[ I cannot begin to express how much I resent having to keep writing posts on this topic.]
The New York Times has reported that a Russian lawyer ( Various reports use the intentionally sinister addition “with ties to state-owned enterprises and to a senior government official.” which simply means that the lawyer had represented them. This isexactly like saying that a criminal defense lawyer “has ties to the mob”because he once represented a gangster. It is despicable journalism, biased and misleading) met with Donald Trump, Jr., Paul Manafort and the President’s son-in-law, Jared Kushner, having been told that she could offer access to negative information about Hillary Clinton. The three members of the Trump campaign quickly discovered that she could not, and wanted to lobby the group on another matter.
Don Jr. said in a statement that he had met with the lawyer, Natalia Veselnitskaya, at the request of an acquaintance and denied that he received any information on Clinton.
“After pleasantries were exchanged, the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton,” he said. “Her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered. It quickly became clear that she had no meaningful information.”
Trump Jr. added that Veselnitskaya changed the subject and began discussing the adoption of Russian children and moved the conversation towards the Magnitsky Act, the 2012 bill that blocks certain Russian officials’ entrance to the U.S. and their use of the U.S. banking system. “It became clear to me that this was the true agenda all along and that the claims of potentially helpful information were a pretext for the meeting,” he concluded.
That’s it. That’s the whole thing. Yet all the news stations and news sites are treating this like it is a smoking gun, proof of impeachable offenses by Donald Trump and crimes by his campaign. There is wall to wall coverage, and it is, based on what we know thus far, nothing at all but anti-Trump hype and more of the apparently endless effort by the news media and Democrats to keep the Russian collusion narrative going without any genuine fuel.
I was saddened to see Richard Painter, a solid legal ethicist who has helped drive traffic away from my favorite ethics site by turning it into his own personal Trump attack page with over-heated theories obviously cooked up by a brain derailed by a Trump obsession. On MSNBC , Richard fumed, Continue reading →
“All the news media would have to do to have a shot at beating Trump would be to act in a measured, professional fashion. Trump has revealed that they’re incapable of that; it seems as if that option has never even occurred to them.”
Thus wrote Glenn Reynolds, the Instapundit, yesterday. I almost made it the Ethics Quote of the Day. The poster child for the malady that Reynolds describes is, of course, CNN. What has happened to that once respected news source in the last few weeks, and accelerated in the last few days, should, in a rational world, be reveille for the others who easily could fall into similar self-baited traps, and probably will. As we have seen, however, most of the similarly infected have either defended CNN or tried to bury its disgrace.
During the campaign for the Republican nomination, the assumption was that eventually Donald Trump would snap, engaging in some ugly conduct or rant that would sink his prospects and decimate his support. It never happened. Then in the general campaign, the same assumption reigned. He was a narcissist without ethics alarms. Goad him, frustrate him, and he would eventually crumble like Humphrey Bogart on the witness stand in “The Caine Mutiny.” That theory worked well. Never mind: since his election, Trump has been subjected to unprecedented hostility from the news media, disrespect from elected officials, journalists and popular culture like no one before him, and a barrage of hate and insults. Is part of the impetus behind the tactics of “the resistance,” Democrats and the news media the theory that relentless frustration and abuse will finally provoke that elusive “snap!” that results in an impeachable offense? I think it is. So far, as before, this tactic has failed. Ironically, it is Trump’s most relentless foe, the mainstream media, that is snapping instead, driven to humiliating unprofessional and unenthical conduct by the President’s juvenile trolling. One wag recalled Wilford Brimley’s classic interrogation of Paul Newman’s character in “Absence of Malice” after Newman had maneuvered a district attorney, a federal agent and an unethical reporter into destroying themselves and their careers,
“Mr Gallagher…I seem to want to ask if you set all this up. If I do, you ain’t gonna tell me, are you?
I don’t think Trump’s sophomoric and undignified tweets were brilliant stratagems; he’s not that smart. He does, however, have the immense benefit of loathsome and inept enemies, and moral luck has been on his side. It is very possible that CNN’s over-the-top, thuggish and ugly response to the President re-tweeting a stunt GIF showing an image of him wrestling with a figure symbolizing CNN will prove to be a tipping point for both the network and the news media generally.
