Author: Jack Marshall

Sunday Ethics Warm-Up, 11/18/18: “The Show Must Go On” Edition

/ Jack Marshall / 20 Comments

Here we are.

After a brief recovery Friday the 16th, an early morning seminar for D.C. Bar admittees yesterday crashed me entirely, which is why there were no posts. I almost didn’t make it to the end of the program, which surprised and alarmed me; the last few minutes were excruciating. But I have never cancelled a seminar, and when I do, it will be because my metaphorical chips are about to be cashed. Those who know my theatrical history will recall that I damaged my lungs in college staging and performing a professional dinner theater show six days a week (during final exams)  while I was suffering from a serious bronchitis attack; that I refused to cancel in-door performances of The American Century Theater (RIP) during snow storms, and one out-door performance during an electrical storm. Not being able to do my job and fulfill my responsibilities due to illness or injury absolutely crushes me (like many of my obsessions, this one is partially Dad’s fault: he refused to take sick days), and keeping Ethics Alarms current is the least burdensome of my responsibilities.

Once again, I apologize.

1. More apologies, Arlington High School Dept.: My ill-timed illness is also keeping me away from my 50th high school class reunion. I intended to make it, and wanted to make it: I had a wonderful time in high school, and met many of the best people I have ever known while I was there. Past reunions have been somewhat depressing for me: seeing people I remember vividly as young, vital and full of excitement for the future looking as old as they are and often feeling defeated by life makes me feel old, and the inevitable sad cases who feel he or she has to boast about successes and wonderful kids caused me stress as I barely controlled the urge to tell them off. Nonetheless, I regard attendance at such milestones as an obligation to the past, a demonstration of respect for where we have come from and the people and institutions that got us to where we are. And, of course, the more old friends who attend, the better the experience is for everyone. I wish there was a way to let my classmates know that I still think about them and care about them. This blog isn’t it.

2. Who made bad losers in politics respectable? When public trust in democratic institutions reached some yet-to-be-determined tipping point, a democracy is finished. Once, not too long ago, the tradition in American politics was that the defeated candidate—the office didn’t matter, nor did the margin of victory—conceded the race in a timely fashion, congratulated his or her opponent, and vowed to help and assist the victor as much as possible.  This not only modeled graciousness and good sportsmanship, but also protected the system. Now every election shows this healthy model being further pushed into cultural obscurity, with a new low being established in Georgia last week, when the loser of the governor’s race, Stacey Abrams, blamed her loss on a failure of democracy, refused to officially concede while admitting that she had lost, and announced a lawsuit alleging that Governor-Elect Brian Kemp and Republicans had tampered with the election without offering any proof or evidence. Well, maybe this wasn’t the new low; it would be hard to top Roy Moore.

3. The new Title IX rules. The Education Department finally released new guidance on how  Title IX, the federal statute that forbids sex and gender-based discrimination in public schools and colleges, should be enforced. This was desperately needed after the Obama Administration had muddled and corrupted the process with blatant gender bias and its infamous “Dear Colleague” letter, creating a culture that undermined free expression and due process on college campuses and due process rights for students accused of sexual misconduct. Continue reading →

Ethics Quote Of The Week: Supreme Court Justice Clarence Thomas

/ Jack Marshall / 31 Comments

“Justice Breyer final (and actual) concern is with the death penalty itself. As I have elsewhere explained, it is clear that the Eighth Amendment does not prohibit the death penalty. The only thing “cruel and unusual” in this case was petitioner’s brutal murder of three innocent victims.”

—Associate Justice Clarence Thomas, rebutting the arguments of Justice Breyer, a long-time opponent of capital punishment regarding the denial of certiorari in a death-penalty case, Reynolds v. Florida.

Justice Breyer’s statement reiterated themes he has echoed before in death penalty cases:

  •   “Lengthy delays—made inevitable by the Constitution’s procedural protections for defendants facing execution—deepen the cruelty of the death penalty and undermine its penological rationale”;
  •  Jurors (in this or other cases in which the Court has recently denied review) might not have had sufficient information to “have made a ‘community-based judgment’ that a death sentence was ‘proper retribution’”; and
  • The constitutionality of the death penalty should be reconsidered.

