leaks

Ethics Observations On The Dobbs SCOTUS Opinion Draft Leak And Reactions To It

/ Jack Marshall / 29 Comments

Ethics Alarms posted briefly on the stunning leak of what appears to be a draft of a majority opinion striking down Roe v. Wade and the related Casey decision. [The link to the draft is in that article.] The position here is that any analysis based on the draft itself is premature and irresponsible, since the document is 1) a draft 2) not even necessarily the latest draft, and 3) the opinion as well as the support for it on the Court could change materially before the actual opinion is released.

The only ethics issue immediately clear is that regarding the leak itself, and, by extension, the leaker. Leaks always constitute a unethical breaches of trust; only in the rare cases where they reveal actual criminal activity can they be justified. For a lawyer to leak any information related to a professional obligation or representation is grounds for disbarment, and permanent infamy within the profession. This leak cannot be defended, and pundits, politicians or activists who praise the leaker reveal their own ethics bankruptcy. Keep a watch out for the leak apologists. Then relegate them to your “Untrustworthy” file.

Now the focus shifts to the reactions to the draft, and it is fair to say they constitute a freak-out. Prime among them is the hypocritical and hysterical joint statement by Sen. Schumer and Speaker Pelosi. Imagine: these are leaders of the party that has accused Donald Trump of undermining core American institutions.

The statement is breathtakingly dishonest. None of the members of the Court ever stated that they would not vote to overrule Roe. They said it was the law of the land, which is true, and stated their support for the principle of stare decisus. That did not preclude their voting to reverse Roe later based on a case that hadn’t been briefed or argued yet. I have read enough of the draft to know that Justice Alito clearly explains that stare decisus has always had exceptions (but I knew that) where a wrongfully decided Constitutional case had to be reversed, writing.

“We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right….On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”

It should be very easy for Republicans and anyone else to explain the demise of Roe to the public. It was, as Alito says, a bad decision from the beginning, and it was time for the rights of the unborn to be considered, and not just the imaginary right of mothers to have their children snuffed out.

I’m going to spend most of my time devoted to this episode reading the draft, but here are links to various news reports and commentary: ABC News, The Daily Beast, HuffPost, CNN, New York Times, CBS News, Reuters, Washington Examiner, Associated Press, Fox News, NPR, Townhall, Slate, The Guardian, CNSNews, Al Jazeera, Outside the Beltway, Washington Post, De Civitate, Insider, Bloomberg, NewsOne, USA Today, A Lawyer Writes, emptywheel, pjmedia.com, The Nation, Breitbart, Los Angeles Times, The Daily Signal, Vox, Washington Times, The Comity Channel, Deadline, KLAS, The Daily Caller, Men Yell at Me, PennLive, The Hill, The Moderate Voice, littlegreenfootballs.com, NBC New York, Ninja Smith & Friends, WCMH-TV, HotAir, Variety, Deseret News, BuzzFeed News, NBC News, RedState, Mississippi Free Press, Mediaite, Things Worth Thinking About, thot pudding, homeculture, National Review, Big League Politics, WCTX-TV, Twitchy, Talking Points Memo, SCOTUSblog, CNBC, Jill Filipovic, Lawyers, Guns & Money, The Daily Wire, Maxwell’s Newsletter, A Propensity …, Gem State, Louder With Crowder, PharmaHeretic’s Newsletter, First We Think, Vanity Fair, New York Post, Law & Crime, Raw Story, The 19th, The Texas Tribune, Dana Loesch’s Chapter …, Power Line, The Racket News, New York Magazine, Fortune, Hennessy’s View, Trash Chair Thoughts, VICE, UPI, The Gateway Pundit, GC News, Instapundit, Watch Night News, Rolling Stone, Sacramento Bee, The Even Place, Let’s Get Politigal, WPRI-TV, Daily Insurrection, Mother Jones, Super-Probably Relevant …, Mercury News, The Right News, The Western Journal, TheBlaze, Althouse, Unfogged, Ace of Spades HQ, Teresa L’s Newsletter, Boing Boing, CBS Denver, IJR and Progress Report

