Law & Law Enforcement

Morning Ethics Warm-Up, 12/5/2019: Post Impeachment Hearing Meltdown Edition

/ Jack Marshall / 17 Comments

Good Morning!

Somehow a picture of the so-called “unicorn puppy,” appropriately named “Narwhal,” seems appropriate today. The Democratic Party/”resistance”/mainstream media has been pushing its corrupt impeachment plot on the assumption that sufficient Trump-haters would find it cute, but as of yesterday the undemocratic motives and ugliness of the effort stood out like a tail on a puppy’s face. You can’t hide it, and lots of people will convince themselves that it’s attractive. But rationally, the damn thing has to come off.

1. On the Stanford law professor’s joke about Barron Trump’s name. Oddly, perhaps the most harmless part of the otherwise embarrassing testimony of Stanford constitutional law professor Pamela S. Karlan yesterday became the most controversial. “While the president can name his son Barron, he can’t make him a baron,” she said.

HAHAHAHAHA! Good one, professor! Gratuitous and completely irrelevant to the issues at hand,  but hey, anything to throw fish to the seals! Based on the outrage around the conservative media, most of which only referenced this knee-slapper without quoting it, I assumed that she had actually insulted the teenager.  I kept reading about how this was one more example of the double standard: using Obama’s daughters for political warfare was off limits, but now this mean professor was getting laughs from Democrats by making fun of Barron Trump. Laura Ingraham tweeted that this joke was guaranteed to turn the public against the impeachment farce for good. (I don’t think so, Laura. You should get out more.) Naturally the First Lady piled on, tweeting at the professor, “A minor child deserves privacy and should be kept out of politics. Pamela Karlan, you should be ashamed of your very angry and obviously biased public pandering, and using a child to do it.” Trump 2020 national press secretary Kayleigh McEnany went even more overboard:

“Only in the minds of crazed liberals is it funny to drag a 13-year-old child into the impeachment nonsense,” she wrote. “Pamela Karlan thought she was being clever and going for laughs, but she instead reinforced for all Americans that Democrats have no boundaries when it comes to their hatred of everything related to President Trump. Hunter Biden is supposedly off-limits according to liberals, but a 13-year-old boy is fair game. Disgusting. Every Democrat in Congress should immediately repudiate Pamela Karlan and call on her to personally apologize to the president and the first lady for mocking their son on national TV.”

Oh come ON. Continue reading →

Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART II]

/ Jack Marshall / 21 Comments

( Part I is here.)

Professor Turley’s testimony continues…

B.  The Nixon Inquiry

The Nixon “impeachment” is often referenced as the “gold standard” for impeachments even though it was not an actual impeachment. President Richard Nixon resigned before the House voted on the final articles of impeachment. Nevertheless, the Nixon inquiry was everything that the Johnson impeachment was not. It was based on an array of clearly defined criminal acts with a broad evidentiary foundation. That record was supported by a number of key judicial decisions on executive privilege claims. It is a worthy model for any presidential impeachment. However, the claim by Chairman Schiff that the Ukrainian controversy is “beyond anything Nixon did” is wildly at odds with the historical record. The allegations in Nixon began with a felony crime of burglary and swept to encompass an array of other crimes involving political slush funds, payments of hush money, maintenance of an enemies list, directing tax audits of critics, witness intimidation, multiple instances of perjury, and even an alleged  kidnapping. Ultimately, there were nearly 70 officials charged and four dozen of them found guilty. Nixon was also named as an unindicted conspirator by a grand jury. The convicted officials include former Attorney General John N. Mitchell (perjury); former Attorney General Richard Kleindienst (contempt of court); former Deputy Director of the Committee to Re-elect The President Jeb Stuart Magruder (conspiracy to the burglary); former Chief of Staff H.R. Haldeman (conspiracy to the burglary, obstruction of justice, and perjury); former counsel and Assistant to the President for Domestic Affairs to Nixon John Ehlichman (conspiracy to the burglary, obstruction of justice, and perjury); former White House Counsel John W. Dean II (obstruction of justice); and former special counsel to the President Charles Colson (obstruction of justice). Many of the Watergate defendants went to jail, with some of the defendants sentenced to as long as 35 years. The claim that the Ukrainian controversy eclipses Watergate is unhinged from history.

While the Ukrainian controversy could still establish impeachable conduct, it undermines that effort to distort the historical record to elevate the current record. Indeed, the comparison to the Nixon inquiry only highlights the glaring differences in the underlying investigations, scope of impeachable conduct, and evidentiary records with the current inquiry. It is a difference between the comprehensive and the cursory; the proven and the presumed. In other words, it is not a comparison the House should invite if it is serious about moving forward in a few weeks on an impeachment based primarily on the Ukrainian controversy. The Nixon inquiry was based on the broadest and most developed evidentiary in any impeachment. There were roughly 14 months of hearings – not 10 weeks. There were scandalous tape recordings of Nixon and a host of criminal pleas and prosecutions. That record included investigations in both the House and the Senate as well as investigations by two special prosecutors, Archibald Cox and Leon Jaworski, including grand jury material. While the inquiry proceeded along sharply partisan lines, the vote on the proposed articles of impeachment ultimately included the support of some Republican members who, again, showed that principle could transcend politics in such historic moments.

