quid pro quo

Now THIS Is The “Appearance of Impropriety”!

/ Jack Marshall / 14 Comments

Was Joe Biden’s nomination of Senator Joe Manchin’s wife to a $165,000 post in his administration a bribe or a pay-off? So far, there’s no way to tell, but there is also no question about whether it creates an appearance of impropriety, which undermines public trust in the government, assuming there is any left at this point. It does. In fact, I can’t think of a more vivid example. The ethics rules governing government employees and judges, as well as members of Congress, prohibit conduct that creates the appearance of impropriety. The President and Vice-President are not covered by the rules. The circumstances around this appointment create only, well, circumstantial evidence of corruption, but then that’s what “appearance” means. It is conduct that creates suspicion.

Boy, does this ever.

Two days after Sen. Manchin cast a last-minute deciding vote on the Senate Armed Services Committee’s that advanced Biden’s controversial Pentagon policy nominee, Colin Kahl, to the full Senate, Manchin’s wife Gayle was announced as the surprise nominee to be federal co-chair of the Appalachian Regional Commission. The agency focuses on investing in Appalachia’s economic future by “providing grants, publishing research, and sponsoring learning experience.”

This, several news sources wrote, “raises questions about whether there was any connection between his vote and his wife’s nomination.” Ya think? The Biden administration has made it clear that if a nominee isn’t gay, trans, non-white, disabled, or a fire-breathing radical, there is no place for he/she/whatever. Why would a middle-of-the road, white woman from West Virginia qualify, other than the fact that she is, in fact, qualified for the job by those old fashioned, racist standards of yore?

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Morning Ethics Warm-Up, 1/30/2020: The Almost All Bolton Edition

/ Jack Marshall / 19 Comments

No, that’s not my Christmas tree, that’s John Bolton.

 Reluctantly Taking Down The Christmas Tree Day has finally arrived.

I’m sad. This was one of the Marshall’s loveliest trees ever; a neighbor said just yesterday that seeing it through our big living room window cheered her up every day. I always dread this, and not just because of the inevitable prickle wounds: the world seems a darker and more pessimistic place without a bit of Christmas in evidence. However, there’s no avoiding the chore: this tree is so dry I am taking down ornaments by snapping off the ends of branches by my fingers.

1. On Bolton. I suppose this qualifies as a sub ethics train wreck to the Trump Impeachment Ethics Train Wreck, which is itself a sub ethics train wreck to the 2016 Post Election Ethics Train Wreck…

  • Former Trump National security advisor John Bolton, a hawkish loose cannon who gets along with no one, was another example of a doomed appointment by the “We’ll appoint the best people” President. A  falling out and  acrimonious dismissal were so predictable, just as with Moochie, Bannon, Omarosa and other dubious personalities.

And, of course, the President is a dubious personality himself.

What a great witness!

  • Bolton, like Omarosa, wasted no time cashing in on his truncated White House experience, and wrote a book for Simon & Shuster scheduled to be released in March of 2020. This conduct alone is signature significance for an untrustworthy snake. Once, now long ago, no respectable member of a Cabinet or high official in an administration would write a tell-all book revealing incidents and words  learned in trust and confidence while that administration was still trying to govern, and many would refuse to reveal such information ever.

Though Bolton’s venal disloyalty has entered “Everybody does it” territory, it is still wrong, still unethical, and still the mark of a Judas. Continue reading →

Corrupting History To Get Trump, And Smearing A Profile In Courage To Do It

/ Jack Marshall / 13 Comments

Senator Edmund G. Ross. Hero? Corrupt hero? Politician?

It all started when a thoroughly Trump-deranged friend of long-standing–a Georgetown professor!–cited with approval on Facebook a critical article at the CNN site condemning the National Archives idiotic altering of an anti-Trump photo. I discussed the issue, and the article, here, #3, noting that Perry exposes himself as an unprofessional hack by using this incident to suggest, without evidence, untold document mischief throughout the  Trump administration. Noting how completely historians have debased their profession by joining the “resistance” and engaging in partisan analysis, I promised to return to Perry’s unethical screed that day. Well, I’m late, but here it is.

