Ethics Train Wrecks

Responsible And Necessary: The Appointment Of A Special Counsel

/ Jack Marshall / 40 Comments

The Justice Department appointed Robert S. Mueller III (above), a former F.B.I. director, as special counsel to handle the Russia probe.

I am reading conservative pundits fuming over this development for a number of reasons, some of them valid and troubling. However, there is no good argument to be made that a Special Counsel isn’t necessary now.

Assistant Attorney General Rod Rosenstein explained his decision to make the appointment (remember, he is acting AG in the Russian investigation, because Jeff Sessions was bullied and hectored into recusing himself, also unavoidable):

“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter.My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”

Exactly. As for the last sentence, President Trump has no one to blame but himself. His own, typical, blundering, blathering ways created this atmosphere—that and “Deep State” leaks calculated to undermine him, and a news media feasting on those leaks like sharks on chum.

It is being argued that you can’t appoint a special prosecutor unless there is a finding that crimes have been committed. Here are the relevant sections of the law:

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

§ 600.2 Alternatives available to the Attorney General.

When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:

(a) Appoint a Special Counsel;

(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or

(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.

I don’t read the law so narrowly. The law requires that there be a determination that a criminal investigation is warranted, not that crimes have been committed. Continue reading →

Ethical Quote Of The Month: Former Harvard Law Professor Alan Dershowitz

/ Jack Marshall / 81 Comments

“If it was a polite request saying, ‘Oh, you know, he’s a good guy, Flynn, I wish you’d back off this thing,’ that’s not an obstruction of justice. If it was a command, it would raise stronger problems.”

—Retired Harvard law professor , Constitutional scholar, lawyer, liberal and CNN commentator Alan Dershowitz, trying to explain to MSNBC what “obstruction of justice” means.

I’ve never been a Dershowitz fan, but when the List of Shame is complied after the Post 2016 Election Ethics Train Wreck has finally ground to a halt, he’ll be on another list: the one containing those who maintained their integrity.

He needn’t have bothered: the news media/Democratic Party/ “resistance'” collective has already labelled James Comey’s so far only rumored “memo” recounting that the President asked the then-FBI Director, in a private meeting in February, to close the FBI investigation of Trump’s former national security adviser, Michael Flynn, proof of criminal motives and acts.

The New York Times learned of the memo from two people who claim they had read it. One of them read part of the memo to a Times journalist.  According to these unnamed sources’ description of the memo, Trump told Comey, “I hope you can let this go” in a meeting that took place the day after Flynn was forced to resign.

“I hope you can let this go” would be consistent with what Dershowitz, no Trump supporter but apparently yet to be infected with the integrity- and logic-destoying anti-Trump virus, accurately described as “not an obstruction of justice.”

The Times, however, a card-carrying member of the “overturn the election” cabal—we know this because it stated last August that defeating Trump justified tossing journalism ethics into the trash, and because since the election, its pages have from the book reviews to the op-ed pages have been filled anti-Trump propaganda—called Trump’s reported request “the clearest evidence that the president has tried to directly influence the Justice Department and FBI investigation” into links between Trump associates and Russia. This must mean that there is no evidence, at all, since saying “I hope you can let this go” is barely influence at all.

The news of the alleged memo was breathlessly hailed by the “Can we impeach him now?” fanatics, including some readers of this blog who should know better and once did, as a “bombshell.” As Alan Dershowitz dispassionately points out, and as I have in the comment threads, it’s no bombshell. This is not  remarkable observation; a New York Times contributor was even allowed to agree with Dershowitz. (The Times can’t completely commit to the lynch mob, for then its efforts to aid and abet would be less valuable. It’s quite a tightrope these people are walking….). Constitutional law prof Elizabeth Price Foley wrote, Continue reading →

New Orleans’ Historical Air-Brushing Orgy

/ Jack Marshall / 78 Comments

New Orleans is in the midst of completing a plan to remove four Confederate monuments from public spaces in the city. In April, city workers removed a monument to a Reconstruction-era insurrection, and last week, they dismantled a statue of Jefferson Davis. Statues of the Confederate generals Robert E. Lee and P. G. T. Beauregard will be coming down soon.

