Law & Law Enforcement

First Parmesan Cheese, An Now This: A Judge Bends Over Backwards To Let The New York Times Escape Its Abuse of Journalism Rights

/ Jack Marshall / 12 Comments

Oh, we knew Palin had nothing to do with this wacko, but it sure felt good to stick it to her anyway…

Federal judge Jed S. Rakoff  has dismissed Sarah Palin’s defamation lawsuit against The New York Times, ruling that she had failed to show that the Times  defamed her in its June editorial stating that she was responsible in part for the Tucson shooting of Rep. Gabrielle Giffords and others by the deranged Jared Loughner. Rakoff’s  ruling argued that the statements in the Times editorial were ambiguous (where have I heard this before?), and thus did not qualify as “provably false,” resulting in insufficient evidence that the Times had written the story with “actual malice.”

“[I]f political journalism is to achieve its constitutionally endorsed role of challenging the powerful, legal redress by a public figure must be limited to those cases where the public figure has a plausible factual basis for complaining that the mistake was made maliciously, that is, with knowledge it was false or with reckless disregard of its falsity,” Rakoff wrote.

Right. Except that to write what it did, the New York Times Editors had to be unaware of what the Times itself had reported regarding Palin’s alleged culpability for the shooting. The Times reported, in great detail at the time, that the claim that Palin’s website had inspired Loughner was completely without merit.

A newspaper’s editors impugning a public figure by blaming her for multiple murders and the attempted assassination of a Congresswoman without checking its own reporting doesn’t qualify as “reckless disregard of its falsity”? If that isn’t reckless disregard, what is? Continue reading →

Professor Volokh’s Ethics Dissent On The Vicious, Pazuzu-Blaming Professor’s Firing

/ Jack Marshall / 10 Comments

‘Yes, I know he’s an idiot, but we should support idiots as highly paid teachers of our children, for the protection of the non-idiots…‘

Eugene Volokh is one of the best and most objective legal minds in the country. If he finds himself on the Supreme Court when Kennedy retires or Ginsberg shuffles off this mortal coil, we will not have suffered through the ugliness of the Trump years in vain. When he opines, I listen, as we all should, and he has now opined regarding the now fired idiot that I wrote about this morning, ex-University of Tampa visiting sociology professor Ken Storey.

Storey used Twitter, in the middle of the still-unfolding human disaster in Houston and soon New Orleans, to announce that flooding victims who were Trump supporters or Republicans deserved to die. He did this twice, so his later claim that his words did not intentionally convey what his words were obviously intended to convey was a desperate and obvious lie.

I wrote:

The university or college that fires an employee like Storey is protecting its reputation as a responsible institution, by stating in clear terms that people with terrible judgment and cruel and unethical instincts who are motivated by hate and intolerance are not qualified to teach….because they aren’t. That professors increasingly have no ethics alarms beeping when the prepare to publish sentiments like Storey’s (or worse) shows how thoroughly the leftist echo chambers of most campus faculties turn academics into Pat Robertson, which is to say, rigid, mean, and dumb. Once upon a time, liberals giggled themselves silly over the evangelical huckster’s periodic pronouncement about how a disaster was God’s way of punishing the U.S. for not abusing gays sufficiently, or similar bile, Now they do the same thing, and expect their colleagues and students to applaud.

Today, in the Washington Post, Professor Volokh advocates a different position:

Storey’s comments were nasty and mean-spirited; and I should note that the University of Tampa is a private university, in a state that doesn’t limit private employers’ ability to fire employees for their speech. The university’s actions thus seem legal (assuming they didn’t breach any contract). And Storey’s comments also weren’t academic or likely to be part of a serious political debate.

But the university’s action strikes me as further undermining the freedom of expression and debate at American universities, including the freedom to say things that are much more thoughtful. If you were an untenured faculty member at the University of Tampa, would you feel free to express your views on controversial subjects, when you saw how the university reacted to this tweet? Even if your views were very different politically, what do you think the University would do if people started pressuring for your dismissal, pointing to the Storey incident as precedent?

