A Smoking Flip-Flop: Here Is Why Larry Tribe Cannot Be Regarded As An Objective Legal Authority Any More

/ Jack Marshall / 14 Comments

…well, other than the fact that his recent tweets indicate that the 77-year-old  prof is no longer playing with a full deck…*

I had a back-and-forth with a smart non-lawyer who is suffering from Trump Derangement, and who cited the opinions of Professor Tribe to counter Alan Dershowitz’s critique of the Mueller Report. He didn’t like my assertion that Tribe has proven himself to be a partisan hack of late, willing to espouse whatever public opinion the Left and “the resistance” will find useful.

Ed Whelan, the President of the Ethics and Public Policy Center, found this example of a cynical Tribe flip-flop, worthy of the gymnasts above, that shows what I mean:

 Back in early March 2016, a few weeks after Justice Scalia’s death created a vacancy on the Supreme Court, Harvard law professor Laurence Tribe was perhaps the most prominent of some 350 law professors to sign a letter asserting that the Senate had a “constitutional duty to give President Barack Obama’s Supreme Court nominee a prompt and fair hearing and a timely vote.” Declaring that “[t]he Senate’s obligation in this circumstance is clear,” the letter invoked the Appointments Clause of the Constitution.

But, as I and others (including liberal law professors Noah Feldman and Vik Amar) pointed out at the time, the position that Tribe took had no support in the text of the Constitution and contradicted perennial Senate practice on nominations. The Appointments Clause states only that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint” various executive-branch and judicial-branch officers. In other words, it restricts the president’s power of appointment by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But it says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Tribe’s position in March 2016 further surprised me because it contradicted Tribe’s own earlier (correct) recognition, in his 1985 book God Save This Honorable Court, that the Senate may block a Supreme Court nomination “by simply refusing to act upon it.”

I’m pleased to discover that Tribe now agrees that the Senate does not have a constitutional duty to take any action on a Supreme Court nominee. Continue reading →

The ABA Shuts Down Comments On The Articles In The ABA Journal

/ Jack Marshall / 41 Comments

Now that’s ironic. Like so many other publications and websites that prefer one-way communications of ideas, the official publication of the American Bar Association has announced that it will no longer allow readers to comment on its content. Yes, a profession that is all about rights and advocacy finds advocacy in response to legal opinion and analysis too inconvenient to deal with, and its readers free expression of ideas too burdensome to countenance.

The ABA Journal’s announcement was filled with disingenuous statements and half truths as bullet-pointed reasons for the move:

  • “The tone of the comments has become rancorous and uncivil, with substantive commentary being drowned out by partisanship and namecalling that violate the ABA Code of Conduct.”

Wait: how does “partisanship and namecalling” in the comment section of a website “violate the ABA Code of Conduct?”

What an embarrassing claim: the ABA doesn’t understand its own Model Rules! The word “partisanship” doesn’t appear anywhere in the rules, and the argument is hilarious anyway, since the ABA itself, an allegedly non-partisan non-profit, is extremely partisan, as a brief perusal of the various public positions it has taken on matters that really should be none of their business would make obvious. (Guess which party! Come on, guess!) Extreme namecalling under certain  circumstances during the practice of law may occasionally involve a sanctionable ethics breach for lawyers, but not for non-lawyers, retired lawyers and many other readers. The larger problem is this: the ABA Rules are just guidelines. They don’t officially apply to anybody, not even to ABA members. You can’t literally “violate” them, like they are rules or laws.

  • “Our existing commenting system is vulnerable to trolls.”

Then fix your system, but only after defining “trolls.” It is often a lawyer’s job to make trouble, stir the pot, and create productive friction.

  • “Moderating the comments has become an unsustainable burden on our staff.”

I guess the ABA Journal is incapable of running a website, then. Moderating comments, which as far as I can determine involves fewer comments per article than the typical Ethics Alarms post, cannot possibly be that difficult or time-consuming. It’s a staff-member, and not a highly paid one. This sounds like cover for a financial decision.

  • “We have fielded a number of complaints from members about individual comments and the tone of the comments as a whole.””

Oh! Complaints! Well, we all know how much lawyers hate complaints! (Who wrote this?)

  • “With our large social media presence, there are a number of platforms for readers to engage with and discuss our journalism.”

“Now, you  folks can’t eat here, but there are some real nice places down the road a piece…”

I would write a searing comment about this, but the ABA Journal won’t allow it…

Morning Ethics Drill, 5/7/19: Unethical Headlines, A Missing Coffee Cup, And A Comment Of The Day

/ Jack Marshall / 22 Comments

A morning that begins with a trip to the dentist and a referral to an oral surgeon can’t be good. Sorry.

