Ethics Quiz: The Paintball Attack

19-year-old Brian Solis’ was one of a group of 15 teens that attacked a home in east Houston with paintball guns. Their objective: bring the teenager inside the house outside to fight, police say. After the house was hit with several of the missiles, which typically explode with red paint upon contact, the homeowner and father of the boy fired back, but with a real gun.

This is Texas, after all. If the boys were surprised, they hadn’t been paying attention.

Solis was hit, and killed.  Solis’ family told reporters that they don’t understand why he’s dead. The oldest of six kids  was full of life, and had plenty still to live, they say

Well, not to be unkind, but it’s pretty clear to me why he’s dead: he took part in an attack on a home that had a gun owner inside at the time. That’s why. Continue reading

Political Fundraising Frauds And Scams, PART I: The Democrats

There’s nothing much  lower and making your iconic ,84 year old, women’s rights advocate on the Supreme Court look like she’s breached multiple judicial ethics rules, but the Democratic Senatorial Campaign Committee (DSCC) is up to the challenge, A current DSCC fundraising letter, forwarded to me by a friend, does this AND lies to its supporters in the interest of separating them from their money.

  • No, Justice Ruth Bader Ginsberg” does not “have a powerful message” about this topic. She made that statement more than 20 years ago, before she was “Justice Ginsberg,” when she told Senators that.

I assume that Justice Ginsberg neither gave her permission to be misrepresented  in this fraudulent manner, nor knew the DSCC was planning on making her a party to a scam. She’s old, but she’s not THAT old. Continue reading

Lunchtime Ethics Appetizer, 6/3/2019: Self-Censorship, Trump’s Ridiculous Jumbo, Turley On Mueller, And A College Ranking Scandal [Updated]

Bon Appettit!

1. To self-censor or not to self-censor. Right after expressing here my dilemma about whether to risk political and partisan backlash by raising current, important and legitimate legal ethics issues from the Mueller investigation, there were a flurry of articles and podcasts about the dangers of self-censorship in a climate where Americans are being systematically intimidated from opposing the Woke Collective. This is a classic ethical dilemma, with ethical considerations like integrity, duty, citizenship, honesty and responsibility, are opposed by non-ethical considerations, like keeping one’s job, paying the bills, and not being cast as a pariah in one’s profession.

I was also reminded of my problem by Instapundit referencing today an old  Washington Post article about Mao’s mass murders. My company lost a lucrative sexual harassment training deal after two Chinese nationals (that I did npt know were in the audience) too offense at a tangential comment about Mao’s exterminations dwarfing those of Hitler and Stalin  (but not Darth Vader). Both contacted me and demanded apologies, claiming that it was Western propaganda and that the Great Leader had “only” executed millions out of necessity. I refused (I know I have mentioned this before here) and said I was sincerely sorry they had been subjected to cultural influences that had warped their ethics, and that if I had been aware that this was a sensitve topic to anyone in the audience, I would have omitted the reference. Having spoken the truth, however, I was not going to deny or apologize for it.

“Why didn’t you just apologize?” my client asked. And I was reminded of the moment in “1776” when a royalist in the Continental Congress asks Jefferson why he called King George “a tyrant” in the Declaration. “Because he is a tyrant,” Jefferson answers.

I’m an ethicist, I said. I’m not going to whitewash the massacre of 45-60 million people because someone is offended by the truth.

That was the end of that contract…

2. The President issues a Jumbo. Why does he do things like this? I have no idea. It si the political equivalent of pushing a pie into his own face. In an interview with the British tabloid, The Sun tabloid, Trump responded to a query about his reaction to  Megan Markle’s statement  that he is a “misogynist” and her suggestion that “she’d move to Canada if you got elected; turned out she moved here.” He said, “Well, a lot of people are moving here, so what can I say. No, I didn’t know that she was nasty.”

Of course Trump was attacked for saying that to a British newspaper—it was racist, it was an insult, the usual. Of course the President shouldn’t stoop to personal swipes at anyone; on the other hand, that’s what he does when he is attacked himself.  “Tit for Tat” and “doing unto others as they did to you” are part of Trump’s “ethics.” Can’t we stipulate this by now? Can’t TRUMP stipulate it at this point?