The network’s efforts to defend the indefensible, a senior CNN reporter intimidating and threatening to dox the ordinary web troll who made the GIF, has made it clear to anyone paying attention that CNN simply employs too many awful, unprofessional people, prone to liberal fascism and habitual contempt for fairness and decency. This, in turn points to a sick and unethical corporate culture, which was hinted at recently by the James O’Keefe sting videos featuring a producer mocking the concept of journalism ethics.
Today on her Twitter feed, CNN political analyst Kirsten Powers argued that Americans “do not have a right to stay anonymous” if they are expressing offensive views, meaning views that she/CNN/ progressives—you know, the good people who are always right?— find offensive.
Powers was responding to the uproar surrounding CNN’s report on the Reddit user believed to be responsible for the famous WWE meme of President Trump body-slamming the network’s logo. The CNN article included a threat to reveal the meme maker’s name if he doesn’t comply with the outlet’s demands.
The CNN commentator took issue with the people from all sides of the political aisle taking the side of the Reddit user, who goes by the pseudonym “HanAssholeSolo,” and argued he didn’t deserve any sympathy due to his past “anti-semitic racist, and anti-gay” posts. “People do not have a ‘right’ to stay anonymous so they can spew their racist, misogynist, homophobic garbage,” she added, noting that she would have published the GIF-maker’s name for all to see.
“Racism and misogyny is not an ‘opinion'” she said.
Bingo. There it is: the watermark of a leftist fascist, an anti-free speech hypocrite, and the rotting, stinking soul of CNN. Continue reading →
1. When I am forced to be away from Ethics Alarms for a long time, as was the case yesterday, it often renews my musings about whether I respond too much to reader comments. Everyone generally does just fine when I’m silent, and sometimes I find that fascinating and unexpected new topics have not only sprung from whatever ethics fertilizer I left behind, but have grown and flourished like bamboo.
Unfortunately, I have also noticed that there have been a lot ( as in “too many”) of extended arguments between commenters that not only extend beyond reasonable limits, but also explode into personal attacks. I admit that Ethics Alarms is, for a moderated blog, unusually tolerant of this phenomenon. One reason for that is that sometimes such epic confrontations are both entertaining and enlightening, as when liberal commenter and Ethics Alarms immortal tgt and uber-conservative commenter Steven J. Pilling engaged in the Ethics Alarms equivalent of the Lincoln Douglas debates, only occasionally snapping and calling each other names.
However, while the occasional emotional outbursts are excusable, they should be rare. Reprimanding a commenter for commenting style and habits is certainly fair, but doing it repeatedly is boring; and I want to remind everyone that while it is often frustrating, allowing someone to have the last word is not capitulation, especially when that last word is not particularly persuasive.
We also owe ourselves and everyone else self-awareness. When a commenter finds himself or herself repeatedly embroiled in long, heated exchanges, that commenter should consider the possibility that he or she is the problem.
The general principle is that we should strive to have all comments contain substance that advances the discussion. “You’re an asshole” is occasionally justified (when a comment has objectively revealed a commenter to be an asshole, and even then is not mandatory), but rarely.
2. When President Trump issued his trolling tweet about James Comey and the possibility that there were “tapes” of their conversations, I wrote that it was the President’s dumbest tweet to date. (I think he has made worse ones since, but at this point any tweet by the President is evidence of crippling stubbornness, impulsiveness and bad judgment). I did not think that what was obviously a bluff without substance would still be considered a headline-worthy issue many weeks later. Continue reading →
1. If you haven’t yet read them, Steve-O-in NJ’s Comment of the Day on Chris’s brilliant Comment of the Day regarding ideological and partisan hate—plus Chris Bentley’s Comment of the Day on the same post, are all especially worth reading, not that all Comments of the Day by Ethics Alarms readers are not. I apologize for an unusually long intro to Steve’s post, but I had been holding on to a lot of related material from the day past on the topic, and it was either use them there or be redundant later. This meant putting Steve-O’s COTD after the jump, which is why I’m giving an extra plug to it now.