I’ve talked before about “censorship envy,” one mechanism through which these sorts of speech restrictions can grow: “If my neighbor — and especially my political adversary — gets to ban speech he reviles,” the thinking goes, “why shouldn’t I get to do the same?”

If a university has a strong policy of protecting speech, including offensive speech, administrators can point to that policy as a means of resisting calls for firing a controversial faculty member, and they can appeal to people’s desire to see speakers on their own side protected, and use that desire to help protect speakers on all sides. But once the university starts firing some people for speech “that do[es] not reflect [the university’s] community views or values,” that makes it much harder to resist calls for more suppression. Indeed, at that point tolerating speech starts implicitly conveying the message that the speech does reflect the university’s community views or values — and to avoid that implication, the university would have to fire any speaker who offended some sufficiently influential constituency.

I am very confident that in this rare case, Prof. Volokh is dead wrong. Continue reading →

Ethics Quiz: Looters

/ Jack Marshall / 161 Comments

Looting has been reported in Houston. There are not too many species of human detritus lower than those who take advantage of natural disasters to prey on their neighbors, so the question arises, is it ethical for a city government to order police to shoot them?

This question usually arises in the context of martial law. A curfew has in fact been declared in Houston to minimize the looting; presumably an announcement that looters will be shot on sight will be even more effective deterrence. There are good reasons to discourage looting with strong measures. The conduct threatens civilized society itself, because it is not civilized conduct. If looting becomes widespread, the rule of law is suspended, and worse crimes may follow. In a situation like Houston’s, looting also forces law enforcement to choose between rescuing property and rescuing people. If police openly make the choice to let looters loot while they devote their attention elsewhere, then Looting Season has been declared officially open.

Over the years we have occasionally heard that orders were given to shoot looters on sight, but few looters have been shot. Usually the order is enough, which suggests that the order to shoot is a bluff, but usually an effective one.

Police shoot unarmed citizens alarmingly frequently already, however: that’s one order that shouldn’t be given in jest. Presumably most looters are unarmed; I’m not going to concern myself with the question of whether armed looters can be ethically shot. The answer to that is yes, especially when they shoot at rescuers, as apparently some have in Houston. No, your Ethics Alarms Ethics Quiz of the Day is this:

In a natural disaster, is the order to shoot looters on sight ethical?

Continue reading →

Ethics Dunce: Federal Judge Gary Feinerman

/ Jack Marshall / 34 Comments

(I am going to eschew cheese jokes in this post, and I expect some credit for it.)

We recently learned that grated parmesan cheese often contains  cellulose powder.  This icky fact spawned dozens of lawsuits against Kraft, Heinz, Walmart, Target, Albertsons, Publix, and others, alleging consumer fraud by selling products with labels claiming that the contents were “100% grated parmesan cheese,” or words to that effect.

Since the  lawsuits all made the same claims, they were consolidated into one multi-district litigation overseen by a federal judge Gary Feinerman in Illinois. Judge Feinerman dismissed the litigation last week, ruling that “100% grated parmesan cheese” is an ambiguous statement that is open to multiple interpretations.

Judge Feinerman doesn’t understand deceit.

“Although ‘100% grated parmesan cheese’ might be interpreted as saying that the product is 100% cheese and nothing else, it also might be an assertion that 100% of the cheese is parmesan cheese, or that the parmesan cheese is 100% grated,”he wrote in his ruling. “Reasonable consumers would thus need more information before concluding that the labels promised only cheese and nothing more, and they would know exactly where to look to investigate — the ingredient list. Doing so would inform them that the product contained non-cheese ingredients.”

Each of the products involved, the judge noted, listed cellulose and the other ingredients on the label, along with the fact that the cellulose is added ‘to prevent caking.’”

“100% Grated Parmesan Cheese” might also mean “I did not have sex with that woman,” I guess. The companies didn’t put that legend on the packages to let consumers know that the cheese is “100% grated.” They put it there to mislead consumers, and try to ensure that they didn’t read that there were wood chips in their cheese. This is classic deceit, and the judge is letting companies get away with it.

