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Ethics Observations On FBI Director Comey’s Statement Regarding The Clinton Investigation

/ Jack Marshall / 132 Comments

James Comey

The transcript of FBI Director James Comey’s full remarks on the Clinton e-mail probe follow. I will highlight important sections in bold, and in some cases, bold and red. My  observations will follow.

Good morning. I’m here to give you an update on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State.

After a tremendous amount of work over the last year, the FBI is completing its investigation and referring the case to the Department of Justice for a prosecutive decision. What I would like to do today is tell you three things: what we did; what we found; and what we are recommending to the Department of Justice.

This will be an unusual statement in at least a couple ways. First, I am going to include more detail about our process than I ordinarily would, because I think the American people deserve those details in a case of intense public interest. Second, I have not coordinated or reviewed this statement in any way with the Department of Justice or any other part of the government. They do not know what I am about to say.

I want to start by thanking the FBI employees who did remarkable work in this case. Once you have a better sense of how much we have done, you will understand why I am so grateful and proud of their efforts.

So, first, what we have done:

The investigation began as a referral from the Intelligence Community Inspector General in connection with Secretary Clinton’s use of a personal e-mail server during her time as Secretary of State. The referral focused on whether classified information was transmitted on that personal system.

Our investigation looked at whether there is evidence classified information was improperly stored or transmitted on that personal system, in violation of a federal statute making it a felony to mishandle classified information either intentionally or in a grossly negligent way, or a second statute making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities.

Consistent with our counterintelligence responsibilities, we have also investigated to determine whether there is evidence of computer intrusion in connection with the personal e-mail server by any foreign power, or other hostile actors.

I have so far used the singular term, “e-mail server,” in describing the referral that began our investigation. It turns out to have been more complicated than that. Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways. Piecing all of that back together — to gain as full an understanding as possible of the ways in which personal e-mail was used for government work — has been a painstaking undertaking, requiring thousands of hours of effort.

For example, when one of Secretary Clinton’s original personal servers was decommissioned in 2013, the e-mail software was removed. Doing that didn’t remove the e-mail content, but it was like removing the frame from a huge finished jigsaw puzzle and dumping the pieces on the floor. The effect was that millions of e-mail fragments end up unsorted in the server’s unused — or “slack”— space. We searched through all of it to see what was there, and what parts of the puzzle could be put back together.

FBI investigators have also read all of the approximately 30,000 e-mails provided by Secretary Clinton to the State Department in December 2014. Where an e-mail was assessed as possibly containing classified information, the FBI referred the e-mail to any U.S. government agency that was a likely “owner” of information in the e-mail, so that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received, or whether there was reason to classify the e-mail now, even if its content was not classified at the time it was sent (that is the process sometimes referred to as “up-classifying”).

From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the e-mails were sent.

Continue reading →

Fourth Of July Ethics: The Signers, Snopes, And Fact-Checking

/ Jack Marshall / 11 Comments

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I received  this inspiring bit of Americana from an old friend, a Marine and lawyer with a love of history. It’s a screed of unknown origin that has been circulating the internet since the 20th Century. Maybe you’ve seen it too:

The Price They Paid

Have you ever wondered what happened to the 56men who signed the Declaration of Independence?

Five signers were captured by the British as traitors, and tortured before they died.

Twelve had their homes ransacked and burned.

Two lost their sons serving in the Revolutionary Army; another had two sons captured.

Nine of the 56 fought and died from wounds or hardships of the Revolutionary War.

They signed and they pledged their lives, their fortunes, and their sacred honor.

What kind of men were they?

Twenty-four were lawyers and jurists.

Eleven were merchants, nine were farmers and large plantation owners; men of means, well-educated, but they signed the Declaration of Independence knowing full well that the penalty would be death if they were captured.

Carter Braxton of Virginia, a wealthy planter and trader, saw his ships swept from the seas by the British Navy. He sold his home and properties to pay his debts, and died in rags.

Thomas McKean was so hounded by British that he was forced to move his family almost constantly. He served in the Congress without pay, his family was kept in hiding. His possessions were taken from him – poverty was his reward.

Vandals or soldiers looted properties of Ellery, Hall, Clymer, Walton, Gwinnett, Heyward, Rutledge, and Middleton.