New Orleans Mayor Mitch Landrieu exploited the murder of nine black churchgoers  in Charleston, South Carolina to push for historical censoring, a long-time goal of civil rights groups and progressives.  Now the city says it is weighing a new location for  the monuments so they could be “placed in their proper historical context from a dark period of American history.” The favored new location is rumored to be Hell.

There are protests, of course, and most objections are coming from the perfect advocates from perspective of the historical amnesia fans: Confederacy fans, “Lost Cause” adherents, white supremacists, and other deplorables.  Seldom has George Orwell’s quote been more relevant:

“He who controls the past controls the future. He who controls the present controls the past.”

I’ve written so much about the efforts from the left to purge America of any memory of or honor to historical figures who do not meet its 2o17 lock-step mandate for politically correct views and statements that I hesitate to repeat myself. You can review the record here.

Still, some things bear repeating. The last time I wrote about this issue was in February, when Yale capitulated to student thought-control advocates and eliminated the name of John C. Calhoun from a residential hall.  For it isn’t just leaders of the Confederacy who are targets of this cultural self-cannibalism: it is all past leaders who were proven wrong in some respects by subsequent wisdom, experience and events, including American icons like Jefferson and Jackson.  That last post listed the rationalizations  employed by the statue-topplers and the spineless officials who capitulate to their purges , including

 The Revolutionary’s Excuse: “These are not ordinary times” 

The Troublesome Luxury: “Ethics is a luxury we can’t afford right now.” 

The Ironic Rationalization, or “It’s The Right Thing To Do.”

Ethics Surrender, or “We can’t stop it.”

The Saint’s Excuse: “It’s for a good cause”

The Futility Illusion:  “If we don’t do it, somebody else will.”

The Comparative Virtue Excuse: “There are worse things.”

The Coercion Myth: “We have no choice!”

The Desperation Dodge or “I’ll do anything!”

The Unethical Precedent, or “It’s not the first time”

The Abuser’s License:  “It’s Complicated”

 The Apathy Defense, or “Nobody Cares.”

When you can throw up twelve rationalizations, that’s more than enough to convince the average, ethically-deficient citizen, not to mention social justice warriors.

That  post concluded,

A friend, lawyer, and Democrat had chided me on Facebook for suggesting that the frenzy to make America a safe place for anyone troubled by the opinions and actions of American patriots of the past could reach as far as Thomas Jefferson and George Washington, and accused me of engaging in wild hyperbole. Soon thereafter, the Connecticut Democratic Party purged the names and images of Presidents Jackson and Jefferson from its annual dinner, in order to kowtow to progressive activists. In November of last year, hundreds of University of Virginia students and faculty members demanded that President Teresa Sullivan stop quoting Thomas Jefferson, because doing so “undermines the message of unity, equality and civility that you are attempting to convey.”…I believe it is fair to say that I was right to be alarmed, and my friend was wrong. (I’m still going to let the statue of him in my backyard stay there, though.)

The cultural ethics alarms are sounding, as the toxic combination of the ignorant, the cultural bullies and the cowardly brings the United States closer to an Orwellian society where the past is remade to suit the perceived needs of the present.  Yale’s treatment of Calhoun redoubles my conviction that I expressed last year more than once. We have to honor what deserved and deserves to be honored. If we do not, history becomes political propaganda, useful only to support current political agendas. A nation that does not  honor and respect its history has no history.

And a nation that has no history is lost.