There were the obligatory riots after the verdict acquitting Jeronimo Yanez, the officer who fatally shot Castile in his car after he told the officer that he was carrying a legally registered firearm and then reached for his wallet to show the officer his license. This is just the latest cattle-car in the Ferguson Ethics Train Wreck, the familiar pattern of a badly-trained cop, a dubious police stop, poor judgment by a victim, and a needless death. I would compare it to the Tamir Rice shooting in Cleveland, where the officers involved weren’t even indicted.
Why in the world would a motorist tell a cop in that situation—Castile had been officially stopped for a broken tail light, but in reality because he was black, and the officers thought he resembled a suspect in a crime who was also black—that he had a gun? This could be interpreted as a threat, and obviously Yanez saw it as one. The verdict looks wrong at a gut level, but it is easy to see how the jurors were thinking: they placed themselves in the officer’s position. They would have been in fear of their lives, so they couldn’t find a way to pronounce Yanez a murderer for doing what they could see themselves doing under similar circumstances. This was a legitimate case for reasonable doubt under the law. Police officers, however, are supposed to be less likely to panic than a typical juror. Castile is dead because of incompetent police work, but the criminal laws don’t allow different standards to be applied for different occupations, not should they. Continue reading →
1. “Even though I was appointed to a ten-year term, which congress created in order to underscore the importance of the FBI being outside of politics and independent, I understood that I could be fired by a president for any reason or for no reason at all. And on May 9th, when I learned I had been fired for that reason, I immediately came home as a private citizen. But then the explanations, the shifting explanations, confused me and increasingly concerned me. They confused me because the president that I had had multiple conversations about my job, both before and after he took office, and he had repeatedly told me I was doing a great job and he hoped I would stay. And I had repeatedly assured him that I did intend to stay and serve out the remaining six years of my term. He told me repeatedly that he had talked to lots of people about me. Including our current attorney general. And had learned I was doing a great job. And that I was extremely well-liked by the FBI work force. So it confused me when I saw on television the president saying that he actually fired me because of the Russia investigation. And learned, again, from the media that he was telling privately other parties that my firing had relieved great pressure on the Russian investigation. I was also confused by the initial explanation that was offered publicly, that I was fired because of the decisions I had made during the election year. That didn’t make sense to me for a whole bunch of reasons, including the time and all the water that had gone under the bridge since those hard decisions had to be made. That didn’t make any sense to me. And although the law required no reason at all to fire an FBI director, the administration then chose to defame me and more importantly the FBI by saying that the organization was in disarray. That it was poorly led. That the workforce had lost confidence In its leader. Those were lies, plain and simple. And I am so sorry that the FBI workforce had to hear them and I’m so sorry the American people were told them. I worked every day at the FBI to help make that great organization better. As a help, because I did nothing alone at the FBI. There are no indispensable people at the FBI. The organization’s great strength is that its value and abilities run deep and wide. The FBI will be fine without me. The FBI’s mission will be relentlessly pursued by its people and that mission is to protect the American people and uphold the constitution of the United States. I will deeply miss being part of that mission, but this organization and its mission will go on long beyond me and long beyond any particular administration. I have a message before I close for the — for my former colleagues of the FBI. First I want the American people to know this truth. The FBI is honest. The FBI is strong. And the FBI is and always will be independent. And now to my former colleagues, If I may, I am so sorry I didn’t get the chance to say good bye to you properly. It was the honor of my life to serve beside you, to be part of the FBI family and I will miss it for the rest of my life. Thank you for standing watch, thank you for doing so much good for this country. Do that good as long as ever you can. And senators, I look forward to your questions.”
Observations: This entire statement is unworthy of the emphasis that has been placed on it by the wildly spinning news media, The key piece of information to frame the entire episode is “I understood that I could be fired by a president for any reason or for no reason at all.” Comey also presumably understood that a sub-fact within that understanding is that he could be told some of the reasons he was fired, no reasons, or the reasons the President felt like talking about. He was told he was doing a great job and then fired? Welcome to the work force. Telling an employee that he is doing a great job when he isn’t may be good management, usually isn’t, but is still well within the range of management discretion, and certainly not illegal.
