‘Thank God It’s Friday!’ Ethics Warm-Up, 8/24/2018: Tests…

Good morning!

It’s good that this week is finally ending.

1. Case dismissed! Today I learned that motion to dismiss the $100,000 defamation suit against me by a banned Ethics Alarms commenter had been granted. I wish I could claim that my brilliant massing of precedent and irrefutable legal advocacy carried the day, but I’m pretty sure it was because the complaint was absurd and frivolous on its face. The plaintiff’s spot-on Captain Queeg impression at the hearing didn’t hurt.

I’m pretty sure he’ll appeal. They always do.

2. Wisdom from Althouse. I’ve been a bit worried about blogger Ann Althouse, who has been increasingly going off on trivial tangents in posts about important topics. She still is capable of perceptive analysis that cuts through the crap, however. Recalling her response when a friend asked her what her views were on “the constitutional crisis” as a former professor in the field, Ann wrote in part,

What “constitutional crisis”? It seems to me the Constitution is in place, working as usual. There are some legal issues in play, but what’s constitutional other than that some of the various actors in the drama have positions defined in the Constitution and obtained by normal constitutional procedures? It was assumed that I would excitedly spring into action because of this assumed “constitutional crisis,” but my response was that I felt distanced from all the ugly divisions, though I thought some good might ultimately come from the crumbling of the 2 political parties….as I walked on, I thought, What constitutional crisis? It isn’t a constitutional crisis. It’s emotional politics, a national nervous breakdown.


Your friends on social media breathlessly blathering on about a constitutional crisis a) want there to be a constitutional crisis and b) don’t know what the hell they are talking about.

You can tell them I said so.

3. One reason why our schools stink. The New York Times recently published some sample questions from New York City’s admissions test for its selective high schools, known as the SHSAT and administered by Pearson, the same company that runs the GMATs and many other tests. Here was the very first question:

It’s essentially impossible. In his column in today’s Times, James Stewart analyzes his approach to the question, and gives his answer. It was graded as wrong. The supposedly correct answer was D, which is obviously wrong: the original sentence gave no number of people interviewed, so how could the addition of “three” be more precise?

This is an incompetent question, pointing to an incompetent test administered by incompetent educators, of which there are far, far too many in today’s schools, colleges, and through-out the education profession.

4. And the hype goes on. Conservative columnist John Hawkins did an excellent job clarifying what the news media is blurring regarding the Michael Cohen plea deal. He’s not a lawyer, but I was writing essentially the same thing when I stumbled over his analysis, and to save time, here is the gist of it, in a post he calls “The Media’s Latest Scam: Trump’s Going to Be Impeached Because of the Michael Cohen Plea.” (Good title!) I was especially proud of the John Edwards reference in my unfinished post, but Hawkins beat me to it.

The latest story of this sort is Trump’s lawyer Michael Cohen pleading guilty to a number of crimes, all of them unrelated to Trump except for a campaign finance violation. Cohen paid off the porn stars Trump slept with and Trump paid him back.

First of all, is this a campaign finance violation at all? That is arguable because campaign finance laws, beyond the basics, are a murky, byzantine mess that only highly specialized lawyers can navigate and even they only get definitive answers when a judge rules.

Trump’s argument will probably be something akin to, “My personal lawyer, Michael Cohen, paid off those women I slept with and I reimbursed him. No campaign funds were used. Michael Cohen told me it was legally fine and I did it because I didn’t want to cause any embarrassment to my family.” Is this true? We can’t know for sure at this point, but it certainly seems to be an extremely plausible argument. That is doubly so because Trump has a history of setting up nondisclosure agreements and paying out what could be considered “hush money.”

Cohen claimed that this was done to influence the election, likely because he was promised less time in jail on his other charges if he’d be willing to agree to something that could be used to implicate Trump. If this were to go further, you’d be likely to see a he said/she said argument. Cohen, who’s just been convicted of numerous crimes, will claim his client knew he was breaking the law, did it specifically for purposes of influencing the election, and told him to do this. Trump will say that isn’t true and that he had no reason to believe anything illegal was going on because his lawyer, whose advice he trusted, told him it was perfectly fine.