Three articles were approved in the Nixon inquiry alleging obstruction of justice, abuse of power, and defiance of committee subpoenas. Two articles of impeachment based on usurping Congress, lying about the bombing of Cambodia, and tax fraud, were rejected on a bipartisan basis. While the Nixon impeachment had the most developed record and comprehensive investigation, I am not a fan of the structure used for the articles. The Committee evaded the need for specificity in alleging crimes like obstruction of justice while listing a variety of specific felonies after a catchall line declaring that “the means used to implement this course of conduct or plan included one or more of the following.” Given its gravity, impeachment should offer concrete and specific allegations in the actual articles. This is the case in most judicial impeachments.

The impeachment began with a felony when “agents of the Committee for the Re- election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence.” The first article of impeachment reflected the depth of the record and scope of the alleged crimes in citing Nixon’s personal involvement in the obstruction of federal and congressional investigations. The article included a host of specific criminal acts including lying to federal investigators, suborning perjury, and witness tampering. The second article of impeachment also alleged an array of criminal acts that were placed under the auspices of abuse of power. The article addressed Nixon’s rampant misuse of the IRS, CIA, and FBI to carry out his effort to conceal the evidence and crimes following the break-in. They included Nixon’s use of federal agencies to carry out “covert and unlawful activities” and how he used his office to block the investigation of federal agencies. The third article concerned defiance of Congress stemming from his refusal to turn over material to Congress.

These articles were never subjected to a vote of the full House. In my view, they were flawed in their language and structure. As noted earlier, there was a lack of specificity on the alleged acts due to the use of catch-all lists of alleged offenses. Continue reading →

Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART I]

/ Jack Marshall / 24 Comments

Today, at the impeachment hearings, Prof. Jonathan Turley performed a great public and national service by eviscerating the Democratic theory of impeachment legally, logically and historically. I cannot wait to see if his decisive testimony is given half the prominence by the New York Times as the various headlines shouting about how an official would have done things differently if he or she were President. Unlike almost all of the testimony so far, Turley’s was based on facts and law, and addressed the issue at hand: is there any justification for impeachment proceedings?

It’s a wonderful and clear piece of scholarship that addresses several approaches to the matter that I had wanted to address, notably how the three previous impeachment efforts compare with this one.

Every citizen should read it all; of course, almost none will. The testimony is long, because it is thorough; I have edited it for ease of reading, eliminating footnotes. If you want to read the original document, it is here. Ethics Alarms is going to present this in several parts. Send that link to your smug impeachment-cheering friends, relatives and social media contacts. Tell them that unless they read it, you really don’t want to hear any more on the subject from them, because they want to remain ignorant.

I am proud—relieved?—to find that this serious and admirable scholar embraces many of the positions I have discussed here, though in far more detail and with considerably more authority.

INTRODUCTION

Chairman Nadler, ranking member Collins, members of the Judiciary Committee, my name is Jonathan Turley, and I am a law professor at George Washington University where I hold the J.B. and Maurice C. Shapiro Chair of Public Interest Law. It is an honor to appear before you today to discuss one of the most solemn and important constitutional functions bestowed on this House by the Framers of our Constitution: the impeachment of the President of the United States.

Twenty-one years ago, I sat here before you, Chairman Nadler, and other members of the Judiciary Committee to testify on the history and meaning of the constitutional impeachment standard as part of the impeachment of President William Jefferson Clinton. I never thought that I would have to appear a second time to address the same question with regard to another sitting president. Yet, here we are. Some elements are strikingly similar. The intense rancor and rage of the public debate is the same. It was an atmosphere that the Framers anticipated. Alexander Hamilton warned that charges of impeachable conduct “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.”2 As with the Clinton impeachment, the Trump impeachment has again proven Hamilton’s words to be prophetic. The stifling intolerance for opposing views is the same. As was the case two decades ago, it is a perilous environment for a legal scholar.

