Month: June 2019

Political Fundraising Frauds And Scams, PART I: The Democrats

/ Jack Marshall / 7 Comments

There’s nothing much  lower and making your iconic ,84 year old, women’s rights advocate on the Supreme Court look like she’s breached multiple judicial ethics rules, but the Democratic Senatorial Campaign Committee (DSCC) is up to the challenge, A current DSCC fundraising letter, forwarded to me by a friend, does this AND lies to its supporters in the interest of separating them from their money.

  • No, Justice Ruth Bader Ginsberg” does not “have a powerful message” about this topic. She made that statement more than 20 years ago, before she was “Justice Ginsberg,” when she told Senators that.

I assume that Justice Ginsberg neither gave her permission to be misrepresented  in this fraudulent manner, nor knew the DSCC was planning on making her a party to a scam. She’s old, but she’s not THAT old. Continue reading →

Lunchtime Ethics Appetizer, 6/3/2019: Self-Censorship, Trump’s Ridiculous Jumbo, Turley On Mueller, And A College Ranking Scandal [Updated]

/ Jack Marshall / 15 Comments

Bon Appettit!

1. To self-censor or not to self-censor. Right after expressing here my dilemma about whether to risk political and partisan backlash by raising current, important and legitimate legal ethics issues from the Mueller investigation, there were a flurry of articles and podcasts about the dangers of self-censorship in a climate where Americans are being systematically intimidated from opposing the Woke Collective. This is a classic ethical dilemma, with ethical considerations like integrity, duty, citizenship, honesty and responsibility, are opposed by non-ethical considerations, like keeping one’s job, paying the bills, and not being cast as a pariah in one’s profession.

I was also reminded of my problem by Instapundit referencing today an old  Washington Post article about Mao’s mass murders. My company lost a lucrative sexual harassment training deal after two Chinese nationals (that I did npt know were in the audience) too offense at a tangential comment about Mao’s exterminations dwarfing those of Hitler and Stalin  (but not Darth Vader). Both contacted me and demanded apologies, claiming that it was Western propaganda and that the Great Leader had “only” executed millions out of necessity. I refused (I know I have mentioned this before here) and said I was sincerely sorry they had been subjected to cultural influences that had warped their ethics, and that if I had been aware that this was a sensitve topic to anyone in the audience, I would have omitted the reference. Having spoken the truth, however, I was not going to deny or apologize for it.

“Why didn’t you just apologize?” my client asked. And I was reminded of the moment in “1776” when a royalist in the Continental Congress asks Jefferson why he called King George “a tyrant” in the Declaration. “Because he is a tyrant,” Jefferson answers.

I’m an ethicist, I said. I’m not going to whitewash the massacre of 45-60 million people because someone is offended by the truth.

That was the end of that contract…

2. The President issues a Jumbo. Why does he do things like this? I have no idea. It si the political equivalent of pushing a pie into his own face. In an interview with the British tabloid, The Sun tabloid, Trump responded to a query about his reaction to  Megan Markle’s statement  that he is a “misogynist” and her suggestion that “she’d move to Canada if you got elected; turned out she moved here.” He said, “Well, a lot of people are moving here, so what can I say. No, I didn’t know that she was nasty.”

Of course Trump was attacked for saying that to a British newspaper—it was racist, it was an insult, the usual. Of course the President shouldn’t stoop to personal swipes at anyone; on the other hand, that’s what he does when he is attacked himself.  “Tit for Tat” and “doing unto others as they did to you” are part of Trump’s “ethics.” Can’t we stipulate this by now? Can’t TRUMP stipulate it at this point?

Then he tweeted, “I never called Meghan Markle ‘nasty.’ Made up by the Fake News Media, and they got caught cold! Will @CNN, @nytimes and others apologize? Doubt it!” He did this knowing that the Sun had his statement recorded, and sure enough, the paper  released the audiotape.

See, the idea behind Jimmy Durante saying “Elephant? What elephant?” when caught stealing the biggest pachyderm in the world in a musical comedy is that it’s obviously desperate and ridiculous, and intended to be funny.

This is just self-destructive, disturbing, and really, really stupid.