Later in his article, Perry wrote,  “Just last week, Vice President Mike Pence authored a mendacious op-ed in the Wall Street Journal, which touted one senator’s vote against the impeachment of President Andrew Johnson as a profile in courage, despite historians’ agreement that the senator was, in fact, likely bribed.”

I know all about Edmund G. Ross, celebrated in JFK’s “Profiles in Courage” as the Radical Republican Senator from Kansas who saved President Andrew Johnson from a political coup attempt very similar to what the Democrats are trying now to do to President Trump. Ross’s vote against impeachment conviction was the margin by which the two-thirds requirement for impeachment failed. Kennedy’s book (which he didn’t write, but that’s another ethics story) designated Ross a hero because he knew his vote would likely end his political career in Kansas, as indeed it did. Where did the alleged historical consensus that Ross was bribed come from?

The answer is nowhere. There is no such “agreement,” because there is no proof, only speculation. However, smearing Ross and denigrating his motives are essential to legitimizing  a 19th Century Republican plot to remove a President who was obnoxious, defiant, and widely regarded as  “unfit” as well as being looked down upon as too humble in his origins to be President. Doing so, you see,  makes the current soft coup appear similarly legitimate. By this new analysis, Ross isn’t a hero but a villain, thus the assault on Pence for citing Ross as a role model  Continue reading →

In Case Someone, Like The Mainstream News Media, Is Claiming That The Justice Department Just Cleared Hillary Clinton Of Wrongdoing, Don’t Believe Them

/ Jack Marshall / 18 Comments

Hillary Clinton was engaged in a long and lucrative influence peddling scam known as the Clinton Foundation.  It was a a brilliant, technically legal way to fund the family’s international travel, perks, and opportunity to set up lucrative deals for the family while pursuing other interests, but its was as corrupt as Rasputin’s beard was long.

The proof is in the chart above, unless you have been hit over the head with a skillet. Why would the Foundation’s donations dry up once the two senior Clintons were out of power and without prospects of regaining a measure of it?  Three guesses, and the first two don’t count.  Donations reached $134 million in 2010, right after Hillary became secretary of state, and stayed in that range through 2016. When she lost the election, support crashed, going from $217 million in 2016 to $26 million in 2017. The foundation fired 22 staffers and shuttered the Clinton Global Initiative.

There’s no mystery about what the Clintons were pulling. I teach a course every year on foundation ethics, and often discussed what a general counsel’s duties were once one discovered that their charity or non-profit was using the  non-profit tax laws this way. Nobody can argue it isn’t clever, though its not really unique: a lot of non-profits use the illusion of good works—just enough to meet legal requirements—to essentially launder funds. In this case, the foundation let foreign nations and others bribe the Clintons while getting a tax deduction. Sweet!

The Washington Post described the Justice Department investigation of the foundation as an effort to “mollify conservatives clamoring for more investigations of Hillary Clinton” about “vague corruption allegations.” Fake news. There’s been nothing vague about the accusations. I wrote about the foundation’s corruption many times, like here, in 2015, and here, in 2016, or here. Continue reading →

Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART III]

/ Jack Marshall / 19 Comments

(Part I is here; Part II, here.)

In this section of his testimony, Turley deals with the Ukraine phone call that is supposedly impeachable. Here is the key paragraph:

“Again, the issue is not whether these comments are correct, but whether they are corrupt. In my view, there is no case law that would support a claim of corrupt intent in such comments to support a bribery charge. There is no question that an investigation of the Bidens would help President Trump politically. However, if President Trump honestly believed that there was a corrupt arrangement with Hunter Biden that was not fully investigated by the Obama Administration, the request for an investigation is not corrupt, notwithstanding its inappropriateness. The Hunter Biden contract has been widely criticized as raw influence peddling. I have joined in that criticism. For many years, I have written about the common practice of companies and lobbyists attempting to curry favor with executive branch officials and members of Congress by giving windfall contracts or jobs to their children. This is a classic example of that corrupt practice.”