Further observations:

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Professional Ethics Breach Alert! The Draft SCOTUS Abortion Opinion Leak

/ Jack Marshall / 37 Comments

The issue right now is simple. Someone with access to Justice Alito’s draft majority opinion in THOMAS E. DOBBS, STATE HEALTH OFFICER OF THE MISSISSIPPI DEPARTMENT OF HEALTH, ET AL., PETITIONERS u. JACKSON WOMEN’S HEALTH ORGANIZATION, ET AL. leaked it to Politico. This is the worst breach of professional ethics in the history of the Court. It is the worst breach of professional ethics in the history of the federal court system. If a lawyer, such as a law clerk, was responsible, he or she should be, and probably will be, disbarred.

The draft is here.

I haven’t read the draft: the thing is 67 pages long, and I just got it. The conclusion, however, is clear:

We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not pro­hibit the citizens of each State from regulating or prohibit­ing abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.

The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

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No Good Guys Or Innocent Victims In The Tucker Carlson-New York Times Spat

/ Jack Marshall / 8 Comments

Carlson 3

Apparently the New York Times got tired of Tucker Carlson’s two faces, so media reporter Ben Smith did a hit piece on the Fox News star. He revealed that Tucker, despite his oft-expressed disdain for the mainstream media and its reporters, “spends his time when he’s not denouncing the liberal media trading gossip with them. He’s the go-to guy for sometimes-unflattering stories about Donald J. Trump and for coverage of the internal politics of Fox News (not to mention stories about Mr. Carlson himself).” Smith adds, “I won’t talk here about any off-the-record conversations I may have had with him. But 16 other journalists (none from The Times; it would put my colleagues in a weird position if I asked them) told me on background that he has been, as three of them put it, ‘a great source.’”

In other words, Carlson is a hypocritical double agent. condemning the mainstream media on his TV show and doing favors for them behind the scenes. One especially nauseating tale is how Tucker related a private conversation with President Trump that made Carlson look good and Trump look foolish for an coming book by the Wall Street Journal reporter Michael Bender, “Frankly, We Did Win This Election: The Inside Story of How Trump Lost.” Since only two people were on the line, and Trump didn’t reveal it, Carlson is the only possible source. But the whole article is nauseating, including the casual way all the participants excuse such “double games” as business as usual. Everybody does it, you see, so it’s OK. “It’s so unknown in the general public how much he plays both sides,” one reporter for a prominent publication who gets dirt from Carlson regularly told Smith. Another Washington journalist explained how Carlson benefits by assisting the same reporters he says he “hates,” saying, “If you open yourself up as a resource to mainstream media reporters, you don’t even have to ask them to go soft on you.”

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Observations On The Trump Tax Returns Dud

/ Jack Marshall / 37 Comments

Someone at the IRS finally leaked the President’s taxe returns to the Times. That’s a crime, just as it would be if someone leaked my taxes or yours. Of course, this was inevitable, filled as the government bureacracy is with unethical employees who feel it is their duty to try to undermine their ultimate supervisor. Those who cheer on this per se wrongful conduct are enabers and rationalizers.

Other points:

1. In “An Editor’s Note on the Trump Tax Investigation,” the Times felt it necessary to remind readers, “Some will raise questions about publishing the president’s personal tax information. But the Supreme Court has repeatedly ruled that the First Amendment allows the press to publish newsworthy information that was legally obtained by reporters even when those in power fight to keep it hidden. That powerful principle of the First Amendment applies here.” That’s right, the news media has a right to encourage others to break the law and to publish the results. It’s still unethical, except in the rare circumstances where the public interest is indisputably served by furthering an illegal act, as with (arguably) the Pentagon Papers. Publishing documents protected by law that show no wrongdoing only to encourage partisan attacks in an election year is not such a situation.