3. Jonathan Turley on Mueller. The George Washington Law prof has consistently been a voice of reason and objectivity reagarding the Mueller investigation. He has recently written two excellent columns on Mueller’s public statement, here, and here.

Greg should send them to his ex-friend.

4. Why is this more damaging to a school than, say, falsely instructing students about justice, the right to representation, and due process?

From TaxProf Blog: “University Of Oklahoma Inflated Its Alumni Giving Data For 20 Years, U.S. News Strips Its #127 Ranking”

The University of Oklahoma admitted to  U.S. News that it had inflated its alumni giving data since 1999, which affects its placement in the National Universities, Best Value Schools, Top Public Schools, Best Colleges for Veterans and A-Plus Schools for B Students rankings and lists. For the 2019 Best Colleges rankings, the University of Oklahoma originally reported its two-year alumni giving rate at 14 percent. The school informed U.S. News the correct value is 9.7 percent. The average alumni giving rate has a weight of 5 percent in the Best Colleges ranking methodology.

And now,

A former OU student has filed a class action lawsuit against the University of Oklahoma as a result of the university being stripped of its U.S. News & World Report ranking. [Gretzer v. Oklahoma, No. 19-490 (W.D. OK May 28, 2019]

The lawsuit, which was filed May 28 on behalf of former OU student Elani Gretzer and all OU undergraduate students since 1999, alleges the university broke contract by providing false alumni giving data to U.S. News & World Report, inflating its ranking in U.S. News & World Report’s “Best Colleges” ranking as a result.

The lawsuit alleges the U.S. News & World Report’s ranking of the Price College of Business was a “material factor” in Gretzer’s decision to enroll at OU. … The suit is also filed on behalf of an estimated minimum of 350,000 people — all OU students who have enrolled since 1999, the year in which OU has admitted it began providing false information to U.S. News & World Report.

Morgan Cloud (Emory) & George Shepherd (Emory), Law Deans In Jail, 77 Mo. L. Rev. 931 (2012):

A most unlikely collection of suspects — law schools, their deans, U.S. News & World Report and its employees — may have committed felonies by publishing false information as part of U.S. News’ ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents’ crimes.

Some law schools and their deans submitted false information about the schools’ expenditures and their students’ undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates’ employment rates and students’ undergraduate grades and LSAT scores.

U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data’s accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

One question: why isn’t Harvard’s ranking being lowered? I suspect that it’s because maleducating students and systematically undermining American values and civil rights isn’t included in the criteria.

It should be.

Are “Pre-Crime” Measures Absolutely Unethical?

/ Jack Marshall / 14 Comments

Yes.

I guess that would be a too-short essay on an important topic with special contemporary relevance, so I am bound to say more. Nonetheless, I would be more comfortable with my fellow society members and more confident of the future of the the nation if the answer to the title query was universally accepted in absolute terms. For the acceptance of the principle of pre-crime is dangerous. It places less than a spiked mountain-climber’s boot on a slippery slope to totalitarianism, which is the real-life equivalent of the Devil in the scene above from “A Man For All Seasons,” both the play and the movie, based on the writings of Sir Thomas More, in which  More emotionally refuses to arrest a man because of the evil  he might do, before he has actually broken any laws:

More’s Wife: Arrest him!

Sir Thomas More: For what?

Wife: He’s dangerous!

William Roper (More’s Son in Law): He’s a spy.

Margaret (More’s daughter): Father, that man’s bad.

More: There’s no law against that.

Roper: There is – God’s law.

More: Then God can arrest him.

Wife: While you talk, he’s gone.

More: And go he should, were he the Devil himself, until he broke the law.

Roper: So, now you’d give the Devil the benefit of law?

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s. And if you cut them down – and you’re just the man to do it – do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Few more profound and important thoughts have been so eloquently and powerfully  presented in a motion picture as this scene from “A Man For All Seasons,” to which I will note (again) in passing, “Rotten Tomatoes” gives a lower score than “Birdman,”a fact that provides a disturbing snapshot of the state of our education, culture and priorities in 2019.

