Ethics Alarms Award Nominee

A Smoking Flip-Flop: Here Is Why Larry Tribe Cannot Be Regarded As An Objective Legal Authority Any More

/ Jack Marshall / 14 Comments

…well, other than the fact that his recent tweets indicate that the 77-year-old  prof is no longer playing with a full deck…*

I had a back-and-forth with a smart non-lawyer who is suffering from Trump Derangement, and who cited the opinions of Professor Tribe to counter Alan Dershowitz’s critique of the Mueller Report. He didn’t like my assertion that Tribe has proven himself to be a partisan hack of late, willing to espouse whatever public opinion the Left and “the resistance” will find useful.

Ed Whelan, the President of the Ethics and Public Policy Center, found this example of a cynical Tribe flip-flop, worthy of the gymnasts above, that shows what I mean:

 Back in early March 2016, a few weeks after Justice Scalia’s death created a vacancy on the Supreme Court, Harvard law professor Laurence Tribe was perhaps the most prominent of some 350 law professors to sign a letter asserting that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Declaring that “[t]he Senate’s obligation in this circumstance is clear,” the letter invoked the Appointments Clause of the Constitution.

But, as I and others (including liberal law professors Noah Feldman and Vik Amar) pointed out at the time, the position that Tribe took had no support in the text of the Constitution and contradicted perennial Senate practice on nominations. The Appointments Clause states only that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various executive-branch and judicial-branch officers. In other words, it restricts the president’s power of appointment by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But it says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Tribe’s position in March 2016 further surprised me because it contradicted Tribe’s own earlier (correct) recognition, in his 1985 book God Save This Honorable Court, that the Senate may block a Supreme Court nomination “by simply refusing to act upon it.”

I’m pleased to discover that Tribe now agrees that the Senate does not have a constitutional duty to take any action on a Supreme Court nominee. Continue reading →

The ABA Shuts Down Comments On The Articles In The ABA Journal

/ Jack Marshall / 41 Comments

Now that’s ironic. Like so many other publications and websites that prefer one-way communications of ideas, the official publication of the American Bar Association has announced that it will no longer allow readers to comment on its content. Yes, a profession that is all about rights and advocacy finds advocacy in response to legal opinion and analysis too inconvenient to deal with, and its readers free expression of ideas too burdensome to countenance.

The ABA Journal’s announcement was filled with disingenuous statements and half truths as bullet-pointed reasons for the move:

  • “The tone of the comments has become rancorous and uncivil, with substantive commentary being drowned out by partisanship and namecalling that violate the ABA Code of Conduct.”

Wait: how does “partisanship and namecalling” in the comment section of a website “violate the ABA Code of Conduct?”

What an embarrassing claim: the ABA doesn’t understand its own Model Rules! The word “partisanship” doesn’t appear anywhere in the rules, and the argument is hilarious anyway, since the ABA itself, an allegedly non-partisan non-profit, is extremely partisan, as a brief perusal of the various public positions it has taken on matters that really should be none of their business would make obvious. (Guess which party! Come on, guess!) Extreme namecalling under certain  circumstances during the practice of law may occasionally involve a sanctionable ethics breach for lawyers, but not for non-lawyers, retired lawyers and many other readers. The larger problem is this: the ABA Rules are just guidelines. They don’t officially apply to anybody, not even to ABA members. You can’t literally “violate” them, like they are rules or laws.

  • “Our existing commenting system is vulnerable to trolls.”

Then fix your system, but only after defining “trolls.” It is often a lawyer’s job to make trouble, stir the pot, and create productive friction.

  • “Moderating the comments has become an unsustainable burden on our staff.”

I guess the ABA Journal is incapable of running a website, then. Moderating comments, which as far as I can determine involves fewer comments per article than the typical Ethics Alarms post, cannot possibly be that difficult or time-consuming. It’s a staff-member, and not a highly paid one. This sounds like cover for a financial decision.

  • “We have fielded a number of complaints from members about individual comments and the tone of the comments as a whole.””

