Senator Dick Durbin

Incompetent Elected Official Of The Month AND Unethical Tweet Of The Month: Senator Dick Durbin (D-Ill)

/ Jack Marshall / 9 Comments

This hyper-partisan boob has been in the US Senate for 39 years and is Chair of the Senate Judiciary Committee. Yet he still doesn’t comprehend the First Amendment. (To be fair, his party has been trying to marginalize the First Amendment for years now).

To be fair again, he could be a victim of the “Twitter makes you stupid” problem that I warn my legal ethics classes about.

Twitchy has an amusing compilation of some of the Twitter users from both side of the political spectrum who quickly pointed out to Durbin that his own tweet was misinformation.

I thought it was horrifying when CNN’s then-rock star Chris Cuomo, allegedly a lawyer, made a similar statement on Twitter, but Chris is, as we know, a dolt, and he also was just a broadcast journalist, or pretending to be one. Durbin, also a lawyer, is a U.S. Senator.

Wow.

Sentencing Ethics: The Perplexing Relevance Of “Acquitted Conduct”

/ Jack Marshall / 14 Comments

Senators Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that if passed and signed into law would  prohibit the use of so-called “acquitted conduct” at sentencing. What is acquitted conduct, you might ask? It is charges for which a defendant has been found not guilty that a sentencing judge nonetheless considers when sentencing that defendant for the crimes the jury says they did commit. This practice give prosecutors a special edge. Knowing that a judge may consider at sentencing every offense the prosecutor charges, a prosecutor can charge a defendant with an offense he knows he can prove beyond a reasonable doubt, and then charge more serious offenses that he probably can’t  prove. Even if jurors only reach a guilty verdict on the charges proved beyond a reasonable doubt, and refuse to convict on other charges, a judge can, and often does takes all the charges into consideration at sentencing.

“If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.” Under the law he is proposing with Senator Durbin, if a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then sentences you should be able to consider only offense you were found guilty of.

What’s going on here? It is simply that the Federal sentencing rules currently allow a judge to consider crimes he or she believes the defendant is guilty of committing regardless of what the jury decided, just as a judge can take other factors into consideration. In such cases, a judge may use a preponderance of the evidence standard, not the criminal law standard of  beyond a reasonable doubt, to conclude that the jury was wrong and that a sentence should reflect conduct other than what the prosecution was able to prove to the jury’s satisfaction. Continue reading →

From The Ethics Alarms “Democrats Must Be So Proud” Files: An Obvious Observation On Today’s Kavanaugh Hearing

/ Jack Marshall / 56 Comments

It is disgraceful,  embarrassing, and dangerous, and only two or three steps away from Charles Sumner being physically attacked by Preston Brooks on the Senate floor.

It emerged during the proceedings that Senate Democrats planned to disrupt the orderly process of the hearings as a strategy. Nice. I guess that’s their replacement for the filibuster. I think I prefer the device used by Lilly Tomlin’s character in the Netflix series “Grace and Frankie”: when she can’t rebut an argument, she starts singing “She’ll Be Comin’ ‘Round the Mountain” as loud as she can, so nobody else can talk.

“The hearing began with protesters breaking in, and continued with serial efforts by Democratic Senators to postpone the hearing. To the credit of committed chair Chuck Grassley, he bulled on through. As he did so, the Democratic side degenerated into a contest regarding which putative candidate for the Democratic 2020 nomination could pander to the base more. Here is how the day began:

