Law & Law Enforcement

Easter Ethics Warm-Up, 4/21/19: As Ethics Lays Some Eggs…

/ Jack Marshall / 9 Comments

Happy Easter!

1.  A cultural note: there is no discernible Easter programming anywhere on TV, cable or network. Oh, TCM is playing “Easter Parade” and “King of Kings” in prime time, but that’s it. ‘Twas not always thus.

2. Speaking of TCM…Bravo for the classic movie network’s teaming with Fandango to offer big screen presentations of John Wayne’s “True Grit” in May. They could have justifiably chosen many other Westerns equally worthy or more so, like “Shane” or “High Noon.” I like to think that choosing the Duke’s Oscar winning performance is an intentional rebuke to the recent attack on Wayne’s legacy by the social media mob, a true “Fill your hand, you son of a bitch!” to the cultural airbrushers and statue-topplers.

I’ll be there, cheering Rooster on.

3. Other than journalists, have any other professionals debased themselves and their professional integrity more flagrantly that lawyers and law professors in their determination to Get Trump? This article in Slate by a law professor argues that asking or telling one’s lawyer to do something that the lawyer refuses to do—like firing Robert Mueller—can be criminal obstruction of justice. By this theory, every time a client says that he wants the lawyer to assist in an illegal act, it’s a crime.  But that’s not how attorney-client relationships work. The attorney is obligated to say, when appropriate, “No, you can’t do that, and I won’t do that for you, and here’s why.” In the end, it is indistinguishable from the client asking the lawyer’s advice, because clients only have the power to order a lawyer to do a very limited number of things, like accepting a settlement.

The professor’s argument also assumes that Trump firing Mueller would be obstruction of justice. Not only is this unprovable—that would have to be his intent—the President had a perfectly good reason to fire the special counsel, just as he had good reason to fire James Comey. Mueller’s investigation had been tainted many ways, and since Trump knew he was innocent, he saw the exercise as a calculated scheme to make it impossible for him to do his job. Firing Mueller and ending the investigation  would have been really, really stupid politically, but it wouldn’t be obstruction.

This, however, is how desperate “the resistance” is to bootstrap some kind of impeachment theory. Continue reading →

Saturday Ethics Warm-Up, 4/20/19: Fighting Fake Hate Crimes, Mueller Report Spin, Journalism Incompetence, And Being Mean To Beto

/ Jack Marshall / 8 Comments

Good morning!

1. Nah, there’s no mainstream media ignorance and stupidity…

Mecca!

These are the people we trust to keep us informed about the world, and explain what we don’t have the time to study.  Great. [Pointer: Instapundit]

2.  Please circulate to your tantrum-throwing Impeach Trump friends...Yet another sharp column by Glenn Greenwald cutting through the fog and wind, and explaining that, as he puts it, “Robert Mueller Did Not Merely Reject the Trump-Russia Conspiracy Theories. He Obliterated Them.”

Unlike the New York Times, which intentionally cherry-picked quotes from the Mueller Report to give solace to its Trump-Deranged readers, Greenwald reproduced the substantive conclusions that put the nails into the collusion fantasy. Like…

  • “The investigation did not identify evidence that any U.S. persons knowingly or intentionally coordinated with the IRA’s interference operation”
  • “[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

Greenwald concludes,

In sum, Democrats and their supporters had the exact prosecutor they all agreed was the embodiment of competence and integrity in Robert Mueller. He assembled a team of prosecutors and investigators that countless media accounts heralded as the most aggressive and adept in the nation. They had subpoena power, the vast surveillance apparatus of the U.S. government at their disposal, a demonstrated willingness to imprison anyone who lied to them, and unlimited time and resources to dig up everything they could.

The result of all of that was that not a single American – whether with the Trump campaign or otherwise – was charged or indicted on the core question of whether there was any conspiracy or coordination with Russia over the election. No Americans were charged or even accused of being controlled by or working at the behest of the Russian government. None of the key White House aides at the center of the controversy who testified for hours and hours – including Donald Trump, Jr. or Jared Kushner – were charged with any crimes of any kind, not even perjury, obstruction of justice or lying to Congress.