IV.   THE CURRENT THEORIES OF IMPEACHABLE CONDUCT AGAINST PRESIDENT DONALD J. TRUMP

 While all three acts in the impeachment standard refer to criminal acts in modern parlance, it is clear that “high crimes and misdemeanors” can encompass non-criminal conduct. It is also true that Congress has always looked to the criminal code in the fashioning of articles of impeachment. The reason is obvious. Criminal allegations not only represent the most serious forms of conduct under our laws, but they also offer an objective source for measuring and proving such conduct. We have never had a presidential impeachment proceed solely or primarily on an abuse of power allegation, though such allegations have been raised in the context of violations of federal or criminal law. Perhaps for that reason, there has been a recent shift away from a pure abuse of power allegation toward direct allegations of criminal conduct. That shift, however, has taken the impeachment process far outside of the relevant definitions and case law on these crimes. It is to those allegations that I would now like to turn.

At the outset, however, two threshold issues are worth noting. First, this hearing is being held before any specific articles have been proposed. During the Clinton impeachment hearing, we were given a clear idea of the expected articles of impeachment and far greater time to prepare analysis of those allegations. The House leadership has repeatedly indicated that they are proceeding on the Ukrainian controversy and not the various alleged violations or crimes alleged during the Russian investigation. Recently, however, Chairman Schiff indicated that there might be additional allegations raised while continuing to reference the end of December as the working date for an impeachment vote. Thus, we are being asked to offer a sincere analysis on the grounds for impeachment while being left in the dark. My testimony is based on the public statements regarding the Ukrainian matter, which contain references to four alleged crimes and, most recently, a possible compromise proposal for censure.

Second, the crimes discussed below were recently raised as part of the House Intelligence Committee hearings as alternatives to the initial framework as an abuse of power. There may be a desire to refashion these facts into crimes with higher resonance with voters, such as bribery. In any case, Chairman Schiff and committee members began to specifically ask witnesses about elements that were pulled from criminal cases. When some of us noted that courts have rejected these broader interpretations or that there are missing elements for these crimes, advocates immediately shifted to a position that it really does not matter because “this is an impeachment.” This allows members to claim criminal acts while dismissing the need to actually support such allegations. If that were the case, members could simply claim any crime from treason to genocide. While impeachment does encompass non-crimes, including abuse of power, past impeachments have largely been structured around criminal definitions. The reason is simple and obvious. The impeachment standard was designed to be a high bar and felonies often were treated as inherently grave and serious. Legal definitions and case law also offer an objective and reliable point of reference for judging the conduct of judicial and executive officers. It is unfair to claim there is a clear case of a crime like bribery and simultaneously dismiss any need to substantiate such a claim under the controlling definitions and meaning of that crime. After all, the common mantra that “no one is above the law” is a reference to the law applied to all citizens, even presidents. If the House does not have the evidence to support a claim of a criminal act, it should either develop such evidence or abandon the claim. As noted below, abandoning such claims would still leave abuse of power as a viable ground for impeachment. It just must be proven.

A.  Bribery

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Monday Morning Summary Of What Would Have Been In The Sunday Ethics Warm-Up That I Was Supposed To Post But….Aw, Forget It. Here’s Some Ethics Stuff…

/ Jack Marshall / 22 Comments

Good morning.

Boy, am I glad THAT week is over.

1. Moral luck saves the 2019 baseball post-season…for now. MLB missed a major disaster when an umpire missed a clear strike three (he ruled a foul) on Yankee slugger Gary Sanchez in a tied and crucial game between the Houston Astros and New York.  It was the 11th inning, meaning a tie-breaking run would mean a likely Yankee victory.  THAT would have meant that the Astros would have lost the first two games of a seven game series at home, a hole that very few teams in baseball history have been able to overcome.

Sanchez  struck out on the next pitch, and a Carlos Correia home run in the bottom of the inning sent the Astros to Yankee Staudium in a series tied 1-1. The botch was moot, and will soon be forgotten. But if he Sanchez hit a home run or otherwise led the Yankees to a decisive score, the ALCS might have been completely turned by a blown call captured on video for all to see.