GRASSLEY: “Good morning. I welcome everyone to this confirmation hearing on the nomination of —“
HARRIS: “Mr. Chairman.”
GRASSLEY: “— Brett Kavanaugh –”
HARRIS: “Mr. Chairman.”
GRASSLEY: “— to serve as associate justice of the Supreme Court of the United States.”
HARRIS: “Mr. Chairman, I’d like to be recognized for a question before we proceed. Mr. Chairman, I’d like to be recognized to ask a question before we proceed. The committee received just last night less than 15 hours ago —“
HARRIS: “Mr. Chairman, regular order.”
HARRIS: “— 42.000 pages of documents that we have not had an opportunity to review or read or analyze.”
GRASSLEY: “You are out of order. I will proceed.”
HARRIS: “We cannot possibly move forward, Mr. Chairman. We have not been given the opportunity to have a meaningful hearing with Congress nominee–“[cross-talk]
GRASSLEY: “I extend a very warm welcome to Judge Kavanaugh, to his wife Ashley, their two daughters –[cross-talk]
UNKNOWN: “Mr. Chairman, I agree with my colleague, senator Harris. Mr. Chairman, we received 42.000 documents tat we haven’t been able to review —”
GRASSLEY: “— And everyone else joining us today.”
UNKNOWN: ” and we believe this hearing should be postponed —”
GRASSLEY: “I know this is an exciting day for all of you here and your you’re rightly proud —”
UNKNOWN: “Mr. Chairman, if we cannot be recognized I move to adjourn. Mr. Chairman, I move to adjourn.”
GRASSLEY: “— From Judge Kavanaugh —”
UNKNOWN: “Mr. Chairman, I move to adjourn. Mr. Chairman, we have been denied real access to the documents we need to advise —” (Audience cheering)
BLUMENTHAL: “Mr. Chairman, we have been denied the real access to the documents we need —[cross-talk] which turns this hearing into a charade and a mockery of our norms and, Mr. Chairman, I therefore move to adjourn this hearing.”
AUDIENCE: “This is a mockery. This is a travesty of justice. Cancel Brett Kavanaugh, adjourn the hearing. [ indecipherable].”
BLUMENTHAL: “Mr. Chairman, I ask for a roll call vote on my motion to adjourn.”
AUDIENCE MEMBER: “‘[indecipherable]'”
GRASSLEY: “Okay.”
BLUMENTHAL: “Mr. Chairman, I move to adjourn. I ask for a roll call vote.”
GRASSLEY: “We are not in executive session. We will continue as planned.”

A recurring theme was the disingenuous complaint that Democrats, who have received over 400,ooo pages of materials relating to Trump’s nomination to fill Justice Kennedy’s seat on the Court, as well as all of his judicial opinions which are what really matter, did not have time to read the most recently released batch of about 40, 000 pages. Everyone knows that what is in those documents doesn’t matter one bit, because the entire group of Democratic Senators have already made it clear that they are going to vote against Kavanaugh as a bloc. They are going to do it to express their outrage over Merrick Garland; they are going to do it to pander to the resistance narrative that Trump is an “illegitimate” President, they are going to do it because the party increasingly seeks to demonize conservatives, they are going to do it because they are afraid of their base. Oh, there are lots of reasons. All of the Democratic Senators, maybe most,  don’t seriously believe their party’s own scare-mongering that Kavanaugh will lead the Supreme Court to reverse Roe v. Wade, but there is the rapidly pro-abortion—not just pro-abortion rights but pro-abortion—feminist segment of the base to pander to as well.

Essentially, we are watching an entire political party embrace mob-style interference as an alternative to process, because they don’t like what the likely results of the established process will be. Of course this is dangerous to the nation and the Constitution. It is also a tantrum, just like the party’s reaction to President Trump’s election itself.

It was predictable that if the funeral of a Senator was exploited  as an opportunity to attack the President, the hearings on his Supreme Court nominee would certainly be. (I am not finished looking, but so far I can find no comparable direct attacks on Barack Obama during the hearings on his two nominees.) Here, for example, is the reliable demagogue Dick Durbin (D-Ill), doing his best Keith Olbermann imitation:

“You are the nominee of President Donald John Trump. This is a president who’s shown us consistently he’s contemptuous of the rule of law. He’s said and done things as president which we’ve never seen before in history. He dismissed the head of the FBI when he wouldn’t bend to his will. He harasses his attorney general on almost a daily basis in the exercise of his office, and I didn’t vote for Jeff Sessions, but I have to tell you there should be some respect at least for the office he serves in. And it’s that president who’s decided you are his man. You’re the person he wants on the Supreme Court. You are his personal choice. So are people nervous about this? Are they concerned about it? Of course they are.”

