Tag Archives: Alan Dershowitz

Ethics Quote Of The Day: Five Ninth Circuit Judges

“We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy.

For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches — and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end.”

—-Five judges of the U.S. 9th Circuit Court of Appeals  (Judges Jay Bybee,  joined by Judges Alex Kozinski, Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta, attacked what Bybee called the “fundamental errors” in the February decision of a three-judge panel upholding the temporary restraining order that blocked President Donald Trump’s first executive order temporarily halting immigration from seven Muslim-majority countries.

The opinion denounced the panel’s ruling as a “clear misstatement of law,” and stated that the five, constituting a larger number of judges than the three judge panel whose contrary holding was described as a “unanimous” 9th Circuit decision, had an”obligation to correct” it for the record.

“We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress,” the five judges stated.

Currently, the President’s revised order is held up by an even more widely criticized temporary restraining order issued by  U.S. District Judge Derrick K. Watson. As well as following many of the same lines of activist judicial reasoning the five judges criticized in their dissent, Judge Watson’s opinion heavily relies  on the campaign rhetoric of President Trump and statements by  chief aide Stephen Miller in TV interviews. This means, as several critical legal experts including Alan Dershowitz  have pointed out, that the exact same order, if issued by Barack Obama, would not have been blocked, and would have been found Constitutional.

Now that’s a double standard!

In criticizing their colleagues, the five judges said that the panel “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972) and ignored entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977).  The Supreme Court in Mandel recognized that First Amendment rights were implicated by an executive action but decided…

“when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 interests of those who seek personal communication with the applicant.”

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Sally Yates Is Not A Hero. Sally Yates Is An Unethical Lawyer, And “Betrayal” Is Not Too Strong A Word For Her Conduct

yates

When you read pundits, journalists, your Angry Left Facebook  friends and even a few misguided lawyer proclaiming Sally Yates a hero, trust me, they either don’t know what they are talking about, or they are have allowed bias to make them stupid.  The Justice Department’s acting Attorney General who was fired minutes ago for refusing to defend President Trump’s Executive Order regarding Middle East immigration was not acting heroically. She was acting as a partisan, political operative, and by doing so, breached her duties an attorney as well as the District of Columbia Rules of Professional Conduct.

And I do know what I am talking about.

Yates was a holdover from the Obama administration, but to an ethical lawyer, that wouldn’t have mattered. Her client hadn’t changed; it is the United States of America. Neither had her professional obligations. Her client was still the government of the United States, and she was still duty bound to defend its laws, as determined by the legislature and the executive, the President of the United States. Under the Rules of Professional Conduct of the jurisdiction in which she practices, the District of Columbia (the Rule is 1.13) Yates had but one ethical option if she determined that her client wanted to engage in conduct she deemed illegal, repugnant, or unwise. Having made her concerns known, she could resign (Rule 1.16) , and quietly. She is duty bound not to harm her client during the representation (Rule 1.3, of which the District has an especially tough version), nor make public statements, or statements she has reason to believe will be made public, that breach her duty of loyalty. In defiance of all of that, tonight Yates stated, in a letter to her department’s lawyers,

“At present, I am not convinced that the defense of the executive order is consistent with these responsibilities, nor am I convinced that the executive order is lawful.”

The only ethical conclusion of that statement is “therefore I am withdrawing.” Yates said that her decision not to defend the order included questions not only about the order’s lawfulness, but also whether it was a “wise or just” policy. That’s not her job. Lawyers are not permitted to substitute their judgement for their clients.

She was fired, and should have been. She should also be the subject of am ethics inquiry. This has nothing to do with the merits of Trump’s order. Former Harvard professor (and legal ethics prof) Alan Dershowitz, hardly a GOP flack, said tonight that Yates’ decision wasn’t legal, but political. Exactly. As a lawyer, she should have made her position clear from a legal perspective to the President, and then either followed his directive or quit. Her rogue announcement contradicted a finding by the Justice Department’s Office of Legal Counsel, which  approved the executive order “with respect to form and legality.” Nor did her outrageous grandstanding require courage. She was not going to keep her job anyway, so she decided to abuse the trust of the President to encourage partisan Trump-haters to hoot and applaud for an act of legal ethics defiance. (Ethics rules don’t apply when Donald Trump is involved, haven’t you heard?)

Yates is also a hypocrite. The Holder Justice Department, of which she was a part, defended multiple Executive Orders by President Obama that were legally dubious, and other actions as well. That Justice Department was one of the most disgracefully partisan within memory, a neat trick, since we have had a couple of decades of unethically partisan Justice Departments. Yates showed her pedigree tonight. She used her position as an attorney–the highest one there is—for her client, the United States, to undermine her client’s objectives, publicly and to her client’s detriment. The Trump administration has called this a betrayal.

That’s exactly what it is.

(More here..)

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Ethics Quote Of The Day: Washington Post Columnist Richard Cohen

'Oh, all right, here's what I really think, since I'm already ticked off...'

‘Oh, all right, here’s what I really think, since we’re way past the 2012 election and I’m already ticked off...’

 “The Russians managed to do what they wanted to do in Syria. Why not the United States? The answer has always been clear to me. Obama did not care enough. Not from him ever came a thundering demand that Russia and Iran get out and stay out. Behind the arguably persuasive reasons to do little in Syria was an emotional coldness. This was not Obama’s fight. Kellyanne Conway keeps pointing out that Hillary Clinton had no message. True. Neither for that matter did Obama. He waved a droopy flag. He did not want to make America great again. It was great enough for him already. The banner he flew was one of American diminishment. One could agree, one could not be proud . . . Since the end of world War II, American leadership has been essential to maintain world peace. Whether we liked it or not, we were the world’s policeman. There was no other cop on the beat. Now that leadership is gone. So, increasingly, will be peace.”