All of this is on top of the fact that whether this is even a campaign finance issue is extremely dubious. Apparently, no campaign funds were used. Cohen was paid back and using your own lawyer to coordinate that kind of payoff seems reasonable. Pretty clearly, no married man would want that kind of information out there, so you can’t even definitively say it was done for the sake of the campaign.

That being said, some people might compare this to payoffs to a mistress from a John Edwards donor, but it’s not really the same thing. Trump ultimately used his own money to pay off the women via his lawyer. Edwards didn’t pay back his political donor, which made it much easier to argue that it was a backdoor campaign contribution. Yet and still, Edwards wasn’t convicted in court over that allegation and Obama’s Justice Department dropped the case.

41 thoughts on “‘Thank God It’s Friday!’ Ethics Warm-Up, 8/24/2018: Tests…

  1. 3) Good thing there wasn’t a choice E.

    E) Asked the top 3 women for their winning recipes.

    It surely would have gone viral and created a Twitter Storm.

  2. 3) I suspect it has to do with the idea of precision vs accuracy, meaning they’re asking which version gives the most specific information, regardless of whether that information is true. As B and D include information on the number of interviewees, they are more precise than A or C. Since an interview is a specific style of conversation, D is more precise than B.

    • Yes, D also specifies that they were 3 at the very top. I believe that a measurement of 8.123 inches is more precise than a measurement of 8.1 inches, even if the item being measured is exactly 8 inches long.

      • Right- one thing I’ve had drilled into me as a scientist is that the most precise isn’t necessarily the best measurement- an extremely precise marksman can fire a group of shots you can cover with a quarter, 3 feet from the bullseye.

    • But for a measure to factually be labeled precise, there has to be some way to verify that the metric did in fact measure something that had been the case. Where is this prior that indicates “three”?

    • Then why did the prompt which is more specific instead of precise. If d is correct then the proper prompt would be “which revision provides more specific information to the reader.”

      Precision in language means the reader can understand that which is written.

      What is not mentioned is that most test prep programs drill into the student never infer information not given nor make assumptions.

      • I think the test question could have been easily fixed by adding the additional wording “Given that all of the presented revisions are factually correct, which of these…?”

        Then the issue of correctness vs. precision would have been addressed.


  3. #4 Yeah, but now we really have Trump, because this proves beyond a shadow of a doubt that there is Russian collusion, because Manafort didn’t pay his taxes, Trump had intimate relations with loose women, which are definitely, most likely, obviously, surely, don’t ask for evidence, Russian spies, just like that movie with Jennifer Lawrence. Its Res Ipsa and Prima Facie! Please someone bring in John Brennan, James Comey, Jim Clapper, generic former Obama administration hack, to blather on and on about treason, collusion, and how Putin is hiding behind every rock.

  4. 3. I would have eliminated choices B and D from the outset, since they specified a number that was not specified in the phrase that was at issue. Using a new phrase with a precise number (three) stinks to me like “fake news.” Since it is unclear form the original phrase whether the persons who “did best” actually “won the contest,” I would have eliminated choice A and guessed at choice C, on the premise that I was not being able-ist to equate those who “did best” with “winners.”

    • Lucky. Good answer. This prompt requires that the reader assume the persons doing the best were winners

      I am constantly reminded that HRC got the most votes but still lost. So, who did the best?

      • Right? Consider this as well. What if the reporter talked to the 2nd, 3rd and 4th place contestants. Then the reporter did not talk to the winner at all, yet still talked to “some people that did the best”.

        The question is obviously flawed.

      • Perhaps we can frame our present cultural battles in a frame similar to Captain Ahab?