I appear today in my academic capacity to present views founded in prior academic work on impeachment and the separation of powers. My testimony does not reflect the views or approval of CBS News, the BBC, or the newspapers for which I write as a columnist. My testimony was written exclusively by myself with editing assistance from Nicholas Contarino, Andrew Hile, Thomas Huff, and Seth Tate explores the technical and arcane issues normally involved in an academic examination of a legal standard ratified 234 years ago. In truth, the Clinton impeachment hearing proved to be an exception to the tenor of the overall public debate. The testimony from witnesses, ranging from Arthur Schlesinger Jr. to Laurence Tribe to Cass Sunstein, contained divergent views and disciplines. Yet the hearing remained respectful and substantive as we all grappled with this difficult matter. I appear today in the hope that we can achieve that same objective of civil and meaningful discourse despite our good- faith differences on the impeachment standard and its application to the conduct of President Donald J. Trump.

I have spent decades writing about impeachment and presidential powers as an academic and as a legal commentator. My academic work reflects the bias of a Madisonian scholar. I tend to favor Congress in disputes with the Executive Branch and I have been critical of the sweeping claims of presidential power and privileges made by modern Administrations. My prior testimony mirrors my criticism of the expansion of executive powers and privileges. In truth, I have not held much fondness for any president in my lifetime. Indeed, the last president whose executive philosophy I consistently admired was James Madison.

In addition to my academic work, I am a practicing criminal defense lawyer. Among my past cases, I represented the United States House of Representatives as lead counsel challenging payments made under the Affordable Care Act without congressional authorization. I also served as the last lead defense counsel in an impeachment trial in the Senate. With my co-lead counsel Daniel Schwartz, I argued the case on behalf of federal judge Thomas Porteous. (My opposing lead counsel for the House managers was Adam Schiff). In addition to my testimony with other constitutional scholars at the Clinton impeachment hearings, I also represented former Attorneys General during the Clinton impeachment litigation over privilege disputes triggered by the investigation of Independent Counsel Ken Starr. I also served as lead counsel in a bill of attainder case, the sister of impeachment that will be discussed below.

I would like to start, perhaps incongruously, with a statement of three irrelevant facts. First, I am not a supporter of President Trump. I voted against him in 2016 and I have previously voted for Presidents Clinton and Obama. Second, I have been highly critical of President Trump, his policies, and his rhetoric, in dozens of columns. Third, I have repeatedly criticized his raising of the investigation of the Hunter Biden matter with the Ukrainian president. These points are not meant to curry favor or approval. Rather they are meant to drive home a simple point: one can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president. To put it simply, I hold no brief for President Trump. My personal and political views of President Trump, however, are irrelevant to my impeachment testimony, as they should be to your impeachment vote. Today, my only concern is the integrity and coherence of the constitutional standard and process of impeachment. President Trump will not be our last president and what we leave in the wake of this scandal will shape our democracy for generations to come. I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president. That does not bode well for future presidents who are working in a country often sharply and, at times, bitterly divided.

Although I am citing a wide body of my relevant academic work on these questions, I will not repeat that work in this testimony. Instead, I will focus on the history and cases that bear most directly on the questions facing this Committee. My testimony will first address relevant elements of the history and meaning of the impeachment standard. Second, I will discuss the past presidential impeachments and inquiries in the context of this controversy. Finally, I will address some of the specific alleged impeachable offenses raised in this process. In the end, I believe that this process has raised serious and legitimate issues for investigation. Indeed, I have previously stated that a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet moving forward primarily or exclusively with the Ukraine controversy on this record would be as precarious as it would premature. It comes down to a type of constitutional architecture. Such a slender foundation is a red flag for architects who operate on the accepted 1:10 ratio between the width and height of a structure. The physics are simple. The higher the building, the wider the foundation. There is no higher constitutional structure than the impeachment of a sitting president and, for that reason, an impeachment must have a wide foundation in order to be successful. The Ukraine controversy has not offered such a foundation and would easily collapse in a Senate trial.

Before I address these questions, I would like to make one last cautionary observation regarding the current political atmosphere. In his poem “The Happy Warrior,” William Wordsworth paid homage to Lord Horatio Nelson, a famous admiral and hero of the Napoleonic Wars. Wordsworth began by asking “Who is the happy Warrior? Who is he what every man in arms should wish to be?” The poem captured the deep public sentiment felt by Nelson’s passing and one reader sent Wordsworth a gushing letter proclaiming his love for the poem. Surprisingly, Wordsworth sent back an admonishing response. He told the reader “you are mistaken; your judgment is affected by your moral approval of the lines.” Wordsworth’s point was that it was not his poem that the reader loved, but its subject. My point is only this: it is easy to fall in love with lines that appeal to one’s moral approval. In impeachments, one’s feeling about the subject can distort one’s judgment on the true meaning or quality of an argument. We have too many happy warriors in this impeachment on both sides. What we need are more objective noncombatants, members willing to set aside political passion in favor of constitutional circumspection. Despite our differences of opinion, I believe that this esteemed panel can offer a foundation for such reasoned and civil discourse. If we are to impeach a president for only the third time in our history, we will need to rise above this age of rage and genuinely engage in a civil and substantive discussion. It is to that end that my testimony is offered today. Continue reading →