These facts are fatal to the conspiracy theorists who have drowned U.S. discourse for almost three years with a dangerous and distracting fixation on a fictitious espionage thriller involved unhinged claims of sexual and financial blackmail, nefarious infiltration of the U.S. Government by familiar foreign villains, and election cheating that empowered an illegitimate President. They got the exact prosecutor and investigation that they wanted, yet he could not establish that any of this happened and, in many cases, established that it did not.

Precisely. Continue reading →

Arrested For Sexist Tweets

/ Jack Marshall / 13 Comments

One of the early Ethics Alarms posts about schools disciplining students for their use of social media involved a male student who rated his female classmates in a Facebook post. In 2016, Harvard  cancelled the men’s soccer season as punishment for “the widespread practice of the team’s players rating the school’s female players in sexually explicit terms.” [The Ethics Alarms Quiz about that episode, which I just read, as well as the 156 comments it generated including two Comments of the Day, is a good one, and I’ll offer it here as another Ethics Alarms archives feature worth revisiting: Ethics Quiz: The Harvard Soccer Team’s “Locker Room Talk.”]

At Perrysburg High School in Ohio, however, the reaction of administrators to a similar incident plows new and especially alarming ground.  After many students reported his Twitter account for rating the school’s female students in derogatory terms, the school had him arrested and charged with “telecommunications harassment.”NBC reports that 18-year-old Mehros Nassersharifi has been issued a summons to appear in court, and faces expulsion from the school.His account, @GirlsRanked, purported  to list the “hottest girls” at Perrysburg.

No news yet if the school plans on confining him in an Iron Maiden or branding “SEXIST!” on his face.

There’s no quiz necessary here. What the school has done is far, far worse than a high school kid’s juvenile Twitter account. It is also one more item on my growing list of how the cancerous progressive fervor for installing “woke” attitudes into the culture using force and intimidation continues to metastasize.

No, you can’t prosecute someone based on the content of a Tweet. Every single student at Perrysburg High School should already know that, and indeed should have known it since the sixth grade at least. Yet apparently the teachers and administrators at the school don’t know it. First Amendment? What First Amendment? Continue reading →

Friday Ethics Warm-Up, 4/19/2019: There’s More To Ethics Than Mueller Freakouts, You Know…

/ Jack Marshall / 36 Comments

Happy Easter weekend…

(For me and other Greek-Americans, Easter presents a yearly choice: Greek Easter is calculated on a different calendar (it also has only boring red eggs), and just once in a red moon coincides with the non-Greek holiday.  This year it’s a week later, so we’re not putting our eggs in any baskets until next Sunday. We celebrate Greek Easter in honor of my Mom, who was fanatic about all holidays. The Greek Orthodox Church was dead to us once a priest told the congregation that the offspring of “mixed marriages”–that is, Greek and non-Greek spouses like my parents—were considered illegitimate by the Church. (My dad walked out of the service.)

(The other Churches became dead to us a bit later, and for varying reasons.)

1 A brief Mueller interlude…a) Rep. Gerald Nadler is grandstanding by demanding the full, unredacted report. Giving secret grand jury testimony to Congress would be  illegal. Anything to inflame the public, I guess…b) It’s incomplete, but Scott Horton, a smart libertarian who has been tracking the various complexities of the Russiagate investigation far more closely than I have, tears the Mueller report to shreds in convincing fashion. I’m accepting the conclusions of the report on faith, but Horton demonstrates how open to attack the investigation may be. The post is long and overly colloquial, and I don’t have time to check Horton’s facts, but it is worth reading. c) April Ryan, the CNN hack who has a long history of attacking Trump press secretary Sarah Sanders, now says Sanders should be fired for “lying.” Sanders at one point said that “countless” FBI agents had said that they had lost trust in James Comey, then later said that “countless” was a misstatement. With very few exceptions over the last 50 years, Sanders’ job is that of a paid liar and obfuscater; I got tired of flagging all of the lies and spin issued by Obama’s three spokesmen. They all should be fired, I guess, but not for offenses like using the word “countless” when the correct word would be “plenty.” Heck, I even heard through contacts and back-channels that FBI agents were disgusted with Comey. How could they not be?

2. And now for something completely different: Walrus Ethics. This isn’t a Climate Change Denial post, it’s a “See, this is why so many people don’t trust climate change doomsday scenarios” post.