The Times can’t be punished, but whoever leaked the documents can, and should.

2. I guess this is the time to post this tweet by CNN’s Brain Stelter, which proves his stunning ethical deficits as well as anything he has ever said on CNN. He was responding to another tweet pointing out that leaking tax returns is a crime, as I just did.

Oh! So if Stelter knows he has received embezzled funds from a bank employee, Stelter can spend the cash on a hairpiece because the thieving employee had legal access to the cash!

Has any news network simultaneously employed three dolts as mentally deficient as Stelter, Don Lemon, and Chris Cuomo? Continue reading →

The U.S.S. Theodore Roosevelt Affair

/ Jack Marshall / 24 Comments

Captain Brett Crozier was the  commander of the aircraft carrier Theodore Roosevelt which had been docked in Guam following a Wuhan virus outbreak among the crew of more than 4,000. With about a hundred members of his crew infected, he decided to take the extraordinary step of sending a letter to the Navy pleading  for resources and to have the afflicted sailors quarantined from the rest. In the four-page letter sent via a “non-secure, unclassified” email that included at least “20 to 30” recipients in addition to the captain’s immediate chain of command, including some crew members.

Crozier wrote that only a small contingent of infected sailors had been off-boarded, with most of the crew remaining  on board the carrier, where following official guidelines for 14-day quarantines and social distancing was physically impossible. He wrote

“Due to a warship’s inherent limitations of space, we are not doing this. The spread of the disease is ongoing and accelerating…Removing the majority of personnel from a deployed U.S. nuclear aircraft carrier and isolating them for two weeks may seem like an extraordinary measure. … This is a necessary risk…We are not at war. Sailors do not need to die. If we do not act now, we are failing to properly take care of our most trusted asset — our Sailors….Keeping over 4,000 young men and women on board the TR is an unnecessary risk and breaks faith with those Sailors entrusted to our care.”

Of course, the letter leaked to the press, and the situation became a news story and a subject of unwelcome controversy for the Navy. Acting Navy Secretary Thomas Modly initially told CNN in response to questions about the appeal,

“I know that our command organization has been aware of this for about 24 hours and we have been working actually the last seven days to move those sailors off the ship and get them into accommodations in Guam. The problem is that Guam doesn’t have enough beds right now and we’re having to talk to the government there to see if we can get some hotel space, create tent-type facilities.”

Although the letter had the desired result, with members of the crew gradually being removed from the carrier, the Captain had broken the cardinal military rule never to go outside the chain of command. Crozier had multiple conversations with the chief of staff to Modly before his letter was publicized in the San Francisco Chronicle. The Navy had told Crozier to  “call us any time day or night,” and gave him  Modly’s personal cell phone number to update the situation and raise further concerns.

Then the e-mail leaked. Crozier was dismissed as captain by the acting Navy Secretary for what Modly called “extremely poor judgment,” going outside the chain of command, and  disseminating the memo over an unsecured system. President Trump backed his appointee’s unpopular decision. Continue reading →

Ethics Train Wreck Analysis: The Richard Jewell Case

/ Jack Marshall / 11 Comments

“Richard Jewell,” Clint Eastwood’s excellent but much maligned film about a historical episode with many ethics twists and turns, is extremely accurate and fair in all respects, except for the glaring exception of the screenwriter  Billy Ray’s representation that reporter Kathy Scruggs obtained the information that Jewell was under suspicion by the FBI in exchange for one night stand with the agency’s lead investigator. This was the point where the Richard Jewell Ethics Train Wreck of 1996 acquired a car containing the 2019 movie “Richard Jewell.”

Let’s look at those other cars.