The New York Times published separate interviews with a leading critic and a prominent supporter of the historical airbrushing in New Orleans. Continue reading →

This Is The Heartbreak Of Anti-Trump Brain Loss…

/ Jack Marshall / 158 Comments

We already beheld the sad spectacle of one of the nation’s most distinguished and respected legal minds beginning to crumble under the dual attacks of anti-Trump hysteria from his peer group, and the inexplicable power of social media to make wise men and women behave like idiots..here (my linking function isn’t working this morning: http://lawnewz.com/high-profile/in-dumbest-move-famous-law-prof-broke-ethics-rules-in-apparent-shot-at-trump/), when famed Harvard Law scholarLawrence Tribe breached a basic and legal ethics principle by issuing a tweet implying that Donald Trump had once asked him about a legal matter, and wouldn’t you all love to know what it was?  When I mention this to lawyers in my legal ethics seminars, they literally laugh and roll their eyes. They know lawyers can’t do this: why didn’t the famous Constitutional Law prof from Harvard Law School have his well-oiled  ethics alarms go off? It was because, I explain, Twitter often turns lawyers and other professionals into fools, and what brains social media hasn’t chewed up can be swallowed by anti-Trump madness.

That was before the election, and poor Tribe’s deterioration has  continued. Three days after the President was sworn in, Tribe joined a group of deranged lawyers and the early stirrings of the “resistance” to sue Trump for violating the obscure Emoluments Clause, which, sane and objective authorities agree, was not intended to apply to a President who has his name on hotels, making the claim that this unprecedented situation constitutes a government official receiving prohibited payments from foreign governments. The theory is not just a stretch, but an embarrassingly  partisan one that a respected Constitutional law scholar should have been mocking, not joining.

Now Tribe has really gone around the bend, and may soon be seen wandering aimlessly through Harvard Square, wearing a Red Sox cap, muttering to himself and carrying a crudely lettered sign. Continue reading →

Five Reasons Why This Was President Trump’s Dumbest Tweet Yet

/ Jack Marshall / 81 Comments

(I’m not counting the impulsive re-tweets from white supremacist and anti-Semitic sources.)

1. All tweets from a President of the United States who lacks rhetorical skills, common sense and self-restraint are unprofessional and self-destructive. That’s the foundation.

2. Ex-FBI director Comey isn’t the President’s enemy. Comey has acted, for the most part, with fairness and grace since being sacked. It is absurd to keep attacking him.

3. Threatening private citizens—which is what Comey is now— from the White House is ugly, unseemly, an abuse of power and only harms Trump. He fired Comey from a job he obviously wanted and loved. Isn’t that enough? This appears to be gratuitous harassment and petty nastiness…and appears that way because it is.

4. Tapes? TAPES? Trump mentions secret tapes while his foes and the news media is trying to make tortured comparisons to Watergate?

KABOOM!

This is signature significance for idiocy, or a death wish, or terminal jerkism, or something. TAPES????

5. “When in a hole, stop digging.” How can a man be successful in business and public life and not have learned this basic principle?

Reluctant Additional Ethics Notes On A Manufactured “Crisis”: The Comey Firing Freakout

/ Jack Marshall / 90 Comments

1. When this ridiculous episode is recounted in history books, if it is, it will only be as an example of how the news media worked in tandem with Democrats to undermine the President of the United States, and deeply wounded American democracy and the public trust as a result. I suppose if it is recounted, it will either be as one of the many factors that led Americans to express disgust for both the news media and the Democratic party, forcing the first to shape up and the latter to re-invent itself, or, under the worst case scenario, to explain how the United States lost its Constitutional government.

2. A President of the United States fired an FBI director who deserved to be fired, and everything else is political warfare and public disinformation. A President firing someone he had the power to fire and that most Americans rightly believed should be fired cannot be a scandal, a crisis, or anything else worthy of the hysterical coverage this story has received. The coverage of the story is the antithesis of the journalism ethics tenet that journalists cover stories but do not create them.

3. President (and candidate) Trump is certainly at fault for handing his enemies sticks to beat him with. I put this is exactly the same category with a voluptuous woman walking into a bar full of drunken, rowdy men and doing a provocative dance to the jukebox as they hoot and drool. She should be safe, but she isn’t, and she should know that she isn’t. The drunken dogs should be trustworthy not to sexually assault her, but they aren’t,   When she ends up like Jodie Foster in “The Accused,” it is her sexual assailants who are guilty, but it is not blaming the victim to ask, “What the hell were you thinking?”

