appearance of impropriety

A Critical Addendum to the Left’s Alito Flag Freakout

/ Jack Marshall / 11 Comments

I had already decided to shut down my commentary for the day (judging from the traffic, I see that a lot of people are starting their Memorial Day Weekend early) when I saw a fascinating note on The Volokh Conspiracy, and I just can’t let it pass, since it puts the two posts (here and here) about the “Get Alito!” flag fixation in proper perspective.

Josh Blackman, a regular contributor to VC, a constitutional law professor at the South Texas College of Law Houston, and the president of the Harlan Institute, reminded readers about something that occured the day after election day in 2016, November 9. The Supreme Court was in session, and Justice Ruth Bader Ginsburg wore the jabot she only sported when dissenting from a majority opinion. Ginsberg herself had explained her sly fashion messaging in in 2014:

but in this case there was nothing to dissent from other than the obvious: Donald Trump, whom Ginsburg had called “a faker” before the election, had defeated Hillary Clinton. The Associated Press got the message and reported on it.

Unlike the Alito flags, there is no question about who was making the political statement regarding President Trump: it was Justice Ginsburg. Nobody fooled her into wearing that collar. A relative didn’t wear it, she did. Nor was the symbolism of the collar in question: Ginsberg herself had said exactly what it meant. This was a far less ambiguous and far more serious display of bias by a SCOTUS justice than the contrived flag outrage, yet no Republicans in Congress exploited the incident to call for Ginsburg to recuse herself from future cases, or to move for a Congressional censure.

Ah, but Ginsburg was a news media favorite, female, progressive, Democrat and cute in her casual and repeated crossing of the lines of judicial propriety. I have to check, but I don’t recall the members of my legal ethics expert association registering any problem with Ginsberg’s open protest of Trump’s election, while the listserv has been roiling over Alito’s flags all week, with Ginsberg-adoring female members being particularly indignant.

At the last second I deleted a comment I was ready to make yesterday after following the hypocritical thread. It read, “I’m sorry, but the partisan bias and hypocrisy being displayed here by alleged legal ethics scholars isn’t just depressing, it’s disgusting.”

Blackman concluded, “I have a very, very difficult time taking the outrage over the Alitos’ flags seriously. The Justices routinely convey messages through their words and deeds. Who gets to decide what is an appearance of impropriety? People who are inclined to despise the conservative Justices will draw the worst possible inferences from all of their acts….These people are loathe to co-exist with anything they disagree with, so will take umbrage at the slightest sleights.”

In contrast, I take it very seriously. The Double standard harshly demonstrates how little integrity and honesty exists even among our most trusted professionals.

Oh-Oh! Now It Seems That TWO Historical Flags Someone Else Has Used As Free Speech Were Seen Flying Over a Justice Alito Residence! Clearly, This Violates the “Obscure Flags” Section in the Judicial Code of Ethics….

/ Jack Marshall / 15 Comments

The contrived Justice Alito flags controversy has exactly one valid use: it shows that the panicked Axis has lost all sense of proportion and self-preservation, that its ethics alarms are deader than Generalissimo Franco, and that between now and November nothing can be ruled out, from violent uprisings to horrified leftist wackos tearing off their clothes, painting themselves mauve and running amuck coast to coast while shouting dirty limericks. Good to know.

Here’s the New York Times, which launched the previous “Bad flag, BAD flag! “scoop (as of this moment, the Times has published nine—NINE!—articles about the flags):

Last summer, two years after an upside-down American flag was flown outside the Virginia home of Justice Samuel A. Alito Jr., another provocative symbol was displayed at his vacation house in New Jersey, according to interviews and photographs.

This time, it was the “Appeal to Heaven” flag, which, like the inverted U.S. flag, was carried by rioters at the Capitol on Jan. 6, 2021. Also known as the Pine Tree flag, it dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for former President Donald J. Trump, for a religious strand of the “Stop the Steal” campaign and for a push to remake American government in Christian terms.

Three photographs obtained by The New York Times, along with accounts from a half-dozen neighbors and passers-by, show that the Appeal to Heaven flag was aloft at the Alito home on Long Beach Island in July and September of 2023. A Google Street View image from late August also shows the flag.

In two words, so what?

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“Stop Making Me Defend Justice Alito!”—The Stupid Sequel

/ Jack Marshall / 6 Comments

I can’t believe the Axis is still running with the ridiculous attack on Justice Alito because his house had an upside-down flag flying after the January 6, 2021 Capitol riot. I’m this close to resigning from the Association of Professional Responsibility Lawyers because so many members—about 75% of the organization is Trump-Deranged—are trying to support the claim that the episode represents “an appearance of impropriety” requiring the Justice to recuse from cases involving the election, trump, or future elections.