Oh! Complaints! Well, we all know how much lawyers hate complaints! (Who wrote this?)

  • “With our large social media presence, there are a number of platforms for readers to engage with and discuss our journalism.”

“Now, you  folks can’t eat here, but there are some real nice places down the road a piece…”

I would write a searing comment about this, but the ABA Journal won’t allow it…

Morning Ethics Drill, 5/7/19: Unethical Headlines, A Missing Coffee Cup, And A Comment Of The Day

/ Jack Marshall / 22 Comments

A morning that begins with a trip to the dentist and a referral to an oral surgeon can’t be good. Sorry.

And now I see that without warning or explanation, WordPress has removed its spellcheck feature. I’m sure those of you who are sick of my typos will appreciate THAT…

1. Stop making me defend Anderson Cooper, sort of! Here’s a cheap shot Fox News headline:

Anderson Cooper denies he’s ‘on the left,’ then rips Trump for tweeting about Kentucky Derby

Well, I’m also not on “the left” (Cooper is, of course), and I’m going to rip the President for tweeting his opinion on the Kentucky Derby, without even getting into the fact that his opinion was ill-informed and stupid.

As I wrote more than once during the Obama administration, the President is not the national arbiter of everything, and should keep his opinion to himself unless it directly and clearly involves the national interest. President Obama had a proclivity for injecting himself into controversies large and small, from the Trayvon Martin shooting to picking brackets for the NCAA college basketball tournament.  I wrote in this post,

This can no longer be called a rookie mistake, like the Prof. Gates arrest affair. President Obama has now had plenty of time to absorb the fact that the President does not have a blank check to insert himself into every local controversy and use his office to sway public opinion and the conduct of others regarding matters outside his responsibilities. Still, he continues to do it. It may seem trivial at first: the President gave an interview on TNT in which he pointedly suggested that NBA superstar LeBron James consider the Chicago Bulls as he faces free agency.  After weighing in on the most important things for James to seek from his current team, the Cleveland Cavaliers, if he was going to stay there, the President said, “You know, like I said, I don’t want to meddle. I will say this: (Derrick) Rose, Joakim Noah it’s a pretty good core. You know, you could see LeBron fitting in pretty well there.”

Now, I don’t care what Cooper thinks of Trump’s meddling in matters that don’t concern him if the CNN anchor didn’t have the integrity to knock Obama for doing the same thing, and repeatedly. Still, Anderson was on the right track—finally—to say, as he did,

“The president of the United States seems to have a lot of time on his hands And he can’t even stand some horses getting uninterrupted airtime. He’s got to be a part of every frickin news cycle. He can’t help himself!”

(I guess “frickin” is now considered professional lexicon at CNN. Stay classy, Anderson!)

Less defensible was this comment: Continue reading →

Funny! But Inexcusably Incompetent : “Game Of Thrones” Ethics

/ Jack Marshall / 43 Comments

Yes, somebody left a Starbucks cup on the set of last night’s much ballyhooed “Game of Thrones” episode on HBO.

It would be a good exercise to list all the rationalizations one could access to try to minimize such a massive botch, and avoid the likely consequences of making it. Without breaking an ethics sweat, I came up with…

  • 6. The Biblical Rationalizations, “Judge not, lest ye not be judged,” and “Let him who is without sin cast the first stone.”
  • 8. The Trivial Trap (“No harm no foul!”)
  • 19. The Perfection Diversion: “Nobody’s Perfect!” or “Everybody makes mistakes!”
  • 20. The “Just one mistake!” Fantasy
  • 22. The Comparative Virtue Excuse: “There are worse things.”
  • 38. The Miscreant’s Mulligan or “Give him/her/them/me a break!”
  • 50. The Apathy Defense, or “Nobody Cares.”
  • 64A. Bluto’s Mistake or “I said I was sorry!”

