Law & Law Enforcement

Let’s Thank Ex-Senator Menendez for Giving Us Such A Valuable Review Of Rationalizations At His Sentencing

/ Jack Marshall / 6 Comments

I find miscreants and wrong-doers who whine, grovel and weep as they face the just consequences of their crimes particularly despicable. Give me the defiant, unapologetic variety, like Ruth in “Ozark,” who when looking down the barrel of a pistol wielded by the mother of a cartel leader she had assassinated, says, “I’m not sorry. Your son was a murdering bitch, and now I know where he got it from.” As the woman aims the gun at her heart and pauses, Ruth shouts “Well, are you going to fucking do this shit or not?”

Bang.

Yesterday a sobbing Robert Menendez begged the court for mercy after being found incredibly guilty of accepting bribes from foreign governments and businessmen in exchange for cash, gold bars and a Mercedes-Benz convertible among other riches. He was sentenced to 11 years in prison for selling out his Senate office to enrich himself. The New Jersey Democrat and former head of the Senate Foreign Relations Committee wept as he argued, “Your honor, I am far from a perfect man. I have made more than my share of mistakes and bad decisions. I’ve done far more good than bad. I ask you, your honor, to judge me in that context.” Let’s see, that’s…

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Sanctuary! Well, Not So Much…

/ Jack Marshall / 21 Comments

It is mordantly amusing to listen to progressives on MSNBC bemoan the incursion of ICE into the “sanctuary” of churches attempting to extend their invisible force field around illegal immigrants. These are the same people who have shown no respect or reverence for Americans who assert their religious beliefs regarding, to take one infamous example, compelled speech.

In the case of church sanctuary, they are oh, a couple centuries behind the times. Allowing a church to harbor criminals and others sought by the state is a tradition that goes back to Roman times, and here and there it has been bolstered by the law. Not here and now however. The tradition makes no sense in modern times, and if churches have no legal grounds to protect lawbreakers, the claims of so-called sanctuary cities and states are weaker still.

The political and ideological Left has dashed itself on the rocks of illegal immigration, and based on some of the talking head nonsense I saw on MSNBC and CNN today, they are still dashing. When they are not crying “Think of the children!” (Note: law-breaking parents who put their children in untenable positions by their parents’ conduct are 100% accountable for those children’s plight) the apologists for illegal border-crossers are asserting that they are “human beings” and deserve to “have their humanity respected and recognized.” That’s fine: nobody denies that they are human beings. They are also human beings who do not belong in the United States.

This, for some strange reason, seems difficult for some progressives and Axis hacks to grasp. One of the two women I saw rending their garments over the Trump deportation policy, stuttered, babbled, shrugged, sighed and finally said, “I just can’t believe that this is happening! It’s so cruel!” Her partner in absurd “Good Illegal Immigrant” rhetoric nodded and agreed that deporting illegal immigrants who weren’t violent criminals is a violation of human rights.

There is apparently, according to these revolutionaries, a human right to live anywhere you want to. This is pure “Imagine-ism,” probably caused by hearing John Lennon’s fatuous paean to brainless utopianism one time too many. Both women also bemoaned the “collateral damage” of deportations. All law enforcement has “collateral damage” to families and others who depend on the law-breakers. That is a reason not to break laws, not to stop enforcing them.

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Bonus cultural literacy quiz: Who is that lovely young actress playing Esmeralda in that clip from “The Hunchback of Notre Dame”? No cheating, now: this is an ethics blog…

Fake Ethics Hero: Pamela Hemphill, A.K.A. “MAGA Granny”

/ Jack Marshall / 2 Comments

Does anyone say “Color me X” any more? Oh hell, I don’t care: Color me unimpressed with “MAGA Granny” rejecting her pardon from President Trump for her role in the January 6 Capitol riot that was the worst thing to happen to the United States since 9-11. Or Pearl Harbor. Or the Civil War.

She’s the retired 72-year-old drug and alcohol counselor from Boise, Idaho who pleaded guilty in January 2022 to a misdemeanor for entering the Capitol during the riot and was sentenced to 60 days in prison and three years of probation. She was one of those “rioters” who was basically walking around. The Axis media is singing her praises because she announced that she says won’t accept the pardon.