4. Of course, as has been proven at nauseating length here and elsewhere, President Trump does not think, at least in the professional sense of the word. It was stupid to throw out compliments to Vladimir Putin. It was stupid to make defensive-sounding comments about the Russian hacks because he didn’t want to admit that any factors led to his election other than his essential brilliance. One  indication that there are no sinister connections between Trump and Russia is that if there were, it would be mind-numbingly moronic for Trump to do anything but show hostility to the country and its leaders. It is only slightly less moronic for him to say these things when he has nothing to hide regarding “Russian ties.”

[An aside: a recent commenter on another thread repeated the oft-cited nonsense that Trump must be smart (like he says) because he has an IQ of 160. If Donald Trump scored 160 on an IQ test, then IQ tests should be thrown out and never used again. However, that claim is imaginary. (IQ tests don’t prove you are “smart,” either, but that’s a different issue.) A researcher once estimated Trump’s IQ based on his admission to Wharton and the gross average IQ of Wharton grads, which is itself a phony number. Then this  (incompetently) estimated figure was used by other hacks in some of those “Who was the smartest President?” articles, which estimate the IQs of the Presidents using the same kind of bad reasoning as the process that arrived at the figure for Trump (it was 156, not 160). In truth, nobody knows what Trump’s IQ is. Everybody knows, however, or should, that he does and says an astounding number of dumb things, many of which mostly have the effect of harming him, or his ability to do his job.] Continue reading →

Ethics Observations On The Firing of FBI Director James Comey

/ Jack Marshall / 199 Comments

President Trump on Tuesday fired the director of the FBI, James B. Comey today. Rod Rosenstein, the new deputy AG who replaced Sally Yates, prepared a memo that recommended the firing, and Attorney General Jeff Sessions concurred.

Ethics Observations:

1. Here’s how the New York Times described the firing in its story’s opening sentence:

President Trump on Tuesday fired the director of the F.B.I., James B. Comey, abruptly terminating the law enforcement official leading a wide-ranging criminal investigation into whether Mr. Trump’s advisers colluded with the Russian government to steer the outcome of the 2016 presidential election.

That’s pretty despicable, and as blatant an example of intentional negative spin as you are likely to see, even from the Times. There were so many justifications for firing Comey that the mind boggles. Attaching the act to the one elicit reason for firing Comey is just yellow journalism, and nothing but. The Times is really a shameless partisan organ now.

2. Should Comey have been fired? Of course. He didn’t have to be fired, but to say that at this point he was not trusted by either political party and was widely viewed as incompetent would be an understatement  The fact that his testimony before Congress last week was not only riddled with errors, but riddled with errors that made headlines, was reason enough to fire him.

From the Washington Post:
Continue reading →

Ethics Observations On Bill Maher’s Incest Joke About Ivanka Trump

/ Jack Marshall / 28 Comments

This is my favorite photo of Bill Maher. It captures the essence of his charm, his manners and his wit so perfectly…

Following the (much deserved and still not sufficient) criticism of Fox News’ Jesse Watters’ leering “joke” about Ivanka Trump’s handling of a microphone, HBO’s Bill Maher gave conservative critics an opportunity to trot out the  “we have standards, where are yours?” accusation against liberals when the host of “Real Time” made suggestive gestures while talking about how the First Daughter “helps” President Trump.