        “Who told thee that?” cried Ahab; then pausing, “Aye, Starbuck; aye, my hearties all round; it was Moby Dick that dismasted me; Moby Dick that brought me to this dead stump I stand on now. Aye, aye,” he shouted with a terrific, loud, animal sob, like that of a heart-stricken moose; “Aye, aye! it was that accursed white whale that razeed me; made a poor pegging lubber of me for ever and a day!” Then tossing both arms, with measureless imprecations he shouted out: “Aye, aye! and I’ll chase him round Good Hope, and round the Horn, and round the Norway Maelstrom, and round perdition’s flames before I give him up. And this is what ye have shipped for, men! to chase that white whale on both sides of land, and over all sides of earth, till he spouts black blood and rolls fin out. What say ye, men, will ye splice hands on it, now? I think ye do look brave.”

        “Who told you that? cried Jordan Peterson; then pausing. “Yes, Children of YouTube; yes my brave ones each and all; it was Cultural Marxism that disempowered me; Cultural Marxism that brought us into this Dead American Walmart Present that we stand in now. Yes, yes, ” he shouted with a terrific, loud animal sob, like that of a stricken Canadian Moose; “Yes, yes! it was that accursed ‘philosophy’ that undermined my own ‘self’; made me a ‘victim’ of disempowered status for now and forever!” Then tossing both arms, with measureless imprecations he shouted out: “Yes, yes! and I will chase Marxism round Good Hope, and round the Horn, and round the Norway Maelstrom, and round Perdition’s Flames before I allow this destructive ideology to stand. And this is what you’ve been born for, iPhone Generation, to chase that Marxist Antifa over lands and seas, and over the whole earth, till he barfs black blood and rolls floundering, arms splayed. What do you think Internet Children? will you lay hand to that task? I think you do look somewhat brave…”

  5. 3. In the movie “Lady in Gold,” a Nazi art restitution case is brought before SCOTUS. Rhenquist asks a question that I could not begin to wrap my head around, and there is a painful pause as the young attorney for Altman tries to respond. Finally, he admits that he did not understand the question. Justice Rhenquist then admits that he himself couldn’t understand it.
    The incidence of Pearson question problems is extremely high. Wish I had documented all I have run across. Protest gets you nowhere. One superintendent looked at me and said, “we pay a lot of money for those questions.”

  6. 4. Regarding the possibility that Cohen will claim that,
    his client knew he was breaking the law, did it specifically for purposes of influencing the election, and told him to do this.

    What will happen if Cohen produces a tape with such a conversation?

    • Then, the question would become whether or not you can violate campaign finance law by paying for a paramour’s silence, even for the reason of preventing an embarrassing revelation during a campaign. The jury in John Edwards’ case, with what looks to me like a a much clearer violation, couldn’t agree that was a violation. The government didn’t think their case was strong enough to refile the charges.

      I don’t think you can violate campaign finance law this way. Then again, a jury could disagree. The beauty of all this is, the Justice Department could suggest Trump violated the law without having to prove it, since their own procedures don’t allow for indictment of a sitting president.

      Sure, Congress could impeach Trump, but what are the odds (assuming a 50/50 senate) that 17 Republicans would vote to convict him? About the same as the odds of the Democrats voting in sufficient numbers to convict Clinton, I suspect.

      Also, catching Trump willingly violating CF laws and bragging about it when he didn’t have to seems unlikely to me, but with Trump, you never know what he might say.

    • They one tape that has been released makes Trump’s defense easier, not harder. I’m going to presume it is likely that they got the worst one out there. After all, why would they hold a more damning one?

    • If he could produce such a tape, Cohen wouldn’t be working on a plea deal, he’d have horse-traded that recording for total immunity, and we’d already have heard it.

  7. The left needs a constitutional crisis to make our situation fluid and the citizenry uncertain.

    Getting a duly elected President impeached for, well, anything, is a shot across the bow of everyone who voted for him, likes his policies, or finally sees the left for what it is and is doing.

    If they can remove Trump, they can definitely destroy you and your life. This is intended to chill any dissent against them. The same is true of the gotcha’s on social media. Your entire life, no matter how famous or skilled you may be or how long it has been, is on trial every day and the left is the self appointed prosecutor, judge and jury.

    Get in line or really bad things will happen to you. This is Stalinism.

  8. Glad you stopped the insanity of the lawsuit, Jack. (Do we go back to being mindless robots who give your whim the force of law now?)