Then he tweeted, “I never called Meghan Markle ‘nasty.’ Made up by the Fake News Media, and they got caught cold! Will @CNN, @nytimes and others apologize? Doubt it!” He did this knowing that the Sun had his statement recorded, and sure enough, the paper  released the audiotape.

See, the idea behind Jimmy Durante saying “Elephant? What elephant?” when caught stealing the biggest pachyderm in the world in a musical comedy is that it’s obviously desperate and ridiculous, and intended to be funny.

This is just self-destructive, disturbing, and really, really stupid.

3. Jonathan Turley on Mueller. The George Washington Law prof has consistently been a voice of reason and objectivity reagarding the Mueller investigation. He has recently written two excellent columns on Mueller’s public statement, here, and here.

Greg should send them to his ex-friend.

4. Why is this more damaging to a school than, say, falsely instructing students about justice, the right to representation, and due process?

From TaxProf Blog: “University Of Oklahoma Inflated Its Alumni Giving Data For 20 Years, U.S. News Strips Its #127 Ranking”

The University of Oklahoma admitted to  U.S. News that it had inflated its alumni giving data since 1999, which affects its placement in the National Universities, Best Value Schools, Top Public Schools, Best Colleges for Veterans and A-Plus Schools for B Students rankings and lists. For the 2019 Best Colleges rankings, the University of Oklahoma originally reported its two-year alumni giving rate at 14 percent. The school informed U.S. News the correct value is 9.7 percent. The average alumni giving rate has a weight of 5 percent in the Best Colleges ranking methodology.

And now,

A former OU student has filed a class action lawsuit against the University of Oklahoma as a result of the university being stripped of its U.S. News & World Report ranking. [Gretzer v. Oklahoma, No. 19-490 (W.D. OK May 28, 2019]

The lawsuit, which was filed May 28 on behalf of former OU student Elani Gretzer and all OU undergraduate students since 1999, alleges the university broke contract by providing false alumni giving data to U.S. News & World Report, inflating its ranking in U.S. News & World Report’s “Best Colleges” ranking as a result.

The lawsuit alleges the U.S. News & World Report’s ranking of the Price College of Business was a “material factor” in Gretzer’s decision to enroll at OU. … The suit is also filed on behalf of an estimated minimum of 350,000 people — all OU students who have enrolled since 1999, the year in which OU has admitted it began providing false information to U.S. News & World Report.

Morgan Cloud (Emory) & George Shepherd (Emory), Law Deans In Jail, 77 Mo. L. Rev. 931 (2012):

A most unlikely collection of suspects — law schools, their deans, U.S. News & World Report and its employees — may have committed felonies by publishing false information as part of U.S. News’ ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents’ crimes.

Some law schools and their deans submitted false information about the schools’ expenditures and their students’ undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates’ employment rates and students’ undergraduate grades and LSAT scores.

U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data’s accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.

One question: why isn’t Harvard’s ranking being lowered? I suspect that it’s because maleducating students and systematically undermining American values and civil rights isn’t included in the criteria.

It should be.

Are “Pre-Crime” Measures Absolutely Unethical?

Yes.

I guess that would be a too-short essay on an important topic with special contemporary relevance, so I am bound to say more. Nonetheless, I would be more comfortable with my fellow society members and more confident of the future of the the nation if the answer to the title query was universally accepted in absolute terms. For the acceptance of the principle of pre-crime is dangerous. It places less than a spiked mountain-climber’s boot on a slippery slope to totalitarianism, which is the real-life equivalent of the Devil in the scene above from “A Man For All Seasons,” both the play and the movie, based on the writings of Sir Thomas More, in which  More emotionally refuses to arrest a man because of the evil  he might do, before he has actually broken any laws:

More’s Wife: Arrest him!

Sir Thomas More: For what?

Wife: He’s dangerous!

William Roper (More’s Son in Law): He’s a spy.

Margaret (More’s daughter): Father, that man’s bad.