I. Jewell

Jewell was a socially awkward, lonely, obese man who lived with his mother. He was in many ways a stereotypical misfit with low  self-esteem, who developed ambitions about becoming a law enforcement officer, a job that would would provide him with the respect and power that he lacked and wanted. The film begins with Jewell’s stint as an office supply clerk in a small public law firm, where he becomes friends with attorney Watson Bryant. Jewell quits to pursue his dream of becoming a law enforcement officer, and Bryant, in saying good-bye, asks his friend to promise that if he ever acquires the authority he seeks, he won’t become a jerk, and abuse it.

This was a real life conversation. Bryant recognized that Jewell was a border-line Asperger’s sufferer, whether or not he knew the name or the clinical condition, and exactly the kind of personality who should never be given a shield and a gun.

Jewell took a job as a campus security officer at Piedmont College, and rapidly realized Watson Bryant’s worst fears by reacting to his authority by abusing it, being over-zealous and generating an unusual number of complaints from students. Jewell was fired, but the need for security personnel at the upcoming Atlanta Olympics gave Jewell another chance at some authority at least. He probably shouldn’t have had such a chance. Jewell was not a man who should have been in the security field or the law enforcement field; his judgment was poor, and his emotional problems made him a bad risk.

Thus the conditions for the ethics train wreck were put in place. It was up to moral luck whether hiring Richard Jewell would turn out to be a disaster, or a  fortunate near miss. Instead, it turned out to be something else entirely, a classic example of a bad decision having a good result—at least for a while.

2. The Bomb

In the early morning of July 27, 1996, Jewell, now working in Atlanta’s Centennial Park as part of the Summer Olympics security force, noticed an abandoned backpack by a bench. Over-zealous, officious and a fanatic about following procedure, Jewell insisted on reporting the pack as a “suspicious package,” despite the chiding of his colleagues, who wanted to take it to Lost and Found. If, as was overwhelmingly likely, the backpack had been just a backpack, Jewell probably would have been mocked. But again moral luck took a hand. He was right. It was a bomb. Jewell and other officers began clearing the area, and the bomb went off, killing one victim, Alice Hawthorne, and wounding many, still  far less serious damage than what might have occurred had Jewell not been so scrupulous in his discharge of his duties.

3. The Hero, the Scapegoats, and the Tip
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Comment Of The Day: “Labor Day Weekend Kick-Off Ethics Warm-Up: The ‘I’m Baaaack!’ Edition” [Item #3]

/ Jack Marshall / 7 Comments

I’m still not ready to post the COTD from the Battle of the Ethics Alarms Stars in the recent open forum, but that will be up tomorrow. This comment by Greg involves the ongoing news media effort to spin and bury the Inspector General’s report yesterday explaining what an untrustworthy disgrace to the FBI James Comey was.

I like Greg’s comment for three reasons: it is concise and well-written, it is about one of the most important topics here, which is how the news media has abandoned integrity and responsible reporting for propaganda and efforts to manipulate public opinion,  and because it saved me a post, since I had been preparing to write a similar essay after reading and listening to the usual media suspects.

I will say up front that Greg’s last sentence is too pessimistic. Abe was right, as I know I say too many times: you can’t fool all of the people all the time. The news media is destroying its own credibility even with those who are naive, lazy and gullible. It keeps doing this—burying stories that the pubic has a right to know but that undermine the media’s narrative, what Joe Biden and the Democrats regard as “the truth” that doesn’t  rely on facts, and little by little even its most stubborn defenders (those who aren’t corrupt) are figuring out that they have been conned. Right now I’m thinking of a lamented Ethics Alarms exile who accused me of “drinking the Kool-Aid” before he left. He’s biased, and he was gullible, but he’s not an idiot, not by any means. He knows he was wrong, and I was right by now. Sadly, he apparently doesn’t have fortitude to come crawling back with the apology he owes me. Well, that’s his tragedy.

Here is Greg’s Comment of the Day on Item #3 of the post, “Labor Day Weekend Kick-Off Ethics Warm-Up: The “I’m Baaaack!” Edition.”