Justice Thomas’s entire statement in rebuttal, ending in the section quoted above,  is excellent… Continue reading →

Stop Me If I Ever Do This: Ann Althouse Disses William Goldman Without Knowing What The Hell She’s Talking About

/ Jack Marshall / 10 Comments

Sometimes I worry about Ann Althouse. She’s often one of the most perceptive and objective bloggers on law and politics, but when she leaves her zone, we get things like her recent dismissive assessment of screenwriter/novelist William Goldman upon the news of his death.

Althouse admits that she hasn’t seen many of Goldman’s films, and I presume that she hasn’t read his novels, either. Nonetheless, she writes, “Goldman seems to have been a competent, successful, mainstream writer, and good for him, but I have no sense of him as original, profound, or speaking to me.”

Let me enlighten her. (And by the way, how could he “speak to her” if she didn’t read his novels or watch his best films?) Goldman was one of the very best, cleverest and reliably excellent screenwriter of his time, and probably any time.  Althouse cherry-picks an interview in which he said in part,

“[P]ay attention to the audience. The great thing about audiences is, I believe they react exactly the same around the world at the same places in movies. They laugh, and they scream, and they’re bored. And when they’re bored it’s the writer’s fault.”

Incredibly, Althouse uses this endorsement of lively writing, which Goldman was a master at, to minimize and condemn him. “And that’s the attitude about movies that has taken over in the last 40 years and why I’m not interested in movies anymore. This grand effort to preemptively stomp out all boredom bores me,” she writes, whatever THAT means. Goldman isn’t talking about explosions, sex scenes or CGI dinosaurs. He’s talking about stories that go somewhere, avoiding cliches, and making an audience want to watch and listen. My approach to play direction embodies exactly the same philosophy. I learned a lot about drama and comedy from Goldman’s films. Continue reading →

Shouting “Heil Trump!” In A Crowded Theater

/ Jack Marshall / 15 Comments

Anthony Derlunas, 58, a drunken idiot attending a performance of “Fiddler on the Roof” in Baltimore, suddenly started shouting “Heil Hitler, Heil Trump!”  He told police that his display was motivated by his hatred of the President.

Is it fair to call this “Trump Derangement”? I think so. I think that’s fair.

He told an officer he “had been drinking heavily throughout the night” before his performance at the Hippodrome Theatre, which understandably unsettled the audience, many of whom apparently thought that another anti-Jewish massacre was underway like the one in the Pittsburgh synagogue last month that killed 11 people. Some people started running, other wept.  According to the police report, Derlunas explained that the final scene of the musical before intermission,  depicting a Jewish wedding celebration disrupted by a Russian pogrom, reminded him of his hatred for the President—I know I’m always reminded of Donald Trump when I see “Fiddler on the Roof”—prompting his outburst. Derlunas was surprised, he said, when people around him became angry.  You can certainly understand his confusion: all he was doing is shouting “Heil!” during a musical about Jewish history and culture. Somepeople get offended so easily.

Baltimore Police escorted Derlunas out a few minutes later, a police spokeswoman said, and the show continued.

He wasn’t charged with anything, though the theater has banned him for life. “As reprehensible as those words are, they are considered protected free speech because nobody was directly threatened,” police spokesman Matt Jablow said in an email. Continue reading →

Ethics Observations On The CNN/Acosta/Press Pass Ruling

/ Jack Marshall / 27 Comments

From the Washington Post this morning:

Judge Timothy J. Kelly granted CNN’s motion for a temporary restraining order that will prevent the administration from keeping Acosta off White House grounds. The White House revoked the reporter’s press pass last week after a heated exchange between him and President Trump and a brief altercation with a press aide at a news conference. Acosta, CNN’s chief White House correspondent, is the first reporter with a so-called hard pass to be banned. CNN sued President Trump and other White House officials on Tuesday over the revocation. Kelly’s ruling was the first legal skirmish in that lawsuit. It has the immediate effect of sending Acosta back to the White House, pending further arguments and a possible trial. The litigation is in its early stages, and a trial could be months in the future.