More: There’s no law against that.

Roper: There is – God’s law.

More: Then God can arrest him.

Wife: While you talk, he’s gone.

More: And go he should, were he the Devil himself, until he broke the law.

Roper: So, now you’d give the Devil the benefit of law?

More: Yes! What would you do? Cut a great road through the law to get after the Devil?

Roper: Yes, I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s. And if you cut them down – and you’re just the man to do it – do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

Few more profound and important thoughts have been so eloquently and powerfully  presented in a motion picture as this scene from “A Man For All Seasons,” to which I will note (again) in passing, “Rotten Tomatoes” gives a lower score than “Birdman,”a fact that provides a disturbing snapshot of the state of our education, culture and priorities in 2019.

Both political parties have placed their feet on this slippery slope in the past. The essence of pre-crime is punishing a citizen for what he or she is, rather than for what he or she has done, on the theory that what an individual is makes that person “dangerous,” in the words of Mrs. More, for what they might do. President Franklin D. Roosevelt (and the Supreme Court that backed him) was responsible for probably the worst example of pre-crime in our history, when the United States, in full panic mode after the bombing of Pearl Harbor, imprisoned loyal Japanese-American citizens as a precautionary measure. Another panic, also not entirely groundless, led to a pre-crime mentality during the Red Scare and McCarthy episodes, seeking to punish Americans who belonged to the dreaded Communist Party, a nonetheless legal organization.

To be abundantly clear, I will define pre-crime as when the government removes a civil right, a Constitutional right, from a citizen, not as punishment for breaking a law, but based on what that individual believes, says, is or is understood to be. Continue reading

Unethical Tweet Of The Week: Yes, It’s Representative Ocasio-Cortez Again!

I know we’re getting perilously close to Julie Principle territory here. The Congresswoman says and tweets so many ignorant, logically flawed, impulsive and silly things so often that it seem ungallant to keep swatting at them.

On the other hand, elected officials, especially members of Congress, have an ethical duty not to make their supporters, followers and the public in general dumber and more ignorant than they already are. The tweet above does that: it misrepresents laws, law enforcement, the nature of abortion, reality, justice, too much to process, really.

It also shows seriously damaged critical thinking skills and an abysmal grasp of analogies. “Right?” No, NOT right, you fool. Abortion bans target the intentional taking of what these laws deem human life. Got that? Intentional. No ICE agents set out to cause the deaths of premature babies that were, in fact, placed in peril by their mothers who endangered them by bringing them along as they attempted to break U.S. laws. There is no valid comparison here. None. Continue reading

More Dark Thoughts: How Do You Make This A More Ethical Society If Our Institutions Encourage The Opposite Of Ethics?

If I’ve learned one thing from writing this blog, it’s that I have no ability to make what I believe are the most important posts the most read. I regard this post, from yesterday, an important post, and the story an important ethics story, though it is being handled as trivia by the non-local news media. Here’s another one that shows that frighteningly few commentators are sensitive to what the real ethical issues are in current events.

The headline says it all… “San Antonio leaders, residents outraged after former mayor Lila Cockrell isn’t allowed to vote.” Continue reading

Sunday Morning Ethics Warm-Up, 6/2/2019: Dark Thoughts And Good Reasons For Them

Looking forward to the ethical week ahead, certain that I’ll be disappointed, and bitterly, based on last week…

<Sigh>

1. The Ethicist’s Dilemma. I’m preparing for a couple of legal ethics CLE seminars for government lawyers, and raised  an ethical dilemma facing me to my sister. The last time I included government lawyer ethics issues related to the multiple controversies in the Mueller investigation, the FISA process, and the Michael Cohen clown act, I received several critical evaluations that were entirely partisan and political. And, in the session itself, there were a couple of participants obviously set at “hair-trigger” to register accusations and objections that any criticism–based on pure legal ethics analysis on my part—that found fault with the lawyers involved revealed me as a dreaded “Trump supporter.” I asked my sister, who is a retired government lawyer with extensive Justice Department experience, if I should nonetheless cover such issues as Robert Mueller flagrantly violating Rule 3.8 of the D.C, Rules with his public statement last week,  or what a White House Counsel’s ethical obligations are regarding communications from the President (since the “who is the client?” complexities of that role continue to confound legal ethics experts, my position is that the WHC has an ethical obligation to make it crystal clear to any President when he is covered by attorney-client privilege and when he is not, to cite one example.)