Sunday Ethics Review, 12/I/50: Birthday/Finding Dad Dead In His Chair Anniversary Edition

/ Jack Marshall / 17 Comments

[Yesterday I was just about to post the following when I felt a recurrence of the dizziness that sent me to the floor on Thanksgiving,  This sent me to the emergency room, where I spent  the second worst birthday of my life. I just got home, now just about 24 hours later, after three blood tests, about ten stroke tests, lots of other tests and quizzes, four doctors and a miserable night, culminating in the conclusion that whatever this was, it wasn’t related to my heart or circulation. 54% of fainting incidents, I learned remain mysteries. Swell.]

_____________________________________________________________

Hi.

Ten years ago today, I went over to my parent’s condo to check on my dad, since my mother, then recovering from knee surgery, was concerned that she hadn’t heard from him. Jack A. Marshall Sr. was also going to take me out for dinner, since it was my birthday, but that pleasure was not to be. He had died, quietly during a nap, a few months short of his 90th year. I miss my father’s inspiration, guidance and unflagging support constantly, and December first has been a matter of serious dissonance for me ever since. I did take comfort, while everyone was telling me that I was a fool not to go to the emergency room after my fainting episode on Thanksgiving, that the odds of anyone dropping dead not only on the anniversary of his father’s death, but also on his own birthday, seems extremely remote. Kind of cool, though.

I took my birthday off of my Facebook page because those reflex happy birthday messages—I send them myself—are meaningless and  faintly obligatory. Two years ago I received almost 200 of them, then last year I got the message when the number fell by about two-thirds. I had made it clear by then that I was rebelling against the Facebook Borg aka “the resistance,” and so I had been told that I did NOT deserve a happy birthday. Fine. Bite me.

1 “The Crown” Ethics. A. The Pretend Sister-in-Law Of The King’s Pass! While waiting to see if I was going to pass out again, I began watching Season 3 of Netflix’s “The Crown.” Like the first two seasons, the series is uniformly excellent and largely accurate, but I am annoyed at Helena Bonham Carter’s turn as the middle-aged Princess Margaret. Carter is an excellent actress as well as one of the biggest stars the series has featured, but to be blunt, she’s too fat to play Margaret, who at that point in her life was  still vain winning the battle against middle-aged spread (at 5’1, it could not have been easy.) For a production that mostly aims for near perfect look-alike casting (young Charles, Princess Anne and Prince Phillip are especially uncanny), why would the producers allow Carter to appear on screen like this? Mostly, I’m annoyed at her: actors gain and lose weight all the time for roles, and a mere 10-15 pounds would have made Carter a credible and flattering Margaret. She could have hit the gym and laid off the kidney pie; obviously the actress didn’t care, and the producer and director let her get away with it, because she’s a star. Yet all the lines about how glamorous Margaret is make no sense as a result. Carter’s a beautiful woman, but she’s a mighty frumpy Princess Margaret.

B. A perfect future episode for Season 4, or maybe 5, is going on right now.  Prince Andrew, the younger brother of Prince Charles, has long been mentioned a party pal of billionaire sex-slaver Jeffrey Epstein, and thanks to a car crash  of a BBC interview in which he couldn’t have seemed more guilty and less remorseful, the Duke of York is reportedly being removed from all royal duties and may have his allowance cut off, meaning that his two princess daughters will no longer be supported by taxpayers, among other nasty consequences. Charleshas ordered a crisis meeting with his scandal-scarred brother before Monday night’s dreaded BBC special with key accuser Virginia Roberts Giuffre, who accuses Andrew of raping her while she was under Epstein’s control.

The news media has been ostentatiously uninterested in Prince Andrew’s travails, in marked contrast to its coverage of the various Charles-Diana scandals in days of yore. One reason, I think, is that Epstein’s OTHER celebrity playmate was Bill Clinton, and it will be hard to expose one without drawing attention to the other. After all, the objective now is to get Trump, not remind the public about Bill (or Harvey.) Media bias is exhibited as much by what isn’t reported as by what is. Continue reading →

Post Thanksgiving Ethics Hangover,11/29/2019: The Toilet Bowl, Mr. Peanut, And Other Embarrassments

/ Jack Marshall / 14 Comments

This is always one of the strangest days of the year.

Especially strange for me: I keeled over right at the start of Thanksgiving dinner for no discernible reason. One minute I was sipping a beer and feeling oddly light-headed, and the next my son was lifting me off the floor. It must have been spectacular, because it scared the hell out of everyone but my son’s girlfriend, who assumed I was staging a gag. (She got to know me fast…) I’m sorry I missed the excitement.