Observations:

  • The ruling is a surprise. For me, it calls to mind once again my favorite Clarence Darrow quote, that “In order for there to be enough liberty, it is necessary that there be too much.” Apparently the judge, as courts have in other First Amendment cases, decided to leave a wide margin of safety around a constitutional right rather than interpret it narrowly, even reasonably narrowly.

I understand and sympathize with that instinct, and perhaps it is the right one.

  • Judge Kelly’s opinion  insisted that there be some basic procedural protections, requiring the White House to state clearly the grounds for revoking the clearance.  The Court did not find an express  violation of the First Amendment and Acosta might still be barred from the White House following appropriate due process.  Kelly said his ruling was “limited” and  temporary until a more detailed explanation and sufficient notice by the White House was established. (Not surprisingly, the White House viewed a tweet as notice enough.)
  • So a vague, traditional but unstated standard of not acting like an entitled jackass during a press conference and debating the President rather than asking questions while refusing to yield the floor is not, absent written standards and procedures, enough to get an unprofessional jerk like Jim Acosta banned. Got it.  It would be nice if previously acknowledged standards of basic respect for the office and the relative roles of the professionals involved were enough to avoid this kind of controversy, but apparently not.

Reflect on this episode the next time CNN or a pundit fusses about President Trump “defying established norms.” Continue reading →

Morning Ethics Warm-Up, 11/16/18: Big Lies, Bad Precedents, And Good Bias (Apparently: I Guess I Just Don’t Understand)

/ Jack Marshall / 16 Comments

Good Morning!

(You can tell I’m starting to feel better, because the morning warm-up is actually appearing before noon… I had an unavoidable early morning conference call, and I’m hoping to get the post up before I crash.)

1. Regarding the hypothetical Hillary pardon briefly discussed in the previous post…An esteemed commenter corrected me in the comment thread when I stated incorrectly that the object of a Presidential pardon couldn’t refuse the gift: the 1915 SCOTUS case of Burdick v. US says otherwise. The case is one more example of how a bad decision can become settled law. From the New York Times:

The story behind the 1915 case is little known but very relevant today. It involved the city editor of The New York Tribune, George Burdick, who…flatly refused to testify before a federal grand jury about his sources for an article on fraud in the United States Custom House in New York. He said he might incriminate himself in his testimony. The federal prosecutor saw a quick pardon as the answer to this problem, and President Woodrow Wilson agreed.

Wilson gave Burdick “a full and unconditional pardon for all offenses against the United States” he might have committed in connection with the article and for any other matter the grand jury might ask him about. That would seem to have let Burdick off the hook, but he still didn’t want to testify. He refused to accept the pardon, and was locked up for contempt.

The case went to the Supreme Court, which held that Burdick was within his rights and ordered him discharged. In doing so, the court embraced Chief Justice John Marshall’s 1833 definition of a pardon as “a private, though official” act of grace whose validity depended on its acceptance: “It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.”

Marshall’s pronouncements, in United States v. Wilson, were pure dicta — nonbinding observations — but the courts treated them as gospel. In the Burdick case, the court likewise held that “a pardon, to be effective, must be accepted” because it “carries an imputation of guilt; acceptance a confession of it.” This made Marshall’s view the law of the land.

The problem is that both Marshall’s definition and the court’s 1915 reinforcement of it were bad history and tortured logic. Acceptance of a pardon should not be a confession of guilt, especially if there is documentation of innocence. The “imputation of guilt” would disappear if acceptance of a pardon were not required. If one has no choice but to take a pardon, it would become like a grant of immunity, and thus would be noncommittal.