And now I see that without warning or explanation, WordPress has removed its spellcheck feature. I’m sure those of you who are sick of my typos will appreciate THAT…

1. Stop making me defend Anderson Cooper, sort of! Here’s a cheap shot Fox News headline:

Anderson Cooper denies he’s ‘on the left,’ then rips Trump for tweeting about Kentucky Derby

Well, I’m also not on “the left” (Cooper is, of course), and I’m going to rip the President for tweeting his opinion on the Kentucky Derby, without even getting into the fact that his opinion was ill-informed and stupid.

As I wrote more than once during the Obama administration, the President is not the national arbiter of everything, and should keep his opinion to himself unless it directly and clearly involves the national interest. President Obama had a proclivity for injecting himself into controversies large and small, from the Trayvon Martin shooting to picking brackets for the NCAA college basketball tournament.  I wrote in this post,

This can no longer be called a rookie mistake, like the Prof. Gates arrest affair. President Obama has now had plenty of time to absorb the fact that the President does not have a blank check to insert himself into every local controversy and use his office to sway public opinion and the conduct of others regarding matters outside his responsibilities. Still, he continues to do it. It may seem trivial at first: the President gave an interview on TNT in which he pointedly suggested that NBA superstar LeBron James consider the Chicago Bulls as he faces free agency.  After weighing in on the most important things for James to seek from his current team, the Cleveland Cavaliers, if he was going to stay there, the President said, “You know, like I said, I don’t want to meddle. I will say this: (Derrick) Rose, Joakim Noah it’s a pretty good core. You know, you could see LeBron fitting in pretty well there.”

Now, I don’t care what Cooper thinks of Trump’s meddling in matters that don’t concern him if the CNN anchor didn’t have the integrity to knock Obama for doing the same thing, and repeatedly. Still, Anderson was on the right track—finally—to say, as he did,

“The president of the United States seems to have a lot of time on his hands And he can’t even stand some horses getting uninterrupted airtime. He’s got to be a part of every frickin news cycle. He can’t help himself!”

(I guess “frickin” is now considered professional lexicon at CNN. Stay classy, Anderson!)

Less defensible was this comment: Continue reading →

ARGHHH! Worlds Are Colliding! Baseball Jack Is Being Consumed By Ethics Jack! The Boston Red Sox Board The 2016 Post Election Ethics Train Wreck!!!!

/ Jack Marshall / 13 Comments

Oh, great.

One of the odious ways “the resistance” and Democrats have “violated democratic norms” in order to destroy the Trump Presidency is to rob this President of his traditional ceremonial role in national life, the so called “king” function, which exists to unify the nation. The king function comes from the acknowledgment that the President is the head of state and holds the people’s office as the only official (along with the VP) elected by every citizen. Beginning with their substantial boycott of his inauguration and continuing, indeed accelerating, with such insults as encouraging boycotts by recipients of the Kennedy Center Honors if the President participated and the White House Correspondents Dinner’s elimination–just for Trump, of course, of its tradition of a holding a good-natured  one-night truce with whomever was President, this is a deliberate assault on national unity and the office itself.

The politicizing of the once routine and uncontroversial tradition of the President hosting a visit to the People’s House by championship professional and college athletic teams has been a particularly divisive part of the deligitimization strategy, putting teams and athletes into the position of rendering judgments on matters they are generally unqualified to consider, and encouraging grandstanding and virtue-signaling. With no previous President has accepting this honor been  confused with endorsing the President’s character or policies. Women’s teams continued to accept invitations to be honored by Bill Clinton, for example, and if there were any critics of their decision, they had small megaphones and few adherents.

With this President, every invitation has become politically charged, and presented an opportunity for teams and athletes to insult the President of the United States. This irresponsible smear of the President and weakening of his office was neatly seeded by one of the many Big Lies weaponized, Goebbels-style, in pursuit of this President’s overthrow and destruction: “Donald Trump is a racist.” This one (there are others, and I hope to finish my survey of the lot today) has endured by being repeated so often, and by so many, usually without any supporting evidence because there is no evidence. Continue reading →

Funny! But Inexcusably Incompetent : “Game Of Thrones” Ethics

/ Jack Marshall / 43 Comments

Yes, somebody left a Starbucks cup on the set of last night’s much ballyhooed “Game of Thrones” episode on HBO.

It would be a good exercise to list all the rationalizations one could access to try to minimize such a massive botch, and avoid the likely consequences of making it. Without breaking an ethics sweat, I came up with…

  • 6. The Biblical Rationalizations, “Judge not, lest ye not be judged,” and “Let him who is without sin cast the first stone.”
  • 8. The Trivial Trap (“No harm no foul!”)
  • 19. The Perfection Diversion: “Nobody’s Perfect!” or “Everybody makes mistakes!”
  • 20. The “Just one mistake!” Fantasy
  • 22. The Comparative Virtue Excuse: “There are worse things.”
  • 38. The Miscreant’s Mulligan or “Give him/her/them/me a break!”
  • 50. The Apathy Defense, or “Nobody Cares.”
  • 64A. Bluto’s Mistake or “I said I was sorry!”