Netflix’s climate change propaganda documentary  “Our Planet,” narrated by David Attenborough, showed masses o the walruses climbing up cliffs in northeast Russia because, we were told, of a lack of sea ice. Then we saw the large pinnipeds over the cliff edges onto the rocks below, leaving hundreds of dead animals piled on the shore. Attenborough said their poor eyesight made it hard for them to return safely to the ocean.

 Dr. Susan Crockford, a Canadian zoologist specializing in evolution and the ecology of Holocene mammals (including polar bears and walrus), claims that the scene was a hoax. She called Netflix’s narrative over the “Our Planet” scene i“contrived nonsense… fiction and emotional manipulation at its worst”:

“The walruses shown in this Netflix film were almost certainly driven over the cliff by polar bears during a well-publicised incident in 2017.” Even if the footage shown by Attenborough was not the 2017 incident in Ryrkaypiy, we know that walruses reach the top of cliffs in some locations and might fall if startled by polar bears, people or aircraft overhead, not because they are confused by shrinking sea ice cover.”

Anthony Watts, a weather technology expert and author,  also suspects the footage captured was the 2017 Siberian incident.

I’ve been able to show that Crockford’s supposition about the geographical origin of the footage is correct: analysis of the rock shapes in the film and in a photo taken by the producer/director both match archive photos of Ryrkaypiy. The photo was taken on 19 September 2017, during the events described by the Siberian Times.

But whereas the Siberian Times and Gizmodo website, which also reported on the 2017 incident, were both quite clear that the walruses were driven over the cliffs by polar bears, Netflix makes no mention of their presence. Similarly, there is no mention of the fact that walrus haulouts are entirely normal. Instead, Attenborough tells his viewers that climate change is forcing the walruses on shore, where their poor eyesight leads them to plunge over the cliffs.

This is all very troubling as it raises the possibility that Netflix and the WWF are, innocently or otherwise, party to a deception of the public.

If the climate change urgency is as real as we are constantly told, why can’t it be demonstrated with real facts rather than fakery like this?  Is it any wonder the public is skeptical? [Pointer: Legal Insurrection] Continue reading →

Ethics Observations On Reactions To The Mueller Report, Continued: Quotes

/ Jack Marshall / 20 Comments

1. The most revealing quote is the New York Times headline I’m looking at, approximately the same size as the one announcing that the Titanic had sunk: “Mueller Report Lays Out Russian Contacts And Trump’s Frantic Effort To Foil Inquiry.” What it reveals is that the New York Times has no interest in objective reporting on this matter, and is still in the mode it announced during the campaign: it sees its job as not to report the news, but to take down Donald Trump. The headline, as well as the cherry-picked excerpts from the 400 page report, are calculated to mislead the public and impede the President’s ability to govern. “Contacts” are not collusion or conspiracy, as the report itself showed. Meeting with Russians is neither illegal nor unusual. “Frantic” is a subjective characterization that does not belong in a headline, and “foil” is misleading. The President wanted the investigation to end, as it made doing his job difficult (as it was intended to do), and he wanted to “foil” its illicit (and obvious) objective of carrying out the Democratic Party’s and the mainstream media’s attempted coup.

The Times, the Post and the rest know that most citizens won’t read the report and couldn’t understand it if they tried, so they are pushing the same false and misleading narrative, an abuse of the news media’s critical role, to see if, somehow, they can still take “get” Donald Trump.

2. Andrew McCarthy, who has been an invaluable analyst throughout this fiasco, clarified the “obstruction of justice” controversy yesterday, and William Barr’s comments on them. McCarthy’s quote:

The attorney general stated that the special counsel evaluated ten incidents with an eye toward whether they amounted to an obstruction offense. Barr elaborated that he and Deputy Attorney General Rod Rosenstein disagreed with Mueller on whether these incidents even could have amounted to obstruction as a matter of law…. Barr was not saying that Mueller found one or more of these incidents to constitute obstruction; Mueller was saying that the incidents involved actions that could theoretically have amounted to obstruction.