There is nothing in the Constitution that gives a person the prerogative to turn down a pardon, and strong support in the Constitutional debates for the president’s having an unfettered power to grant one. “The benign prerogative of pardoning should be as little as possible fettered or embarrassed,” Alexander Hamilton wrote in The Federalist No. 74. Even more to the point, the framers turned down an effort to limit the power to pardons “after conviction” because they wanted to make it useful for law enforcement. That is, of course, exactly what President Wilson tried, and was told he couldn’t do, in the Burdick case.

So Hillary could turn down a Presidential pardon for her crimes related to flouting the law regarding classified material.

2. Run, Kamala, run! One of the awful alternatives the Democrats have as they paint themselves into the requirement of nominating a woman as their candidate in 2020, California Senator Kamala Harris, highlighted her awfulness while questioning Ronald D. Vitiello, the acting director at U.S. Immigration and Customs Enforcement, as he appeared before the Senate Homeland Security Committee as it weighed his nomination to become permanent ICE director. She deliberately compared ICE to the KKK in this exchange:

Vitiello: “The Klan was what we could call today a domestic terrorist group.”

 Harris: “Why? Why would we call them a domestic terrorist group?”

Vitiello: “Because they tried to use fear and force to change the political environment.”

Harris: “And what was the motivation for the use of fear and force?”

Vitiello: “It was based on race and ethnicity.”

Harris: “Right. And are you aware of the perception of many about how the power and discretion at ICE is being used to enforce the law and do you see any parallels?”

There are no parallels between the KKK and ICE, and Harris’s assertion that “many” see such parallels is one more example on the growing list of Big Lies being wielded by the Left to spread fear and misinformation. I heard Geraldo Rivera say this morning that Harris was “too smart” to make such a comparison, which he characterized as slander. Obviously she is not too smart to make the comparison, since she made it. She’s too smart to believe that the comparison is fair, but unethical and irresponsible enough to suggest it anyway.

3. Here’s one reason why I don’t have more Ethics Heroes. I’ve already written twice about the deteriorating saga of the kind homeless veteran  and the woman he helped who raised money to let him turn his life around.. It began as a heartwarming Ethics Hero saga, then rotted into a tale of greed, ingratitude, betrayal and exploitation. By August of last year, this was the suddenly depressing story…

Johnny is back living under a bridge, panhandling for change. GoFundMe is investigating whether McClure and her live-in boyfriend absconded with most of the donations, which eventually amounted to about $400,000. Johnny claims that his once grateful benefactor and friend have been spending the money that was supposed to ensure, in Kate’s memorable words, that “his life can get back to being normal….”

Now the story is worse still:

The New Jersey couple who became famous for raising hundreds of thousands of dollars for a homeless man after he helped with their disabled car — as did the homeless man himself — will all face charges for allegedly providing a false story in order to raise money for themselves, a source familiar with the case told NBC10. Mark D’Amico, Kate McClure and Johnny Bobbitt Jr. will face charges including conspiracy and theft by deception, according to the source. A complaint obtained by NBC10 alleges that the three conspired with one another to make up a false story in order to raise more than $400,000.

Sigh.

4. Now that’s acceptable gender bias discrimination. Somehow. I guess. Rep. Tim Ryan (D-Ohio) said Wednesday that a congresswoman besides Rep. Nancy Pelosi (D-Calif.) should be the House Speaker.  “There’s plenty of really competent females that we can replace her with,” Ryan told reporters, before listing people such as Rep. Marcia Fudge (D-Ohio) as potential candidates, The New York Times reported. I dare anyone to try to explain what one’s sex organs and chromosomes has to do with being a capable Speaker of the House. Bias not only makes you stupid, it makes you ridiculous and hypocritical. As for Marcia Fudge: oh, GOOOOOD choice there, Tim!

Late And Fevered Ethics Musings, 11/15/18: Pardon Hillary, And More Surprises

/ Jack Marshall / 59 Comments

Ugh.

I can’t tell you how much I hate operating at quarter-steam like this. I have an ethics seminar to get through in two days, so I’m trying to be responsible. Luckily I have to deal with this about once every three years or so.

