That’s the embarrassing first sheet of the more than 100 page lawsuit filed by lawyer Sidney Powell asking that 96,000 ballots (“at minimum”) in Georgia be disqualified. This is apparently the attack on the Georgia election that Powell referred to as releasing “the Kraken.”
Nobody seems to feel it’s necessary to explain that “Release the Kraken” is a reference to the semi-cheesy Ray Harryhousen stop-action film “Clash of the Titans,” which starred “LA Law’s” Harry Hamlin as Perseus, the Greek mythological hero. In the movie (though not in mythology), Perseus defeats the monstrous Kraken, which is released by the bad guys to kill him and Andromeda (it’s complicated). For some reason Perseus, in addition to carrying around Medusa’s head (which turns the Kraken to stone), rides the winged horse Pegasus. Pegasus was the transportation of a different Greek myth hero, Bellerophon. Neither Bellerophon nor Perseus had anything to do with the Kraken, which is not even a Greek myth monster. It’s Scandinavian, and is basically a giant squid.
I will stipulate that the newest Supreme Court Justice does not have to recuse, and that even the judicial ethics rules applying to other Federal judges (no judicial ethics rules are controlling for Supreme Court justices) would not require recusal in Justice Barrett’s circumstances.
I will also concede that the arguments that she should not recuse are significant and important:
1. Were she to recuse, it would be interpreted by many as an acknowledgment that her Senate critics and others were correct to suspect that she was nominated to assist the President if necessary in any Supreme Court challenges to the election results.
2. Her recusal would suggest a precedent holding that a Justice being nominated by a President creates a rebuttable presumption that such a Justice has a conflict of interest that would interfere with the Justice’s ability to exercise independent and objective judgment in any case directly affecting that President’s interests.
3. Her recusal would leave the Court with a potential 4-4 split on a case that would have major impact on the nation.
4. Democratic officials’ demands that she recuse herself are driven purely by partisanship, and are hypocritical. Justice Kagan, appointed by President Obama, did not recuse herself in cases involving the Affordable Care Act, for example.
I’m writing this while simultaneously watching an Ethics Rock Extreme Zoom replay and answering typed-in questions from participants. Boy, I hate watching and listening to myself….
1. Unethical website? www.everylegalvote.com is labeled by the New York Times as “promoting claims of fraud, built on fantasy.” I’d call the big map showing Biden with 214 Electoral votes and the President with 232 misleading. I also find the Times’ constant refrain in headlines and stories that the President is “trying to subvert a free and fair election with false claims of fraud” an outright lie.” The 2020 election was not “fair” because of biased and manipulated reporting by the Times and most of the media, and there is no question that many of the allegations of fraud are accurate, with legitimate reasons to suspect broader corruption.
The site is also serving valid purpose since the news media isn’t reporting the current controversies objectively.
2. And this is why most celebrities and actors should shut up, because they make people stupid. Here is actress Kristen Stewart’s response to a interviewers question on how she feels about gay activists demanding that only gay actors should be allowed to play gay characters (Stewart decided she was gay mid-career. Whether she stays gay —think Ann Heche—is an open question. It’s all about branding…) :
I would never want to tell a story that really should be told by somebody who’s lived that experience. Having said that, it’s a slippery slope conversation because that means I could never play another straight character if I’m going to hold everyone to the letter of this particular law. I think it’s such a gray area. There are ways for men to tell women’s stories, or ways for women to tell men’s stories. But we need to have our finger on the pulse and actually have to care. You kind of know where you’re allowed. I mean, if you’re telling a story about a community and they’re not welcoming to you, then fuck off. But if they are, and you’re becoming an ally and a part of it and there’s something that drove you there in the first place that makes you uniquely endowed with a perspective that might be worthwhile, there’s nothing wrong with learning about each other. And therefore helping each other tell stories. So I don’t have a sure-shot answer for that….Sometimes, artfully speaking, you’re just drawn to a certain group of people. I could defend that, but I’m sure that somebody with a different perspective could make me feel bad about that — and then make me renege on everything I’ve just said. I acknowledge the world that we live in. And I absolutely would never want to traipse on someone else’s opportunity to do that — I would feel terrible about that. So my answer is fucking think about what you’re doing! And don’t be an asshole.
That was the recording the lovely and brilliant Grace Bowen Marshall and I danced to at our wedding reception. An old fashioned tune, you say? Hell, it was old-fashioned then. After an uproarious party featuring the combined talents of my two performing groups, The Showstoppers and The Music Lobby, seasoned by my cherished friend Jay Silva’s saxophone rendition of “Zing! Went the Strings of My Heart.” I performed “Let a Woman in Your Life” (from “My Fair Lady”), and it was off to the historic Hay-Adams hotel (across from the White House) and from there to a cozy Civil War era inn near Charlottesville, where the charming host brought us breakfast in bed, and his cat and dog slept with us. As I said: cozy.
And thus began a great adventure that still has some twists and turns, battles, defeats and triumphs to reveal.
What a wonderful day.