As silly as that “one mistake” seems, a head, or many heads, should roll. This tweet from an annoyed fan nicely sums the situation up: “You’re telling me they had TWO YEARS to put together a decent show and they couldn’t even spot the goddamn Starbucks cup in Winterfell??!” Continue reading →

Ethics Dunces: “More Than 370 Former Federal Prosecutors”

/ Jack Marshall / 24 Comments

It’s time to add former federal prosecutors to the nauseatingly long list of professionals and professions who have violated basic ethical principles out of uncontrolled animus towards President Trump.

From the Washington Post:

“More than 370 former federal prosecutors who worked in Republican and Democratic administrations have signed on to a statement asserting special counsel Robert S. Mueller III’s findings would have produced obstruction charges against President Trump — if not for the office he held.

The statement — signed by myriad former career government employees as well as high-profile political appointees — offers a rebuttal to Attorney General William P. Barr’s determination that the evidence Mueller uncovered was “not sufficient” to establish that Trump committed a crime.

Mueller had declined to say one way or the other whether Trump should have been charged, citing a Justice Department legal opinion that sitting presidents cannot be indicted, as well as concerns about the fairness of accusing someone for whom there can be no court proceeding.

“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice,” the former federal prosecutors wrote.

“We emphasize that these are not matters of close professional judgment,” they added. “Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here. . . . But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.”

…It was posted online Monday afternoon.

This isn’t even a close call. Professionals don’t do this if they have any respect for their profession, whatever it is. Continue reading →

Morning Ethics Warm-Up, 5/6/2019: Rosenstein, Barr, Green, And “Oklahoma!”

/ Jack Marshall / 56 Comments

Good morning!

Let’s make this an ethical week…

1 As we watch the desperate vilification of Attorney General Barr by Democrats…it is helpful to consider a recent speech by the now departed second in command at Justice, the ridiculously conflicted Rod Rosenstein. He said in part,

Rampant speculation here in D.C. is that Democrats are terrified that Barr’s promise of investigations of the Hillary Clinton inquiry and the process whereby the Trump campaign was surveilled will reveal serious misconduct in the Obama Administration.  This is, of course, mocked as a conspiracy theory by the people who just had their own conspiracy theory exploded. Here’s the usually reliable Kimberly Strassel in the Wall Street Journal (behind a paywall—sorry).

…Mr. Barr made real news in that Senate hearing, and while the press didn’t notice, Democrats did. The attorney general said he’d already assigned people at the Justice Department to assist his investigation of the origins of the Trump-Russia probe. He said his review would be far-reaching—that he was obtaining details from congressional investigations, from the ongoing probe by the department’s inspector general, Michael Horowitz, and even from Mr. Mueller’s work. Mr. Barr said the investigation wouldn’t focus only on the fall 2016 justifications for secret surveillance warrants against Trump team members but would go back months earlier.

He also said he’d focus on the infamous “dossier” concocted by opposition-research firm Fusion GPS and British former spy Christopher Steele, on which the FBI relied so heavily in its probe. Mr. Barr acknowledged his concern that the dossier itself could be Russian disinformation, a possibility he described as not “entirely speculative.” He also revealed that the department has “multiple criminal leak investigations under way” into the disclosure of classified details about the Trump-Russia investigation.

Do not underestimate how many powerful people in Washington have something to lose from Mr. Barr’s probe. Among them: Former and current leaders of the law-enforcement and intelligence communities. The Democratic Party pooh-bahs who paid a foreign national (Mr. Steele) to collect information from Russians and deliver it to the FBI. The government officials who misused their positions to target a presidential campaign. The leakers. The media. More than reputations are at risk. Revelations could lead to lawsuits, formal disciplinary actions, lost jobs, even criminal prosecution.

Quick! Let’s impeach Barr! Continue reading →

Ethical Quote Of The Month: Will Middlebrooks

/ Jack Marshall / 7 Comments

“Don’t take one thing for granted. Not a single thing. Because when it’s gone it’s gone. Love and enjoy your teammates. You’re surrounded by some of the best players in the world and guess what, you’re one of them kid! Believe in your abilities day in and day out and never, ever let off the gas. Play this game like you know someone is coming for your job and today could be the last time you ever put on a big league uniform.”