The judge smugly asserts that a reasonable consumer would know that pure cheese is not shelf-stable at room temperature and couldn’t sit in sealed packaging in a grocery store for long periods of time. “Cheese is a dairy product, after all, and reasonable consumers are well aware that pure dairy products spoil, grow blue, green, or black fuzz, or otherwise become inedible if left refrigerated for an extended period of time,” he writes, and thus “would still suspect that something other than cheese might be in the container, and so would turn it around, enabling them to learn the truth from a quick skim of the ingredient label.”

Except that the labeling was designed to hide the truth, mislead buyers, and gull them into believing that it was “100% grated parmesan cheese,” like  the package said.

The judge is coming perilously closed to the old, discredited “let the buyer beware” standard that opened the door for outrageous and often dangerous consumer fraud.  I guess the judge is saying I’m an idiot: when I saw a label that said “100% grated parmesan cheese,” I didn’t assume that it mean “8% other crap.”  I assumed that it meant “100% grated parmesan cheese.”

I always wondered how that Kraft box stayed in my mother’s cupboard so long, though. But my mom also kept catsup, mustard and other condiments for decades.

We used to get sick a lot, now that I think about it…

The ruling isn’t a breach of judicial ethics, just a bad ruling that encourages deception by excusing deceit.

Morning Ethics Warm-Up: 8/29/17

/ Jack Marshall / 50 Comments

Good Morning!

1. Jezebel fails an integrity test. Are you surprised? The feminist site  has a story about John Smelcer, a successful novelist who has falsely claimed to be a Alaskan Native American  and has used  twenty-five-years of fake credentials and phony biographical details to gain a foothold with academia, publishing houses and critics. Smelcer’s deceptions are a good ethics tale on their own; I especially enjoy his tendency to use blurbs from dead authors on his Amazon pages. But it was this sentence in the Jezebel piece that really impressed me:

“…he was hired by the University of Alaska Anchorage as part of an effort to increase its diversity, with the understanding that he was an Alaskan Native.”

preceded by,

“Smelcer sounds like a Rachel Dolezal…”

Rachel Dolezal? The former NAACP official who claimed (and still claims) she was black when she wasn’t? Is that who comes to mind when you think about a prominent figure who was hired by a university as a diversity candidate after falsely claiming Native American status, and who has parlayed that fraud into national prominence?

The feminist website is shamelessly (transparently, clumsily, hilariously) protecting Senator Elizabeth Warren, aka “Fauxahontas,” and demonstrating how it and the rest of the left-wing media will try to whitewash her personal history to advance the hypocritical demagogue to the White House if possible.

The same story has another example of flagrant unethical conduct being unsuccessfully slipped under the ethics radar. In the process of noting that Smelcer’s Amazon page includes bogus endorsements by such dead literary luminaries as  Norman Mailer, Saul Bellow, and J.D. Salinger, the story quotes Roxanne Dunbar-Ortiz, author of An Indigenous Peoples’ History of the United States,  who also authored an accolade for Smelcer. She wrote to Jezebel that she has asked Smelcer to remove her blurb several times, explaining,

He was so intrusive, he kept lobbying me to give him a blurb. And I basically gave him one just to get rid of him. I was very busy on tour, and unbeknownst to me, he put it on a new book he just published. I’ve written him multiple times for over a year to take my blurb off his publicity, and he wouldn’t do it. He uses all these famous dead people’s names. I never thought someone would be so brazen as to do something like that, but I thought, okay, I’m in good company!

We see. Dunbar-Ortiz thinks it’s okay to give a fake endorsement of a book that she knows will be used to deceive purchasers and critics as long as she’s busy, and doesn’t have the integrity to say “no” and mean it. And wait—what? She gave him a blurb and says now that she didn’t expect him to use it?

