Research and Scholarship

“Authentic Frontier Gibberish” Ethics

/ Jack Marshall / 26 Comments

On Ethics Alarms, the term “Authentic Frontier Gibberish” is used to describe “intentionally (or sometimes just incompetently) incoherent double-talk used by politicians, advocates, lawyers, doctors, celebrities, scientists, academics ,con artists and wrong-doers to deceive, obfuscate, confuse, bore, or otherwise avoid transparency, admitting fault, accepting accountability or admitting uncomfortable truths. The term comes from “Blazing Saddles,” in this memorable scene.

It sometimes arises from incompetent communication skills, which are unethical for anyone in the public eye to employ. Sometimes it is more sinister than that, and occurs when someone chooses to create a vague word cloud that obscures the speaker’s or writer’s real purpose…and sometimes the fact that they are frauds. Sometimes AFG is designed to convey a feeling while avoiding sufficient substance to really explain what he or she means.

Sometimes, it feels like gaslighting.

A New York Times article was ostensibly about “Dealing with Bias in Artificial Intelligence.” This was, obviously, click-bait for me, as the topic is a developing field of ethics. The introduction stated in part, “[S]ocial bias can be reflected and amplified by artificial intelligence in dangerous ways, whether it be in deciding who gets a bank loan or who gets surveilled. The New York Times spoke with three prominent women in A.I. to hear how they approach bias in this powerful technology.” The statements of the first two women—I see no reason why only female experts on the topic were deemed qualified to comment—were useful and provocative.

Last, however, was Timnit Gebru “a research scientist at Google on the ethical A.I. team and a co-founder of Black in AI, which promotes people of color in the field, [who] talked about the foundational origins of bias and the larger challenge of changing the scientific culture.”

Here’s what she said (Imagine, the Times said this was “edited and condensed”! ). The bolding is mine.. Continue reading →

Morning Ethics Warm-Up, 1/2/2020: A Rich Assortment Of Jerks And Assholes To Begin The Year.

/ Jack Marshall / 24 Comments

 It’s finally Getting Back To Normal Day!

I don’t know about you, but I feel like everything’s been one big, holiday/stress/disruption blur since I enlivened Thanksgiving dinner by keeling over. There should be  law preventing Christmas and New Years from falling on Wednesdays, which effectively kills two full weeks. I’m behind on everything, and I don’t know what I could have done to avoid it…

1. Sigh. This is what we have to look forward to in 2020…Ezra Klein, the Left-biased Washington Post journalist who founded Vox, which he then staffed with all Left-biased journalists, tweeted out the link a nine-month-old Post article stating as fact that counties hosting Trump rallies saw massive spikes in hate crimes compared to counties that didn’t host Trump rallies. By Wednesday afternoon, Klein’s tweet had been re-tweeted  more than 7,000 times and had more than 14,000 likes. It also polluted many Facebook feeds.

Klein didn’t tell his 2.5 million followers  that the article relied on a study that had been debunked months ago by  Harvard University researchers Matthew Lilley and Brian Wheaton.  “The study is wrong, and yet journalists ran with it anyway,” they revealed in in Reason magazine four months ago. That’s four. 4. IV. F-O-U-R.

Lilley and Wheaton tried to replicate the original study—if a study is valid, you can do that.  They discovered that “adding a simple statistical control for county population to the original analysis causes the estimated effect of Trump rallies on reported hate crimes to vanish. “Given how little scrutiny was required to reveal the flaws in the thesis that Trump rallies cause hate incidents, one cannot help but wonder whether its viral status was aided by journalists predisposed to believe its message,” the researchers noted.

Ya think?

Klein’s tweet is still up. It’s false and inflammatory, but it advances one of the key Big Lies (that would be #4), so he is running with it anyway. Do you wonder why those on opposite sides of the partisan divide have different views of reality? This kind of thing is a primary reason.

Enemy of the people.

2. The first “I don’t understand this story at ALL” of 2020:

 In July 2018, Michael J. Reynolds. a New York City police officer, was in Nashville for a three-night bachelor-party trip with six other officers. At one point in the festivities,  Reynolds, who is white, kicked in a black woman’s door in a drunken rage, threatening her (“I’ll break every bone in your neck…”) and her sons while calling them “niggers” and showering them with obscenities. He was arrested, tried, and sentenced to 15 days in jail with three years’ probation after pleading no contest to four misdemeanors, court records show. Nevertheless, he remains an employee of the N.Y.P.D. More than 10,000 people signed an online petition demanding his dismissal and supporting the woman whose home he invaded.