Hemphill said in an interview this week that she was turning President Trump’s gift down. “It’s an insult to the Capitol Police, to the rule of law and to the nation,” she said. “If I accept a pardon, I’m continuing their propaganda, their gaslighting and all their falsehoods they’re putting out there about Jan. 6.” She now says she doesn’t support Trump or (in the words of the New York Times) “believes his lie that the 2020 election was stolen.” (For the thousandth time, that is not a lie but an opinion that cannot be proven or disproven). A therapist had helped her change her view of the episode, you see. Now she realizes, she says, that the “Stop the Steal” movement. “was a cult, and I was in a cult.”

Winston Smith knows just how she feels.

I wonder if that therapist put a cage of hungry rats on her face to prompt Pam’s epiphany?

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Awww, Some Law School Seniors Just Had Their Job Offers Revoked By That Mean President Trump

/ Jack Marshall / 5 Comments

The New York Times and other sources are weeping with the dozens of recent law school graduates whose job offers were rescinded by the Justice Department after the students thought they were about to begin entry-level positions in its antitrust, criminal, civil rights, immigration and national security divisions, and at the F.B.I. This is another good example of how the Times cannot help itself from spinning and editorializing in a partisan manner even the most straightforward story. “The offers were made through the Attorney General’s Honors Program,” sayeth the Times, “which has functioned without controversy,” for decades, it says. See? This is so unfair! Except the fact that something has avoided controversy doesn’t mean it should be free from change, reform, or even elimination. “The program appears to be the latest target of Trump political appointees intent on reversing even the most workaday decisions made by their predecessors,” sniffs the paper. Oooh, these were political appointees who obviously don’t understand a good program when they see one. And those MAGA Nazis want to mess with harmless, innocent, inconsequential “workaday” decisions! (Pssst! Hiring lawyers is never a “workaday” decision, or shouldn’t be, even in the Justice Department.)

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And This Is Why DEI Must DIE…

/ Jack Marshall / 9 Comments

Three impressive, qualified, white male law professors applied to join the faculty of Northwestern School of Law. They were First Amendment expert (and Ethics Alarms favorite) Eugene Volokh, Ernest A. Young of Duke University’s Law School, and Ilan Wurman, a distinguished professor at The University of Minnesota Law School. All were rejected in favor of DEI hires, despite being objectively better qualified than the successful candidates. Now “Faculty, Alumni, and Students Opposed to Racial Preferences” (FASORP), a collective of professors and lawyers who seek to expose and stop racial and gender preferences in higher education, is suing on the professors’ behalf.

“As a result of the [DEI] mandate, Northwestern University School of Law refuses to even consider hiring white male faculty candidates with stellar credentials, while it eagerly hires candidates with mediocre and undistinguished records who check the proper diversity boxes,” the complaint alleges. Northwestern violates the law by “hiring women and racial minorities with mediocre and undistinguished records over white men who have better credentials, better scholarship, and better teaching ability,” the suit says.
“But this is prohibited by federal law, which bans universities that accept federal funds from discriminating on account of race or sex. University faculty and administrators think they can flout these anti-discrimination statutes with impunity because they are rarely sued….But now the jig is up.”

The case of Volokh would seem to be particularly difficult to refute. The suit asserts that Volokh’s accomplishments exceed those of nearly every professor currently on the Northwestern Law School faculty, but because he is a white man and “neither homosexual nor transgender,” he was judged unacceptable.

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Two Executive Orders, One Extra-Constitutional, the Other Unconstitutional (and Unethical Too)

/ Jack Marshall / 6 Comments

Let’s talk about the “un”-EO first. Federal District Court judge, John C. Coughenour, temporarily blocked President Trump’s executive order to end automatic citizenship for babies born on American soil, the so called “anchor baby” phenomenon. Three days after Trump issued his executive order, the judge sided with the first four states that sued, saying, “This is a blatantly unconstitutional order.” 22 states, along with activist groups and expectant mothers, have now filed lawsuits to halt order on the grounds that it violates the 14th Amendment. Courts have always interpreted the amendment’s section stating that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” as applying to (almost) every baby born in the United States.

“Frankly,” Judge Coughenour added, “I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order. It just boggles my mind.” Well, lawyers don’t usually state propositions, even Hail Mary theories like this one equivocally. I think Trump’s lawyers told him that the order would almost certainly be found unconstitutional, and maybe they told him that it is unconstitutional. I am pretty certain it is, and that nothing short of a Constitutional amendment can change the law.

