staff using a college scholarship fund as “a personal slush fund.”  Federal prosecutors allege that the Congresswomen and her chief of staff, Elias “Ronnie” Simmons, used her position and office to solicit hundreds of thousands of dollars in donations to the fake charity.

Brown’s jaw-dropping response? This:

“These are the same agents that was not able to do a thorough investigation of [shooter Omar Mateen], and we ended up with 50 people dead,” Brown said. Having made that ridiculous rationalization-soaked diversion official (they aren’t the same agents, by the way), she moved on to playing the race card, the default defense of all unethical African-American officials.

But first I should mention that the rationalizations behind Brown’s diversionary  non-explanation are…

22. The Comparative Virtue Excuse or “There are worse things.”

26. “The Favorite Child” Excuse (“Why are you punishing her when there are people more deserving of punishment?“)

54. The Scooby Doo Deflection, or “I should have gotten away with it!”

On her blog, Brown attributed the indictment to racism and had the gall to compare her fate to those of the two men recently killed in police shootings as well as the assassinated Dallas police officers, writing in her blog,

“Two black men were needlessly gunned down by police; five Dallas police officers were slain by a demented man, and on Friday I had to appear in federal court. I’m not the first black elected official to be persecuted and, sad to say, I won’t be the last.” 

OK, I’m ready to call it! She’s even worse the Louie. Nevertheless, a battle between the two would have been the Godzilla vs. Mothra of incompetent elected officials. Two bad they didn’t just let these twin embarrassments to the Congress go at it.

 

McAfee And Me: An Ethics Rant

I have written here before about my theory that the needless complexity of life, especially involving daily interactions with technology, are driving normal people crazy, and sometimes homicidally crazy. While activists and justly alarmed citizens point to guns and mental health policies to explain murderous rampages by citizens previously regarded as quite and law abiding, insufficient attention is being paid to the ratcheting-up of daily stresses caused by the private and public sectors gratuitously making  daily life unbearably frustrating to navigate, particularly for the less skilled navigators among us.

I don’t expect to snap, but you never know. It is said, I assume apocryphally, that there was a sick drawing New Yorker black humor cartoonist Charles Addams would send to his editor when he was about to have one of his periodic breakdowns, and the magazine would see that he was deposited in his favorite sanitarium in a timely fashion. If you read the message  “AGGGGGGGGGGGGGGGGGGGGGGGGZZZZZKKKKKAAAAARHHHHHYY!”-and nothing else--in a future post, you will know that I have gone full Sweeney Todd (Sweeney in his fury and grief determined that half the human race were so cruel and corrupt that they deserved to die, and that they made the other half so miserable that it was merciful to murder them too) and my immediate neighborhood is in mortal danger. Call the police. I don’t have a gun, but I don’t need one: I’m pretty good with a baseball bat.

If and when that happens, something like my experience yesterday will be the cause.

I have a new netbook, and it included a free 30 day trial subscription to McAfee’s virus protection service. For a week I had been getting obtrusive pop-up ads from McAfee telling me that my protection was about to lapse and my opportunity to purchase a special discounted continuation of the service (Just $39.99, marked down from $89.99!) would soon evaporate. Yesterday was the expiration date, so I decided to accept the offer and sign up online.

I checked the appropriate boxes and filled in all the information, including the credit card data. The attempt to pay was rejected, the screen told me, for my security code, that little three digit number on the back of the card, was incorrect. So I reentered it, after checking it carefully. After much churning and two “preparing your order” screens, I again got the error message. Huh. I tried again. Same thing.

This provoked a mature explosion quite familiar to my wife and dog (the dog hid under the bed), in which I cursed all online purchase, subscription and registration procedures, which inevitably take far longer than they are supposed to, are so complicated that they invite human error, and appear to have been designed by Joseph Mengele as some kind of sadistic experiment. My wife sagely suggested that I try another credit card, since the one I was using had recently been the object of a bank screw-up that ate another several hours of my rapidly dwindling life span. This I did…four times. Every time, the security code was flagged as entered wrongly, which it was not. Finally, I used a third card. Again, no dice, “incorrect data.”

The attempt to pay McAfee $39.99 had now taken about a half an hour. Continue reading

Unethical Website Of The Month: “Above The Law”

above-the-law

Stay classy, Above The Law!

Above The Law, which styles itself a legal profession gossip site and half-baked professional ethics watchdog, has been a useful resource for me on occasion, though the commentary of its writers, particularly lead writer Elie Mystal, has often left a lot to be desired ethically and logically. My last four posts regarding Above the Law, going back a year, have been Ethics Dunce entries, and there easily could have been more.

I used to get Above the Law’s stories sent to my in box, as I had subscribed several years ago. Then I noticed that I wasn’t getting them any more, so I subscribed again. I got notices for a few days, then they stopped. Again I subscribed. Again, my subscription vanished.

I just re-subscribed today, and expect that I will again be cut off.