As silly as that “one mistake” seems, a head, or many heads, should roll. This tweet from an annoyed fan nicely sums the situation up: “You’re telling me they had TWO YEARS to put together a decent show and they couldn’t even spot the goddamn Starbucks cup in Winterfell??!” Continue reading →

Ethics Dunces: “More Than 370 Former Federal Prosecutors”

/ Jack Marshall / 24 Comments

It’s time to add former federal prosecutors to the nauseatingly long list of professionals and professions who have violated basic ethical principles out of uncontrolled animus towards President Trump.

From the Washington Post:

“More than 370 former federal prosecutors who worked in Republican and Democratic administrations have signed on to a statement asserting special counsel Robert S. Mueller III’s findings would have produced obstruction charges against President Trump — if not for the office he held.

The statement — signed by myriad former career government employees as well as high-profile political appointees — offers a rebuttal to Attorney General William P. Barr’s determination that the evidence Mueller uncovered was “not sufficient” to establish that Trump committed a crime.

Mueller had declined to say one way or the other whether Trump should have been charged, citing a Justice Department legal opinion that sitting presidents cannot be indicted, as well as concerns about the fairness of accusing someone for whom there can be no court proceeding.

“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice,” the former federal prosecutors wrote.

“We emphasize that these are not matters of close professional judgment,” they added. “Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here. . . . But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.”

…It was posted online Monday afternoon.

This isn’t even a close call. Professionals don’t do this if they have any respect for their profession, whatever it is. Continue reading →

Morning Ethics Warm-Up, 5/6/2019: Rosenstein, Barr, Green, And “Oklahoma!”

/ Jack Marshall / 56 Comments

Good morning!

Let’s make this an ethical week…

1 As we watch the desperate vilification of Attorney General Barr by Democrats…it is helpful to consider a recent speech by the now departed second in command at Justice, the ridiculously conflicted Rod Rosenstein. He said in part,

Rampant speculation here in D.C. is that Democrats are terrified that Barr’s promise of investigations of the Hillary Clinton inquiry and the process whereby the Trump campaign was surveilled will reveal serious misconduct in the Obama Administration.  This is, of course, mocked as a conspiracy theory by the people who just had their own conspiracy theory exploded. Here’s the usually reliable Kimberly Strassel in the Wall Street Journal (behind a paywall—sorry).

…Mr. Barr made real news in that Senate hearing, and while the press didn’t notice, Democrats did. The attorney general said he’d already assigned people at the Justice Department to assist his investigation of the origins of the Trump-Russia probe. He said his review would be far-reaching—that he was obtaining details from congressional investigations, from the ongoing probe by the department’s inspector general, Michael Horowitz, and even from Mr. Mueller’s work. Mr. Barr said the investigation wouldn’t focus only on the fall 2016 justifications for secret surveillance warrants against Trump team members but would go back months earlier.

He also said he’d focus on the infamous “dossier” concocted by opposition-research firm Fusion GPS and British former spy Christopher Steele, on which the FBI relied so heavily in its probe. Mr. Barr acknowledged his concern that the dossier itself could be Russian disinformation, a possibility he described as not “entirely speculative.” He also revealed that the department has “multiple criminal leak investigations under way” into the disclosure of classified details about the Trump-Russia investigation.

Do not underestimate how many powerful people in Washington have something to lose from Mr. Barr’s probe. Among them: Former and current leaders of the law-enforcement and intelligence communities. The Democratic Party pooh-bahs who paid a foreign national (Mr. Steele) to collect information from Russians and deliver it to the FBI. The government officials who misused their positions to target a presidential campaign. The leakers. The media. More than reputations are at risk. Revelations could lead to lawsuits, formal disciplinary actions, lost jobs, even criminal prosecution.

Quick! Let’s impeach Barr! Continue reading →

Althouse Ethics

/ Jack Marshall / 14 Comments

Blogger Ann Althouse, who doesn’t write an ethics blog but does a good job flagging ethics issues and outrages, had an unusually ethics-centered day of blogging. Here are brief comments from me on four of her posts, which you should read. I had two of these in my queue, and I’m grateful to Ann for saving me some time I desperately need,

Ann notes how, in the Post comments to the article, which has nothing to do with Donald Trump, some people cannot help using the topic to attack the President, as she writes, “Trump Derangement Syndrome, symptom #1: When things aren’t at all about Trump, you visualize violence against him and get off on your vision.”