As in the hypocritical remarks by the McCain mourners. Durbin is hilariously self-indicting. Durbin’s party has been  contemptuous of the rule of law in areas where the President has been committed to enforce it, as with illegal immigration. Durbin and his party have undertaken direct assaults on the First, Second, and Fourth Amendments. The way Democrats are conducting themselves in this very hearing has never been seen before in history. Continue reading →

Afternoon Ethics Warm-Up, 2/10/18: A Train Wreck Update And A Post On “Democratic Norms”

/ Jack Marshall / 29 Comments

Good Afternoon…

Why is the warm-up so tardy today? You don’t want to know...

1 The Harvey Weinstein Ethics Train Wreck takes an unexpected turn, which is hard to do for a train...Feminist Katie Roiphe is being widely attacked by the #MeToo mob for her  Harper’s essay ,“The Other Whisper Network: How Twitter Feminism Is Bad for Women.” Her thesis: with women reveling in a new-found power to destroy men’s reputations and careers with mere accusations of sexual misconduct in the workplace or on a date, women’s advances in society are likely to be reversed based on basic suspicion and fear.  The mere news that she was preparing the piece was enough for Roiphe to be called, on social media, Roiphe reported, 

“pro-rape,” “human scum,” a “harridan,” a “monster out of Stephen King’s ‘IT,’?” a “ghoul,” a “bitch,” and a “garbage person”—all because of a rumor that I was planning to name the creator of the so-called Shitty Media Men list. The Twitter feminist Jessica Valenti called this prospect “profoundly shitty” and “incredibly dangerous” without having read a single word of my piece. Other tweets were more direct: “man if katie roiphe actually publishes that article she can consider her career over.” “Katie Roiphe can suck my dick.” With this level of thought policing, who in their right mind would try to say anything even mildly provocative or original?”

The threat of criticism of the online “shitty media men” spreadsheet that gathered anonymous allegations of sexual misbehavior for the purpose of destroying the careers of those on it prompted the  unethical website’s creator, Moira Donegan, to out herself, which she did proudly and to remarkably little criticism from women, who feel pressure to remain silent from peers, Roiphe says. Asks Kyle Smith in the National Review,  “Is a movement that effectively silences even mild dissent by mostly like-minded people something to be proud of?”

One feminist who has been critical of the #MeToo witch hunt tendencies from the start is “Advice Goddess” Amy Alkon, who writes, “Women of past generations worked so hard to be treated as men’s equals. Now every woman has to be looked at like a walking lit fuse.” Of course this is happening: I predicted it too. As Smith writes at another article in the NY Post, many men are no longer willing to be alone with female colleagues: Continue reading →

Ethics Update On The “Shithole” Scandal: More Dunces, Hacks, Hypocrites And Liars

/ Jack Marshall / 8 Comments

When we last left the ‘Shithole’ scandal, now being cited routinely up and down the news media as proof positive that the President is a racist, we knew the following:

1 Unnamed sources “briefed on” or “familiar with” the President’s meeting with select lawmakers regarding an immigration deal told the Washington Post and others that President Trump “grew frustrated with lawmakers” when he learned that part of the proposed deal protected immigrants from Haiti, El Salvador and African countries, and said,

“Why are we having all these people from shithole countries come here?”

2. Despite the fact that these “sources” had no direct knowledge of what was said in the meeting they did not attend, the New York Times characterized them as having “direct knowledge,” which was impossible. The news media also represented these accounts based on briefings as fact, with headlines such as the Times’ “Trump Alarms Lawmakers With Disparaging Words for Haiti and Africa.”

3. In a series of tweets, the President denied the characterization of what he had said.

4. Senator Dick Durbin, while not expressly quoting the President, told reporters that Trump had said things “in the course of his comments which were hate-filed, vile and racist,” and added, “I use those word advisedly. I understand how powerful they are. But I cannot believe in the history of the White House in that Oval Office that any president has ever spoken the words that I personally heard our president speak yesterday.”