Comey said that he also concerned that the President was saying that firing “had relieved great pressure on the Russian investigation.” As we learn later, the President was not being targeted in that investigation, and we know that he regards it as a politically motivated effort to distract and derail his administration and its agenda. There was nothing sinister about the President’s desire that the investigation go away as quickly as possible. I would argue that he has an obligation to do whatever he can to speed it along. If he didn’t trust Comey’s judgment—and who would?—seeing his exit as a plus is reasonable. Naturally, Comey wouldn’t see it that way.
It is amazing to me that a fired employee saying that his superior’s assessment that his organization was in disarray, that he was a poor leader and that his staff had “lost confidence In its leader” is given any weight at all. What fired employee doesn’t think his firing is unjust and the criticism of him is unfair? Comey calls it a lie: how does he know what Trump had been told or heard? How does Comey know what his agents say behind his back?
Your opinion that someone’s negative opinion about you is wrong and based on erroneous information does not make that opinion a lie. As a lawyer, Comey should know that, and should not have thrown the word “lie” around to be misunderstood by people who don’t know what a lie is—that is, most of the public. Continue reading →
I have finally read the transcript, which you should do as well. By now I have also seen a lot of video clips. (James Comey really says, “Lordy!” Wow.)
First, some general observations, with more detailed comments to come in a subsequent post.
1. My earlier expressed opinion of James Comey when I defended him against conservative accusations that he was giving Hillary Clinton an undeserved break by not indicting her were revealed as too generous yesterday. I still believe he is honest and non-partisan. More than ever, I believe that he is untrustworthy. He was obviously in a difficult position—many, in fact—that he was not able to successfully manage, if anyone could have. However, his oft-repeated insistence that he (and his FBI) did not play politics was exposed as false, if not dishonest (a gracious interpretation of the sort that Comey denied the President in his bitter testimony.)
2. The fake Russia collusion narrative pushed by Hillary, Democrats and the news media to simultaneously excuse her loss and undermine the Trump Presidency was killed yesterday, but will wander around like a zombie for months if not years because Trump-haters will not have the integrity to admit they were wrong. Chris Matthews, a once astute and courageous liberal Democrat reporter who morphed into a partisan, knee-jerk progressive shill and anti-Republican scold as soon as he started getting paid by MSNBC, had a sudden flashback to his days of integrity when he pronounced yesterday,
“But the big story has always beenthe assumption of the critics of the president, of his pursuers, you might say, is that somewhere along the line in the last year, the president had something to do with colluding with the Russians. Something to do, a helping hand, encouraging them,feeding their desire, to affect the election in some way, some role they played, some conversation he had with Michael Flynn, or Paul Manafort, or somewhere. And yet what came apart this morning, was that theory, because in two regards the president said according to the written testimony of Mr. Comey, ‘go ahead and get anybody satellite to my operation and nail them, I’m with you on that,’ so that would mean Manafort, Carter Page, someone like that. And then he also came across today what was fascinating, Comey said that basically Flynn wasn’t central to the Russian investigation, that he was touching on it. That there was, of course, Flynn had an honest, we assume, wasn’t honest in his answer on the official forms that he had to fill out to become a national security head.”
But it only touched on that, it wasn’t really related to that. But he could be flipped for that, but in other words, they could flip him because they had him caught on something he dishonestly answered but he wasn’t central to the Russian thing, and I always assumed that Trump was afraid of was that he had said something to Flynn, and Flynn could be flipped on that. And Flynn would testify against the president that he had had some conversation with Flynn in terms of dealing with the Russians affirmatively. And if that’s the case, where’s the there there?”
There is no there there, and never has been. Thus the anti-Trump hysterics are left with what they have always believed was proof enough: Hillary lost, leaked hacks of e-mails that led the public to realize how sleazy the Democrats were should have never been seen by voters, Trump was the beneficiary of the leaks, he had said nice things about Putin, he’s an unethical creep, and a lot of his associates had business contacts with Russia, and besides, they just know Trump is guilty.