Her depressing advice: Don’t touch any of it. People, even lawyers, are not capable of keeping their emotions and political passions under control these days, she said. No matter how accurate and fair your analysis is, she emphasized, you risk allowing these hot-button issues to derail the seminar and even harm your professional reputation.

Yet I believe that I have an obligation to cover these issues. I also have a lifetime bias for doing what people tell me will be disastrous when I am convinced that it is the right thing to do. Then my father’s voice comes out of the mists of time, reciting his favorite fake obituary, a ditty about sailing:

This is a story of John O’Day
Who died maintaining his right of way
He was right, dead right, as he sailed along
But he’s just as dead as if he were wrong.
I’m thinking.

Continue reading

Eugene Robinson Provides The Ultimate Impeachment Bias And Ignorance Exhibit. Thanks, Eugene!

The Washington Post’s long-time Pulitzer Prize winning mediocrity, Eugene Robinson, actually enticed me into reading one of his Left-pandering columns with the click-bait title, “If Trump doesn’t warrant impeachment, who does?” I was genuinely curious to see if Robinson had found a real justification for impeaching the President other than some selections out of the Ethics Alarms Get Rid Of Trump Plan list, which now stretched from A to Q. Just so we are all on the same page, here is the current list:

Plan A: Reverse the election by hijacking the Electoral College

Plan B: Pre-emptive impeachment.

Plan C : The Emoluments Clause.

Plan D: “Collusion with Russia”

Plan E : ”Trump is mentally ill so this should trigger the 25th Amendment.”

Plan F: The Maxine Waters Plan, which  is to just impeach the President as soon as Democrats control both Houses, because they can.

Plan G : “The President obstructed justice by firing incompetent subordinates, and that’s impeachable.”

Plan H: “Tweeting stupid stuff is impeachable”

Plan I:  “Let’s relentlessly harass him and insult him and obstruct his efforts to do his job so he snaps and does something really impeachable.”

Plan J : Force Trump’s resignation based on alleged sexual misconduct that predated his candidacy. .

Plan K: Election law violations in pay-offs of old sex-partners

Plan L: The perjury trap: get Trump to testify under oath, then prove something he said was a lie. [

Plan M: Guilt by association. Prove close associates or family members violated laws.

Plan N: Claim that Trump’s comments at his press conference with Putin were “treasonous.”

Plan O:: The Mueller investigation  report is  justification for impeachment even though the investigation found no evidence of crimes or misconduct that could sustain an ethical prosecution.

Plan P: Trump should be impeached because he’s daring the House Democrats to impeach him.

Plan Q:  Impeach Trump to have an unquestionable right to acquire his tax returns, on the assumption that the returns will justify impeachment.

If these seem progressively more desperate to you, there’s a reason: they are, particularly the last three, which emerged after the Mueller investigation failed to accomplish what it was set up to do.

So how do Eugene Robinson’s overwhelming justifications for impeachment stack up? He writes,

Obstruct a Justice Department investigation, perhaps? No, apparently that’s not enough. What about playing footsie with a hostile foreign power? Abusing his office to settle personal grievances? Using instruments of the state, including the justice system, to attack his perceived political opponents? Aligning the nation with murderous foreign dictators while forsaking democracy and human rights? Violating campaign-finance laws with disguised hush-money payments to alleged paramours? Giving aid and comfort to neo-Nazis and white supremacists? Defying requests and subpoenas from congressional committees charged with oversight? Refusing to protect our electoral system from malign foreign interference? Cruelly ripping young children away from their asylum-seeking parents? Lying constantly and shamelessly to the American people, to the point where not a single word he says or writes can be believed? President Trump has done all of this and more.