“What do you make of Ivanka and her efforts to sort of humanize her father?”, the comic asked guest Gabe Sherman ( a writer, book author, Fox News critic and a vocal one regarding Watters’ incivility). “We see all this misogyny at Fox News [ KABOOM!, incidentally. If there is anyone on earth other than the President more ethically estopped from accusing someone else of misogyny, it’s Maher, who flings “cunt” and “twat” at women he disagrees with and who cheered Bill Clinton’s exploitation of Monica Lewinsky on the grounds that “he works hard, and he deserves it”); we see it in Donald Trump himself. A lot of us thought, Ivanka is gonna be our saving grace.” Then, as he mimed Ivanka masturbating her father, Maher continued, “When he’s about to nuke Finland or something, she’s gonna walk into the bedroom and—”Daddy, Daddy…’Don’t do it, Daddy!”‘

This most recent vulgarity by Maher as his audience of hateful left-wing boors hooted on cue even moved the progressive tool Daily Beast to complain that “if liberals are going to castigate Donald Trump for his boorish, sexist behavior, they shouldn’t behave in a similar fashion” —a point that is too little and far too late in the case of proudly boorish, sexist Bill Maher.

Ethics Observations: Continue reading →

The Flint Water Bills: Is This The Most Outrageous Ethics Story Of The Year?

/ Jack Marshall / 29 Comments

“What do you mean it’s brown and poisonous? Water is water! Pay up.”

This story out of Flint, Michigan is so wrong, so astoundingly and obviously unethical, such a satire of government ineptitude at its worst and bureaucratic soullessness at its most damning, that I literally didn’t believe that it could be anything but a momentary hiccup, and that it would be resolved by the state, the city, an elected leader with guts and the sense God gave a mollusk, within a day or two, after the voices of millions were heard screaming. “WHAT????”

I was wrong. You want to know why it is insane to place your freedom, health, livelihood and survival and that of your families in the hands of government? THIS is why. Exactly this.

Thousands of Flint, Michigan residents risk losing their homes if they don’t pay their overdue water bills  less than three years since the start of a prolonged, botched, water safety crisis that led to extremely dangerous levels of lead in the city’s water pipes. In a move that will stand through the ages as the epitome of shamelessness and gall,  the Flint government sent threatening letters to more than 8,000 residents warning them they will face a tax lien if they do not pay water and sewage bills they have avoided for six months or more. Residents have until May 19 to pay the delinquent bills, and after that, a process begins that could end with foreclosure on their homes. Flint sends these letters annually to property owners whose payments are at least six months late, but skipped this process in 2016, given that the water the residents weren’t paying for was only technically water at all. The better label was “poison.” This year’s letters cover two years of past-due balances. Continue reading →

No, Insurance Companies Treating People With Pre-Existing Conditions Differently From Other Customers Is Not “Discrimination.”

/ Jack Marshall / 63 Comments

Here is a prime example of how the news media’s intentional or careless use of words warps public perception and policy.

Yesterday, the New York Times front page story about the GOP House’s health insurance bill noted in its second paragraph that the bill wouldn’t do enough to prevent “discrimination” by insurance companies against those with per-existing conditions. I have seen and heard that term, discrimination, used over and over again to describe the per-existing condition, and I apologize for not blowing the whistle on it long ago.

Using the term, which is usually used in other contexts to signal bigotry, bias and civil rights violations, is misleading and virtually defamatory. Insurance companies are businesses. They are not charities. They are not public resources. If an automobile company turns down an offer of half what a car costs it to make, it is not discriminating against that customer who made the offer. If a restaurant customer says to a waiter, “I have just four bucks, but I want you to bring me a dozen oysters, a steak, and a nice bottle of wine,” the establishment isn’t discriminating against the diner for sending him to McDonald’s.

Insureds with per-existing conditions want to pay premiums that are wildly inadequate for the coverage they know and the insurance company knows they are going to need. Insurance companies are portrayed as villains because they don’t eagerly accept customers who they know will cost them money, often a lot of money. That’s not discrimination. That’s common sense, basic business practice, fiscal reality,and responsible management. The news media and the under-cover socialists among us want to create the illusion that a company not wanting to accept customers who lose money rather than add to profits is a mark of corporate greed and cruelty, hence the use of “discrimination” as a falsely pejorative term, when the fair and honest word is “problem.” Continue reading →