1. Stay classy, Jenna!
You know, once upon a time a public utterance like this would be viewed as a breach of legal professionalism, if not an outright ethics violation. By the standards of past Trump lawyers like Michael Cohen, however, it seems positively quaint.
This kind of thing is why I caution lawyers to avoid Twitter.
The Fruit of the Poisonous Tree is a century-old legal doctrine that extends the exclusionary rule to make evidence inadmissible in court if it was discovered as a result of illegally obtained information or evidence. If the evidence”tree” is “poisoned,” so is its “fruit.” The doctrine was established in the 1920 case of Silverthorne Lumber Co. v. United States; Justice Felix Frankfurter gets credit for the metaphor from his 1939 opinion in Nardone v. United States.
There are three exceptions to the rule. The evidence will not be excluded if it was discovered from a source unrelated to the illegal activity, if its discovery was inevitable, or if the connection between the illegal activity and the discovery of the evidence is weak. The most famous example of the doctrine in action is probably “Dirty Harry,” where a mad serial killer is set free because detective Harry Callahan locates where the maniac had buried a girl alive by torturing him until he revealed the information..
The “fruit of the poisonous tree” analogy has turned up in the Ethics Alarms comments and elsewhere on the web regarding a possible application to voter fraud in the 2020 election. The theory: even if enough votes in a particular state can’t be conclusively shown to have been fraudulent to change that state’s winner in the Presidential election, substantial proof of cheating by the party prevailing in that states’ voting ought to invalidate the result, since the vote total itself was the result of cheating, and the entire election is “poisoned.”
There is a lot wrong with the theory and the analogy, both from a legal and an ethical perspective.
The 2020 election has provided fertile ground upon which Republicans can spend the next four years doing to Joe Biden what the Democrats did to Donald Trump and George W. Bush.
For four years, Democrats and their media allies trumpeted every claim, no matter how baseless or crazy, that Trump’s 2016 election win was illegitimate and fraudulent. Despite zero evidence that so much as a single vote was interfered with, Democrats peddled the hoax that Russia interfered in the 2016 election to elect Trump. Even after the Mueller investigation exonerated Trump and his campaign from the collusion canard, Democrats, led by the shameless Adam Schiff, continued to allege collusion. Their simple goal was to undermine and delegitimize the Trump presidency. It clearly worked to the degree some voters turned their backs on Trump even as they voted Republican down-ballot….
Though he managed to get far more done than people give his team credit for, Trump governed under a dark cloud for most of his presidency. His team had to waste precious time and energy defending him against the Mueller investigation with its phalanx of Democratic hitman lawyers and corrupt FBI personnel. The media aided this assault by running stories over the last four years based on anonymous sources, several of which ended up being false. No president has had to undergo so thorough an investigation on such thinly-sourced claims. Trump may be lots of things, but he is as patriotic and faithful to America as any man who ever occupied the Oval Office….
…The fact of the matter is Biden’s call for unity is like the kid in your class who lost every game, but always shouted ‘starting now’ only after he was ahead. In the days since Biden asked Republicans to turn the other cheek, his old boss Barack Obama launched his book promotion by claiming that Trump only won in 2016 because too many Americans are racists. Obama followed that left hook to Main Street America by then denigrating Trump as a dictator despite the fact that it was Obama who arrested and investigated journalists during his presidency.
…One legacy of Trump is he taught Republicans how to fight back. Thus, what’s good for the goose is good for the gander. Biden will now serve under a cloud of suspicion and feel the heat as investigators dig into every nook and cranny of his family’s life. If Republicans pick up the handful of seats they now need to take back the US House in 2022, Biden and the Democrats will rue the day they made Schiff their attack dog.
Unrelated to any kind of stupid: Yesterday was the anniversary of the demise of my old friend, Glenn White, in 2013. I never got to attend a funeral or service for Glenn; his family didn’t see fit to let me know he had died, despite our association of thirty years. This is what I always will remember about Glenn: He knew what it meant to be a friend. We knew each other through theater, though he was a Fairfax City, Virginia politician. Glenn used to say, “If you need me, Jack, you just have to ask. I’ll be there.” And he always was. When he was in his late 70s, I needed someone to play an old man in one of my theater company’s shows. Glenn used to call himself The American Century Theater’s resident geezer, but he had moved to the Virginia countryside, and it was more than a three hour commute, round trip, to rehearsals and performances. My plight was barely out of my mouth when he said, “Sure, you can count on me.”
How many people do you get to meet in your life who are like that?
1. I really hate this...I spent precious time, as I was trying to get a post in before the clock struck 12 last night, writing about this story, published yesterday and passed along credulously by a U.S.news aggregator, only to find that the events described happened in 2019. I have encountered this before: some website is light on material, so it uses an old story for click-bait without stating the time frame until the very end.