Today I’ve been feeling out of it, but I can’t tell whether the cause is the fainting spell, L-Tryptophan, or something else (it has been a rough week). My wife has been following me around like a bloodhound, expecting me to go down for the count.

I’ll be seeing my doctor first thing Monday. But enough about me:

1. Tit for Tat. Three women,  Jana Solis, Natalie Sept and Nicole Vogel, accused Gordon D. Sondland, the United States ambassador to the European Union, of making unwanted sexual advances toward them years ago, right after he testified as a star witness at the impeachment proceedings against President Trump. Sondland appeared before Congress and gave what was  viewed by many as damaging testimony about the President’s dealings with Ukraine and the alleged “quid pro quo.”  The timing of the accusations is suspicious, and the Left has no one to blame but itself as its weaponized “believe all women” nonsense circles around like the deadly torpedo in “The Hunt for the Red October.” This was begun by Anita Hill, escalated by Cristina Blasey Ford, and soon such convenient accusations will have no power whatsoever.

Good.

2.Please remember: Hillary Cinton is (at least) as rotten a human being as Donald Trump, just a different kind of rotten human being. Journalist Ronan Farrow told the Financial Times  that Hillary Clinton cut him off him when she discovered he was investigating sexual assault allegations against Hollywood mogul Harvey  Weinstein. Weinstein donated tens of thousands of dollars to groups supporting Clinton’s candidacy during the 2016 presidential campaign, according to Federal Election Committee data.

Though Clinton had appointed Farrow as her special adviser on global youth issues in 2011 when she was Secretary of State and he had worked with Clinton “for years,” she quickly distanced herself from him and cancelled an interview after she learned that he  was looking into Weinstein’s harassment and sexual abuse.

“It’s remarkable how quickly even people with a long relationship with you will turn if you threaten the centers of power or the sources of funding around them,” Farrow said. “Ultimately, there are a lot of people out there who operate in that way. They’re beholden to powerful interests and if you go up against those interests, you become radioactive very quickly.”

It’s not remarkable. What’s remarkable is that so many women still get misty over the fact that this cynical hypocrite who pretended to be a feminist champion while allying herself with people like Bill Clinton and Harvey Weinstein was deservedly defeated in the 2016 election. Continue reading →

It Is With Great Reluctance That Ethics Alarms Concludes That As Generally Repugnant And Vulgar The Term “Asshole” Is, Mayor Pete Buttigieg Is One.

/ Jack Marshall / 8 Comments

If this was just disgraceful pandering, grandstanding, and shameless virtue-signaling, he would only  have proven himself to be a jerk—a big jerk, to be sure,  but still just a jerk. But it is far more.

The new fad contender for the Democratic Presidential nomination is returning thousands of dollars in donations because they came from two lawyers who had the audacity to represent Supreme Court nominee Brett Kavanaugh as he attempted to defend himself against the contrived  ambush accusation of a sex crime, made in a Congressional hearing  on national television, a ploy designed to destroy his reputation. Buttigieg’s campaign said that it will not accept funds from people who helped secure the justice’s seat on the Supreme Court. You know. Dirty money.

Buttigieg’s campaign had received $7,200 from Alexandra Walsh, and $2,800 from Beth Wilkinson, Walsh’s law partner. Both represented Kavanaugh during his Senate confirmation ordeal. As I have vowed to point out every time some ignoramus asserts that lawyesr must be punished for the character, conduct or beliefs of the clients they represent and are responsible or culpable in any way for what those clients have said or done (or NOT done), it is a core and essential principle of our legal system that such an assumption is not only wrong but dangerous. It threatens the right of every citizen to receive competent legal representation and access to our laws and other rights.

Here, once again, is my favorite ethics rule, from the ABA Model Rules of Professional Conduct:

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

Whether the target is Hillary Clinton, Ted Cruz, Elizabeth Warren, Harvey Weinstein’s defense attorneys (also here), Larry Tribe, Gitmo defense lawyers, or Clarence Darrow, Johnny Cochran, Leslie Abramson and other defense lawyers who defend murderers and worse, the false claim that lawyers who take on unpopular, repulsive or guilty clients have done anything less than protected  the Bill of Rights and the rule of law is either rank ignorance or a deliberate effort to reduce the civic literacy of the public.

Buttigieg isn’t a lawyer, but he is very well educated and has a reasonable claim to brilliance.  Thus he knows and understands what lawyers do, but is acting as if he does not, intentionally making the public stupid (or keeping it conveniently as stupid as it already is ) for his own benefit.

Despicable.

But that’s not all. Continue reading →

The Forgotten Ethics Hero: William Ruckelshaus (1932-2019)

/ Jack Marshall / 7 Comments

I’m supposed to be student of American Presidential history, and even I had virtually forgotten about William Ruckelshaus, who just died. It was Ruckelshaus who, along with Attorney General Elliot L. Richardson,  rejected Ethics Rationalization #15, The Futility Illusion or  “If I don’t do it, somebody else will” when the United States of America needed a hero, and got two.