And there would be no excuse: the rules allow no appeal on that kind of play, but there has to be.

Yes, it was “moral luck” again. The fact that the worst didn’t happen doesn’t change the seriousness of the fact that only luck saved the day and prevented a blot on the integrity of the whole 2019 post-season. Maybe it would have been better if the bad call had altered the game, the series, and the World Series. Maybe then baseball would stop waiting for the high-profile disaster caught on video that will force it to have ball and strikes called by technology. It took an umpire’s obvious blown safe call in what should have been the last out of a perfect game to make baseball go to replays, and anyone who watches many games knows how many times a reversal changes game outcomes. Continue reading →

Afternoon Ethics Warm-Up, 9/19/18: Conditional Authoritarianism, Fake Reparations, And Profitable Harassment

/ Jack Marshall / 26 Comments

Having a good and ethical day?

1. Here’s a useful definition…that I formulated while reading another issue of the increasingly and inexcusably anti-Trump propaganda obsessed New York Book Review section. This past weekend’s addition was more obvious than usual. “Democracy at Risk!”  (Not by an opposition party setting out to topple a Presidency with the assistance of the news media—no no no! The risk justifies the opposition party doing this!) “Is Donald Trump a Fascist?”  Hey, what’s Bob Woodward reading, just to pick a celebrity out of a hat? (The interview highlights the lack of self-awareness among the Trump-haters: Bernstein points out how intolerance and hate destroyed Richard Nixon as the Times allows and promotes hate in its war against the current President.) There’s an essay about…white nationalism! A Times reporter has written a book that pronounces the United States as “DOOMED!” And here’s Andrew Sullivan extolling an American revisionism exercise while referring to the current “spasm” of authoritarianism, and Doris Kearns, my old presidential power prof in college, with a new book about her faves, Lincoln, Teddy, FDR, and LBJ. These were great leaders.

The definition: Authoritarianism is when a President you don’t like exerts strong leadership within his powers to accomplish policy goals you disagree with. When a President you do like stretches and exceeds his Constitutional powers to achieve policy goals you approve of, that’s not authoritarianism. That’s great leadership.

As an aside, Andrew Sullivan tells us in his review that “the 2008 Heller decision rejecting a D.C. handgun ban is quite obviously bonkers.” All righty then! I guess that settles it!

2.  Speaking of Bonkers: Emmys Ethics. Michael Che appeared in a pretaped bit in which he handed out “reparation Emmys” to  black performers who supposedly were overlooked by the voting academy. These included Jaleel White (Urkel  on“Family Matters”), Marla Gibbs (nominated five times for her role as Florence on “The Jeffersons”), Tichina Arnold (“Martin,” “Everybody Hates Chris”) and Kadeem Hardison (“A Different World”).
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The Paid Expert Witness Problem [UPDATED And CORRECTED]

/ Jack Marshall / 22 Comments

“Check enclosed…”

When a lawyer’s expert witness testifies in a trial, the opposing counsel will always ask, “You’re being paid for your appearance today, isn’t the true?” The one time I was asked that question, I answered, “I’m being paid for my time, not my opinion.” Of course, many experts—yes, even ethics experts—are accepting payment for their opinion. The case of a Houston lawyer’s recent conduct, however, is the worst example of this reality crossing the ethics lines, hard.

Lawyer Mark Lanier had presented father-and-son orthopedic surgeons to the court and the jury as unpaid experts, emphasizing that they were testifying pro bono while the defendants’ experts had been bought. Naturally, this made them seem more credible to the jury. After the trial, however, and after the jury had awarded Lanier’s client  a handsome verdict and damages of $151 million, it was discovered that Lanier made a $10,000 charitable donation to the father’s favorite charity before trial, and sent “thank-you” checks totaling $65,000 to the surgeons after the trial, accompanied by notes of gratitude.

But they weren’t being paid for their testimony—at least, not when they were asked about it. Continue reading →

Afternoon Ethics Cool-Down, 2/28/18: Honors, Bribes, Blackmail, And “Ugh!”