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Pro Ethics Tip: If Your Boyfriend Asks You To Be The Bride In a “Fake Wedding,” Run Away

/ Jack Marshall / 4 Comments

An Australian woman had been dating her husband-to-be for a few months in Melbourne after meeting him on a dating app. Then he invited her to a “white party” in Sydney, telling her to bring a white dress to fit the theme of the event. When she arrived at the party venue, the only other people there were the boyfriend, a photographer, the photographer’s friend, and a marriage officiant. The friend explained that he had planned a fake wedding to increase his social media following (he has 17,000 followers on Instragram) and he needed her to play the bride.

She is, I should interject here, an idiot, because she shrugged and said, “Ok!” She did call a freind to ask if there were any risks to being a bride in a “fake wedding,” and the friend said, “Nah! Go ahead!” Here’s another pro tip: if you are an idiot, the chances are high that your friends are idiots too.

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Ethics Quiz: The J-6 Pardons

/ Jack Marshall / 29 Comments

President Trump yesterday issued a sweeping grant of clemency to nearly all of the approximately 1,600 people charged in connection with the rioting in and around the Capitol on January 6, 2021. Shortly after being sworn in as the 47th President of the United States, Trump issued pardons to most of the defendants and commuted the sentences of 14 members of the Proud Boys and Oath Keepers militia, most of whom were convicted of seditious conspiracy. Trump also directed the Justice Department to dismiss “all pending indictments” against people facing charges for the riots.

While the pardons of many J-6 defendants were expected, the scope of Trump’s clemency was unknown until yesterday. The President even pardoned Enrique Tarrio, the former leader of the Proud Boys who is serving a 22-year prison term after being convicted at trial of seditious conspiracy and using violent force against the government. The pardons were as all-inclusive as anyone could imagine, and, predictably, the Axis is freaking out.

“These pardons suggest that if you commit acts of violence, as long as you do so on behalf of a politically powerful person you may be able to escape consequences,” said Alexis Loeb, who personally supervised many riot cases. “They undermine and are a blow to the sacrifice of all the officers who put themselves in the face of harm to protect democracy on Jan. 6.” The New York Times report stated in part,

Beyond the effect the pardons and commutations will have on the lives of those who received them, they also served Mr. Trump’s mission of rewriting the history of Jan. 6. Throughout his presidential campaign and after he won the election, he has tried repeatedly to play down the violent nature of the Capitol attack and reframe it, falsely, as a “day of love.”

Mr. Trump’s actions were in essence his boldest moves yet in seeking to recast his supporters — and himself — as the victims, not the perpetrators, of Jan. 6. By granting clemency to the members of a mob that used physical violence to stop the democratic process in its tracks, Mr. Trump gave the imprimatur of the presidency to the rioters’ claims that they were not properly prosecuted criminal defendants, but rather unfairly persecuted political prisoners.

As a legal matter, the pardons and commutations effectively unwound the largest single criminal inquiry the Justice Department has undertaken in its 155-year history. They wiped away all of the charges that had already been brought and the sentences already handed down while also stopping any new cases from moving forward.

Within minutes of Trump’s action, my Trump-Deranged sister, a former Justice Department lawyer, called me on the phone to scream about it.

Your Ethics Alarms Ethics Quiz of the Day:

“Is the mass pardon ethical in its scope and the message it conveys?”

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The Prospective Pardons Are Legal But Unethical and Dangerous [Updated Twice]

/ Jack Marshall / 32 Comments

When Ethics Alarms decided what had been a close competition between Woodrow Wilson and Joe Biden for “Worst President Ever,” I honestly thought all of the evidence was in. There were only eight days to go, after all; it had finally been made sufficiently clear that our so-called President was on his way to becoming a zucchini, and worse, had been transitioning for years under the protection of an Axis cover-up. But then came Biden’s endorsement of censorship and the most unethical exit speech in U.S. Presidential history, followed by Biden’s embarrassing announcement that he was ruling the 28th Amendment ratified when it was not. Today, I woke up to the news that Biden had issued prospective pardons to Gen. Mark A. Milley, the former chairman of the Joint Chiefs of Staff who betrayed his country with unauthorized contact with China; Dr. Fauci, the perjuring, lying, Deep State hack who was significantly responsible for the disastrous response to the Wuhan virus, Trump Deranged former Representative Liz Cheney and all the other members of the Pelosi-rigged House committee that dragged out and manipulated a partisan investigation of the Jan. 6, 2021 riot.

The close call now is whether this last official act by Biden is the worst of the batch. It may well be.