No, Roxanne, you’re not in good company, all those dead authors are in bad company, with you. They didn’t give Smelcer blurbs; they’re dead. You’re the one who voluntarily aided his scam. Continue reading →

No, You Lazy Conservative Journalists, A Court Did NOT Rule That The DNC AND Wasserman Schultz Rigged The Nomination Against Bernie

/ Jack Marshall / 14 Comments

Find another occupation where your stupidity and incompetence doesn’t make the public stupid and ignorant.

“Court Admits DNC and Wasserman Schultz Rigged Primary Against Sanders,” screamed the headline of the Washington Observor, and other sources, including conservative blogs, followed the theme. This was the essence of Fake News, and like most fake news, the result of bias and incompetence, plus unprofessional editors.

In June of 2016, a class action lawsuit was filed against the Democratic National Committee and former DNC Chair Debbie Wasserman Schultz for rigging the Democratic presidential primaries for Hillary Clinton and against Bernie Sanders. The plaintiff class was made up of Sanders donors and other, and immediately smelled like a publicity stunt. The theory was that the DNC violated its own charter, but the likelihood of prevailing was virtually nil from the start. I didn’t read a single authority who thought it had a prayer.

Sure enough, the lawsuit was dismissed last week in federal court on the grounds that the plaintiffs lacked standing and the suit was a guaranteed loser. Federal Judge William Zloch, dismissed the lawsuit, saying,

“In evaluating Plaintiffs’ claims at this stage, the Court assumes their allegations are true—that the DNC and Wasserman Schultz held a palpable bias in favor Clinton and sought to propel her ahead of her Democratic opponent.”

That means that for the purpose of the decision whether to allow the lawsuit to proceed, the judge assumed that everything the plaintiffs claim was true. It doesn’t mean that they had proved their case, or that the judge has ruled that the DNC and Debbie Wasserman Schultz did what is alleged. Law professor Jonathan Turley explains, Continue reading →

Morning Ethics Warm-Up: 8/28/17

/ Jack Marshall / 61 Comments

Good Morning!

Ready for an ethical week?

1. In a comment thread about Joe Arpaio’s pardon, the absurd assertion was made that Chelsea Manning was “tortured” at Leavenworth. In knocking down this anti-U.S. propaganda, courtesy of the U.N. and others, I noted that even the U.N. accuser based that assessment on the weird conclusion that Manning was “never convicted of a crime.”

Translation: military courts martial don’t count. Thanks for that opinion, U.N. guy! Why don’t you start your own country?

The other part of the phony torture accusation is the assertion that being held in solitary confinement is torture. Under international law, it is considered “cruel and unusual punishment,” not torture, but… surprise! The U.S. is not governed by international law, much as the globalists wish it were!

Solitary confinement has (rarely) been found by U.S. courts to violate the 8th Amendment when it is of indeterminate duration and without good cause, but that has nothing to do with Manning, who was considered in danger as a traitor in a military prison, and was in solitary for her own protection. The Supreme Court determines what is cruel and unusual punishment in this country, not the U.N., and not international law.

2. I also (I admit it: I knew I would) triggered a freak-out here, and some unfair insults that I will gracefully ignore, by stating that I would have supported execution for Manning, who was and is a traitor. (President Obama commuted her sentence, making the anti-war Left happy but oddly triggering a fraction of the condemnation in the news media that has followed President Trump’s pardoning an 85-year old man facing a minimal jail term. ) The U.S. has been historically reluctant to execute traitors, and in the era where a cyber-leaks can give more aid and comfort to the enemy than Julius and Ethel Rosenberg could have managed in a hundred years, a re-evaluation of that kind, merciful but dangerous policy is over-due for reconsideration. Manning avoided conviction on the worst of the charges against her (then, him) because prosecutors didn’t prove intent sufficiently. Manning claimed that she was just trying to start a “conversation’ about the Iraq and Afghanistan wars, and was willing to put classified information into the hands of terrorists in order to do it. If she knew she would be facing the death penalty with some certainty, it is likely that Manning would have thought twice, at least. It’s called deterrence, and in an age where self-righteous low-level types like Manning and Edward Snowden can get U.S. intelligence personnel exposed and killed with a few keystrokes, serious deterrence is called for.