Richard Cohen, reliably liberal Washington Post op-ed columnist of long-standing, in his latest titled, “Thanks to no-drama Obama, American leadership is gone.

Good for Cohen. Like George Will on the conservative side, Cohen will occasionally break through his biases to pronounce hard truth. Except to pacifists and isolationists, Obama’s foreign policy has made the world a far more dangerous place, and created a power vacuum that is being filled by Russia, Iran, China and terrorist organizations. Weak, feckless and inept, the President’s foreign misadventures and evasions have been substantially shielded from accountability by public apathy, media alibis, and Hillary Clinton’s bind, which prevented her from articulating her own criticisms of our current foreign weakness  for fear that it would lose her the support of the blind Obama cheering section. Continue reading

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The Most Unethical Prosecutor Of All: Baltimore’s Marilyn Mosby

Mosby

In a legal ethics seminar I taught this week for government attorneys, the vast majority of them voted that Marilyn Mosby’s vainglorious announcement of charges against six officers in the death of Freddie Gray was prosecutorial abuse, and a blatant violation of professional ethics rule 3.8, which directs that (this is the Maryland version)…

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;


(e) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent an employee or other person under the control of the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Of course it was a breach of ethics, and an outrageous one. Her statement, which I discussed here, not only overstated her justification for bringing the charges, which were rushed and announced before a careful investigation was completed, it also stated that the officers were guilty, and worse, that the charges were being brought because the demonstrating and rioting protesters has demanded it. Mosby’s words suggested that she stood with the mob. Continue reading

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Unethical Web Site Of The Month: No Hate Speech Movement

hand over mouth

Right before the Paris terrorist attack on “Charlie Hebdo” I was going to post about No Hate Speech and decided, “Eh, this is too stupid.” Then, reflecting upon it in the light of the occurrences in subsequent days, I realized most of the many, primarily  young people, mostly well-meaning, sensitive, loving individuals who are represented on this almost unnavigable website—I hate that— would be making excuses for the Islamic terrorists who executed the French cartoonists, since by their definition, they engaged in “hate speech.”  ( “Of course terrorism is wrong, but...”)  They ended it too, didn’t they? At least they ended those particular speakers.

Free speech is being whittled away by the attempts to define free speech as excluding “hate.” Democratic Senator Ed Markey from Massachusetts—you know, that cradle of freedom, democracy, protestm ringing words, and me—has  introduced legislation calling for the government to investigate “hate speech” on broadcast, cable, and Internet outlets. As Alan Derschowitz noted, the effort and the logic surrounding the bill endangers liberty:

“It is a worthy effort, but my prediction is that it either leads to the conclusion government cannot do it, or that they will do it and that will infringe on First Amendment rights. Governments are trying to also make changes to hate speech law and debating the issue in Canada, at the United Nations, and even right now in Israel. It is a worldwide trend, but it is a really dangerous trend.”

I guess because Derschowitz is an upstanding Democrat, he can’t bring himself to say that it is not a worthy effort. It is an irresponsible trend, with a campaign that depends on ignorance, historical amnesia, naivete and hypocrisy. I was trying to remember why I, last year, allowed a passionate and prolific commenter who was prone to rash and obscene language, often attacking other commenters. NOW I recall: This was the reason. The movement to censor “offensive” speech is a leap onto Markey’s slippery, censorious slope. Hate is a legitimate, if ugly sentiment, and it has its place. That place is in our heads, and sometimes, out of our mouths or pens. You don’t like it?  I’m listening. I lost a lot of readers who were offended by Scott’s remarks. Well, I decided that that the ethical thing was to let those who objected 1) learn not read his comments or 2) talk him out of it. Continue reading

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Ethics Musings On The Guy With “MURDER” Tattooed On His Neck….

 

Hey! Cool tattoo, dude! Just don't get caught actually murdering someo...oh. Bummer.

Hey! Cool tattoo, dude! Just don’t get caught actually murdering someo…oh. Bummer.

Jeffrey Chapman, who is soon to stand trial for first degree murder in Great Bend, Kansas, wants to remove the giant tattoo that spells out the word  MURDER around his neck, believing that it will prejudice the jury against him.

Ya think?

The judge will allow Chapman to have the tattoo removed before the trial, it appears. There is precedent for this: in Florida, in 2010, a neo-Nazi charged with hate crimes was permitted to have the hate-related tattoos on his face and neck, including a swastika, covered up by a professional make-up artist. It was paid for by the state, naturally.

Observations:

  • I suppose this is the necessary and fair decision by the judge. Lawyer-pundit Alan Dershowitz made some interesting points regarding the Florida case, however, suggesting that the swastika and other tattoos were an extension of tattooed defendant John Allan Ditullio’s character, and covering them could be construed as misleading the jury. “He is alleged to have attacked people on the basis of sex orientation and race. The court has the chance to make its rulings based on whether the tattoos are relevant to the case,” Dershowitz said. “It depends on what the prosecution is trying to prove. If they are saying his Nazi ideology drove him, then you could argue that seeing the tattoos is relevant.” Dershowitz noted that his tattoos were obviously the way he chooses to present himself publicly. “It’s not like the swastika was on his rear end,” he said.

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