At Battle of Yorktown, Thomas Nelson,Jr., noted that the British General Cornwallis had taken over the Nelson home for his headquarters. He quietly urged General George Washington to open fire. The home was destroyed, and Nelson died bankrupt.

Francis Lewis had his home and properties destroyed. The enemy jailed his wife, and she died within a few months.

John Hart was driven from his wife’s bedside as she was dying. Their 13 children fled for their lives. His fields and his  gristmill were laid to waste. For more than a year he lived in forests and caves, returning home to find his wife dead and his children vanished.

So, take a few minutes while enjoying your 4th of July holiday and silently thank these patriots.  It’s not much to ask for the price they paid.

Remember: freedom is never free! We thank these early patriots, as well as those patriots now fighting to KEEP our freedom!

I hope you will show your support by sending this to as many people as you can, please. It’s time we get the word out that patriotism is NOT a sin, and the Fourth of July has more MEANING to it than beer, fireworks, HOT DOGS,  and picnics……

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The purpose and primary message of the post is irrefutably true. Those who signed the Declaration did so at great personal risk and sacrifice. Had the new nation failed in its revolution—and really, it is amazing that it didn’t—all of them would have been hanged as traitors. It was an act of principle and courage, and what happened later is entirely moral luck. The signers would have been no less honorable, remarkable and heroic if every single one of them, by various strokes of good fortune, had become wealthy, powerful, prospered in everything they did and died in advanced years, like Franklin, Adams and Jefferson. Unfortunately, most citizens lack the education, acumen and tools to figure this out, so we get stuff that equates random and uncontrollable misfortune with enhanced virtue. Continue reading →

Yes, That Was A Microaggression

/ Jack Marshall / 14 Comments

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Danielle Brooks, the African-American actress who plays Taystee in “Orange is the New Black,” felt that she had been insulted and racially stereotyped as she boarded a plane this week with a First Class ticket because she is, you know, rich. Thus she used  Twitter to complain about a “microaggression.”

I hate when gate agents look at me like I’ve never flown first class and say “You’re in first class, lucky you!”???? really tho

— Danielle Brooks (@thedanieb) June 30, 2016

The celebrity news site Heat Street mocked her complaint, and the mockery was picked up by some conservative sites, though many in the Twitterverse  supported the complaint. Sneered Ed Driscoll on Instapundit:

The nerve of that gate agent! Making $45K a year and not even having an expensive cadre of writers sculpting her dialogue and a director shaping her performance and a cameraman shooting take after take to get things just so! Incidentally, I wonder if the people who imagine all of these microagressions occurring ever wonder why they just keep happening over and over to them? But, really, as with Alec Baldwin accosting American Airlines stewardesses, what’s the sense of being a leftist one percenter who believes in tolerance and diversity if you can’t publicly attack people who actually work for a living? 

Driscoll’s comment is classic conservative jerkism. Brooks was right; the comment was condescending and based on racial stereotypes, she was right to be insulted, and right to make a public comment that might make others aware of what such a comment conveys. Continue reading →

No, Ashleigh, That Isn’t “Libel,” And Why Are You Hosting A CNN Show Called “Legal Affairs” When You Don’t Know That?

/ Jack Marshall / 5 Comments

Ashleigh-Banfield

In an epic clash of incompetents, CNN’s Ashleigh Banfield challenged Michael Cohen, one of Donald Trump‘s advisers over his retweeting an internet meme that said that Hillary Clinton “murdered” the victims of the Benghazi mission assault.

After the House Benghazi Select Committee released its final report on the 2012 terror attacks, Cohen delivered his tweet featuring this…

Cohen tweet

It is about as stupid, lazy and inflammatory as most political memes, and the fact that Cohen would think it worth circulating tells us all we need to know about both him and the man who pays him, who would have probably tweeted this junk himself if Cohen hadn’t. Remember Cohen? He’s the Trump lawyer who crudely threatened the Daily Beast and went on to proclaim that spousal rape was legal, when it isn’t. Cohen is, by definition, a thug, a creep, and a crummy lawyer. Naturally, he’s also a Trump advisor. (Tell me again how Trump, that keen judge of legal talent,  can be trusted to appoint better Supreme Court justices than Clinton would. Or that Honey Boo-Boo would.)