/ Jack Marshall / 37 Comments

Good Afternoon.

Actually, that’s dishonest: it’s been a terrible day, morn to now.. A catalogue retailer took an email address my wife sent them a year ago and  bombarded her account with hundreds of promotional messages yesterday, crashing her email. Then her efforts to fix the problem resulted in a Proethics system email crash that I have been trying to address for the past five hours. I finally decided to get something productive done, so I’m getting up this post while talking to my tech people. UPDATE: They just gave up.

1 Trump Tweets. Ugh. The President criticizing his own Cabinet member, in this case Jeff Sessions, in public via tweet, is horrific leadership and management practice. If I were Sessions, I would resign, It is disrespectful, disloyal, undermines morale on the President’s team, and is just plain stupid. I don’t understand how Trump had any success at all treating employees and subordinates like this. While we’re on this perpetual subject. the fact that the President would say out loud that he would have rushed the Parkland shooter without a weapon is just more evidence of a) a flat learning curve b) the lack of the usual filters from brain to mouth and c) the unethical tendency of third parties to critique the actions of others in rescue situations. No question: the resource officer who was required by policy, assignment and duty to try to intervene in the shooting deserves all the criticism he has been getting, and is accountable. But the President of the United States announcing that he is Batman is something else entirely.

My objections to the non-stop personal ridicule of our elected leader stands, but he also has a duty, as the steward of the Office, not to make himself look ridiculous.

2. An unethical boycott tactic, but I repeat myself.  The anti-gun zealots have decided to attack a free and constitutionally protected Bill of Rights advocacy group as part of the news media-assisted effort to demonize the NRA as being somehow responsible for a school shooting that none of the proposed “common sense gun reforms” would have prevented. Now the Second Amendment-gutting crowd  is using the boycott, a particularly odious weapon favored by progressives, which depends on the venality and spinelessness of corporate executives to constrict free speech. Delta Airlines announced it was ending a promotional discount with the National Rifle Association after threats and a social media campaign, then tried the weaselly explanation that its decision to stop offering discounted fares to the N.R.A. “reflects the airline’s neutral status in the current national debate over gun control amid recent school shootings.”
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Morning Ethics Warm-Up, 2/18/18: Sunday Potpourri

/ Jack Marshall / 21 Comments

Good Morning!

1. Now THIS is a bribe…Al Hoffman Jr., a Florida-based real estate developer and a prominent Republican political donor “demanded” yesterday that the party pass legislation to restrict access to guns, and vowed not to contribute to any candidates or electioneering groups that did not support a ban on the sale of military-style firearms to civilians. “For how many years now have we been doing this — having these experiences of terrorism, mass killings — and how many years has it been that nothing’s been done?” Mr. Hoffman said in an interview. “It’s the end of the road for me.”

The only ethical GOP response is, “Bye!” Donors may not tie their support to specific legislative measures. That’s a quid pro quo. a bribe. The party should—I would prefer “must”—respond by officially and publicly telling Hoffman that its elected officials  will do what they believe is in the best interests of their constituents and the nation, and he is free to contribute to whatever he deems appropriate.

Moreover, his statement shows that he doesn’t know what he’s talking about. This is yet another “Do something!” yelp.

2. Yet more anti-gun hysteria...Could there be a more nakedly emotional and irrational headline than this one in today’s Sunday Times: “Why Wasn’t My Son the Last School Shooting Victim?”(That’s the print version…the online headline is different.)

3. I may have to put “cultural appropriation” on my list of things have to flag every time it’s used…From a New York Times article about Wes Anderson’s new animated film about dogs exiled to a miserable island in the wake of “dog flu” comes this astounding cut-line:

“Critics Address The Issue Of Cultural Appropriation In ‘Isle of Dogs'”

It seems the American director’s work here is influenced by the films of iconic Japanese director Akira Kurosawa.  The Horror. Hey, what the hell business does Japan have running  professional baseball leagues? Here’s a quick poll as a warm-up for the Warm-Up:

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