This is, in a nutshell, what Facebook is like, every day. I could spend all my time writing, “Do you listen to yourself? You’re completely consumed by blind hate of the President of the United States. Get help. You’re embarrassing yourself, and making  society divided and ugly. You, and everyone like you. Not him. YOU. “

This is why Democrats are deluding themselves if they think poor Joe is a viable candidate. They can’t possibly attack President Trump for being dumb, inattentive, incompetent, old or mentally unfit with Biden making gaffes like this—or worse—almost daily, and he will make them almost daily, Continue reading →

Comment Of The Day: “Boy, The GOP Really, Really Likes Census Scams!”

/ Jack Marshall / 11 Comments

In this Comment of the Day, Chris Marschner expresses more sympathy for the frauds, scammers and bait-and-switch artists of the world, and less sympathy for the scammed, than I have. He is right, I think, that by the time someone fooled by fundraising letters masquerading as something else actually send in a donation they have figured things out. It doesn’t matter. The scam is fooling people into opening the letter.  And donors are indeed fools to willingly give money to any organization or entity that show such disrespect by using deceptive tactics.

Chris writes that people should read envelopes and mailers carefully. Sure they should, but reality is that they don’t. They also don’t read the small print in contracts, or users agreements on smart phones and social media sites. Human beings are wired to be trusting, not to assume that everyone is trying to pull something over on them. That’s a good thing. Society is based on trust. And little by little, in almost imperceptible ways, manipulative, unethical people and organizations erode that trust.

Here is Chris Marschner’s Comment of the Day on the post, “Boy, The GOP Really, Really Likes Census Scams!”:

I understand why people see this as sleazy but to say people sent money in because they were duped is unsupported. All one has to do is read the questions and see it it is pro- fill in the party. You can (should – provided you were not born yesterday) assume there will be an appeal for a donation.

Let me be very clear. Congress passed a law with a hole in it a 777 could fly through. I thought the lawyers that write the text of these laws are trained in writing. All that law needed to say is that the word census cannot be visible to tbe recipient prior to opening. Or, if you don’t want any misunderstanding simply say the word census may not be used anywhere in the mailing.

I get these types of fundraising letters from a variety of groups; police, firefighers, veterans etc. All appeal to some authority to compel action. Continue reading →

Sunday Ethics Reflections, 5/5/2019: Whew! Barely Got Three Items In Before My Head Exploded…

/ Jack Marshall / 29 Comments

 

I’m writing this bleary-eyed, in large part because our 15-year-old Jack Russell Terrier chose 3 am  to demand that we play what we call “The Bisky Game” –I don’t know what he calls it—a diversion of his own invention that involves tossing or nosing a dog biscuit at the nearest human, barking sharply two to four times, and demanding that the treat be flipped back to him, whereupon he will reject it by growling, barking, and tossing it back, until some mysterious force tells him that the game is over, whereupon he eats the damn thing. Usually this takes between five and ten tosses, but last night Rugby went for a record, and rejected his biscuit at least 15 times. Finally he ate it, licked my arm for about five minutes–a pre-bedtime tradition— and  went to sleep.  I did not.

1.  Live by bigotry, die by bigotry. “Captain Marvel” star Brie Larson, who got her big break in part because Marvel decided to turn a traditionally male superhero into a female, has pandered to social justice warriors and progressive bigotry in just about every way possible.  During the promotion of the hit film,  she said wanted more people of color to review her films, not white men. [ The ethical position would be to want competent reviewers to review the film, recognizing the competence is color-blind.) She that she doesn’t care what old white men thought of films that weren’t made for  them. She has said that we need more gay superheroes. Funny: as long as I’m being rescued and the world is being saved, I don’t care what the color, gender or sexual orientation of my hero is. How old white man of me.

Now, taking the grandstanding, virtue-signaling actress at her word—almost always an unwise thing to do when dealing with performers, someone has launched a  petition demanding,  “We need Brie Larson to step down from her role to prove she is an ally of social justice and ensure a gay woman of color plays the role.”

As of this writing, the petition currently has nearly tripled  its 3,000 signature goal. Good. Heck, I might sign it . Everyone should be required to abide by their publicly proclaimed principles, though such a rule would mean that Joe Biden would vanish from the face of the Earth. [Pointer: RedState ]

2. From the Ethics Alarms “Denial” and ” What is this ‘Accountability’ thing of which you speak?” files: professors Ethan Porter of George Washington University and Thomas J. Wood of Ohio State University have determined that when comedian Jon Stewart departed “The Daily Show,” its ratings fell, and this, they say, “spurred a 1.1% increase in Trump’s county-level vote share.” This from what passes today for a scholarly  paper, “Did Jon Stewart Elect Donald Trump? Evidence From Television Ratings Data” published in the journal Electoral Studies.

Kyle Smith of “The National Review” points out what should be obvious about this junk science… Continue reading →