Sparring with Cohen on her show “Legal Views,” Ashleigh Banfield lectured the lawyer and told him, “This is libel.” thus making exactly as accurate a statement of law as Cohen’s earlier one about spousal rape. It was not libel. It was inflammatory political speech in a satirical context (would anyone think Clinton actually said this, as the meme suggests?) about a public figure, clearly an opinion rather than a statement intended to be taken literally, and no more libel than “Bush lied and people died.” Banfield’s diagnosis was 100% wrong, and the fervor with which it was delivered is the calling card of a Clinton defender. Continue reading →

Johnny Manziel’s Lawyer’s E-Mail Ethics Disaster

/ Jack Marshall / 13 Comments

email mistake

In an article last year inspired by increased attention in the legal profession prompted by Hillary Clinton’s epic incompetence handling her e-mail, New York’s Legal Ethics Reporter last year published “Ethical Implications & Best Practices for Use of Email.” It began with a quiz:

Which of the following statements are true?

A. Email is a wonderful tool for the successful practice of law.

B. Email not only saves time and money, but also allows for prompt communication with clients, colleagues, and opposing counsel.

C. Email is overused, often results in incomplete or inaccurate responses to inquiries, and fills up your Inbox with useless information.

D. Careless use of email can subject the sending lawyer to embarrassment, unhappy clients, lost income, breach of the duty of confidentiality, discipline, or claims of malpractice.

E. All of the above.

The correct answer is E— All of the above.

One reason lawyers are, as a group, far less forgiving of Hillary’s nonsense (and lies) is that her conduct, if it involved a client, and not just a relatively minor institution like the U.S. State Department, would constitute a clear violation of  the ethics rules covering competence and confidentiality. (Let’s ignore, for now, the rules requiring honesty and the avoidance of conflicts of interest.). Work- and case-related e-mail must be handled with care, or disasters occur. One of the lawyers for disgraced ex-NFL quarterback Johnny Manziel just provided a lesson in how that can happen, and it is going directly into my next seminar.

Defense attorney Bob Hinton, representing  Manziel  in a hit-and-run case, accidentally sent an Associated Press reporter an e-mail intended for the athlete’s legal team. The misdirection appears to be the result of an auto-address feature that assumed whom Hinton wanted to communicate with based on the first few letters he typed.

In the memo, Hinton expresses exasperation at the extent of Manziel’s dependence on illegal drugs, and reveals that he has a receipt that shows Manziel may have spent more than $1,000 at a drug paraphernalia store just 15 hours after he was involved in the crash. “Heaven help us if one of the conditions is to pee in a bottle,”  the lawyer wrote. This is a problem, since Manziel is seeking a plea deal that almost certainly would require periodic drug tests. Continue reading →

Why Does Colby College Think That It’s Ethical To Keep A “Bias Incident Log”?

/ Jack Marshall / 14 Comments
Might be time for a new motto, Colby. On the other hand...

Might be time for a new motto, Colby. On the other hand…

Wait…you say that more than a hundred campuses have this or the equivalent?

Oh-oh.

I am scheduled to teach a legal ethics class in the avoidance of bias in the practice of law next year, and I’m already worried. Past engagements of mine on this topic have been popular with attendees, but not always appreciated by my clients. The bar associations that make such training mandatory usually want to get someone to drone on about how lawyers should love Big Politically Correct Brother and search their souls for any germ of an attitude that would make Chris Matthews say they are racist, or the President of NARAL say they are sexist, or a Black Lives Matter activist call them privileged.  In other words, these are often devised as political indoctrination courses, using “bias” as code for “non-conforming thoughts according to progressive orthodoxy.”

I can’t and won’t teach that, because it’s as wrong as it is boring. Bias includes all ideas wedged in our minds that overcome reason and prevent just, even-handed, logical and fair decision-making. Bias makes us stupid, and for lawyers, the kind of bias I’m talking about undermines justice. Ironically, what most proponents of anti-bias courses want to do is instill biases that they and their partisan allies approve of. Once that is done, the Orwellian process is complete. “Bias” then means “not accepting our biases, which aren’t biases because we believe them, and we are good.”  The rationalization involved is 14. Self-validating Virtue.