Both political parties have placed their feet on this slippery slope in the past. The essence of pre-crime is punishing a citizen for what he or she is, rather than for what he or she has done, on the theory that what an individual is makes that person “dangerous,” in the words of Mrs. More, for what they might do. President Franklin D. Roosevelt (and the Supreme Court that backed him) was responsible for probably the worst example of pre-crime in our history, when the United States, in full panic mode after the bombing of Pearl Harbor, imprisoned loyal Japanese-American citizens as a precautionary measure. Another panic, also not entirely groundless, led to a pre-crime mentality during the Red Scare and McCarthy episodes, seeking to punish Americans who belonged to the dreaded Communist Party, a nonetheless legal organization.

To be abundantly clear, I will define pre-crime as when the government removes a civil right, a Constitutional right, from a citizen, not as punishment for breaking a law, but based on what that individual believes, says, is or is understood to be. Continue reading →

Comment Of The Day: “Morning Ethics Warm-Up, 5/29/2019: ‘It Depends On What The Meaning Of _____ Is’ Edition” [Item #1]

/ Jack Marshall / 18 Comments

One of the many things I deeply resent about the “resistance”/Democratic Party/ progressive/mainstream media assault on the President, elections, our democracy and the connective tissue that has held the United States together—aside from such minor inconveniences as the likely permanent damage it has done to society and the viability of the American experiment—is how it has rendered so many familial, personal and professional relationships unsustainable after one party or the other has fallen prey to Stage 5 Trump Derangement.

Commenter Greg has chronicled an experience that too many will find familiar. Here is his Comment of the Day on #1 in the post, “Morning Ethics Warm-Up, 5/29/2019: “It Depends On What The Meaning Of _____ Is” Edition.”

I’m not on Facebook, so I can’t unfriend anybody. But inspired by Jack, I finally did block a (former) friend from texting me today after the following exchange, which is in tone exactly like all of the other text conversations that I have endured with him for over three years:

Former Friend: https://twitter.com/atrupar/status/1133766034874404864. Compare what Barr said and what Mueller said:

BARR: “[Mueller] made it very clear that was not his position. He was not saying that but for the OLC opinion he would have found a crime.”

MUELLER: “If we had confidence POTUS clearly did not commit a crime, we would have said so.”

According to Barr, Mueller didn’t find that Trump committed crimes and the OLC didn’t have anything to do with it. But Mueller says Trump committed crimes and he would have charged him if not for the OLC opinion. So Mueller contradicted both of Barr’s LIES today. Barr lied and dropped the charges and let Trump go. We gotta impeach both these criminals.

Me: There’s no inconsistency between what Mueller said and what Barr said. There is a continuum:

1. Clearly did not commit a crime.
2. Probably did not commit a crime.
3. 50/50 whether he committed a crime.
4. Probably committed a crime.
5. Clearly (i.e., beyond a reasonable doubt) committed a crime. This is the only circumstance under which a crime would be charged.

Mueller said the evidence was not sufficient to establish #1 and he did not comment on whether it established #2 through #5. Barr said the evidence was not sufficient to establish #5 and he did not comment on whether it established #1 through #4. Mueller didn’t say that Trump committed crimes and he certainly didn’t charge him with any crimes.

Former Friend: Bullshit. Barr said the barrier to charging a president was NOT a factor in failing to bring a case against Trump. Mueller said today that is the only reason why they didn’t charge Trump. A LIE.

Me: No. Barr didn’t say that the barrier to charging a president wasn’t a factor in Mueller’s decision. He said that it wasn’t a factor in his own (and Rosenstein’s) decision. Barr and Rosenstein decided not to consider whether or not a president could be charged with a crime under any circumstances because they had determined that the evidence did not establish #5. Mueller decided not to consider whether or not the evidence established #5 because he had determined that a president could not be charged under any circumstances. There’s no inconsistency.

Former Friend: Read the fucking transcript.

Me: I read the transcript and I read the Mueller report and I read Barr’s letter. Barr’s letter said: “Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” That means that they determined that there was no proof of #5 even aside from the barrier to charging a president.

The Mueller report says, “We considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” That means they did not make any determination about whether or not the evidence established #5. They said they decided not to make that evaluation because the “threshold step” had not been satisfied. The “threshold step” was a determination of whether the president could be charged with a crime. Because they determined that the answer was no, they did not move to the second step, which would have been evaluating whether the evidence was sufficient to establish #5. That means they decided not to make a determination one way or the other about #5 because of the barrier to charging a president.