5. Nonetheless, the news media, in its subsequent coverage in cable news shows and on the web, treated the claim that Trump had said what the second-hand, anonymous sources had claimed, and used this as a departure point for a general discussion of how racist and vulgar the President was. CNN commentators used the term “shithole” over a hundred times.

6. Websites and blogs with commentators capable of fairness and objectivity, like Ethics Alarms,  Althouse, and Powerline, were forced to accept arguendo (I’m sorry, but I love using that word) the anti-Trump narrative’s assumptions in order to point out that calling countries that are, in fact, “shitholes” is not a racist statement about the people in those countries. This, of course, is how Big Lie propaganda works. You have to accept the lie in order to debunk it.

To sum up, then: The news media reported as fact what were in truth  disputed comments in a private meeting, and the representation of these as truth solidified during the day and evening, and through yesterday.  Now we get headlines like this one, in Entertainment Weekly: “Anderson Cooper chokes up while discussing Trump’s ‘sh–hole’ comment”

Updated Comments and observations: Continue reading →

Morning Ethics Warm-Up: 1/12/2018: Sigh. It Never Ends. (Part II) [UPDATED]

/ Jack Marshall / 124 Comments

A Nigerian locale, and not an atypical one.

From the Washington Post:

President Trump grew frustrated with lawmakers Thursday in the Oval Office when they discussed protecting immigrants from Haiti, El Salvador and African countries as part of a bipartisan immigration deal, according to several people briefed on the meeting.

“Why are we having all these people from shithole countries come here?” Trump said, according to these people, referring to countries mentioned by the lawmakers.

Trump then suggested that the United States should instead bring more people from countries such as Norway, whose prime minister he met with Wednesday. The president, according to a White House official, also suggested he would be open to more immigrants from Asian countries because he felt that they help the United States economically.

In addition, the president singled out Haiti, telling lawmakers that immigrants from that country must be left out of any deal, these people said.

“Why do we need more Haitians?” Trump said, according to people familiar with the meeting. “Take them out.” 

Ethics Observations:

I. “According to several people briefed on the meeting”? What? Not even according to people AT the meeting?

Based on this, without any attributions, the news media is stating that Trump making those alleged comments are fact. Here’s the Times version,

“…according to people with direct knowledge of the conversation.“

No, they don’t have “direct knowledge.” What someone tells you about what someone else said at a meeting you were not attending is indirect knowledge. It is, in fact, hearsay. If the Times and the Post did not get confirmation on the record from someone who heard what he said, then this is not fact, but rumor, inadmissible in court because of extreme prejudice and lack of reliability.

Never mind. The Times headline is Trump Alarms Lawmakers With Disparaging Words for Haiti and Africa, as if the second-hand accounts were  confirmed fact. This is unethical journalism. Outrageously so, in fact. Meanwhile, all of the news channels, including Fox, were basing hours of reporting on it.

This is not acceptable. It is not professional, and it is not justifiable. It is a disgrace, and if you accept it, you should be ashamed of yourself.

II. Trump denies that he uttered those words, on Twitter, of course:

“The language used by me at the DACA meeting was tough, but this was not the language used. What was really tough was the outlandish proposal made – a big setback for DACA!…Never said anything derogatory about Haitians other than Haiti is, obviously, a very poor and troubled country. Never said “take them out.” Made up by Dems. I have a wonderful relationship with Haitians. Probably should record future meetings – unfortunately, no trust!”

The denials mean nothing, I know. The President has such a bizarre view of reality and such a record of misstatements and reversals that he has no credibility and deserves none. However, that doesn’t mean that he did make the alleged statements either. I wouldn’t be surprised if he did. I certainly wouldn’t be “shocked.” It sounds like something he would say, because nuances of language and tone, not to mention civility ande diplomacy, are alien concepts to him. In other words, it rings true. That doesn’t mean it’s ethical to report it as fact. Continue reading →