His moment of courage arrived on an October night in 1973 destined to be known in the annals of American history as  the “Saturday Night Massacre.” Ruckelshaus was then Assistant Attorney General, and President Richard Nixon, was panicked that the ongoing investigation by Special Watergate prosecutor Archibald Cox was closing in on his blatant obstruction of justice. A White House-triggered burglary of the Democratic National Committee’s offices at the now-famous Foggy Bottom condo complex and hotel in Washington, D.C., seemed about to bring Nixon down, so Nixon resolved to have cripple the investigation by having Cox removed.  Ruckelshaus was the second of three officials the beleaguered POTUS ordered to fire the Harvard law professor. For some reason Nixon thought this might relieve him from having to produce the  nine incriminating Oval Office tape recordings that Cox had subpoenaed.

Ruckelshaus, under Nixon the first head of the new Environmental Protection Agency,  had been named acting head of the FBI in April of 1973, replacing L. Patrick Gray III. He was soon named the top deputy to Attorney General Elliot L. Richardson. When Nixon ordered the mild-mannered Richardson to fire Cox that fateful night, Richardson shocked Nixon by refusing, and resigning immediately. That made Ruckelshaus the Acting Attorney General, and he was suddenly on the hot seat, tasked with carrying out Nixon’s legally and ethically questionable orders.

Cox had been guaranteed complete independence by Nixon and Attorney General Richardson during the prosecutor’s Senate confirmation hearings in May of 1972.  Congress directed that he could be  be removed only for “gross malfeasance” in office, and by October 20, 1973, there had been none. “I thought what the president was doing was fundamentally wrong,” Ruckelshaus said  later. “I was convinced that Cox had only been doing what he had the authority to do; what was really of concern to the President and the White House was that he was too close. He hadn’t engaged in any extraordinary improprieties, quite the contrary.” Continue reading →

Thanksgiving Dinner Ethics Appetizers, 11/28/2019: Boing Boing, Boeing, And Bears In The Woods

/ Jack Marshall / 14 Comments

Have a gentle, loving Thanksgiving, everyone.

And thanks so much for visiting and participating.

Tangential question: Does anyone watch the Macy’s Thanksgiving Day Parade any more, with the lip synced musical numbers in the street, the inflatable balloons of anciet cartoon characters, the floats that are virtually identical every year, and the phony blather from the B-level celebrities in the booth? Isn’t this spectacle now something that people watch out habit, like the Miss America pageant, “Peanuts” holiday specials and the Oscars, even though it has the entertainment value of styrofoam?

1. Tucker Carlson endorses the Julie Principle! Last night, Fox News host Tucker Carlson made the shocking statement that President Trump has been less than truthful with the American people.

“We’re not gonna lie to you, that was untrue,” Carlson said. “The crowd at the 2017 inauguration was not the largest ever measured at the National Mall. Sorry, it wasn’t. Why did the president claim that it was? Well, because that’s who he is. Donald Trump is a salesman, he’s a talker, a boaster, a booster, a compulsive self-promoter. At times he’s a full-blown BS artist.”

Observations:

  • NOW Carlson is enlightening us about this? Every sentient being knew this about Donald Trump ten years ago, before the Presidency was a twinkle in his eye.
  • Has there ever been an irrelevant fabrication by any U.S. President as harped upon incessantly by critics and the media as Trump’s silly claims about his inauguration crowd?
  •  The Washington Post, aping the New York Times, manufactured another one of those compilations of Trump “lies.” As of last month, the Post says, Trump had told over 13,000 false or misleading statements since taking office, including, of course, including the Inauguration boast. If I didn’t have a sock drawer crisis to deal with, I’m sure I would find that at least a third of those “lies” are in fact nothing of the sort, but mistakes, off-the-cuff exaggerations, and obvious puffery, as in, “Trump said X was ‘the —-est,’ but Y is actually  —-er.”
  • Here is what I wrote almost exactly three years ago, before that Inauguration, in a post called, “Trump, His Critics, and The Julie Principle”:

Yesterday, many, not several but many, of my Angry Left Facebook friends posted links to stories attacking Trump’s silly tweet about him really winning the popular vote and there being millions of fraudulent votes for Hillary Clinton. “Is he going to do this sort of thing his entire administration?” one friend asked.

YES! YES HE IS! OF COURSE HE IS! DON’T YOU KNOW THIS ALREADY? ARE YOU REALLY GOING TO FLIP OUT AT EVERY SINGLE  INSTANCE WHEN TRUMP SAYS OR TWEETS SOMETHING STUPID LIKE THIS?

If so, then you are going to go nuts, and you will just become irrelevant and annoying.