Ann Althouse somehow dredged up this follow up by a silly substacker named Chris Geidner who claims to be an “award-winning journalist.’ People actually pay to read what this idiot writes? Clearly, I’m doing something wrong….

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Stop Making Me Defend Justice Alito!

/ Jack Marshall / 3 Comments

Ugh. The old “public officials are responsible for keeping their wives in line” canard, which for some reason is only applied to conservatives by the mainstream news media. Or we could file this under “Hail Mary attempts to get the Supreme Court’s conservative Justices to recuse themselves so SCOTUS won’t strike down the totalitarian Left’s conspiracy to “get” Donald Trump by any means necessary, and law, ethics and democracy be damned.”

A New York Times headline yesterday shouted, “At Justice Alito’s House, a ‘Stop the Steal’ Symbol on Display.” Wow, what symbol was that? It was an upside-down American flag, seen flying over (much reviled, almost as much as Clarence Thomas) Supreme Court Justice Samuel Alito’s house for a few days in January 2021. Because the flag was up in the period between the January 6 riot at the Capitol Joe Biden’s inauguration, the Times infers that the flag meant that Alito thinks the 2020 election was stolen from former President Trump.

Of course the Times dredged up some unethical ethics experts to deceive their readers about the seriousness of this. “Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot,” writes the Times, ostentatiously avoiding mentioning the names of the experts who said, as I would have, “What? This is nothing!”

“It might be his spouse or someone else living in his home, but he shouldn’t have it in his yard as his message to the world,” said Professor Amanda Frost at the University of Virginia law school. This is “the equivalent of putting a ‘Stop the Steal’ sign in your yard, which is a problem if you’re deciding election-related cases,” she said.

Uh, no it’s not, but that analysis is the equivalent of the professor wearing an “I am a partisan hack!” sign on her forehead.

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Does Justice Merchan Have Conflict of Interest?

/ Jack Marshall / 10 Comments

In August, Manhattan Supreme Court Justice Juan M. Merchan, tasked with presiding over the criminal case against Donald Trump in Manhattan for 2016 “hush money payments” in violation of election laws, rejected Trump’s lawyers’ claims that the judge had disqualifying conflicts of interest and should recuse himself. The reasons for the recusal seemed a stretch at the time, easily the weakest being that, during the 2020 presidential campaign, Justice Merchan had donated the grand total of $15 to Joe Biden. Another was that the judge’s daughter, the president and chief operating officer of a digital marketing agency that has clients who are Democratic candidates, was obviously going to benefit financially Merchan’s decisions in the case.

Justice Merchan ruled, relying, he said, on the guidance of a state advisory committee on judicial ethics, that his impartiality could not “reasonably be questioned” based on “de minimus political contributions made more than two years ago” or his daughter’s business. The latter, he said, could not be substantially affected by the trial. Trump’s attorneys had “failed to demonstrate that there exists concrete, or even realistic reasons for recusal to be appropriate, much less required” because of his daughter’s activities.

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Friday Open Forum: Waiting to See If I’m Right…

/ Jack Marshall / 15 Comments

Judge Scott McAfee confirmed yesterday that he will announce the fate of Fulton County’s designated “Stop Trump!” agent Fani Willis some time today. From the moment your friendly neighborhood ethicist heard the basic facts in this annoying story I was convinced that one way or the other she would have to leave the Trump case. One of my legal ethics colleagues emphatically disagrees, arguing that whatever conflicts of interest she created by hiring her illicit boyfriend to help prosecute Trump were matters of legal ethics discipline but irrelevant to the defendants. He also pooh-poohed the “appearance of impropriety” issue, echoing the American Bar Association’s logic when it took that category out of the ethics rules: actual impropriety matters, the mere appearance doesn’t.

Yet Willis is a government attorney, and employees of the state are required to avoid the appearance of impropriety because it erodes the public trust. If there was ever a prosecution that mandated a squeaky clean leader beyond suspicion or reproach, this is it. Instead, Willis has left an odoriferous trail of conflicts, arrogance, hypocrisy, dubious explanations and likely lies, all supported by her obnoxious reliance on race-baiting. I have been certain that she would eventually go down for all of this, and that my learned friend–who is apolitical— as well as the my myriad partisan-biased colleagues in the legal ethics association I belong to are wrong.

Well, we shall see . If you see Fredo (“I’m smart! I’m not dumb like everybody says!”) leading off a post today, you’ll know I was right.

Meanwhile, talk about whatever interests you in the Wonderful World of Ethics.