That’s not enough; in fact, it’s nothing at all. Matthews as both a lifetime Democrat and a romantic regarding the Presidency and democracy detests Trump to his Irish-American Boston liberal core, but he knows when to get off a bandwagon that will embarrass him if he stays on board, or make it impossible for Chris to look in the mirror.
3. For a lawyer, Comey’s loose use of the term “liar” and his stated belief that he assumed that Trump was a liar early on in their relationship shows a troubling inattentiveness to his own biases, as well as a classic misunderstanding of what it means to lie. Comey said Trump lied about why Comey was fired, for example. Comey has no way of knowing which of the many legitimate reasons for firing him played the biggest role in his firing. He does not know what Trump was thinking, so he cannot assert that Trump lied. He can say that he believes Trump lied, but that is only his opinion: it does not make Trump a liar, and it is not evidence. Last ditch bitter-enders among the Impeach Trump Lynch Mob will be arguing that Comey’s various opinions and reactions prove misconduct by Trump. But lying and obstruction of justice are not like sexual harassment, where a second party, by his or her reactions, determines whether misconduct has taken place. Comey stated that he took Trump’s words that he “hoped” that the FBI would drop the Flynn investigation as a “direction.” He also could have taken it as a marmoset, but that wouldn’t mean that the President meant it as one.
Any time a supervisor says “I hope you do this,” it is a statement of what will make that supervisor happy. (Did Obama ever say to his Treasury Secretary, “I hope the IRS is tough on those tea party groups: they are about as non-partisan as I am!”?) Nevertheless, it leaves the decision in the hands of the subordinate.
4. Comey came off like a classic disgruntled former employee, and I’ve interviewed many of them, angry that he was fired and determined to do as much damage to his former supervisor as possible on the way out the door.
They are ignorant and have embarrassed themselves. The organization doesn’t even understand what its members have been allegedly fighting to protect and preserve.
VFW National Commander Brian Duffy issued a statement that “The Veterans of Foreign Wars of the U.S. strongly condemns comedian Kathy Griffin’s incredibly revolting attack on the President of the United States . . . . What she did was not humorous nor should it be protected speech or expression. Playing to an audience with a severed head is what our enemies do. The USO should end its relationship with her.”
Actually, playing to an audience with a severed head is what Shakespearean companies performing “MacBeth” have done on stages, professional, college and amateur, in the U.S. and elsewhere for hundreds of years, you ignoramus.
This is another reason why the Left’s claims that “hate speech” shouldn’t be protected are so dangerous to our society: too many citizens of all political persuasions don’t understand what free speech is, and are too ignorant to know how to counter this threat to democracy
Let’s see: Griffin, her lawyer, the President and his punching-down tweet; Rosie O’Donnell, who announced that she had no sympathy for 11-year-old Barron Trump seeing photos of someone apparently holding up his father’s head, the mainstream media hypocrites who told audiences that Griffin’s “eliminationist rhetoric” wasn’t news or worth discussing, though a far less threatening image dominated their conversations for weeks when they tried to tie Sarah Palin’s metaphorical cross-hairs on a political race map to the madman who shot Rep. Giffords…I was wondering which organization would be the first on the Right to claim that what Griffin did warranted criminal punishment. The VFW would have been a good bet.
But wait! There’s more!... and I should have seen this one coming too. Progressive favorite Alec Baldwin, a habitual boor and Ethics Dunce, weighed- in in support of Griffin and her severed Trump head as only he can, tweeting,
“Dear Kathy Griffin, Kathy….baby…I’ve been there. The whole Henry Hyde thing [with] Conan, where we bring out an oxygen mask at the end? a joke. That’s what I thought. That’s what we intended. No one walked out of the studio and said, “No! We’re serious!” No one. But all your gutless, weasels in the GOP insisted that I actually threatened Hyde. They played the victim beautifully. Kathy…fuck them. Fuck them all. No 1 believes u meant 2 threaten Trump.Trump is such a senile idiot, all he has is Twitter fights. ignore him. Like the leaders of all the other countries in the world. Ignore him.”
Honestly, I do not understand how anyone can laugh at Baldwin knowing the anger, bitterness and nastiness that ooze out of every pore; it’s like finding Bill Cosby or Woody Allen funny. Yet that this guy passes for a wit, political pundit and truthteller by Hollywood progressive standards.