—Former Boston Red Sox rookie sensation Will Middlebrooks, now retired, giving advice to current Red Sox rookie sensation Michael Chavis through an interview with Boston radio station WEEI’s Rob Bradford.

Although Middlebrooks’ sage advice was given in the context of playing Major League Baseball, it applies equally well to all passions, pursuits, opportunities, privileges, jobs, pleasures, honors, relationships, and  professions, as well as love, youth, and life in general. It is the present day Will Middlebrooks telling his younger self what he wishes he had understood before it was too late. Continue reading →

Dead Ethics Alarms+Blackface+Social Media+Spineless School Administrators= One Hopeless Ethics Train Wreck

/ Jack Marshall / 32 Comments

Constant reader/commenter/master provocateur Michael Ejercito flagged this story for us, and it had already garnered some interesting commentary before I spotted it.  Michael has a distinct style here and is always asking questions that are the equivalent of firecrackers thrown into a wake. He’s one the longest-enduring participants here, and I haven’t let him know sufficiently how much I appreciate what he contributes.Thanks, Michael.

This is a hopeless ethics train wreck at this point, screwed up beyond all repair. I will note the points at which it all could have been avoided, but really, as it is now, it can only get worse. The thing unfolded like contemporary Shakespeare tragedy, in five acts.

ACT I: In Illinois, photos and video  posted to Snapchat, showed a group of white males wearing blackface pulling up to a fast food drive-thru and making denigrating comments about African-American girls. One of the boys is wearing a sweatshirt from Homewood-Flossmoor High School, where all of them were students.

Morons with dead ethics alarms. No high school student in the United States should be unaware that such a prank/stunt/ unbelievably stupid act and self-publishing the evidence of it is almost—but not quite!—the equivalent of maliciously shouting fire in a crowded theater, and thus deliberately tempting others to react emotionally and destructively. I know, teenage boys are too close to sociopaths for comfort, but conduct  like this indicts their parents, their teachers, and the community, as well as them.

Just to be clear, the reason why this is not quite like shouting fire in a crowded theater is that doing that is deliberately inciting a riot, and thus not legal and protected speech. Blackface is offensive speech, but still legal.

ACT II: A former student of the school re-posted the content to her Facebook page, thus ensuring as much damage as possible.  Over a thousand students and others now knew about the blackface episode, and so did the school district.

This is like someone hearing someone whisper fire in a crowded theater when there is no fire, and then shouting what was whispered to maximize the damage. If the student wanted to alert school officials, then she should have done this responsibly and quietly. Doing what she did was intentionally creating an online mob and inciting as much anger and irrationality as possible. The student was virtue-signaling, while magnifying  the harm done by the original jerks. That is malicious.

ACT III: District 233 superintendent Von Mansfield and Homewood-Flossmoor High School principal Jerry Anderson sent out a letter to parents denouncing the “highly offensive and culturally insensitive” posts, saying,

“The social media postings that were seen and heard were not representative of the high expectations we have for all students that attend our school.This type of behavior is contrary to our expectations, is being addressed quickly and appropriately and will not be tolerated.”

What students do and post to social media off campus and unrelated to school personnel and activities is none of the school’s business. They have no obligation to comment on it or disclaim it.  Let me repeat that: What students do and post to social media off campus and unrelated to school personnel and activities is none of the school’s business. Just because school activists, social justice warriors, busy-bodies, victim-mongers and trouble makers want to start shaking their fists and screaming at clouds over what someone else does, student or not doesn’t mean that the school should take the bait. Wearing blackface is 100% legal, in fact, it is Constitutionally protected. So is saying mean things about black girls, Asian girls, white girls, or Martian girls. The letter from the administrators made a tricky problem worse, and that’s not the moronic boys’ fault, nor the trouble-making ex-student’s fault. It’s their fault. They are supposed to be adults, and more competent, responsible, and reasonable than this.

[No, I do not think the fact that one of the students was wearing a school T-shirt made this a school-related act. If one of the students was wearing a Union Jack T-shirt, I would not assume that Great Britain was behind the episode.]