Theories? Never mind unions, due process and mandatory investigations: the incident took place a full year and a half ago. There is no excuse for this. Reynolds apologized and said that he was so drunk he doesn’t remember the episode. Oh! Then that’s OK, Officer! Let’s all forget the whole thing!

As it habitually does, the New York Times reached a false analogy, writing,

The case of Officer Reynolds is again focusing scrutiny on the pace of the Police Department’s disciplinary process. In a prominent example of how it can drag on, five years passed before Officer Daniel Pantaleo, whose use of a prohibited chokehold contributed to the 2014 death in police custody of Eric Garner, was fired and stripped of his pension benefits in August.

Ridiculous. There were legitimate issues involved in Pantaleo’s case that made the proper discipline in his case complicated and controversial. There are no reasons for controversy here. Continue reading →

Last Sunday Of The Decade Ethics Alarms, 12/29/2019: Herman Kahn Rolling Over In His Grave Edition

/ Jack Marshall / 28 Comments

Good morning!

In my one, fortuitous one-on-one conversation with futurist Herman Kahn, then regarded as the most brilliant man in America, he observed that society periodically for forgets everything it has learned over the years, and then chaos reigns temporarily until bad ideas and horrific mistakes re-teach the lessons that once were accepted as obvious. He was talking about the Sixties, but it is clear that this is another one of those periods. Kahn also noted that some of the forgotten lessons are re-learned too late to save society from permanent harm. The Sixties gave us socially acceptable promiscuous sex and the resulting normalization of children born out of wedlock, the re-assignment of of abortion as ethical (somehow) rather than criminal, and societal sanctions of recreational drug use.

Nice work, Boomers…

1. Speaking of abortion...can there be a more empty, fatuous justification of it than what Senator Cory Booker tried last week? ”Abortion rights shouldn’t matter to men because women are our mothers, sisters, daughters, friends,” Booker tweeted. “They should matter to men — to everyone — because women are people.”

How profound. Nobody has ever disputed that women are people, and Booker’s non-logic—the statement compels the response, “And SO…????”—is an appeal to emotion without substance. It also makes its own rebuttal screamingly obvious to anyone but a pro-abortion zealot: “Abortion should be repugnant to men and women…and Presidential candidates…because unborn babies are living human beings.” Continue reading →

Shrugging Off Cheating: It Is As I Feared…[Corrected]

/ Jack Marshall / 21 Comments

Unfortunately, MAD is no longer around to protect our values…

My favorite Christmas gift this year, as it has been in recent years, is the new Bill James Baseball Handbook, which will be my primary bathroom reading for the next ten months. Oh, it’s not as much fun as the old Bill James Abstracts, but in those days, three decades ago, Bill was revealing then-unknown nuances of the game that spawned  the elaborate (and still developing) analytical tools that have changed how baseball is played, watched, and understood.

James typically writes a few long, Abstract-like articles for the Handbook, which has many contributors, and he is, as always, fascinated by the selection criteria for the Major League Baseball Hall of Fame in Cooperstown. My gift is especially timely, because his observations in the Handbook dovetail nicely with the recent voting by sportswriters on the latest entering class, including Derk Jeter, naturally, and perhaps others. The results won’t be announced for a while.

Bill did research this past year to determine who the public wanted to see elected to the Hall among players who had not yet been deemed worthy ( meaning that they hadn’t been listed on at least 75% of the ballots cast, or are not yet eligible for various reasons, including players who are still active. The results, as he explored the gap between public opinion and past voting, were disturbing, if not exactly shocking. Continue reading →

Your Ethics Reading Assignment: “The Cost Of America’s Cultural Revolution”

/ Jack Marshall / 15 Comments

I swear, when I wrote the recent post about the lawsuit against the use of the standard college admissions tests, I had not read nor was even aware of Heather MacDonald’s superb essay on the topic of the manipulation of higher education in pursuit of ideological domination. (Thanks and gratitude to Instapundit for the timely link.)

Here is a taste:

The social-justice diversity bureaucracy has constructed a perpetual-motion machine that guarantees it eternal life. Minority students who have been catapulted by racial preferences into schools for which they are not academically prepared frequently struggle in their classes. The cause of those struggles, according to the social-justice diversity bureaucracy, is not academic mismatch; it is the lack of a critical mass of other minority students and faculty to provide refuge from the school’s overwhelming bigotry. And so, the school admits more minority students to create such a critical mass. Rather than raising minority performance, however, this new influx of diverse students lowers it, since the school has had to dig deeper into the applicant pool. The academic struggles and alienation of minority students will increase, along with the demand for more diversity bureaucrats, more segregated safe spaces, more victimology courses, more mental health workers, more diverse faculty, more lowered standards, and of course, more diversity student admits. And the cycle will start all over again.