3. Remember when I asked readers to alert Ethics Alarms when the first talking head suggested that out first major hurricane in 12 years was the result of climate change? It took longer than I expected, but the first reported fool was CNN anchor John Berman. He  was interviewing  Bill Read, the former director of the National Hurricane Center, and asked,

“Is there a why to this? Why there is so much water associated with this storm? One thing we heard from scientists over the last 10 years is that climate change does impact the intensity of many of the storms that we see.”

To his credit, Read assured Berman that the heavy rains had nothing to do with climate change, and everything to do with the typical behavior of this kind of storm. The episode shows 1) how little many journalists (I won’t say all, but it is very close to all) understand the science of climate change, but promote it anyway because it aligns with their partisan politics, and 2) how they will try to generate fake news, which is what “Hurricane Harvey Deadly Rainfall Possibly Caused By Climate Change, Expert Tells CNN” would have been. If Berman was interested in promoting public understanding of the climate change controversy, he would have asked, “Climate change models and Al Gore’s documentaries predicted more and more violent storms as a result of global warming, yet this is the first major hurricane we have seen in more than a decade. How do you account for this?”

4. In the teeth of this renewed attack on U.S. history and culture during the Confederate Statuary Ethics Train Wreck, I asked how long it would be before “Gone With The Wind” was banished from the airwaves. The Orpheum Theatre Group in Memphis, Tennessee just withdrew its annual screening of the classic 1939 film  out of concern that some may find it ‘offensive’.

If no one has the courage to stand up for art, expression and history as “the offended” try to strangle cultural diversity out of existence, then Orwellian thought control will be the inevitable result. I don’t blame the “offended” for trying to suppress speech, thought and history as much as I blame the cowards who capitulate to it. Next in the line to oblivion: war movies, movies with guns, “Gettysburg” and John Wayne. Continue reading →

Morning Ethics Warm-Up: 8/27/17

/ Jack Marshall / 73 Comments

GOOOD MORNING!

(he said through gritted teeth..)

1. I received a nice, polite e-mail from a new reader here who accused me of engaging exclusively in “partisan/political rants.” “Further,” he wrote,  “everything you say appears to be entirely one-sided (right/conservative/republican is good, left/liberal/democrat is bad).”

The man is an academic, so one might expect a little fairness and circumspection, but then, the man is an academic. His description is in factual opposition to the contents of the blog (I’m trying to think of the last Republican leader, conservative or otherwise, I designated as “good”), but I know from whence the impression arises: the fact that the entire American Left, along with its sycophants and familiars, the universities, show business and the news media, have gone completely off the ethics rails since November 8, 2016. I don’t know how else I am supposed to address that. It would have been nice, for balance’s sake, if a conservative cast of white actors in, say, a hit musical called “The Ray Coniff Story” had stepped out of character and harassed, say, Chuck Shumer, but this didn’t happen. If it had, I would have treated that breach of theater ethics exactly as I did the cast of Hamilton’s harassment of Mike Pence. (I would not, however, have been attacked for doing so by my theater colleagues, and no, I haven’t forgotten, and I’m not forgiving.)

If a GOP figure working for CNN as an analyst, say, Jeffrey Lord, had used his connections at the network to forward debate questions to Donald Trump and then lied about it when he was caught red-handed, I would have eagerly written about it in highly critical terms—but the Republicans didn’t cheat. Donna Brazile and the Democrats did. 

If Hillary Clinton had been elected President and Donald Trump and the Republicans formed an anti-democractic movement called “the resistance,” tried to use a single Federalist paper as a rationalization to change the rules of the election and then pressured performers not to allow the new President the privilege of a star-studded, up-beat inauguration to unify the nation, and if a large contingent of Republican Congressmen had boycotted the ceremony, saying that they did not consider Hillary as “legitimate President,” Ethics Alarms would have been unmatched in expressing its contempt and condemnation. If conservatives were trying to limit free speech according to what they considered “hateful,” a step toward dictatorship if there ever was one, I would be among the first to declare them a menace to society. They haven’t advocated such restrictions, however. Progressives have. The Mayor of Portland has called for a “hate speech’ ban. What party is he from? Howard Dean said that “hate speech” wasn’t protected. What party was he the Chair of? I forget. What was the party–there was just one— of the mayors who announced that citizens holding certain views should get out of town?