The last sentence is a tell, of course. It tells us that Robinson is just mouthing the Maxine Waters impeachment argument: Trump should be impeached because everything about Trump drives Democrats, progressives and their allies crazy….in short, “Orange Man Bad!” But let’s examine the reasons Robinson enumerates:

  • Obstruct a Justice Department investigation.

It’s so nice of Eugene to destroy his credibility up front like this.  Reviewing the (weak) evidence that the Mueller investigation suggested might support a charge of obstructing justice, the official responsible for making the determination concluded that there was no obstruction. Even Mueller, in his unethical and Justice policy defying statement, didn’t say the President obstructed an investigation, He said that the investigation didn’t prove he didn’t obstruct it, which is legally meaningless. So we also know Robinson isn’t a lawyer.

  • Playing footsie with a hostile foreign power

This is so stupid it doesn’t deserve rebuttal. So we have moved on from the “collusion” fake crime to the even more ephemeral “playing footsie” standard? Huh. Would Obama’s infamous “more flexibility” comment to Putin caught on camera be considered “footsie”?

  • Abusing his office to settle personal grievances

Another made up offense.

  • Using instruments of the state, including the justice system, to attack his perceived political opponents?

Eugene’s link to support this false assertion is a typical Trump attack Atlantic article that claims such conduct as accusing the Justice Department of behaving unethically (which evidence increasingly shows it did) and appointing an acting Attorney General who was critical of the Mueller investigation somehow meets Robinson’s hyperbolic description.  The article also asserts that Trump wanting Hillary Clinton and James Comey to be prosecuted is an abuse of power.

  • Aligning the nation with murderous foreign dictators while forsaking democracy and human rights.

Oh, for God’s sake. It’s called foreign policy and utilitarian trade-offs, you imbecile. It would be impossible to name a President who did not do this. We can argue about when it is a prudent course,  but what a self-evidently silly statement. Obama reached out to Cuba and opened diplomatic relations without insisting on any human rights reforms at all. Was that impeachable. Eugene?

  • Violating campaign-finance laws with disguised hush-money payments to alleged paramours.

See Plan K. This is a tortured election law violation theory that will not hold water. Worse, it depends on the testimony of the Most Unethical And Unbelievable Lawyer Alive, Michel Cohen.

  • Giving aid and comfort to neo-Nazis and white supremacists?

One of the “resistance’s” Big Lies.

  • Defying requests and subpoenas from congressional committees charged with oversight.

And in the process of abusing that oversight. “Defying a request” is impeachable, eh, Eugene? The President has the same right to challenge the validity of a subpoena as anyone else, as well as a duty to protect his office and the Separation of Powers. Until the issue has been adjudicated, there is nothing improper or illegal with telling Congress to take a hike.

  • Refusing to protect our electoral system from malign foreign interference?

What? WHAT?  The 2016 election was under Obama’s watch. Does Robinson know which President he is talking about?

  • Cruelly ripping young children away from their asylum-seeking parents?

So now it’s just “resistance” talking points, is it? The President cannot be impeached for legal policies executed by executive agencies, particularly policies that were mandatory under the law, even more particularly policy that the previous administration followed as well.  For “asylum-seeking parents” read “illegal immigrants endangering their children to breach U.S. borders.”

  • Lying constantly and shamelessly to the American people, to the point where not a single word he says or writes can be believed.

More talking points and narratives. All of President Trump’s exaggerations, botched facts, misrepresentations and mistakes rolled up into one ugly ball would still not equal the dishonesty and the damage done by Barack Obama’s signature lie to sneak the Affordable Care Act by the gullible public. And no, that wasn’t impeachable, just despicable.

The answer to Robinson’s headline question, “If Trump doesn’t warrant impeachment, who does?” is this:

A President who has actually engaged in conduct the Constitution says is impeachable. As Robinson’s weak and ignorant case shows vividly, President Trump hasn’t.

Morning Ethics Warm-Up, 5/31/19: Confirmation, Computers, Clinton, Cruz, And Comments

Good morning.

Trying to get used to my new computer, Microsoft 10, files I can’t find and many other things. Everything is going sloooooowly. Be merciful.