A concrete example may make this easier to grasp: the firing of FBI director James Comey. Before a prosecutor considered evidence regarding that incident, there would be a preliminary question: Could the president’s dismissal of an FBI director amount to an obstruction offense as a matter of law? If prosecutors were to decide that, even if the evidence showed corrupt intent on the part of the president, a president’s firing of the FBI director cannot constitutionally amount to an obstruction crime, then the prosecutors would not bother to investigate and make an assessment of the evidence.

What Barr is saying is that he and Mueller did not agree, with respect to all ten incidents, on whether the incident could legally amount to obstruction. What the attorney general therefore did was assume, for argument’s sake, that Mueller was correct on the law (i.e., that the incident could theoretically amount to obstruction), and then move on to the second phase of the analysis: Assuming this could be an obstruction offense as a matter of law, could we prove obstruction as a matter of fact? This requires an assessment of whether the evidence of each element of an obstruction offense – most significantly, corrupt intent – could be proved beyond a reasonable doubt. That is why Barr laid out the facts that the president could have shut down the investigation but did not; that he could have asserted executive privilege to withhold information from the investigation, but instead made numerous witnesses and well over a million documents available to the special counsel; and that – reportedly according to Mueller – the president sincerely felt frustrated that the investigation was unfairly undermining his presidency. The point is that these facts so cut against the idea of corruptly impeding an investigation that it is inconceivable the prosecutor could prove an obstruction case beyond a reasonable doubt.

What you keep reading and hearing the bitter-enders say is that Trump wanted to obstruct the investigation,  but his staff stopped him. Well, wanting to do something isn’t a crime or even unethical, and staffs and advisors saying “no” is what good staffs and advisors do. Continue reading →

Early Ethics Observations On Reactions To The Mueller Report

/ Jack Marshall / 25 Comments

It was exactly 12:45 pm when I was informed by NPR that Nancy Pelosi and Chuck Schumer had issued a joint statement claiming the Attorney General Barr’s four page summary of the report released today had misled Congress. The report had been released at 11:00 am, and was over 400 pages long, as well as extremely dense, full of detailed legal arguments that even lawyers…like me…would have to read slowly and maybe more than once. What are the chances that Chuck and Nancy had read the report  by 12:45? I think “none” is a fair answer. It’s highly unlikely that any of their staff had read the report by them either. The accusation against Barr was a lie.

See that graphic above? That’s the dishonest fundraiser Democrats sent out almost immediately to inspire indignation from Democrats who haven’t read the report. If there are any ethical Democrats whose reaction to this isn’t “How dare my party treat me like I’m an idiot and give me false and misleading information and analysis to separate me from my money?” I’d like to hear from them. Maybe there just aren’t any ethical Democrats at all. At this point, I’m willing to entertain that possibility.

By the way, I’m about 40% through the report, though not in sequence. It is thorough, professional and appears to be fair. Continue reading →

Exhibit A On Why It Is Crucial To Understand Moral Luck: The Samuel Lee Scott Affair

/ Jack Marshall / 8 Comments

St. Louis Bail Project is under attack for bailing out Samuel Lee Scott, who was in jail pending domestic abuse charges and couldn’t pay the court-ordered bond. Once Scott was free, he went home and killed his wife.

The bail system, which is being re-examined across the country, obviously discriminates against the poor. The idea underlying bail is to get the accused out of jail before trial, since he or she is by definition not guilty, and to create  a financial incentive for the accused to appear for trial. The system penalizes poverty, so non-profits like  the St. Louis Bail Project use their resources to allow poor defendants to have the same options rich ones do. It is an ethical mission.

The fact that this one bailee committed murder is pure moral luck regarding the Bail Project. The Project does not second guess the judge’s decision to allow bail, or the system’s determination that Scott wasn’t a flight risk or a danger to the community. Indeed, there may have been no reason to expect that Scott would kill anyone. That he did was moral luck, and cannot be logically or fairly applied retroactively to the St. Louis Bail Project’s decision to pay his bail. The fact that bail was set indicates that the system did not regard him as a threat.

The episode could justifiably spark a debate regarding when and if domestic abusers should be provided with an opportunity to go home, and whether bail in such situations should include a requirement that they live apart and stay away from the alleged victim. What it should not do is cause organizations like the St. Louis Bail Project to doubt the importance of their mission.