That’s what Mueller said today, too. “We concluded that we would not reach a determination one way or the other about whether the President committed a crime…. We will not comment on any other conclusions or hypotheticals about the President.” This is exactly the same as the report. They are not expressing any opinion about #2, #3, #4 or #5 and they refuse to speculate.

Former Friend: You are so full of shit. You just sit there and repeat Trump’s talking points over and over again. Evidence doesn’t matter to you at all.

Me: [block]

Continue reading →

Another Mass Shooting, More Reminders Of Why The Anti-Gun Left Cannot Be Trusted

/ Jack Marshall / 59 Comments

When there was a mass- shooting in Virginia Beach last week, I wondered if this time the determined gun-grabbers would pretty much leave it alone. After all, it was carried out with hand-guns, legally purchased. The perpetrator had no criminal record or psychiatric issues. None of the so-called “sensible gun regulations” that we are lectured about constantly would have stopped him.

My curiosity was quickly slaked when the sad, openly partisan shell of Dan Rather, who was once respected when he was able to pretend that he was an ethical, objective  journalist before the mask dropped, appeared  on “CNN Tonight,”  to accuse Second Amendment-respecting members of Congress who do not rush to disarm law-abiding Americans in the wake of every shooting as “bought and paid for by the gun lobby.” This, of course, is the present disgraceful ideological certitude of the Left: no one of good faith and virtuous objectives can possibly disagree with progressive cant, so dissenters must be evil or corrupt. But, to take an example I am extremely familiar with, if the trial lawyers spend millions to support mostly Democratic legislators who refuse to accept “sensible” reforms to the current civil justice system that makes plaintiffs’ attorneys millionaires, the representatives who vote their way have just been persuaded by the innate rightness of their arguments. The same is true of Democratic support of illegal immigration, abortion, climate change policies, legalizing pot, and on and on—but according to Rather, only gun supporting Congress members are “bought and paid for.”

Boy, do I feel like a chump! Here I am, thinking I was a non-gun owning ethicist who has studied our history, the law, the court cases and the statistics, and thought about the issue a great deal over many years.  I’ve concluded, without anyone paying me a cent, that the Second Amendment is the bulwark of the Bill of Rights, and one of an essential and indispensable defense against the desires of power-seeking politicians to reduce individual liberty in the U.S. to advance an agenda of suffocating government control. What’s the matter with me?

Then came another of the Democratic Presidential candidates, this time the slippery Cory Booker, who also addressed my internal curiosity. Continue reading →

Unethical Tweet Of The Week: Yes, It’s Representative Ocasio-Cortez Again!

/ Jack Marshall / 9 Comments

I know we’re getting perilously close to Julie Principle territory here. The Congresswoman says and tweets so many ignorant, logically flawed, impulsive and silly things so often that it seem ungallant to keep swatting at them.

On the other hand, elected officials, especially members of Congress, have an ethical duty not to make their supporters, followers and the public in general dumber and more ignorant than they already are. The tweet above does that: it misrepresents laws, law enforcement, the nature of abortion, reality, justice, too much to process, really.

It also shows seriously damaged critical thinking skills and an abysmal grasp of analogies. “Right?” No, NOT right, you fool. Abortion bans target the intentional taking of what these laws deem human life. Got that? Intentional. No ICE agents set out to cause the deaths of premature babies that were, in fact, placed in peril by their mothers who endangered them by bringing them along as they attempted to break U.S. laws. There is no valid comparison here. None. Continue reading →

More Dark Thoughts: How Do You Make This A More Ethical Society If Our Institutions Encourage The Opposite Of Ethics?

/ Jack Marshall / 11 Comments

If I’ve learned one thing from writing this blog, it’s that I have no ability to make what I believe are the most important posts the most read. I regard this post, from yesterday, an important post, and the story an important ethics story, though it is being handled as trivia by the non-local news media. Here’s another one that shows that frighteningly few commentators are sensitive to what the real ethical issues are in current events.