To chase the metaphorical elephant out of the room, prospective pardons are legal, constitutional, and probably irreversible. Presidents have issued general pardons applying to groups of people involving many offenses yet to be proven, and many times. There have been at least thirty amnesties before puppet Joe entered the White House: Presidents Lincoln and Andrew Johnson issued them during and after the Civil War to benefit Confederates, and Jimmy Carter issued a mass pardon for Vietnam war draft dodgers. My favorite was President Madison’s 1815 pardon of pirate Jean Lafitte and his crew, who joined Andy Jackson’s American forces at the Battle of New Orleans. Madison’s grateful proclamation covered all who assisted in the defense of Louisiana in the battle (that occurred after the War of 1812 had ended), granting “a full and free pardon of all offenses committed in violation of any act or acts of the Congress of the said United States touching the revenue, trade, and navigation thereof or touching the intercourse and commerce of the United States with foreign nations at any time before the 8th day of January, in the present year 1815, by any person or persons whomsoever being inhabitants of New Orleans and adjacent country, or being inhabitants of the said island of Barrataria and the places adjacent . . .”

The fact that this vague and general sweeping Presidential pardon was issued by James Madison, the primary author of the Constitution, makes it about as irrefutable a precedent as one could ask for. And thus the U.S. Supreme Court has repeatedly held that the pardon power “extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment.”

Nonetheless, just because one can do something (or get away with it) doesn’t mean it is ethical, prudent, responsible or right. Biden’s pardons for alleged crimes never investigated or proven to individuals holding his favor stretches the existing precedents to the breaking point, or perhaps gagging point is a more apt description. After all, Jean Lafitte was a pirate; the Confederate soldiers fought against their country, and the draft-dodgers were, you know, draft dodgers. Even Richard Nixon, pardoned by President Ford in what may be the nearest thing to a precedent for Biden’s pardons today, was a President of the United States whose potential indictable crimes had only been uncovered in the course of a House impeachment inquiry. At that point, the precedent could have been limited by those not insignificant details. Then came Biden’s Once and Future pardon of his black sheep son for crimes he had been convicted of committing and anything else he might have done yet undiscovered, just in case darling Hunter has been a serial killer when he wasn’t high. Today’s pardons take us to the end of the slippery slope.

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Ethics Verdict: Stanford Law Prof. Mark Lemley and Law Firm Lex Lumina Are Unethical

/ Jack Marshall / 13 Comments

…and their conduct in the Facebook matter is damaging to the profession of the law.

Intellectual property expert Mark Lemley, a professor at Stanford Law School and a partner at law firm Lex Lumina, represented Facebook in the copyright case brought on behalf of creators claiming the platform infringed their intellectual property. Yesterday he “fired” his client, despite believing that Meta’s case was strong. His stated reason was that he is outraged at Mark Zuckerberg and Meta’s “descent into toxic masculinity and Neo-Nazi madness.” His law firm then proceeded to back him up.

Here is Lemley’s Facebook post announcing his decision:

Meanwhile, the managing partner of his woke law firm followed with the statement that “Money can’t buy everyone. We’re proud to be a firm that doesn’t sell out our values. Sadly, it seems this is becoming a rarer and rarer quality in America today.” Another partner said, “When we started Lex Lumina, one of the things we committed to was only taking cases we felt good about, on the law and in terms of who we represented. Proud to be working with my friend and partner, Mark Lemley, who lived out our commitment today.”

This is labeling unethical lawyer conduct as ethical.

Lemley went on to post a reiteration of his decision on LinkedIn. It wasn’t “the right call.” If Lemley and his firm had refused to represent Meta in the case of Kadrey v. Meta Platforms initially, there would be no ethics foul: nothing in the Rules of Professional Conduct mandates that any lawyer accept any client, although the traditional ethos of the profession strongly encourages lawyers to do so. However, dropping a client because of what that client has done or said that has nothing to do with the case of the representation, while not a strict rules violation, is unprofessional and creates a dangerous slippery slope…one that many in the legal profession have been leaping down in recent years.

Noteworthy is the fact that Lemley is no legal ethics expert. His actions demonstrate that vividly, and his post is a flashing sign stating, “I am biased, Trump Deranged, a Democrat, and believe in good censorship.” Got it, Professor.