The news and ethics issues are reaching one of those crisis points for me where everything seems to be connected to everything else, and I am torn whether to write one huge, conceptual post (the ones most readers skip) or a series of single episode posts. Facebook, a topic on its own, is revealing most of my friends whom I would identify as Democrats or progressives as in the grip of a crippling cognitive bias-based malady. Why did they think it was just wonderful for so many elected officials to deliberately ignore the core Constitutional principle of due process? Why did they reflexively attack the British vote to leave the European Union as “racist” or “xenophobic” rather than recognize it as a principled reassertion of their nation’s autonomy and democratic principles? How did freedom of speech, freedom of thought, true civil rights, and democracy itself become so alien to so many supposedly intelligent and self-proclaimed liberal adults?

Don’t worry, I’m coming back to Colby. It really does come down to bad and anti-American education poisoning the culture. In an excellent though disturbing essay on the Ethics And Public Policy website, Stanley Kurtz persuasively argues that U.S. education itself has turned against liberty, resulting in an increasing majority of citizens who do not believe or accept the virtues of core American ideals.

The incident that brought my attention to the Colby Bias Incident Log, which, at Colby and elsewhere, sends a Bias Response Team into investigation mode, was one in which a student was reported for allegedly using the idiom “on the other hand.”

No, this is not a hoax. It is not a joke. And what the fact that I am writing this suggests is far from funny. It is tragic. Continue reading →

Eureka! Some Enlightenment Out Of The Orlando Terrorist Ethics Train Wreck! Presenting Rationalization #40 B, The Lone Inspiration Excuse, or “Do YOU Have A Better Idea?”

/ Jack Marshall / 28 Comments

Eureka

The human mind’s infinite ability to devise rationalizations to justify unethical or irresponsible conduct apparently has no bounds. One way that I have discovered many of the nearly 60 excuses, fallacies, deceits, and ethical distortions that make up the Rationalizations List is to argue with intelligent people who are determined to justify conduct that is simply unjustifiable using such legitimate tools as logic, analysis, common sense and traditional ethics. Lacking good arguments and being unwilling to do that hardest thing—give up and admit they are wrong—they pin their position on a rationalization…sometimes one I had never heard before.

The public debate over the various proposals to “do something!” about mass shootings is as depressing as any discussion I have ever participated in. The willingness of gun opponents, Democrats, journalists, pundits and otherwise intelligent people to not only defy the Bill of Rights guarantee of due process but to literally ignore its existence shows how close the stinking breath of totalitarianism is to the neck on our nation, and that it is much hotter than I realized. This isn’t an exception or an anomaly. This is a result of carefully bred contempt for American values.

The intense ignorance crossed with malice toward our Constitution reached a climax of sorts today on social media, as people who should know better (and people who do know better, like erstwhile Harvard Law professor Elizabeth Warren) applauded the cynical and hypocritical “sit-in” by House Democrats, who said they would hold their breath until they turned blue unless the Congress of the United States voted to allow the government to take away the rights of citizens based on “suspicion.” Only rationalizations can defend this position, primarily among them “The Saint’s Excuse,” or “It’s for a good cause,” “It” is this case meaning..

  • Accepting the ethically and morally bankrupt principle that “the ends justify the means”
  • Setting a precedent for allowing the government to abridge any rights it chooses once by some standard it finds a law-abiding citizen “unworthy”
  • Enacting a provision that the ACLU has pronounced unconstitutional
  • Establishing the principle that the Congress can and will abandon the rule of law as long as enough members of the public and media let emotion overcome reality
  • Lay the groundwork for a President, like say, just to pick a crazy, impossible example out of the air, President Trump, who is as ignorant of the rule of law as the position’s supporters, to really start ripping up the Bill of Rights, beginning with Freedom of the Press, Freedom of Religion and Freedom of Association.

To put it another way, it’s a really, really stupid and indefensible position.

[ The House sit-in just ended, by the way, after about a day. Nah, it wasn’t a publicity stunt! ] Continue reading →

Unethical Headline Of A Week Of Unethical Headlines: Mother Jones

/ Jack Marshall / 73 Comments

Senate vote

Almost Every GOP Senator Just Voted to Keep Letting Terror Suspects Buy Guns

You know, I just had an astounding and depressing exchange with a knee-jerk Democrat friend, who reacted to my Facebook post pointing out that CNN’s fake legal expert Ashleigh Banfield—who hosts a show called “Legal Views” and not only isn’t a lawyer, but can barely spell “Constitution”—displayed her rank ignorance once again by expressing amazement that anyone could possibly object to a law banning those placed without due process on a secret list, based on mere suspicion, from buying a gun. It’s called the Fifth Amendment, Ashleigh, you smug incompetent fool–read it. My friend’s response to this utterly factual post was the non sequitur that SCOTUS refused to review a lower court decision upholding a Connecticut law banning semi-automatic rifles. “The Supreme Court disagrees with you,” he wrote.