The headline says it all… “San Antonio leaders, residents outraged after former mayor Lila Cockrell isn’t allowed to vote.” Continue reading →

Sunday Morning Ethics Warm-Up, 6/2/2019: Dark Thoughts And Good Reasons For Them

/ Jack Marshall / 12 Comments

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:

This is a story of John O’Day
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.
I’m thinking.

Continue reading →

What A Fine, Fine Role Model This High School Principal Is…If The Idea Is To Graduate Short-Cut And Rationalization Addicted Students Who Try To Tap-Dance Their Way Out Of Trouble!

/ Jack Marshall / 28 Comments

 

Abby Smith, a graduating student at Parkersburg High School in West Virginia, noticed something vaguely familiar about  the speech given by the school’s principal, Ken DeMoss, at her graduation last week. Later, she went home and looked for a video of a speech actor Ashton  Kutcher (formerly the goof on “The 70s Show,” the goof who succeeded Charlie Sheen on “Two and a Half Men,” and the guy who took over froim Bruce Willis when Demi Moore decided she wanted a husband with hair) gave at the 2013 Kid’s Choice Awards. Then she edited DeMoss’s speech and Kutcher’s together, and posted them on YouTube.

There’s no doubt about it, as you can see above. The principal ripped off the speech.

Some might say that what Smith did was mean and unnecessary. No, it was responsible, essential, and gutsy. Students are taught in school, or are supposed to be,  to do their own work, a lesson especially hard to convey when the internet makes plagiarism  easy to do and hard to detect. The distinction between being inspired by another person’s creative output, using it as a foundation for an original work, borrowing phrases and ideas (with attribution), and, in contrast, stealing intellectual property and presenting it as your own, is a crucial one for students to understand. When a role model, a school administer, flagrantly does what the school must teach students not to do, and worse, does this  in front of students, and even worse than that, does it in the course of a speech about the virtues of hard work, such cynicism, laziness, and cheating must not be allowed to pass unnoticed, and I hope, unpunished.

After he was caught, “Kenny” issued this epicly horrible statement, incorporating rationalizations, unethical apologies, multiple logical fallacies, a Jumbo and, of course, lies: Continue reading →

Saturday Ethics Warm-Up, 6/1/2019: Ethics Is Busting Out All Over! Mostly BAD Ethics…

/ Jack Marshall / 18 Comments

Happy June!

1. Boycott/extortion update! Let’s see if Georgia has as much guts and principle as Alabama, and tells Disney to go fly a kite.

Hugh Culverhouse, Jr., the University of Alabama’s largest donor,  called for a boycott of Alabama , both the University and the state , because of Alabama’s defiant, anti-Roe  abortion ban, recently signed into law. The university’s law school was renamed Hugh F. Culverhouse Jr. School of Law last September 2018 after the Florida businessman pledged  $26.5 million to the university. In response to Culverhouse’s boycott call, University of Alabama System Chancellor Finis St. John recommended to the Board of Trustees that it return the $21.5 million  the law school it has actually received from Culverhouse, and restore the name to “The University of Alabama School of Law.”

Good. That’s exactly how states should respond to attempted extortion by individuals and corporations to control their lawmaking and bend the state to their wills rather than the decisions of voters. The whole story is at TaxProf Blog.

2. Nah! A reverend like, say, Martin Luther King would never engage in the kinds of sordid acts his biographer claims! They are men of God!

Bobby J. Blackburn, the pastor of Elevate Church in Prestonsburg, Kentucky,  was arrested this week and  charged with the prohibited use of an electronic communication system to procure a minor to commit a sex act. Blackburn is also the owner of Giovanni’s, a pizza restaurant in Prestonsburg. A girl who worked there showed a police sergeant images of an iMessage conversation she had with Blackburn in which he asked the minor to engage in a “threesome” with him and another girl, also a minor. He also made other sexually explicit requests.

Rev. Bobby tried to weasel out of his mess by bringing a third young woman to the police station and having her claim that she sent the incriminating messages from his phone. It didn’t work: under questioning, she admitted that she was lying and that Blackburn ordered  her to make the false claim under threat of losing her job.

I hear he’s one heck of a pastor, though! Continue reading →