“Need I go on? I could, because the uniquely un-American, unfair and destructive conduct from Democrats, progressives and the anti-Trump deranged has continued unabated and without shame for 10 months now.  That’s not my fault, and I don’t take kindly to being criticized for doing my job in response to it. I have chronicled this as unethical, because it is spectacularly unethical, and remains the most significant ethics story of the past ten years, if not the 21st Century to date.

And the reluctance and refusal of educated and usually responsible liberals and Democrats to exhibit some courage and integrity and vigorously oppose this conduct as they should and have a duty as Americans to do—no, I am not impressed with the commenters here who protest, “Hey, I don’t approve of all of this! Don’t blame me!” as if they bear no responsibility—is the reason this execrable conduct continues. It is also why I have to keep writing about it.

2. I’m still awaiting the apologies and acknowledgement of my predictive abilities from all of my friends who chided me for suggesting that the Confederate flag and statuary-focused historical airbrushing mania would shoot down the slippery slope to threaten the Founders and more.  Continue reading →

The Joe Arpaio Pardon

/ Jack Marshall / 110 Comments

To nobody’s surprise, I hope, President Trump  pardoned the former Maricopa County, Arizona sheriff, a hero to many conservatives and anti-illegal immigration proponents (there is no ethical justification for not being anti-illegal immigration), who was facing up to 18 months in jail for criminal contempt of court, for defying a judge who had ordered him to stop profiling Hispanics.

As I wrote earlier, the President had no good ethical options in this situation. It was a binary choice, and whichever choice he made would be arguably unethical in one respect or another. Let me repeat what I wrote about this question just two days ago, before the President acted:

Let’s see:

  • Arpaio did defy a judicial order. Should a law enforcement official be treated especially harshly when he does this?

Yes.

  • The judicial order related to Arpaio’s practice of assuming that individuals of Hispanic descent were more likely to be violating the immigration laws in his jurisdiction than other citizens. Since his jurisdiction was rife with Hispanic illegals, was this an unreasonable assumption on his part? No. Was it still discriminatory? Sure. Is the balance between profiling, which in such situations is a valuable law-enforcement tool, and the importance of equal treatment under the law a difficult one legally and ethically? Yes. Does a sheriff have the right and authority to ignore the way this balance is decided one legal authorities define it?

No.

  • Is the determination of this balance often polluted by ideological biases, in this case, against enforcement of immigration laws?

Yes.

  • Do Donald Trump, and his supporters, and those Americans who may not be his supporters but who agree that allowing foreign citizens to breach our borders at will without legal penalties is certifiably insane, believe that Arpaio’s position on illegal immigration is essentially correct and just?

Yes.

  • Nonetheless, did his ham-handed methods give ammunition to open-borders, pro-illegal immigration, race-baiting activists like the one who told the New York Times,

“Trump is delivering a slap in the face to dignified, hard-working people whose lives were ripped apart by Arpaio. Arpaio belongs in jail, getting a taste of his own medicine. Trump wants to put Arpaio above the law, showing they are both about white supremacy.”

Yes.

  • Is sending Arpaio to jail a political imprisonment?

Yes, although he made it easy to justify on non-political grounds.

  • Are political prisoners the ideal objects of Presidential pardons?

Yes.

  • Would pardoning him send dangerous messages (it’s OK to violate judicial orders you think are wrong; the ends justifies the means; Presidents should meddle in local law enforcement, “extremism in defense of liberty is no vice”) as well as defensible ones ( judges and elected official enabling illegal immigration are a threat to the rule of law; Joe is an old man with a long record of public service who deserves mercy even though he was wrong…)

Yes.