1. More on the Martin Luther King revelations. Yesterday I wrote about King biographer David Garrow’s article revealing the some disturbing and previously unrevealed results of the  FBI’s (illegal) surveillance of Martin Luther King. Predictably, Garrow is under fire for daring to sully an icon’s reputation, and because the source of the material is Hoover’s attempt to undermine King, that is the mode of attack. Garrow won a Pulitzer Prize for “Bearing the Cross,” his 1986 biography of King, and has said in the past  that FBI files should be treated with skepticism. However, he is obviously so disturbed at the new revelations that were inadvertently released that he is performing what he sees as his duty as a historian. He told the Washington Post that the summaries made by FBI agents who were spying on King are accurate, noting that different types of records warrant different levels of trust in their accuracy. The files claiming King was communist, he said,  “are coming literally third- or fourth-hand from a human informant,”so their accuracy is “highly dubious…But with the electronic surveillance records, those are very highly reliable, other than when the FBI can’t understand who’s talking.”

Confirmation bias is the key here. Garrow has none that I can see: his reputation is at risk if he is wrong, and he was an admirer of King, though not blind to his previously known flaws, like his epic infidelity. So far, the reflex deniers of Garrow’s conclusion all appear to be “keepers of the flame,” or at least invested in keeping King’s reputation intact.

It is encouraging to see the Post, which apparently refused to publish Garrow’s article,  covering the story. Most media sources are not, and that is signature significance. Many of the same sources have assumed that Donald Trump engaged in wilful sexual assault based solely on his recorded hyperbolic boasts to Billy Bush. The integrity of journalism in the U.S. could not be at lower tide.

In my case, I know enough about history and the important figures who stroll, dash and charge through it not to be surprised when any of them are revealed to have engaged in objectively horrible conduct at various points in their lives. Given King’s documented sexual appetites and epic infidelities, the likelihood that he was a sexual predator is strong. Again, my position is that King’s personal, even criminal conduct shouldn’t affect the assessment of or national gratitude for his public achievements at all. This isn’t the “personal conduct” dodge that Bill Clinton’s enablers used: his conduct with Lewinski and others was related to his job, his position, and in fact occurred in his office. That’s professional, workplace conduct, not personal.

I assume this will be another story inconvenient to the news media’s favorite causes,  that journalists and editors will attempt to bury, muddy, and minimize. Yes, and anyone who attempts to raise it, analyze it and verify it will be tarred as a racist. Perhaps I am naive and optimistic, but I don’t think that will work here. Just as eventually we had to face the truth about Thomas Jefferson and Bill Cosby, even those who want to deify King will have to deal with his private character, and decide whether they really want his statues and memorials, street signs and holiday, to come down.

Of course, there will be some good people on both sides of the argument. Continue reading

Lunchtime Ethics Warm-Up, 5/30/2019: Bye! Go For It! And Who Cares?

A yucky ethics meal.

(Sorry)

1. Why is this worthy of being published? Here’s a long Washington Post writer whine that he ““doesn’t recognize”the U.S. any more, and wants to run off and hide someplace better. Why is this any more useful and enlightening  than the rant of some wacko who has decided that human beings have been replaced by pod people, or that we’re really all lying dormant in a Matrix-like sleep? The article is just free-flowing Left-wing bitching and Trump hate that could have been written by any one of thousands of resistance fanatics in the last three years.

Why should anyone care or be enlightened that Ted Gap, whoever he is, regards the U.S. as a viper pit of  “xenophobia” (aka “enforcing the law and protecting the borders”), “its saber-rattling” (aka “foreign affairs”), “its theocratic leanings” (known as “religion”), “its denial of facts and science” (code for “not being willing to spend trillions and send the standard of  living and the economy backwards based on unconfirmed theories and projections”), “its tribalism” (I suspect Ted means the “tribes” he doesn’t personally favor), and “its petty and boorish president” (so if Ted’s candidate loses an election, it means that it’s not the U.S. any more. Got it. Typical “resistance” member.) Continue reading