And another…

The ultimate social-justice solution to the skills and behavior gap is to remove the competition entirely. From the moment children enter school, they are berated for their white heteronormative patriarchal privilege if they fall outside a favored victim group. Any success that they enjoy is not due to their own efforts, they are told; it is due, rather, to the unfair advantages of a system deliberately designed to handicap minorities. Teachers are now advised to ignore white male students, since asking or answering questions in class is another mark of male supremacy.

Please read it all, here.

There will be a quiz.

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

/ Jack Marshall / 11 Comments

Note the date…

In his final section before concluding, Professor Turley covers other theories being floated as justification for impeachment, and finds them startlingly weak and contrived.

The Hill has Turley’s lament regarding the  the Alliance of Unethical Conduct’s attacks on his thorough and objective dismantling of their coup efforts. (The AUC—that’s the Ethics Alarm shorthand for the Democratic Party-“resistance”-mainstream media alliance to remove Trump from office by any means possible, not Turley’s.)  He writes,

Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, [Washington Post columnist Dana Milbank] described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”

But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump. I did not call for Obama to be impeached….

In my testimony Wednesday, I stated repeatedly [as I stated in my testimony during the Clinton impeachment] that a president can be impeached for noncriminal acts…. My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments…. … Democrats have argued that they do not actually have to prove the elements of crimes…. In the Clinton impeachment, the crime was clearly established and widely recognized…. [W]e are lowering impeachment standards to fit a paucity of evidence and an abundance of anger…. 

Writes Ann Althouse in a post yesterday, “it seems to me that the real impeachable offense has always been that Donald Trump got himself elected.”

I wish Prof. Turley had dealt with that, the real justification, in their minds, for the House’s impeachment push.

Back to the professor:

C.  Extortion.

 As noted earlier, extortion and bribery cases share a common law lineage. Under laws like the Hobbs Act, prosecutors can allege different forms of extortion. The classic form of extortion is coercive extortion to secure property “by violence, force, or fear.”85 Even if one were to claim the loss of military aid could instill fear in a country, that is obviously not a case of coercive extortion as that crime has previously been defined.

Instead, it would presumably be alleged as extortion “under color of official right.” Clearly, both forms of extortion have a coercive element, but the suggestion is that Trump was “trying to extort” the Ukrainians by withholding aid until they agreed to open investigations. The problem is that this allegation is no closer to the actual crime of extortion than it is to its close cousin bribery. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right.”87

As shown in cases like United States v. Silver, extortion is subject to the same limiting definition as bribery and resulted in a similar overturning of convictions. Another obvious threshold problem is defining an investigation into alleged corruption as “property.” Blackstone described a broad definition of extortion in early English law as “an abuse of public, justice which consists in an officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due him, or more than is due, or before it is due.”89 The use of anything “of value” today would be instantly rejected. Extortion cases involve tangible property, not possible political advantage.90 In this case, Trump asked for cooperation with the Justice Department in its investigation into the origins of the FBI investigation on the 2016 election. As noted before, that would make a poor basis for any criminal or impeachment theory. The Biden investigation may have tangible political benefits, but it is not a form of property. Indeed, Trump did not know when such an investigation would be completed or what it might find. Thus, the request was for an investigation that might not even benefit Trump.

The theory advanced for impeachment bears a close similarity to one of the extortion theories in United States v. Blagojevich where the Seventh Circuit overturned an extortion conviction based on the Governor of Illinois, Rod Blagojevich, pressuring then Sen. Barack Obama to make him a cabinet member or help arrange for a high- paying job in exchange for Blagojevich appointing a friend of Obama’s to a vacant Senate seat. The prosecutors argued such a favor was property for the purposes of extortion. The court dismissed the notion, stating “The President-elect did not have aproperty interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).”’ In the recent hearings, witnesses spoke of the desire for “deliverables” sought with the aid. Whatever those “deliverables” may have been, they were not property as defined for the purposes of extortion any more than the “logrolling” rejected in Blagojevich.

There is one other aspect of the Blagojevich opinion worth noting. As I discussed earlier, the fact that the military aid was required to be obligated by the end of September weakens the allegation of bribery. Witnesses called before the House Intelligence Committee testified that delays were common, but that aid had to be released by September 30th. It was released on September 11th. The ability to deny the aid, or to even withhold it past September 30th is questionable and could have been challenged in court. The status of the funds also undermines the expansive claims on what constitutes an “official right” or “property”:

“The indictment charged Blagojevich with the ‘color of official right’ version of extortion, but none of the evidence suggests that Blagojevich claimed to have an ‘official right’ to a job in the Cabinet. He did have an ‘official right’ to appoint a new Senator, but unless a position in the Cabinet is ‘property’ from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not ‘property’ in the hands of a  public  agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).”