  • Will such a pardon, especially as the news media is again spinning to make the case that Trump is sympathetic with xenophobes and white nationalists, further inflame an overly emotional debate that needs to be calmed, not exacerbated?

God, yes.

  • Is the most responsible course for Trump to stay out of this mess?

YES!

  • Will he?

Of course not.

Sure enough, Democrats, Trump-haters like Senator John McCain and my echo-chamber Facebook friends are denouncing the pardon as if the President had loosed Hannibal Lector on the world. In doing so, they really look ridiculous,  and might as well be wearing  “I hate Donald Trump and will scream bloody murder no matter what he does” in neon on their heads. Especially for Democrats, who have argued that non-violent criminals shouldn’t be imprisoned at all when they are young and black, the argument that an 85 year old man’s under-two year maximum sentence is an outrageous object of Presidential mercy and grace—that’s what a pardon is, you know–is the height of partisan hypocrisy.

The fact that Arpaio is 85 alone justifies a pardon by the standards Presidents have used since the beginning of the office. That his sentence is relatively short—many, many prisoners with far longer sentences have been pardoned by Trump’s predecessors–makes the pardon, if ill-considered, also de minimus, especially since there is no chance, literally none, that the old man, now out of office and retired, will have an opportunity to repeat the crime he was convicted of committing. A pardon is an act of grace by which an offender is released from the consequences of his offense, according to the U.S. Justice Department’s website. It does not say that the offender was not guilty, or that the law that was violated can be breached at will.  In 2013, President Obama pardoned Willie Shaw Jr., who was sentenced in August 1974 to 15 years in prison for armed bank robbery. Armed bank robbery is a lot more serious an offense than criminal contempt, but nobody argued that Obama’s pardon “demonstrates flagrant disregard for the rule of law in this country,” not even the most virulent anti-Obama Republicans. But that’s what Senator Diane Feinstein said Trump’s pardon of Arpaio was:

“Sheriff Joe Arpaio should not have been pardoned. He brazenly denied a federal judge’s court order to stop racial profiling and continued to do so until being convicted of criminal contempt. A pardon for that conduct demonstrates flagrant disregard for the rule of law in this country.”

By that a standard, any pardon is an insult to the rule of law. Does Feinstein endorse the brain-dead view of her fellow California Senator, Kamala Harris, who seemed to argue that criminals shouldn’t be pardoned? I suspect the standard they both embrace is that no conservative law enforcement official should even be pardoned for being over-zealous in enforcing a law that their party disgracefully has tried to have enforced as infrequently as possible.

This is the real hypocrisy of the critics of Trump’s pardon. Feinstein’s state is full of sanctuary cities that intentionally undermine and defy the rule of law, without a peep of protest from its two Democratic Senators. They want Arpaio to be immune from Presidential mercy, unlike the 534 draft- dodgers pardoned by Jimmy Carter, tax fugitive Marc Rich, pardoned by Bill Clinton afters ex-wife made large campaign contributions and donations to the Clinton Presidential Library, gangster union leader Jimmy Hoffa, and all the Confederate citizens and soldiers who took up arms against the United States.  They want him to be metaphorically hung up by his heels to appease their open-border, pr0-illegal immigration base, making the fervor to punish him purely political, and having little to do with respect for the rule of law, which their own position on illegal immigration proves that they don’t respect themselves.

Let me be clear. This isn’t a Rationalization #22 “it isn’t the worst thing” defense of the pardon. It is a “the attacks on this pardon are wildly disproportionate to its reality, and thus transparent political theater” indictment of the pardon’s critics. Almost every pardon can be called a rejection of the “rule of law,” if you don’t understand what the pardon power is, and politicians who have been undermining respect for  the very laws that Arpaio went over-board enforcing are the last people on earth who should make that argument. They are ridiculous in their hypocrisy.