Naturally, the woke legal hacks at Above the Law love this, and ratioanalizes it with an argument that has been rife since the corrupted legal profession started behaving like the restaurants who won’t serve people wearing MAGA caps. Joe Patrice, the head ideologue at Above the Law writes,

A sanctimonious segment of the legal profession harps on the idea that “everyone is entitled an attorney.” Except no one is entitled to you as an attorney. Frankly, no one is entitled to anything in a civil case and to the extent society needs to extend more protections to indigent clients on the wrong end of life-altering civil actions — landlord-tenant cases for instance — there’s definitely no such entitlement for a multibillion-dollar company in a copyright dispute.

Representing a client is a business decision. Some lawyers thrive as counsel of last resort and model their business around the willingness to represent unpopular clients. Other lawyers build their business on crusading for good causes. A whole lot of lawyers exist somewhere between those poles. In fact, a lot of deep-pocketed clients also don’t want to work with firms associated with unpopular causes — that’s a business decision too.

There’s nothing wrong with any of these approaches. Lawyers should feel free to build their practice however they want.

What is wrong with that argument is that it violates Kant’s Rule of Universality, the “What if everybody did it” test that is part of the philosopher’s categorical imperative. Patrice’s standard, and accepting Lemley’s conduct, would mean that certain citizens and organizations could be left without legal representation entirely because they were regarded by a politicized legal profession (and an ethically addled public) as “bad.” While it is accurate to assert that the Sixth Amendment does not guarantee a citizen legal representation in a civil (as opposed to a criminal) case, the legal professional has long embraced the principle that the same ethical and practical justifications should apply. If we accept Patrice’s ethically ignorant (or deliberately misleading) argument that whether to accept a representation is purely a business decision, that allows lawyers and firms to avoid unpopular clients, leaving them potentially at the mercy of the polls and bias in a rigged legal system.

This is what the actions of Lemley and his firm are pointing to. It is the reason Donald Trump has had difficulty hiring lawyers and getting competent legal assistance. Firms and lawyers get threatened by clients, and in the constant tug-of-war between the profession of law and the business of law, business now prevails. Once, before the progressive bias in laws schools and among lawyers became the status quo, the mission of representing unpopular causes and clients, even when the attorneys for these clients personally disagreed with and even deplored their conduct was seen as part of the legal profession’s mission. Wall Street lawyers represented accused terrorists after the bombings of 9/11 after public figures called for their firms to be boycotted. When Coca-Cola virtually extorted their law firm into dropping its representation of the House Committee defending the Defense of Marriage Act before the Supreme Court, the partner handling the case, Paul Clement, wrote in his letter of resignation in protest of the decision, that “defending unpopular positions is what lawyers do.” Similarly defending unpopular clients is what lawyers must do and be honored for, or we have no longer have an equitable legal system.

The unethical principle Lemley is advocating is worse than opposing taking on an unpopular position: he seeks to justify abandoning a position he feels is valid because his client’s policies no longer please him. I have vowed to promote this section of the Rules of Professional Conduct because it is such a crucial one for maintaining the integrity of the profession and trust in its members:

“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.”

It should be obvious that if it becomes acceptable for lawyers and firms to refuse representations because they fear being regarded as endorsing a clients’ “political, economic, social or moral views or activities,” the legal profession will have nullified that critical standard in practice, and the public will be correct to assume that if a lawyer or firm represents an unpopular cause or individual, those lawyers agree with and endorse them. This is what ideologues like Joe Patrice want, a legal system as polarized as the political system, where one can tell the “good” lawyers from the “bad” lawyers by whom they choose to represent.

Dropping a client one has already accepted, which is what Lemley has done, is worse still. In his letter excoriating his former firm, Clement quoted Griffin Bell, a judge and former U.S. Attorney General, declaring that once a lawyer has accepted a case, it is the lawyer’s duty and ethical obligation to continue the representation. In 2011, when the DOMA controversy erupted, Clement’s position was almost unanimously praised within the profession. Theodore Olson, the late conservative attorney, praised Clement’s “abilities, integrity, and professionalism”.” Olson, who like Clement was a solicitor general during the George W. Bush administration and was a successful Supreme Court advocate, told the media, “I think it’s important for lawyers to be willing to represent unpopular and controversial clients and causes, and that when Paul agreed to do that, he was acting in the best tradition of the legal profession.” Seth Waxman, who served as solicitor general during the Bill Clinton administration, said, “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions.” In approving Clement’s stand, The Washingtonian observed, “There are countless examples of law firms taking on and standing by controversial clients, even at the risk of their public images.” There are fewer and fewer examples now, however. This is the dystopian legal landscape that Lemley and his firm are promoting, and it is an unethical one.

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