Huh?

You see, the left is deranged and incoherent on this issue. Totally bats, with principles draining out their ears. Because I object to breaching the core Constitutional principle of due process for any purpose–like every American should; it’s not a partisan issue—he “reasoned” that I must therefore believe that there is a right to own semi-automatic weapons. In fact, I have no position on that and didn’t mention it anywhere in the post. But, you see, good little gun-hating zealots like him believe that if you understand that Guns BAD, you must naturally approve of gutting the rule of law and the Constitution to restrict the sale of guns.  If you won’t happily gut the Fifth Amendment, you must be a gun nut.

The ends justify the means for these people. Constitutional principles only apply to good progressives and their favorite rights. Continue reading →

Ethics Quote Of The Week: My Friend Mark On Facebook, Politics, Community, And Fathers Day

/ Jack Marshall / 5 Comments

wisdom

In my recent essay about my Facebook friends’ reactions and over-reactions to the Orlando shooting, I referred to one particular Facebook post and my critical response to it. As I suspected, knowing that poster and his character like I do, my friend Mark commented on the essay, and followed up with this statement on Facebook. I asked if he would grant me permission to quote him, and he did.

This is an extraordinarily ethical and thoughtful man, and this is how an ethical human being thinks when emotion and non-ethical considerations become the strongest.

This is what an ethics alarm ringing sounds like.

Having suffered a near-toxic overload of Facebook this week, I’m going to give the points to Facebook and withdraw from the game for a few days. I love being here and interacting with my friends, family, and especially with those who don’t necessarily share my beliefs. Argument can be fun and challenging.

But.

We need to start being more careful with each other, especially in times of sorrow like this last week. What we forget (and what I have learned recently in myself) is that these shootings traumatize the whole country in one way or another – whether a fear of a loss of rights and liberty on one side, or increasing fear for bodily safety in our every day lives on the other. Orlando becomes DC becomes Kansas becomes California becomes . . . When American citizens die, we are – or should be – all in this together. The poisonous dialog I’ve witnessed and, sadly, participated in or instigated this week shows that I, at least, had forgotten that.

Continue reading →

The NBA’s Integrity And Trust Problem Bites It In The Finals

/ Jack Marshall / 15 Comments

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I don’t watch the NBA any more. The reason is that the games are so obviously subject to manipulation by bias that it is, well, not quite as dubious for legitimate sport as professional wrestling, but still too much so to be worth my time…or yours, frankly, but people spend time cheering for pro wrestlers too.

The problem is the referees, who have so much discretion in calling fouls that they can make the game turn out any way they choose. The fact that the NBA has such a huge home court advantage despite the fact that all courts are the same is also suspicious. Baseball, in contrast, with fields that vary materially in size and dimensions, has a very small home team edge. Biases, intentional or subconscious, control pro basketball, accounting for oddly frequent games decided in the last ten minutes, a propensity for allowing superstars to get away with infractions that lesser players do not, and seven game play-off series.

Sorry, I don’t like being a patsy, so I refuse to care.

There’s going to be a huge Game 7 of the NBA Finals  on ABC Sunday, because the underdog Cleveland Cavaliers beat the Golden State Warriors and denied them the NBA  Championship for the second straight game last Thursday night. Game Six’s exciting finish was greatly affected by the fact that Warriors uber-star  Steph Curry got ejected in the closing minutes of play after receiving a technical foul. Ayesha Curry, his wife, alleged a different kind of foul, tweeting…

ayesha-curry-tweet

Lots of other fans came to the same conclusion, though Ayesha was quickly informed by the league that they knew where her mother lived, or something, and she deleted the tweet.  Warriors’ head coach Steve Kerr wrote after the loss, “He gets six fouls on him; three were absolutely ridiculous.” Kerr knows that referees will usually move heaven and earth not to let a superstar foul out in regulation of a play-off game…unless, perhaps, there’s a good reason to let it happen. Continue reading →