Joe Arpaio was an arrogant, grandstanding bully and thug, and unworthy of his badge. I wouldn’t have pardoned him despite his age, but there were some good reasons for Trump to do so. It was almost worth doing just to prompt Trump’s foes and pro illegal immigration hypocrites into embarrassing themselves.

The larger ethical problem with this pardon is the one focused on by P.S. Ruckman on his Pardon Power Blog. He is correctly troubled by the fact that the usual process for Presidential pardons was not followed (Trump does not even have a pardon attorney on board yet), and that for a political ally like Arpaio to be the President’s first pardon (despite the fact that Obama didn’t pardon his first until well into his second year in office), sends a corrosive message:

Hundreds of persons have applied for clemency and have waited for years, some for 10 or 15. Imagine how demoralized they must feel now. Now, more gasoline will be poured on the classic misconception that clemency is only for famous persons, rich people, political supporters, insiders, the “connected.” It is, of course, a false narrative, but a powerful one. One that defames a wonderful check and balance and, in some instances, discourages politicians from doing anything. They err on the side of caution (they think) by showing mercy to no one, or to as few as possible.

Morning Ethics Warm-Up: 8/26/17

/ Jack Marshall / 17 Comments

Good Morning!

(My Dad was from Kentucky. He couldn’t stand Tom T. Hall…or Mitch McConnell)

1. I have been working on a legal ethics seminar for lawyers who represent seniors (I was told that the politically correct term among the groups was “older clients.” Older than what?) It is one of those areas of the law in which the usual ethics rules don’t work very well, or sometimes not at all. This anomaly requires a lawyer practicing in the field to be ready to embrace the Ethics Incompleteness Principle: to violate the letter of the professional ethics rules in the best interests of the client. For example, what does a lawyer do whose aging client lives with a son or daughter, and the lawyers sees signs of elder abuse? When the lawyer asks the client, he makes various excuses for his caretakers, and finally says that while he has been abused, it’s not serious and will only get worse if the lawyer says or does anything in response to it. Now what? The fact of the abuse, under the usual construction of the rules, is a confidence controlled by the client.

The emerging consensus is that the lawyer can ethically use the exception to confidentiality that allows an attorney to reveal a client confidence to prevent death or serious bodily injury to a “third party,” the client becoming “the third party” for his own protection.

2. A federal lawsuit was filed last week alleging that a Tennessee judge and sheriff violated inmates’ constitutional rights by instituting a program offering reduced jail time for criminals who agree to undergo vasectomies or get contraceptive implants. The suit claims the White County program amounted to “eugenics with a twist.” I don’t think it’s much of a twist; I’d say it’s eugenics, straight up. I’d assume CBS will love it: after all, eliminating criminal types is even better than eradicating Down Syndrome babies. Isn’t it?

3. Lots of people sent me this horrible story, about the cheerleader camp at a Denver area high school where young girls were being forced to do splits (it hurts me even thinking about doing splits) , with the camp’s instructor shown in a leaked video pushing down on the shoulders of a 13-year-old as she screamed for him to stop.

Boy, there is a lot of child abuse out there.

The Denver Board of Education said in a statement: “As the elected representatives for Denver Public Schools — and as the moms, dads and family members of D.P.S. students ourselves — we are deeply disturbed by the videos of cheer practices at East High School that came to our attention yesterday.”

Gee, it’s good to know that you are all disturbed that children are being tortured at schools that you are supposed to be overseeing.. This must mean you are competently doing your jobs. No, actually it doesn’t

“As the investigation continues,’’ it states, “our focus must be entirely on our students, families and educators.”

The school superintendent also said: “We have sent notification to our athletic directors emphasizing that D.P.S. does not allow the use of ‘forced splits’ or any other activity that puts a student’s physical or mental health at risk, or in which a student is forced to perform an exercise beyond the point at which they express their desire to stop.”

An Ethics Alarms note to that school system: Any athletic directors who have to be reminded that abusing children in their care, and continuing to make them perform painful acts after they have said that they don’t want to, is not something they should be doing shouldn’t be employed in the first place. Continue reading →