Looking forward to the ethical week ahead, certain that I’ll be disappointed, and bitterly, based on last week…
<Sigh>
1. The Ethicist’s Dilemma. I’m preparing for a couple of legal ethics CLE seminars for government lawyers, and raised an ethical dilemma facing me to my sister. The last time I included government lawyer ethics issues related to the multiple controversies in the Mueller investigation, the FISA process, and the Michael Cohen clown act, I received several critical evaluations that were entirely partisan and political. And, in the session itself, there were a couple of participants obviously set at “hair-trigger” to register accusations and objections that any criticism–based on pure legal ethics analysis on my part—that found fault with the lawyers involved revealed me as a dreaded “Trump supporter.” I asked my sister, who is a retired government lawyer with extensive Justice Department experience, if I should nonetheless cover such issues as Robert Mueller flagrantly violating Rule 3.8 of the D.C, Rules with his public statement last week, or what a White House Counsel’s ethical obligations are regarding communications from the President (since the “who is the client?” complexities of that role continue to confound legal ethics experts, my position is that the WHC has an ethical obligation to make it crystal clear to any President when he is covered by attorney-client privilege and when he is not, to cite one example.)
Her depressing advice: Don’t touch any of it. People, even lawyers, are not capable of keeping their emotions and political passions under control these days, she said. No matter how accurate and fair your analysis is, she emphasized, you risk allowing these hot-button issues to derail the seminar and even harm your professional reputation.
Yet I believe that I have an obligation to cover these issues. I also have a lifetime bias for doing what people tell me will be disastrous when I am convinced that it is the right thing to do. Then my father’s voice comes out of the mists of time, reciting his favorite fake obituary, a ditty about sailing:
Who died maintaining his right of way
He was right, dead right, as he sailed along
But he’s just as dead as if he were wrong.
bias reports lodged by students at the University of Utah during the Fall 2018 semester. The university’s Office of Inclusive Excellence website defines an act of “bias” as “any act of intolerance, motivated wholly or in part by bias or prejudice against an individual’s race, color, ethnicity, age, religion, size, disability, national origin, language, gender, veteran status, identity expression, sexual orientation or age—regardless of severity.” A university spokesperson told the website that
“Each incident is handled on a case-by-case basis depending on the type of incident that was reported and any specifications made by the person who submitted the report. These may include following up directly with individuals involved, developing trainings, working with the department or office’s leadership, partnering with other campus offices and resources, etc….Ultimately, The Office for Inclusive Excellence does not have authority to conduct investigations or uphold sanctions. Instead, it is focused on professional development around creating inclusive spaces.”
As several of the complaints described in the article make clear, having a bias reporting system weaponizes the “right” biases (against specific viewpoints), as well as validating students’ using their own political certitude to punish non-conforming views.
3. Adding another anti-Trump Big Lie to the list…I have an uncompleted essay listing all of the Big Lies used by the “resistance” and the news media since the 2016 election to overthrow the Trump administration. One reason it’s incomplete is that the topic makes me so angry that I get anxiety symptoms just thinking about it.
Another is that I keep identifying new Big Lies. Here’s one: Quixotic GOP presidential candidate Bill Weld–he was a Republican, then ran as the Libertarian Party’s VP in 2016 while saying he would vote for Hillary, and now he claims he’s running to take the nomination from Trump— told Bill Maher on HBO’s “Real Time with Bill Maher” that he doesn’t think President Trump surrender the Presidency voluntarily if he loses the 2020 election.
Fishing for this slander, Maher asked Weld if he thinks Trump will leave if he loses, and Weld said, “Not voluntarily.” [Bias makes you stupid, and being on Bill Maher’s show makes you stupider yet.] Weld added, “He’ll have a run at saying, ‘It was a rigged game so I’m not leaving.’ I don’t think the military and indeed even the Justice Department — the rank-and-file, the investigative agencies — would stand for that in this country.”
This particular Big Lie was originally floated by Big Lie merchant Nancy Pelosi. Not only is there literally no evidence, logic or analysis that supports it or justifies speculating on it, the slur is especially galling coming from members of a party that refused to accept the results of the last Presidential election, and that after leaders of the party (such as Pelosi) lectured candidate Trump about how essential it was to accept defeat and honor the system.
Now I’m getting angry again.
Weld (who knows what party he belongs to) saying that the President would try to bunker himself in the White House is no different than saying that Trump is a werewolf, a hologram or a visiting demon from Hell. It is irresponsible and absurd fear-mongering, appealing to the frighteningly large number of crazed and gullible citizens whose minds have been weakened by hate. The news media then carried this Big Lie forward, as if Weld’s statement does anything but impugn Weld.
4. The wonderful world of rationalizations! Deniz Ak, 59, was arrested by Middletown, PA police after they received a report from a man claimed Ak walked past him while holding a baby and suddenly exclaimed, “Do you want to buy her? Only $50!” When Ak was confronted by police while holding his daughter outside his Middletown home, he explained that he was just joking.
