spoliation

Morning Ethics Warm-Up, 10/10/19: Omar, Warren, Clinton, And Urinals

/ Jack Marshall / 38 Comments

Good morning!

Yesterday I had completed a 3-hour Ethics CLE program for a distinguish national law firm’s D.C. office, aided by my sister, retired justice Dept. and HHS attorney Edith Marshall. (This time, her role was to lead the attendees in the chorus section of my legal ethics parody of “Trouble in River City” from “The Music Man.”) I knew that I should have gotten some posts done when I returned, but a) I was exhausted and b) there were two Game Five play-off games to watch. Sometimes, baseball comes first. Priorities! Congratulations to the St. Louis Cardinals for an upset win over the Braves, whose horrible fate of giving up ten runs in the first inning I wouldn’t even wish on the Yankees. Imagine knowing you have lost before your team even gets up to bat, and that you’re in front of the home team fans who will have to suffer through three hours of slow, inevitable humiliation. Ugh. The Braves lost with as much dignity as possible in such a hopeless situation. And congratulations to the resurgent Washington Nationals, who came back from a late  deficit to tie the game in the eighth, and then won on a grand slam in the tenth. They are now headed to the seven game play-off to determine who represents the NL in the World Series, the first time a Washington, D.C. team has been this close since 1933. D.C. really needed this.

1. Should it matter? Minnesota Fifth District Rep. Ilhan Omar, she of “The Squad” fame (or infamy)  has filed for divorce from husband Ahmed Hirsi, whom she only married last year, though he is the father of her three children. Omar’s petition for dissolution of her marriage has been posted online here. Our sole Somali Muslim House member previously was married to  Ahmed Nur Said Elmi, who appears to be her brother and whom she married to perpetrate a citizenship fraud in 2009. Omar legally dissolved that marriage in 2017. There appears to have been a period where she was married to both men. Omar has never given a straightforward explanation for her tangled domestic affairs.

Should any of this matter? These things really do constitute “personal, private conduct,” unlike the workplace misconduct that the enablers of Bill Clinton tried to defend by using that term. If Omar did perpetrate a fraud, however, or was married to two husbands, those are very relevant to her fitness to serve as a law-maker. Continue reading →

Observations On The Trump Jr. “Collusion” Attempt [UPDATED]

/ Jack Marshall / 44 Comments

1.  Preet Bharara, the ex-U.S. attorney fired by the Trump Administration, tweets…

Quick reminder: something doesn’t have to be illegal for it to be foolish, wrong and un-American.

True. When Donald Trump, Jr. was informed that a Russian lawyer wanted to meet with him to pass along damaging information about Hillary Clinton, he should have gone to the FBI immediately, because this could have been indicative of a national threat. Instead he said “Whoopie!” or words to that effect. Moron.

But we knew that.

*Notice of Correction: In the original post, I erroneously stated that Bharara had joined Mueller’s team investigating Russian interference with the election. That was incorrect. I apologize. I was confused by this headline from the Washington Examiner: Special counselor adds former Preet Bharara prosecutor to Russia probe: Reports. It’s a bad headline, but I should have read the whole article. Careless.

2. Similarly, if Danny Jr told Kushner and Manafort what he was told the meeting would be about, THEY should have told him that the meeting was a bad idea, and to report it. They are slime-bags, and none too bright either.

We knew that, too.

3. It may be pure moral luck that this didn’t turn into a serious breach of election laws. But the fact is that no information changed hands, as far as we know. There was no “collusion,” which isn’t a legal term anyway.

4. The New York Times, from its good side, actually detailed the legal realities of the case, which ironically show how absurdly over-heated and misleading its own coverage is. The Times consulted with legal experts who said,

  • The events made public in the past few days are not enough to charge conspiracy.  Renato Mariotti, a former federal prosecutor said the revelations are important because if further evidence of coordination emerges, the contents of the emails and the fact of the meeting would help establish an intent to work with Russia on influencing the election…at least on Donald Trump Jr.’s part.

But as has been the situation throughout, the episode is still waiting for real evidence of genuine collusion between the Russians and the Trump campaign, and this wasn’t it. The anti-Trump mob, in the news media and out of it, is so, so eager, so desperate, to prove sanctionable wrongdoing that it is pouncing on everything that contains a shred of hope.

  • There has to be an underlying federal offense that is being conspired to be committed. So far, there is no evidence of that, and the aborted meeting with the Russian lawyer didn’t come close.

If the e-mails released yesterday specified that what was being offered had been obtained by an illegal computer hack, that would  be enough. They didn’t. Continue reading →

Ethics Hero: Donald Trump, Jr.

/ Jack Marshall / 185 Comments

Donald Trump, Jr. just released the entire e-mail chain that the New York Times alluded to (without actually seeing it) in a front page story designed to advance the Russian-Trump collusion  narrative.

Good for him. It would be wonderful if this were the usual course, in the Trump administration and every other one. Stop stonewalling, get the facts out, and take whatever comes.

Observations:

1. New York criminal defense attorney Eric Turkewitz, seemingly displaying  the ethics of his breed, implies that Trump, Jr.’s attorney would have been telling him to delete the messages. That would be unethical, and quite probably spoliation, since the e-mails could be reasonably seen as likely to be sought in an investigation already underway. My assumption is that Trump’s lawyer approved the release. Maybe Eric would have too.

2. Vox, among others, are tracking down partisan election law lawyers who will argue that young Donald was violating election laws. I’m extremely dubious of that.