I’m generally a Jonathan Turley fan—for one thing, he makes almost as many typos on his blog as I do— but the George Washington Law School constitutional law professor is the master of equivocation, and this often obscures important facts. Writing about Yale’s Dean June Chu, recently put on leave by the school for online posts showing her to be a racist, a bigot and a hypocrite, he writes that she
“has been a successful academic and administrator at Yale University. However, that stellar record came to a halt — and Chu was put on leave — after it was discovered that she had written reviews on Yelp deemed offensive.”
“Deemed offensive” is classic Turley mild-speak, and it misleadingly suggests that the Yale dean has been another victim of campus political correctness because someone “deemed” her words “offensive.” Here is a sample of what she wrote on Yelp in various consumer reviews:
In a review of a Japanese steakhouse, Chu wrote, “I guess if you were a white person who has no clue what mochi is, this would be fine for you . . . if you are white trash, this is the perfect night out for you!”
She described a theater as having “sketchy crowds (despite it being in new haven)”
She said a movie theater had “barely educated morons trying to manage snack orders for the obese and also try to add $7 plus $7.”
Chu said of a fitness employee that “seriously I don’t care if you would ‘lose your job’ (I am sure McDonalds would hire you).”
She called another gym class instructor ” frail and totally out of shape.”
Interestingly and tellingly, these and other nasty posts by Chu were discovered by students after she sent a campus-wide email in which she proudly announced that she had become “Yelp Elite,” meaning that she had been recognized by Yelp for “well-written reviews, high quality tips, a detailed personal profile, an active voting and complimenting record, and a history of playing well with others.” Some students decided to see what she had written. That wasn’t an unpredictable response, so Chu obviously didn’t see anything wrong with the attitudes she had projected. Stunned and disillusioned by what they found, the students circulated some of the most remarkable of her comments. These sparked anger from Yale students and alumni, who deemed the posts offensive because, Prof Turley, they were offensive. They were arrogant, elitist, classist and racist, reflected poorly on the institution, and were not the kinds of expression that supported Yale’s trust in her. Continue reading →
During a campus forum at Northern Arizona University, President Rita Cheng was asked by a student, “How can you promote safe spaces, if you don’t take action in situations of injustice, such as, last week, when we had the preacher on campus and he was promoting hate speech against marginalized students? As well as, not speaking out against racist incidents like blackface two months ago by student workers followed by no reform and no repercussions?”
Cheng replied,
“As a university professor, I’m not sure I have any support at all for safe space. I think that you as a student have to develop the skills to be successful in this world and that we need to provide you with the opportunity for discourse and debate and dialogue and academic inquiry, and I’m not sure that that is correlated with the notion of safe space as I’ve seen that.”
Students, mainly members of the NAU Student Action Coalition, staged a walk-out after Cheng’s response. As Jack Nicholson said, they can’t handle the truth, as indeed an alarming number of college students, indoctrinated into progressive groupthink, cannot.
NAU SAC issued the following statement :
The NAU Student Action Coalition is composed of many student groups and various individuals who are being directly impacted by a range of issues highlighted at the forum on Wednesday. The NAU community invests a lot of time, money, and energy in this experience and, because of failed leadership, we are not getting a return on our investment. President Cheng’s answers at the forum were insufficient and if she’s not ready or willing to engage in these serious conversations and more importantly work towards solutions, then we do feel her resignation is necessary and would want a university President who works to provide the purpose of higher education, which is to enrich the lives of many people, students, faculty, staff and the larger Flagstaff community. We were guaranteed access, quality and excellence in our higher education student experiences and far too many students are experiencing the exact opposite.
In response, Cheng’s spokeperson said,
“NAU is safe. Creating segregated spaces for different groups on our campus only [leads] to misunderstanding, distrust and [reduces] the opportunity for discussion and engagement and education around diversity. Our classrooms and our campus is a place for engagement and respect – a place to learn from each other. NAU is committed to an atmosphere that is conducive to teaching and learning.”
“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.”
Ethics Alarms 