Could that be true? Is he an aspiring radical performance art comic, like the late Andy Kaufman, whose joke often was that it was impossible to tell if he was joking? Subsequent investigation suggested that Ak was not, in fact joking. Investigators found an active protection from abuse order filed against Ak, requiring him to stay away from his daughter and her mother, and past that there had been past accusations of the mad jokester endangering the welfare of children.
On the bright side, I now realize that I need to update the description of rationalization 55. The Joke Excuse, or “I was only kidding!” to include not just statements and words, but also criminal acts and attempts.
Ethics Alarms 
Here are some ideas for your anti-Trump list: http://trumprotation.com/ You’ve covered most of them.
If you bring up Mueller violating the bar rules with his statements, do it later in the seminar after the audience has accepted you as an authority, and treat it as an example of competing ethical systems. Mueller must have felt justified in making his statements, and also must know the rules. What ethical balancing did he use?
A Wyoming rancher’s summary of the Mueller report: “While we recognize that the subject did not actually steal any horses, he is obviously guilty of trying to resist being hanged for it.”
Well we all know that Trump is Hitler or Mussolini in disguise. (Although IL Duce did resign after King Victor Emmanuel and the assembly had had enough of him.) Weld’s dark thoughts about Trump pulling some kind a coup so he can stay in power demonstrates how partisan and untrustworthy he is.
1. I appreciate the dilemma and I do think you have an obligation to cover such issues; how they are covered can make a difference. Have you tried the Socratic method for hot-button issues that might get you an undeserved negative evaluation? Or do you simply state your conclusion about the ethics (for example, Mueller’s press conference) in a combative or truculent manner, expecting the knee-jerk responses (as it seems you are sometimes apt to do during “debates” on the blog)? A slight variation on Socratic method might be useful: “Art 3.8 of the DC Rules states: “…..”. Robert Mueller did this: “….”. Remembering to be respectful to other attendees (and me), do you think his action competes with Art 3.8 or not? Why or why not? Not looking for “greater good” arguments or “he can’t be trusted” arguments. Simply, did his action comport with 3.8?” [And yes, Jack, I have taught groups of lawyers, albeit many years ago].
My whole presentation method–for 20 years— is pure Socratic method, raising hypothetical, having the class vote on options and conclusions, and asking class members to defend their votes.
The blog is completely different in methodology. There the idea is to take clear but assertive positions, and promote debate. Frequently I am no where near as certain as it appears, but the idea is to get rebuttals. In the seminar, the purpose is to teach legal ethics analysis: why is conduct ethical or unethical? When cane we violate the rules ethically? Yes, on some issues I am declare what I believe to be ethics fact, for example, that lawyers should not be criticized for who they choose to represent. If a participant argues otherwise, they will meet hard (but not “truculent”) resistance.
My sister opines that it won’y matter how carefully I tread in the political issues, I’m dead. Based on some recent experiences, I fear she is right…stilllllll
Thanks. Would no doubt enjoy attending one of your seminars!
I hope. I remembered that during the Clinton years there was a little of this, in discussing Bill’s conduct—the lie under oath, the grand jury deceit (“we were never alone in the Oval Office”). Some partisans were wildly defensive, usually waiting until the written evals to attack.Earlier this year, I had a women go nuts on me mid seminar because I (correctly) stated that a law firm acceding to a client’s desire for a male attorney was not a DC Rules violation, or unethical at all. She started going on about the Kavanaugh hearings, and complained to the bar….which caved, and dictated that I eliminate the hypo, just to avoid similar meltdowms. So I agreed—but I was still right.
“Office for Inclusive Excellence“ — The name itself induces symptoms of anxiety in me, not to say rage and despair.
No kidding. Right out of Orwell.
I wonder if these colleges, in the spirit of inclusion, open the doors on their black tie affairs in order to ensure more people of lesser means can partipate equally in consuming the various high end hor’ de orves served at such events, or do such events only include people of substantial means? Let’s ask the Director of the Office of Inclusion Excellence.
1. Jack, being right is one thing. Choosing your hill to die upon is another. Is this your windmill with which to joust? I can see some profit in upholding objective truth, but your sister is right: you stand a good chance of being destroyed regardless of the noble cause, and no minds may be changed while doing so.
Many times this is what we are called to do in life: decide that a topic is the one we will defend to the death, that it is worth our (perhaps literal) blood watering the soil. So you have to decide.
Is this your windmill, Sir Don Q? If so, I wish you the best in that endeavor, as windmill jousting CAN have positive results, whatever the personal cost.
2. “How about we create a system where rivals can be torn down without bothering with proof or even having to do more than accuse from the shadows.” What could possibly go wrong?
3. Common Americans are getting wise to this trick, as to many others. Progressives only had to hunker down until 2020 and let all the attention die down. Common Americans go back to sleep, after a while. Continually calling attention to how slimy progressives treat Trump keeps us awake and alert!
4. The fact that he was holding his daughter should have gotten him arrested on the spot. Doesn’t PA have a computerized system that allows officers to check such things, ala` checking for warrants?
I hear you. On the other hand, to quote the Rationalizations List, those who say “pick your Battles” have tendency never to pick any.
An easy way to determine if that is true is to see if the advice giver is willing to defend any topic.
I don’t see very many of those left here at EA as being that sort. They mostly all ran with their tails between their legs into TDS.