The frustrating thing, though, is that most of the public has been misinformed and deceived about the Inspector General’s report. Comey immediately claimed the report had cleared him, on the grounds that it said he did not leak “classified” information. You know and I know that nobody had ever accused Comey of leaking national security secrets, so the report had “cleared” him of an accusation that had never been made, while finding him guilty of all of the accusations that had actually been made. But most people have no idea about this.

For a few minutes after the report came out, MSNBC, CNN and the other usual suspects played it straight: they admitted that the report was damning of Comey. But then they immediately fell into line: The IG had “cleared” Comey of leaking classified information but “criticized” him for “violating departmental policy.” It had “criticized” him, “scolded” him and “reprimanded” him; but it had “failed to vindicate” Trump and had “contradicted Trump’s accusations.” The IG’s report “found that no crimes were committed” and “acknowledged that Comey was candid with investigators.” It contained “nothing new that hasn’t been known for two years.” And, of course, Republicans have “pounced” on the report to make a “power grab.” The New York Times editorialized that the report was “boring,” while criticizing the IG for making a fuss about nothing. The Washington Post editorialized that “Comey saved democracy with his memos.” Continue reading →

Labor Day Weekend Kick-Off Ethics Warm-Up: The “I’m Baaaack!” Edition

/ Jack Marshall / 13 Comments

Excellent work in the Open Forum, everybody.

Thank-you.

As it happened, there would have been no way I could have written a post yesterday, except after I arrived home following a 6 hour drive from New Jersey following my three-hour seminar. At the point, however, my IQ had fallen below Joe Biden levels, so it would have been unethical for me to opine or analyze anything. I’m slightly better now, at the Kamala Harris level and rising, so I’m going to get right back on the metaphorical horse.

I hate missing a day like that, mostly because it puts me behind in covering the ethics news, but also because I view Ethics Alarms as a commitment to the loyal readers who come here.

1. Well this is good news…The College Board is dropping its proposed “adversity score” from the SAT. The ill-considered device, which Ethics Alarms metaphorically spat at here, would have assigned a score based on the socioeconomic background of each student, artificially raising his or her score based on socioeconomic circumstances.

Of course, this was an unusually transparent ploy to facilitate race-based college admissions .As I wrote in May,

This is a cynical and dishonest device to give cover to colleges and universities as they try to base their admissions on race and ethnicity while avoiding legal prohibitions on discrimination based on race and ethnicity. That is all it is, and exactly what it is.

2. And MORE good news! A new Rasmussen Reports survey shows that most voters believe the average journalist is liberal, and few are conservative. Moreover, a majority believe it is appropriate for politicians to criticize reporters and hold them to the same scrutiny as those they cover.

Of course  it is. For more than three years, we have been hearing that President Trump’s condemnations of the news media and specific news organizations and journalists represent a threat to the freedom of the press and democracy. For those same three years, the Ethics Alarms position has been that while the President’s rhetoric and tone is often irresponsible, the threat to democracy is being created by a mainstream media journalistic establishment that is no longer interested in being fair or objective, not by criticism of this dangerous trend.

The survey analysis found that 61% of likely U.S. voters believe reporters at major news organizations are public figures who deserve critical scrutiny of their conduct and biases.  Only 61%? 19% directly disagree with that contention. How  can they disagree? What would give journalist the unique right to be immune from criticism of bias, competence, and abuse of power? Elected officials are not immune, nor are scholars, artists, lawyers or judges. Continue reading →

Another White House Closed-Door “Gotcha,” Another Chunk Gouged Out Of Our Liberties

/ Jack Marshall / 44 Comments

The icky ethics category of private or limited audience statements that get unethically publicized by malign third-parties to embarrass and harm the speaker has been explored here many times, notably in the case of Donald Sterling, the NBA owner and billionaire who lost his franchise, millions of dollars and his reputation over a remark he made in his own bedroom that was surreptitiously recorded and released by a treacherous girlfriend.. The position of Ethics Alarms on these incidents, which also includes spurned lovers sharing private emails to the world in order to humiliate a correspondent, the Democratic Senators who leaked the President’s course rhetoric about “shithole” countries that took place during a meeting that was supposed to be private and confidential, and Donald Trump’s infamous “pussy-grabbing” statements, is simple. Once the embarrassing words have unethically made public, they can’t be ignored. Neither should the circumstances of their making, or the unethical nature of their subsequent use was weapons of personal destruction.