2. Today’s inexcusable, biased, partisan and unethical headline from the New York Times front page: “Trump Targeting Michigan In Ploy To Subvert Election.” Clearly, the Times isn’t even trying any more. The use of “ploy” and “subvert” is not only editorializing, it’s irresponsible editorializing. There were certainly a lot of strange things going on in the Michigan voting and vote-counting;the state should be targeted. (There are strange things going on in Michigan generally.) If the Michigan vote was corrupted, discovering how and how much doesn’t “subvert” anything. If it turns out that Michigan actually was won by Trump—admittedly a remote possibility—then that discovery prevents the election from being subverted.
The Times’ job is to explain what the Trump campaign’s challenges to the election are in factual terms, not to speculate on diabolical motives, to trigger violence and subvert democracy.
1. I find it nearly impossible to believe that the presumed election of Joe Biden can be reversed by now. Moreover, if it were over-turned, the reaction from the Axis of Unethical Conduct—they are the violent ones, after all—would be too frightening to contemplate. Richard Nixon, of all people, looks better and better in the rear view mirror. In one of his few noble and self-less acts, Tricky Dick of all people decided that the consequences of overturning an election because of fraud and illegal voting tricks weren’t even worth winning the White House. Of course, the political differences between Nixon and Kennedy were puny compared to the divide today.
2. However, there is legitimate doubt today whether allowing election manipulation allegations to just fade away without legitimate scrutiny—as they certainly would once the Democrats take over the Executive Branch—wouldn’t be as destructive as what Nixon feared. It Trump concedes, one could argue, he’ll be allowing election fraud to succeed and even to become a “norm.” Finding and punishing election cheats are important even if they didn’t change the result.
Several of these items could support stand-alone posts, I suppose, but I have bigger metaphorical fish to fry. I’ve also figured out that traffic would look better if I broke some of these 800-1000 word posts into multiple 400-500 word bites, but to hell with it: a post should be as long as it has to to make the points I want to make. Traffic has also been excellent lately: from Election Day through yesterday EA has had the best extended streak since 2017. As usual with such surges, this has involved some quirks. For example, the post about Margaret Thatcher’s favorite poem has been leading all posts in clicks for three days. I didn’t see that coming…
1. Ethics Quiz:Which is more unethical, the creep who offers such tales out of school, or the publication that gives her a platform?
The entire genre of former school mates coming forward with unflattering and ancient anecdotes about political figures is unethical. Now that Ivanka Trump’s father is likely to be out of the White House next year, her seventh grade friend Lysandra Ohrstrom decided it was a safe to reveal what a creep the First Daughter was as a 13-year-old, because so few of us lacked a functioning ethics compass at that age. She also decided that she would enjoy being interviewed on various Trump-hating TV shows, I assume.
Why the woman continued to stay friends with someone she now says was an elitist snot is a mystery; yes, some of Lysandra’s tales impugn adult Ivanka as well as the child version.
One of her earliest memories of Ivanka is her blaming a fart on a less popular classmate. The monster! In their twenties, Ivanka asked Ohrstrom for a book suggestion and when her friend suggested “Empire Falls,” replied, “Why would you tell me to read a book about fucking poor people?” Ohrstrom also recalls Ivanka once telling her “You’ve really turned into a Marxist” during a discussion about affordable housing in Manhattan.
Is there anyone who has ever lived who doesn’t have embarrassing incidents that occurred early their lives and that they trust that the family and friends who witnessed them have the decency and loyalty not to inform the world? Ohstrom’s ignorance of the Golden Rule and her pathetic lunge for 15 minutes of fame tell us more about her character than reveal anything relevant about Ivanka Trump.
As discussed in the first section of this post, the once sacrosanct principle that lawyers and law firms were ethically obligated to represent unpopular clients when they needed legal assistance has been deteriorating for the last decade, most recently under pressure from the self-righteous Left. Victims of the new progressive ethic that the ends justify the means, Lawyers and law firms have been threatened when they dared to align themselves with the opposition to progressive agenda items, because, in the universe to the port side of the ideological spectrum, those who don’t agree with the righteous are evil.
And it seems clear that few lawyers possess the courage and integrity to remains professional in their response to such threats.
After the King & Spalding embarrassment described in the earlier post, a similar episode occurred involving Obamacare. In House of Representatives v. Burwell, the House challenged the legality of subsidies the Obama administration paid to insurers. After the House authorized the suit, David Rivkin and his firm, Baker Hostetler, signed a contract to litigate the case.
Rivkin was warned by members of the firm that litigating a case in opposition to Obama could drive off potential clients and hurt Baker Hostetler’s credibility…that is, its bottom line. Within a week after the contract was announced, partners at the firm, which represents many hospital management firms and insurance companies, started to receive urgent calls from general counsels of clients in the health-care industry. The messages were identical: their companies could not continue to associate with Baker Hostetler if it litigated the House’s lawsuit. Many suspected that the Obama administration was behind the scenes, urging health-care companies to drop Baker Hostetler. The firm dropped the case.
The House, suddenly without legal representation, frantically sounded out many of the top firms in Washington without success. The House finally selected D.C. lawyer William Burck of Quinn Emanuel Urquhart & Sullivan LLP. Three weeks later, without any explanation, Burck also withdrew from the case under pressure from his firm’s partners.
Ethics Alarms 