Which, of course, they have. Including the Post and Tucker Carlson. Continue reading →

Flashback: For Your Use When “Resistance” Relatives Attack At Thanksgiving Dinner

/ Jack Marshall / 18 Comments

It all began here. How quickly we forget—or how quickly they hope we’ll  forget.

In two December 20, 2016 posts, “The Electoral College’s Day Of  Reckoning I and II,” Ethics Alarms covered the first attack on American democracy in what came to called here the “2016 post-election Ethics Train Wreck.” This has culminated in the current House Democrats’ impeachment fiasco. Make no mistake: it is a single plot, one that I never suspected would have continued this long, and caused as much damage to the nation as it has.

When your relatives start spouting talking points that they have  neither researched, thought critically about nor understand, consider reminding them where it all started, and who has really been responsible for bringing the United States of America to this sorry and thoroughly avoidable place. Most of the villains of the coup attempts to come outed themselves here: Democrats, the news media, academics, Hollywood, professionals, especially lawyers. Most had outed themselves earlier, of course, but still had plausible deniability. Not after this.

As you can see, they had decided, way back in 2016, right after the election after thaye had wept, and cursed, and rended their garments, that because they didn’t want Donald Trump to be President, they had a right to prevent him from taking office, and if that failed, then to interfere with his right to fulfill the duties of the office until they could come up with some way remove him. This is where it began, and this is what has been going on ever since.

Your resistance family members and friends have been been responsible because they enabled this. Don’t let them get away with it.

The Electoral College’s Day Of Reckoning, Part I: Revelations

After all the protests, the petitioning, the grandstanding, the misinformation and bad law and false history, after all the harassment and intimidation aimed at getting state electors to violate their pledges, duty and the trust of theirs state voters, all designed to keep Donald Trump from attaining 270 electoral votes and thus forcing the Presidential election into the House of Representatives for the first time since 1876, the results were just another humiliation for the Democrats and Hillary Clinton. Donald Trump was officially elected President of the United States, and it wasn’t close.

Four Democratic electors in Washington, a state Clinton won, voted for someone else, giving her just eight of the state’s 12 electoral votes. They will be prosecuted, apparently, for breaking a Washington statute. Colin Powell, a Republican, received three of the faithless elector votes and Native American tribal leader Faith Spotted Eagle received one, apparently because one elector decided that rather than vote for Senator Elizabeth Warren, a real Native American was preferable. Single  electors in both Maine and Minnesota attempted to cast ballots for Bernie Sanders, but state laws requiring electors to follow the statewide vote invalidated both rebellious ballots. One Hawaii elector did vote for Sanders, an especially outrageous betrayal of the vote since Hawaii went to Clinton even more decisively than California.  Never mind: this unknown, unvetted, undistinguished citizen decided that no, he or she knew better. That’s the model Democrats were promoting.

The one Republican elector, Texas’s Christopher Suprun, of Texas, who had trumpeted his  intention  not to vote for Trump despite his state heavily favoring the President Elect voted for Ohio Governor John Kasich as promised, and another Texas elector defected to vote for Ron Paul. Thus the almost six week Democratic push to use the Electoral College to pull victory from the jaws of defeat had the net effect of increasing Trump’s Electoral vote advantage over Clinton by three, with Hillary Clinton becoming the candidate with most defecting electors in over 200 years.

George Will’s favorite phrase “condign justice” leaps to mind. First the Wisconsin recount increases Trump’s vote total, and now this.

Three Ethics Observations on one of the most embarrassing spectacles in U.S. election history:

1. Ironically, the Electoral College functioned exactly the way the Founders intended it to, and rescued the nation from a regional candidate. Trump won the nation, and Hillary was elected Queen of California. The country wanted radical change, while the huddled socialists, crypto-Marxists, radical college students, illegal immigration fans and nanny state addicts were happy with things as they are.

California is a complete outlier, virtually a one-party state. As an analysis by Investor’s Business Daily points out, between 2008 and 2016, the number of Californians who registered as Democrats increased  by 1.1 million, while the number of registered Republicans dropped by almost 400,000. Republicans in the state stayed away from the polling places because they had nobody to vote for in many places. Two Democrats, and no Republican, were on the ballot to replace Senator Barbara Boxer. Nor were there Republicans on the ballots for House seats in nine of California’s congressional districts. At the state level, six districts had no Republicans running for the state senate, and 16 districts had no Republicans running for state assembly seats:

Such Republicans as there were knew Clinton was going to win the state  and its 55 electoral votes,  so there was little motivation to cast a ballot.Clinton was getting all 55 votes, no matter what. Thus Trump received 11% fewer California votes than John McCain did in 2008, as  the number of registered Democrats in the state climbed by 13% since then. If California had voted like every other Democratic state — where Clinton averaged 53.5% wins — Clinton and Trump would have ended up in a virtual popular vote tie. Laws requiring electors to follow the statewide vote invalidated both efforts.