 

There is not a human being alive who has not made statements in private meetings or conversations, whether  those statements be jokes, insults, rueful observations or deliberate hyperbole, that would be horribly inappropriate as public utterances. Thus the feigned horror at such statements by others is the rankest kind of Golden Rule hypocrisy. In addition, the opprobrium and public disgrace brought down on the heads of those whose mean/ugly/politically incorrect/vulgar/ nasty/insulting words are made public by a treacherous friend, associate or colleague erodes every American’s freedom of thought, association and expression, as well as their privacy.

The most recent example of this unethical sequence occurred after Kelly Sadler, a White House special assistant, stated in a closed-door policy meeting that Senator John McCain’s opposition to Trump’s nominee for CIA director “doesn’t matter” because “he’s dying anyway.” Some saboteur in the meeting, determined to harm both Sadler and her boss, leaked this small moment in a private meeting, in which participants reasonably assumed they did not have to be politically correct, nice, kind, civil or careful because everyone in the meeting had tacitly agreed that the meeting was confidential. That, and only that, is the ethical breach here. (Nah, there’s no “deep state”…there are just nefarious moles in the White House who coordinate with the news media to undermine the President. That’s all!). Continue reading →

Morning Ethics Warm-Up, 4/27/18: Everything Is Spinning Out Of Control!!!

/ Jack Marshall / 37 Comments

Good MORNING, everyone!!!

(And good morning, little Louie..)

1. The state of American journalism, CNN’s Headline News quadrant: A recent poll claims that 50% of Republicans regard the news media as “enemies of the people.” Just because it is actively manipulating the news to try to topple the President of the United States? How unreasonable! No, I am beginning to believe that the 21st Century U.S. news media is really the Enemy of the Cerebral Cortex. On HLN this morning, James Comey’s disastrous interview on Fox News yesterday (among about 400 other stories of more relevance to Americans) was deemed newsworthy, but not one but two royal family stories were: the wedding dress for the American woman whose name I can’t remember who is going to marry the British prince who doesn’t matter on a date I don’t give a damn about, and, again, what the new royal great-grandchild’s name will be. The breathless reporting on these two world-altering events took over 10 out of the 40 minutes the network devotes to news rather than pharmaceutical commercials, a full 25%.

But that’s not all. HLN newsbabe Robin Meade emulated “Best in Show’s” Fred Willard’s cruelly hilarious send-up of Joe Garagiola’s embarrassingly lunk-headed turns as a “color man” at the Westminster Dog Show by asking the dumbest question, I think, I have ever heard on the air. If you haven’t seen “Best in Show” a) What’s the matter with you? and b) here are typical questions asked by Willard during the fictional dog show’s broadcast as “Buck Laughlin,” an ex-pro athlete, to his British dog expert  (“Trevor Beckwith”) co-host and others:

“Now tell me, which one of these dogs would you want to have as your wide receiver on your football team?”

“Doctor, question that’s always bothered me and a lot of people: Mayflower, combined with Philadelphia – a no-brainer, right? Cause this is where the Mayflower landed. Not so. It turns out Columbus actually set foot somewhere down in the West Indies. Little known fact.”

“Now that looks like a fast dog. Is that faster than a greyhound? If you put them in a race, who would come in first? You know if you had a little jockey on them…”

Robin, however, against all odds, topped Buck, asking the British reporter, after learning that the new total would be named, “Louis,”

“Now in American, when we hear that name we immediately think, “Louie Louie, oh no, yeah, yeah, yeah, yeah, yeah, baby.” Is that the way it is in England too? “

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