    Will you sue for your costs? After all, this (ahem) fine fellow cost you considerable time and cash.

  9. John Hawkins says, “Trump ultimately used his own money to pay off the women via his lawyer.”

    But that’s not what the indictment says. The events that it describes are peculiar:

    1. National Enquirer pays $150,000 to Woman #1.
    2. National Enquirer and Cohen sign a contract for Cohen to pay $125,000 for the nondisclosure portion of NE’s deal with Woman #1. (The remaining portion involved NE’s promise to feature the woman on two magazine covers and publish 100 articles by her, and I assume that NE and Cohen decided to value that piece at $25,000 and leave it with NE.)
    3. NE’s chairman tells Cohen to tear up the contract, and Cohen never pays NE. (The plea agreement doesn’t give any reason why he did that.)
    4. Cohen pays Stormy Daniels $130,000 for a nondisclosure agreement.

    All of these events happened before the election. If Cohen had actually paid the $125,000 to NE, and Trump had then reimbursed Cohen for his $255,000 of out-of-pocket expenses, then Hawkins would be right and I think there would clearly be no campaign finance violation. The existence of the signed contract between NE and Cohen certainly suggests that at some point, the intention was to do exactly that: for Cohen to reimburse NE and, since it is hard to imagine that Cohen was expected to pay all of that money out of his own pocket, for Trump to reimburse Cohen.

    Why that didn’t happen, I don’t know. What the plea agreement says happened instead is:

    5. NE kept the NDA with Woman #1, for which it had paid $125,000.
    6. NE paid Cohen $420,000 for the NDA with Stormy Daniels, for which Cohen had paid only $130,000.

    The plea agreement doesn’t give any reason why NE did that, and I can’t think of a good reason. Apparently, Trump was originally going to spend $255,000 of his own money to reimburse NE and Cohen for the two NDA’s. Instead, according to the plea agreement, NE paid $545,000 in order to save Trump from paying that $255,000. The plea agreement seems to indicate that NE did so voluntarily and on its own initiative. Why on earth did they do that? Do they just love Donald Trump so much that they will happily pay $2.14 to save him $1.00?

    Remember also that Trump has stated publicly that he reimbursed Cohen for the $130,000 that he paid to Stormy Davis. If true, then the $420,000 that NE paid to Cohen didn’t save Trump a dime and was just pure profit to Cohen. Why would they make a gift of that amount to Cohen?

    From these alleged facts, Cohen pled guilty to two crimes: First, making an illegal contribution of $130,000; and second, inducing NE to make an illegal donation of $150,000. There is no charge against Cohen relating to the $420,000 payment, presumably because it was arranged and paid after the election.

    But even the facts alleged in the plea agreement do not appear to support either of these guilty pleas. First, Cohen almost certainly expected to be reimbursed for his payment to Daniels and therefore he did not make a campaign contribution at all, much less an illegal one; and second, Cohen intended to reimburse NE for the Woman #1 NDA, so even assuming that the payment by NE to Woman #1 was a campaign contribution, which is legally dubious, Cohen did not induce NE to make it, since apparently NE made the contribution on its own initiative and contrary to Cohen’s expectation.

    From all of this, I conclude that the actual facts here are much more interesting than the plea agreement would like us to believe, and that the reason that the plea agreement does not lay out the facts more clearly and completely is that they would not support the prosecutors’ real agenda of impeaching Trump.

  10. #1 If he appeals, you’ll win, thus costing both of you more money, which is what he is after. He’s willing to spend money to make you spend money.

    #3. The question asks for an opinion, thus has no right or wrong answer. A test designed like this cannot be standardized. Ridiculous to think it can.

  11. I would also mention that this is the definition of a frivolous law-suit. Excellent reason for making the loser pay ALL of the costs.

  12. 3)My first thought was to choose D, but on reading further I can see how that would be incorrect.
    4)My sisters were trying to talk with me about this earlier. My position was that a)It was the National Enquirer and b)It was Cohen and c)Those things should make me take this seriously?
    Perhaps if we are talking alien abduction or if these women were alleged to have been wearing tin hat to keep the CIA from reading their minds……

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