A request for an investigation in another country or the release of money already authorized for Ukraine are even more far afield from the property concepts addressed by the Seventh Circuit.

The obvious flaws in the extortion theory were also made plain by the Supreme Court in Sekhar v. United States, where the defendant sent emails threatening to reveal embarrassing personal information to the New York State Comptroller’s general counsel in order to secure the investment of pension funds with the defendant. In an argument analogous to the current claims, the prosecutors suggested political or administrative support was a form of intangible property. As in McDonnell, the Court was unanimous in rejecting the “absurd” definition of property. The Court was highly dismissive of such convenient linguistic arguments and noted that “shifting and imprecise characterization of

the alleged property at issue betrays the weakness of its case.”94 It concluded that “[a]dopting the Government’s theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. That we cannot do.”95 Nor should Congress. Much like such expansive interpretations would be “absurd” for citizens in criminal cases, it would be equally absurd in impeachment cases.

To define a request of this kind as extortion would again convert much of politics into a criminal enterprise. Indeed, much of politics is the leveraging of aid or subsidies or grants for votes and support. In Blagojevich, the court dismissed such “logrolling” as the basis for extortion since it is “a common exercise.” If anything of political value is now the subject of the Hobbs Act, the challenge in Washington would not be defining what extortion is, but what it is not.

D.  Campaign Finance Violation

Some individuals have claimed that the request for investigations also constitutes a felony violation of the election finance laws. Given the clear language of that law and the controlling case law, there are no good-faith grounds for such an argument. To put it simply, this dog won’t hunt as either a criminal or impeachment matter. U.S.C. section 30121 of Title 52 states: “It shall be unlawful for a foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”

On first blush, federal election laws would seem to offer more flexibility to the House since the Federal Election Commission has adopted a broad interpretation of what can constitute a “thing of value” as a contribution. The Commission states “’Anything of value’ includes all ‘in-kind contributions,’ defined as ‘the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.’” However, the Justice Department already reviewed the call and correctly concluded it was not a federal election violation. This determination was made by the prosecutors who make the decisions on whether to bring such cases. The Justice Department concluded that the call did not involve a request for a “thing of value” under the federal law. Congress would be alleging a crime that has been declared not to be a crime by career prosecutors. Such a decision would highlight the danger of claiming criminal acts, while insisting that impeachment does not require actual crimes. The “close enough for impeachment” argument will only undermine the legitimacy of the impeachment process, particularly if dependent on an election fraud allegation that itself is based on a demonstrably slipshod theory. Continue reading →

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

/ Jack Marshall / 17 Comments

Good Morning!

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

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

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

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

Oh come ON. Continue reading →

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

/ Jack Marshall / 21 Comments

( Part I is here.)

Professor Turley’s testimony continues…

B.  The Nixon Inquiry

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

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

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

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

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

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

/ Jack Marshall / 24 Comments

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

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

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

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

INTRODUCTION

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

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

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

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

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

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

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

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

The Betrayal And Ultimate Triumph Of Dorothy Seymour Wills

/ Jack Marshall / 16 Comments

There was an upsetting ethics story in the obituaries last week. It told the tale of the rank injustice perpetrated by a famous and much-honored researcher, historian and author on his collaborator, from whom he withheld  credit and recognition—because she was his wife.

Dorothy Seymour Mills collaborated for more than 30 years on a landmark three-volume history of baseball with her first husband, Harold Seymour. Their work, originally attributed only to him,  is regarded as the first significant scholarly account of baseball’s past.  (“No one may call himself a student of baseball history without having read these indispensable works.” John Thorn in 2010, then Major League Baseball’s official historian.)

“Baseball: The Early Years” (1960), “Baseball: The Golden Age” (1971) and “Baseball: The People’s Game” (1990) all were completed with substantial and indispensable contributions by Dorothy, who, unlike her husband, was not a baseball fan. (“You write a lot more objectively about a subject you’re not in love with,” she once observed.) She was the primary researcher, organized the projects, typed the manuscripts, prepared the indexes (ugh) and edited each book before it went to the publisher. Because of her husband’s failing health, she wrote a substantial portion of “Baseball: The People’s Game.” Yet her husband adamantly refused to give her an author’s credit. Each book bore only Harold Seymour’s name, and hers was relegated to the acknowledgments.  The first book in the trilogy, “Baseball: The Early Years,” received rave reviews.  Sports Illustrated compared Seymour to Edward Gibbon, the iconic historian who wrote “The History of the Decline and Fall of the Roman Empire.” Dorothy was invisible, and her husband wanted it that way. Continue reading →