1. Baseball rejects consequentialism! New York Mets right-hander Jacob deGrom won the National League Cy Young Award after leading the majors in earned run average, meaning that he gave up fewer runs per 9 innings of any pitcher. Indeed, deGrom’s major-league-leading 1.70 ERA was two-thirds of a run lower than the next closest NL hurler, Philadelphia‘s Aaron Nola (2.37), and the second best by any starter this century.  Despite his own excellence, his team, the disappointing New York Mets, lost most of his starts, and deGrom only had a 10-9 record for the season. Traditionally the Cy Young honor, meant to designate the best pitcher in each league, has gone to the pitcher who won the most games while not disgracing himself in other categories. With the advent of statistical analysis, however, it has even dawned on the most meat-headed sportswriters that all a pitcher can do is prevent the other team from scoring, and if his team can’t score behind him, it says nothing about his ability at all.

In other words, doing “good” must be judged by what an individual does, not what happens that is beyond his control as he does it or after. Continue reading →

Ethics Observations On The Michael Avenatti Arrest

/ Jack Marshall / 47 Comments

Welcome to karma, Michael Avenetti!

News item:

“Attorney Michael Avenatti has been placed under arrest on suspicion of felony domestic violence and was booked early Wednesday evening.

Los Angeles Police Department officer Jeff Lee said the domestic violence report was taken on Tuesday in West Los Angeles and the arrest was made Wednesday.
“We can confirm that today LAPD Detectives arrested Michael Avenatti on suspicion of domestic violence. This is an ongoing investigation and we will provide more details as they become available,” the LAPD Twitter account posted Wednesday. In a statement, Avenatti called the allegations “completely bogus.”

…Avenatti posted $50,000 bail and left police custody Wednesday evening. He told reporters waiting outside the station, “I have never struck a woman. I never will strike a woman.”

“I am confident I will be fully exonerated,” he added.

…Avenatti emerged this year as a regular antagonist of President Donald Trump, beginning with his legal representation of Stormy Daniels and his frequent media appearances..he has publicly flirted with a potential bid for the Democratic presidential nomination to challenge Trump in 2020. The alleged domestic violence incident could dash Avenatti’s prospects as a potential insurgent Democratic candidate and clash with the image he has presented of himself as an advocate for women, including Daniels in her clash with Trump and an accuser against recently confirmed Justice Brett Kavanaugh.

The Vermont Democratic Party canceled Avenatti’s appearances for Friday and Saturday following his arrest, and it will refund all ticket sales, said Christopher Di Mezzo, the party’s communications director.

This story is like a great, big, ethics piñata that got hit squarely by a stick and spilled ethics candy all over the floor!

Observations:

1. Is it unethical to take pleasure in the misfortune of another, even a grandstanding, publicity-obsessed gasbag who makes me want to burn my bar card? Nah, not when the inspiration for mirth is condign justice. Like Michael Cohen, the shenanigans of Avenatti were signature significance for a phony and a charlatan, and his fall was just a matter of time.

We should always take pleasure in the exposure of such public figures, however it occurs. Continue reading →

Sick-Bed Ethics Warm-Up, 11/14/18: Ethics Among the Sneezes [UPDATED]

/ Jack Marshall / 48 Comments

Good whatever it is….

1. Bottom line” Don’t trust Facebook. From the Times: “Facebook failed to closely monitor device makers after granting them access to the personal data of hundreds of millions of people, according to a previously unreported disclosure to Congress last month.” Surprised? As with Google promising moths ago that it was no longer reading our mail, then admitting months later that it had resumed the practice, the big tech companies have proven repeatedly that that we cannot believe what they say, or their motives, or their pledges of good will and public service. More from the Times story:

Facebook’s loose oversight of the partnerships was detected by the company’s government-approved privacy monitor in 2013. But it was never revealed to Facebook users, most of whom had not explicitly given the company permission to share their information. Details of those oversight practices were revealed in a letter Facebook sent last month to Senator Ron Wyden, the Oregon Democrat, a privacy advocate and frequent critic of the social media giant.