If you take California out of the popular vote equation, then Trump won the rest of the country by 1.4 million votes.  The Founders installed a system that favors a candidate with broad-based appeal over all the diverse regions and cultures of a large nation, and that isn’t going to be easily dominated by a large voting bloc that is atypical of the rest of the population—like California in 2016.

2. Writer Daniel Brezenoff, the originator of the Change.Org  Electoral College Petition , appeared on Tucker Carlson’s show on Fox News to collect his Andy Warhol Fifteen Minutes of Fame chip. He repeated his undemocratic logic for overturning the election. Carlson accused Brezenoff of “resorting to less democratic means, putting the decision in the hands of even fewer people,” to which Brezenoff, who initially filed his petition using a fake name, responded, “That’s right, to protect the Constitution from an unfit President!”

The answer is smoking gun evidence of what was really afoot here.  Brezenoff thought Trump was unfit,just as I thought Trump was unfit, but the election showed that millions of citizens felt differently. We can’t ethically, logically, fairly, reasonably and Constitutionally come back after the election and say that a handful of not-especially-qualified electors are going to reverse the election result because our view is the right one.

We lost. The fact that we don’t like the result and are positive the winners just don’t understand is not sufficient to justify what the Democrats and progressives like Brezenoff were advocating.

3. It is disturbing and shocking—maybe I shouldn’t be shocked, but I am— that no prominent Democratic leader publicly condemned the organized efforts to turn electors faithless. This, as much as anything else, validates my late decision  that the Democrats were too corrupt and untrustworthy to get my vote. Silence, as the legal maxim goes, implies consent, and the petitioners, historical frauds, harassers and intimidators all did their worst on behalf of the Democratic Party. Nothing but harm could come to the party and its member progressives from such an arrogant, defiant and  futile scheme, and nothing but further division could have come from a success, which basic civic literacy should have informed party leaders was impossible. Nonetheless, they said nothing–Obama, Michelle, Pelosi, Reid, Shumer, the Clintons, Jimmy Carter, Bernie, Elizabeth Warren, the President. Nothing.

Was it cowardice, and the fear of tempting the rabid, angry Left from coming after them, mouths foaming? Or was it that they were willing to benefit from a Hail Mary pass, even one that destabilized the government and society? Bernie Sanders was especially cynical, telling interviewers before yesterday that he thought the Electoral College was beneficial, then calling for its elimination after the voting was over.

The worst, of course, was Hillary Clinton. Had integrity meant anything to her (we know it never has) she would have known that her unequivocal condemnation of Donald Trump for suggesting that he might not “accept the results” if he lost the election mandated a “Stop this nonsense now” message to her traumatized and infantile supporters (see photo above). She couldn’t mount the guts and principle to do it. A miniscule-to-the-vanishing-point chance that somehow, through some combination of luck and cosmic intervention, an elector uprising would give her the power she craves was sufficient to inspire Hillary to even surpass the hypocrisy she had displayed by joining in Jill Stein’s ridiculous recount efforts.

It was said of Hubert Humphrey that in his passion to attain the Presidency, he proved himself unworthy of it. Hillary Clinton has made Hubert Humphrey look wonderful in retrospect.

To be fair, so has Donald Trump.

The Electoral College’s Day Of Reckoning, Part II: Dunces, Heroes, Villains, And Fools

The failure of the ugly Electoral College revolt scheme that ended yesterday—let’s ignore the coming storm of frivolous lawsuits for now, all right?—with the official, irreversible, like it or lump it victory of Donald Trump over Hillary Clinton also settled some distinctions, some desirable, some not. Continue reading →

Missouri Judges Want Public Defenders To Violate Their Ethics Rules

/ Jack Marshall / 12 Comments

“Hey, Julie! Here’s another drug possession case for you! Looks like a bad stop and frisk…”

The overworked public defender problem is a massive ethics and civil rights problem that few members of the public know about, and fewer care about.

Many cities have underfunded public defender offices, meaning that the mostly young lawyers working there who are charged with protecting the rights of indigent citizens accused of crimes have excessive case loads, often brutally excessive. In some states, judges have ordered the offices to accept no more cases until additional lawyers are hired, because a lawyer’s representation must be competent and diligent, and these ethical requirements become literally impossible to meet when a lawyer has accepted responsibility for too many cases. In situations where public defenders have argued that indigent clients should be able to waive competence and diligence requirements (since the alternative may be no representation at all), the argument has been rejected. Those ethical requirements cannot be waived. They are mandatory.

In his article on the subject, Professor Stephen Hanlon of St. Louis University Law School, a civil rights specialist, writes, Continue reading →