ACT IV: In an effort to urge administrators to take harsh discipline against the students in the blackface episode, nearly 1,000 of the uninvolved students participated in a walkout,  “chanting their demands for justice.” I assume this means that hackneyed “No justice, no peace” chant that I have come to loathe as much as “Hey, hey, LBJ, how many kids did you kill today?”Students don’t get to dictate discipline to administrators. That is known as “letting the inmates running the asylum.” Every one of the students participating in the protest should have been suspended. The parties responsible for students acting like this are the dim-witted and unethical educators who have allowed and even encouraged student holidays to protest gun control and climate policies. Protesting is not part of high school; it isn’t even a valid component of college.

ACT V: The president and vice president of the district’s board of education reacted by sending  out a letter following the walkout, where they condemned the blackfaced students’ conduct  and praising the “speedy response” from Homewood-Flossmoor administrators, which allegedly includes an investigation. The administrators have no right to investigate legal actions engaged in outside of school not involving other students. The parents of the students should tell the school to back off, and hire some tough lawyers to make the point as vividly as possible. “Our children misbehaved, and this is our job, not yours. You worry about education in the school, we’ll worry about how our kids act out of it.”

The letter read,

“The District 233 Board of Education will be revisiting and moving forward with the diversity and inclusion aspects of our new strategic plan, as they relate to cultural awareness and cultural competency training. Homewood-Flossmoor High School will continue to stand against racism, and against insensitive and disrespectful behavior of any kind, and will take the appropriate and necessary actions to ensure that all students are respected, that our differences are embraced and that our unity is celebrated.”

Oh, ugh, yechh, blechh. More posturing and virtue-signaling out of abject cowardice. “Cultural awareness and cultural competency training” sounds like, and almost certainly will be, political indoctrination. I’d like to see 1000 students walk out over that. You can’t dictate that “all students are respected,” and wearing blackface off school grounds isn’t a show of disrespect for students, since it didn’t involve students other than the jerks in blackface. Nor can students be compelled to embrace differences or to celebrate unity, especially when there is only one kind of unity that Big Brother School District will allow to be celebrated, and because you can’t encourage “differences” while demanding unity.

My review of the play? Everybody involved screwed up, acted without considering consequences or proper boundaries. At this point, this mess can not be fixed. If my son was one of the idiots who wore blackface, I would consider,

  • My own protest to the school and the school district, as well as a law suit for demonizing and endangering my son based on his non-school related conduct.
  • Meeting with every administrator involved and explaining in great detail why they are incompetent fools unqualified to train goats, much less educate children.
  • Taking my son out of the school, and either hone schooling him or shipping him off to military school.
  • Making him regret the day he donned blackface for the rest of his youth, telling him that such privileges as driving, having an email account, using social media or having a cell phone would cease until he was living elsewhere and over 18.

Good job, everybody!

Saturday Ethics Warm-Up, 5/4/2019: No Trump, No “Resistance.” Enjoy!

/ Jack Marshall / 9 Comments

Good Morning!

This song, the only “hit” (kind of) by “The Carpenters” sung by Karen’s brother Richard, matches my conflicted mood today. Richard’s teasing and criticism played a part in killing his sister, who possessed one of the most wonderful voices of any popular female vocalist in U.S. history, but who was doomed by anorexia. I am also both perplexed and amused that someone with a lisp would choose a song that repeats “Saturday” as his break-out solo. I wonder if Karen teased him about that?

1.  More on high-testosterone competitors in women’s sports. As I recently wrote here, I am floating in an uncharted sea of uncertainty on this issue, especially regarding Caster Semenya, the intersex South African track star. I do know, however, that I applaud her defiance of the recent court order dictating that she will have to take testosterone-lowing medication if she wants to compete. After a race this week, which she won, as usual, Semenya was asked if she would take the drug. Her answer:  “Hell no.”

Athletic organizations are treading through a mine field here. If they regard taking performance enhancing drugs as cheating, as they should, demanding that certain competitors with natural physical and genetic advantages should take performance-handicapping drugs seems like a double standard.