In the letter, a copy of which Mr. Wyden provided to The New York Times, Facebook wrote that by early 2013 it had entered into data-sharing agreements with seven device makers to provide what it called the “Facebook experience” — custom-built software, typically, that gave those manufacturers’ customers access to Facebook on their phones. Those partnerships, some of which date to at least 2010, fall under a consent decree with the Federal Trade Commission drafted in 2011 and intended to oversee the company’s privacy practices.

Read the whole thing. I just assume that anything I put on Facebook, regardless of the alleged settings,will be sold to or otherwise obtained by potentially malign entities.

2. Just what we need now, a rogue First Lady. First Lady Melania Trump publicly called for the President’s deputy national security adviser, Mira Ricardel, to be fired.  In a word, well, two: Shut up. The felicitous circumstance of marrying someone who is later elected President of the United States confers no expertise or authority. The position of First Lady has no Constitutionally recognized duties, nor does it carry any real power. There is nothing anyone can do to diminish the influence and spouse may have with the President behind closed doors—and that is a problem—but she or the inevitable he must not confuse, confound or otherwise seek to influence affairs of state with public comments and opinions. Why Melania wants Ricardel fired is irrelevant. It’s none of her business.

I just want to point out that I sneezed six times while typing those last four words. Applause, please. Continue reading →

Ethics Warm-Up, 11/13/18: ” Not Dead, Just Wishing I Was” Edition

/ Jack Marshall / 84 Comments

I’m here.

The weekend was a near total wipe-out for me, as the incipient flu-cold or whatever it is that has been stalking me for at least a couple of weeks finally ended all ambiguity by leveling me  just as the long weekend was getting started. I was in bed virtually all day yesterday, most of the day before, and if I’m getting better, damned if I can see it. I’ve always got to be wary when I cough like this, as I am susceptible to bronchitis, but ProEthics, and ethics itself, wait for no Weenie.

1. What do you do with these idiots? The guys in Baraboo High School’s class of 2019 posed with Nazi salutes at their junior prom this year.

It isn’t Mel Brooks High School: “the  Heil sign” is only amusing or satirical in the most carefully constructed context. In any other time of place, it trivializes a historical nightmare, genocide and the engineered murder of millions of people by a madman,  his henchmen, and a poisoned culture. The Wisconsin school district that included Baraboo claims to acting on the photo,  but since it went viral on social media, current and former students have said that the school itself has a culture of racism and bigotry openly that is allowed to thrive by indifferent teachers and administrators.  There’s a lot I don’t understand about the photo.  Where are the girls? Are these only the Nazis in the class, or is it all of the boys? The kids that aren’t saluting: are they protesting against the display? Did they just miss the shot? Why are they in the photo at all? Who in their right mind would participate in such a stunt?

2. Fact: acting U.S. Attorney General Matthew Whitaker has no conflicts of interest with the Mueller investigation. So why are Democrats insisting that he recuse himself, now that his is overseeing the investigation as Jeff Sessions could not? As far as I can see, the only reason is that they want Rod Rosenstein, who had been the acting AG for only the Mueller matter to continue to supervise it because he is perceived as being hostile to the President. Rosenstein does have a conflict, and properly should have recused himself long ago. He was very much involved in the Comey firing, which is part of the  Mueller investigation’s inquiry into alleged obstruction of justice by the President. He conceivably possesses information about the President’s  motives in firing Comey, and quite possibly has  a personal interest in how the episode is interpreted. Rosenstein thus would very likely be a necessary fact witness in any obstruction inquiry in connection with the Comey firing. That’s a conflict.

Whitaker, however, has no conflict. His statements about how Mueller has run the investigation don’t create a conflict of interest under the applicable ethics rules, not does it raise the appearance of impropriety. Democrats are signaling here, as they have repeatedly for two years, that their objective is to “get Trump” by any means necessary, and they will torture and distort, law, ethics and common sense to achieve that goal. Continue reading →