Ethics Alarms has, it seemed, been “unfriended” by Above The Law, because I have had the impertinence to point out the increasingly lunk-headed ethics confusion and partisan bias of the site. Wow, that’s petty!  That’s also cowardly: the site seems to think that if I don’t know about their frequently misguided posts, I wouldn’t be able to criticize them. In fact, they are mostly right. I have now more than once gone many weeks without noticing the lack of the site’s notices in my e-mail. Life without “Above the Law’ is still rich and full of joy.

I did check today, however, which is when I discovered my latest subscription was gone with the wind. While I was responding positively to the site’s invitation to me to subscribe (for the 4th time), I checked the most recent posts, and saw this, from Elie, naturally…

Praising a recent post by a professor who was criticized for openly supporting Black Lives Matter—a group that declares on its website that the deaths of “Alton Sterling and Philando Castile at the hands of police” were “murders” before any investigation or assessment of the events leading up to the shootings has been completed—Mystal’s post, titled “To Be Honest, I’m In No Mood To Explain #BlackLivesMatter To White People Today” reads in part… Continue reading

Incompetent Elected Official Of The Month: U.S. Rep. Louie Gohmert (R-TX)

I know this is like shooting fish in a barrel—dead fish, in fact— but I need some levity about now. Of course it’s no joke, and indeed tragic, that a certifiable fanatic like Gohmert can reach a position of influence in our government, and a greater tragedy that there are so many equally unfit officials, from both parties. Few, however, are willing or able to expose their cognitive deficiencies as deftly as Congressman Gohmert.

When a gay, progressive friend posted the story about this, I assumed that he had been caught (again) in a web hoax. Surely Gohmert isn’t THAT stupid. Nobody is that stupid in Congress, surely. Yet he is, and the story was correct and true.

This happened a while back, during the “general speeches” portion of House proceedings on May 26, 2016. It was little noted, because if it had been, I would hope that GOP leaders would have placed him in a padded room and denied him the opportunity to ever speak for the party again.

Here, in part, was Gohmert’s anti-gay, science fiction rant (the video of his whole speech is above): Continue reading

Ethics Hero (And Author Of Perhaps The Best Facebook Post Ever): Palm Beach Florida African-American Police Officer Jay Stalien

Jay Stalien

When I read published quotes from police officer Jay Stalien’s Facebook page post, now deservedly in the process of going viral, my immediate reaction was that it was a hoax, a measured and well-researched explanation of the racial unrest surrounding police shootings and the Black Lives Matter movement written by a professional pundit  and placed in the metaphorical mouth of a black police officer to give it added power and credibility. It was, in short, too good to be true.

It is true, however, as well as good. To be presented at this time is an act of courage and civic responsibility by Stalien, and his effort redeems the existence of Facebook and social media, not to mention the internet, as few posts have. In the past, someone like Stalien would have to submit a column to a newspaper editor, and agree to cuts and edits that reduced its effectiveness, if his important observations were to have any impact beyond his living room or workplace. Now he can publish himself. The First Amendment has seldom been better served.

The post is very long, but you should read it all, here.  I will only point out some highlights.

He begins, in part…

The following may be a shock to some coming from an African American, but the mere fact that it may be shocking to some is prima facie evidence of the sad state of affairs that we are in as Humans.

I used to be so torn inside growing up. Here I am, a young African-American born and raised in Brooklyn, NY wanting to be a cop. I watched and lived through the crime that took place in the hood. My own black people killing others over nothing….I used to be woken up in the middle of the night by the sound of gun fire, only to look outside and see that it was 2 African Americans shooting at each other.

It never sat right with me. I wanted to help my community and stop watching the blood of African Americans spilled on the street at the hands of a fellow black man. I became a cop because black lives in my community, along with ALL lives, mattered to me, and wanted to help stop the bloodshed.

As time went by in my law enforcement career, I quickly began to realize something. I remember the countless times I stood 2 inches from a young black man, around my age, laying on his back, gasping for air as blood filled his lungs. I remember them bleeding profusely with the unforgettable smell of deoxygenated dark red blood in the air, as it leaked from the bullet holes in his body on to the hot sidewalk on a summer day. I remember the countless family members who attacked me, spit on me, cursed me out, as I put up crime scene tape to cordon off the crime scene, yelling and screaming out of pain and anger at the sight of their loved ones taking their last breath. I never took it personally, I knew they were hurting. I remember the countless times I had to order new uniforms, because the ones I had on, were bloody from the blood of another black victim…of black on black crime. I remember the countless times I got back in my patrol car, distraught after having watched another black male die in front me, having to start my preliminary report something like this:

Suspect- Black/ Male, Victim-Black /Male.

Then Officer Stalien, in the same powerful style, proceeds to answer typical complaints from the black community by presenting  “FACTS” that too many African-Americans, elected officials, journalists and partisans refuse to believe, accept, or comprehend: Continue reading