2. Stop making me defend Woody Allen! I have been unable to watch an Allen movie, even old favorites like “Bananas,” “What’s Up. Tiger Lilly?,” and “Annie Hall,” without gagging since the comic/director cheated on Mia Farrow with her adopted teen-aged daughter, to whom he was a virtual father, and then married her. Thus I have watched none of his films at all. I didn’t need to make a judgment about his daughter’s claims that he sexually molested her, which Allen denies, and since I have no more evidence than the she said/he said (and my certainty that Allen is a certifiable creep), I can’t. However, once Dylan Farrow and her vengeful mother Mia renewed their accusations against Allen while #MeToo was raging,  virtually all of Hollywood turned on Woody, even actors who had worked with him well after Dylan first made her claims. What changed? Nothing, really, except that now they are afraid of social media retribution, so they are pretending to be horrified at what didn’t bother them previously and assuming Woody’s guilt because “believe all women” is the “woke” place to be.

Well, Woody is a creature of Hollywood: this is unethical and unfair, but as Hymen Roth would tell him, “This is the life you have chosen.” Translation: if you voluntarily spend your career in (and benefiting from, and contributing too) an ethically warped culture, don’t expect a lot of sympathy when it turns on you.

This is more troubling: apparently Woody has a completed manuscript of his memoirs, which would have once sparked a publishers auction and an eventual multi-million dollar advance. Now, however, no publisher will pay a cent for it, because “while he remains a significant cultural figure, the commercial risks of releasing a memoir by him were too daunting.”

That means that the publishers are afraid of boycotts. How courageous. Allen is a significant cultural figure as well as a talented humorist. His memoirs have cultural importance, and they belong in the historical record, loathsome as find the man. Easily as loathsome are William Jefferson Clinton and his wife, yet both of them managed to score 7 figure book advances for memoirs they didn’t even write themselves.

Essentially what is happening to Woody is human statue-toppling. He is being erased from the culture despite never having been charged with or tried for a crime (unlike Bill Cosby and O.J. Simpson) because it is a sign of virtue among sufficient numbers of people with social media access to assume he is guilty. The boycott and progressive bully culture is a direct threat to basic freedoms. I’d regain some respect for Woody Allen if he would say so. Continue reading →

Morning Ethics Warm-Up, 5/3/2019: The “All They Had To Do Is Not Be Crazy, And They Couldn’t Even Do That” Edition [Introduction]

/ Jack Marshall / 26 Comments

Good Morning!

See, I can say still say that because each new day brings promise, even when the previous day was profoundly depressing and ended for me when the Red Sox lost in the 9th on an error and a walk-off home run.

The theme today was unavoidable., and believe me, I try to avoid a imbalance that enables those who want to dismiss Ethics Alarms as a conservative blog, rather than as a neutral, objective blog that has been forced over the past three years to focus heavily on the unethical conduct of “the resistance,” the biased news media, and the Democratic Party. Today, however, the imbalance isn’t mine, but the news.

Today the April economic report shows that wages are up, and unemployment is down. CNN is, I’m sure with clenched teeth, reporting on its poll showing that approval of how President Trump is handling the economy is at 56%. (“Now Congressional Democrats will have to figure out how to destroy the economy” tweets one wag). Another CNN poll finds optimism about the economy the highest it has been in at least 18 years. I know, believe me: polls. Still, one of the most pervasive Big Lies wielded by the “resistance” and the news media is that things are just terrible in the United States. I read some version of this alternate universe in New York Times interviews, features, and book reviews almost every day. You heard it from Joe Biden in his fantasy based video announcing his candidacy. Scott Adams, Dilbert’s creator who is a self-styled “Trump whisperer,” nicely summed up how this Big Lie is going:

“In 2016, if everything the Democrats believed had been true, we would have a depression, nuclear war, prison camps, and an insane Russian puppet as our president. In 2019, if Dems are right about everything they believe, Trump might have almost impeded a witch hunt but didn’t.”

But wait! There’s more. Continue reading →