Your Fani Willis Fiasco Update…

/ Jack Marshall / 3 Comments

1. I had a long conversation with a close friend who is a retired lifetime federal prosecutor. She really detests Donald Trump, to the extent that she said she was initially “excited” about the Georgia case against him because, as a state prosecution, it would not be vulnerable to a presidential pardon. Now she says she is thoroughly disgusted with Willis, whom she termed an “idiot” for…

  • Hiring a lawyer to work on the case who would be using the fruits of his job to pay for benefits to her, what she called the equivalent of a kickback;
  • Having an intimate relationship with such a lawyer, which not only calls into question the reasons he was hired, but also her independent judgment regarding the case generally, since if he and she are benefiting from the case continuing, she sould not apply the required “independent judgment” to determine how to pursue the case or even whether to pursue it;
  • Doing this despite knowing that it would be a high profile case under constant scrutiny, requiring “Caesar’s wife” level, squeaky-clean management on her part;
  • Immediately “playing the “race card” as soon as her conflicts were raised in the court filing, when she knew or should have known that the ethics complaints have substance;
  • Creating a textbook “appearance of impropriety,” which as a government lawyer Willis had to know was taboo.

At very least, she agreed, Nathan Wade should have withdrawn from the case (or been removed by Willis) as soon as this controversy arose. That he has not, she said, proves that Willis is conflicted and her judgment is not trustworthy. My freind says the Georgia case is likely done-for, and that its demise will increase public skepticism about the legitimacy of the other cases being pursued against Trump. She also opines that even if Willis somehow is able to stay at the helm of the case, she is clearly such an incompetent that she will botch it in some other way.

I concur with all of the above.

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A “Nah, There’s No Mainstream Media Bias” Classic: CBS Reports on the Fani Willis Scandal

/ Jack Marshall / 5 Comments

Now that the anti-Trump, Democrat propaganda-promoting, biased and incompetent mainstream media has been forced to cover the unfolding Fani Willis ethics debacle that threatens to swallow her partisan “Get Trump!” prosecution, it is giving us blazing examples of just how untrustworthy its coverage can be. The headline above looms over CBS’s “news” story that is really a lame and transparent effort to try to spin the Fulton County DA out of the mess of her own making.

The focus of the report is that poor Fani just about had to hire her lover as one of the prosecutors in the high profile case against Donald Trump, because she was “unable to find someone in the DA’s office with the stature and credentials needed for the case,” and “turned to at least two other legal heavy hitters in Atlanta who turned the job down.” Then the article, while conceding that Nathan Wade had little relevant experience, tells us that Wade was Willis’s “friend and mentor” <cough!> and that she told colleagues he “had the toughness to handle the scorched-earth legal tactics that Trump’s lawyers and their co-counsel were likely to employ in the legal battle.” You know, because Trump is such an evil bastard.

Then the article explains that…

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Ethics Quiz: This…

/ Jack Marshall / 7 Comments

This resurfaced video of the Senate Majority Leader gleefully tripping the light fantastic with the New York Democratic Attorney General, one of the party’s several prosecutors engaged in an effort to use the criminal justice system to hamstring Donald Trump before the 2024 election, raises several ethics questions, but I’ll focus on just one.

Your Ethics Alarms Ethics Quiz of the Day is…

Is participating in this public spectacle ethical conduct for a prosecutor?

Before I comment, let me just say…Ick.

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Officials And Leaders Who Conservatives Consider Essential Bulwarks Of Constitutional Government Really Have To Stop Relying On “The King’s Pass”

/ Jack Marshall / 10 Comments

Take Clarence Thomas for example.

As with Donald Trump, who was the object of much rationalization here yesterday, Justice Thomas apparently is certain that conservative and Republican integrity don’t have the rigor to make him accountable for a truly staggering series of judicial ethics breaches. He is also apparently correct in this assumption.

Justice Thomas finally acknowledged publicly that he should have reported selling real estate at a suspicious profit to billionaire political donor Harlan Crow in 2014, a transaction disclosed by ProPublica earlier this year. The Crow company bought a string of properties for $133,363 from co-owners Thomas, his mother and the family of Thomas’ late brother, according to a state tax document and a deed. Conservative power-player Crow then owned the house where a Supreme Court Justice’s elderly mother was living—hey, no big deal!—and soon contractors began tens of thousands of dollars of improvements on the two-bedroom, one-bathroom home. Although a federal disclosure law requires SCOTUS Justices and other officials to disclose the details of most real estate sales over $1,000, Thomas never deigned to mention this convenient and inherently suspicious transaction. You know, that “appearance of impropriety” thingy?

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