The relevant statute language:

A solicitation is an oral or written communication that, construed as reasonably understood in the context in which it is made, contains a clear message asking, requesting, or recommending that another person make a contribution, donation, transfer of funds, or otherwise provide anything of value.

Unless one is determined to read the statute as meaning what it pretty clearly does not, “value” means monetary value, not “useful.”  “Value” could reasonable mean services, like spending time and resources hacking DNC computers. But handing over a document already acquired? How is that value if it didn’t cost anything? If the information was not illegally obtained by the Russians, and we have no way of knowing whether it was, then simply receiving proffered information that might be useful in a campaign doesn’t involve a campaign in a crime.

3.  “Colluding” is a pejorative term, but not a legal one. Is an American “colluding” with a foreign power once he or she has been told that the power wants a particular result, and the American takes steps to accomplish the same result, but in his own interests? Is that a crime? No. Continue reading →

Revisiting The “Ten Ethics Questions For Unshakable Hillary Voters”

/ Jack Marshall / 74 Comments

Hillary Rally

Less than a year ago, I responded to a series of what I regarded then (and now) as irresponsible expressions of support, bias and denial by Hillary Clinton supporters with ten questions designed to rescue them from corruption. At the time, the possibility that an even worse candidate would (or could) be nominated by the Republican Party never crossed my mind.

Although it was largely buried over the last week in the aftermath of the Orlando shooting, Clinton’s e-mail fiasco was further exposed as the deep evidence of  long-term Clinton corruption that it is.  One of the most damaging e-mails handled on her private server, for example, was not turned over to the State Department (Hillary has sworn repeatedly a that ALL State Department business-related e-mails were turned over, raising the rebuttable presumption that she had other State communications among the 30,000 or so that her personal lawyers had destroyed.) We also learned that State Department staffers struggled in December 2010 over a serious technical problem that affected emails from the improper server, causing State staffers  to temporarily disable security features on the government’s own systems, thus making them more vulnerable to attack.

In a deposition under oath, Clinton’s IT specialist Bryan Pagliano, a central figure in the set-up and management of Clinton’s personal server, invoked the Fifth more than 125 times.  Meanwhile, the shadowy Clinton Foundation machinations came to the fore once again. An Associated Press review of the official calendar Hillary Clinton kept as Secretary of State identified at least 75 meetings with longtime political donors, Clinton Foundation contributors, corporate and other outside interests that were not recorded.  The calendar omissions naturally reinforce suspicions that she sought to hide possibly improper or even illegal uses of her influence and position to raise funds for the foundation. While the news media tried to spin Donald Trump’s statement in his attack on Hillary last week that “Clinton’s State Department approved the transfer of 20% of America’s uranium holdings to Russia while nine investors in the deal funneled $145 million to the Clinton Foundation,” his statement was accurate. For a change.

What was striking about the ten questions, looking at them again, is how little I would alter them today. The major change is that the arguments of those who claimed that evidence of Hillary’s unethical conduct was partisan or inconclusive look even more desperate and dishonest than they did last August. For the same reasons, the passage of time makes Clinton’s shameless and insulting lies seem even more shameless and insulting. The Democratic Party also looks worse and more corrupt: it rigged the nomination for this woman of demonstrably untrustworthy and venal character, as well as of dubious skills. Nothing can surpass the complete abdication of its duty to the United States by the Republican Party and its voters, but this was a betrayal by the Democrats.

Here is the list. I’ll have a few observations along the way, in bold.

“Ten Ethics Questions For Unshakable Hillary Voters” Continue reading →

Ethics Quote Of The Day: Slate’s Dahlia Lithwick

/ Jack Marshall / 35 Comments

“Whether or not the alleged institutional abuses are ultimately proven, the reality is this: A severely ill young man wasted away, smeared in his own feces, under the watchful eyes of multiple health care workers, corrections staff, and other inmates. His death will force no accountability and will bring about no change. The illness from which Jamycheal Mitchell suffered could have been better managed through medication, proper treatment, and simple respect. The illness that allows the rest of us to jail great masses of dangerously sick people and mistreat them until they die? It is increasingly seeming to be untreatable and incurable.”

—-Slate’s legal pundit Dahlia Lithwick, writing about the case of 24-year-old Jamycheal Mitchell, who was found dead in his cell at Hampton Roads (Virginia) Regional Jail in Virginia.

Jamycheal Mitchell: Almost nobody thinks his life mattered.

Jamycheal Mitchell: Almost nobody thinks his life mattered.

There is a $60 million lawsuit being filed by Jamycheal Mitchell’s family over his death as a result of an astounding combination of incompetence and negligence. Mitchell suffered from schizophrenia and a bipolar disorder, and was arrested four months prior to his death for stealing a can of Mountain Dew, a Snickers bar, and a Zebra Cake from a 7-Eleven.  He was allowed to waive counsel despite his mental and emotional impairments, and bail was set at $3,000  for stealing less than five dollars worth of junk food. A judge twice ordered him moved to a state mental health hospital, but no beds were available, so he was allowed to languish, and starve to death, in jail.

The videotape of his last days in prison were also erased forever, because, officials say, they didn’t show anything irregular. I was asked if this qualified as spoliation, the intentional and illegal destruction of evidence when a court proceeding is looming or and investigation is underway. No, because spoliation can only take place when a legal proceeding is inevitable or in process, and also because government institutions are remarkably unlikely to ever be held to account for the practice. This was not technically spoliation, because there was no legal proceeding yet, though one could have been predicted by an idiot. Similarly, Hillary Clinton destroying 0ver 30,000 supposedly “purely personal” emails  before they could be demanded by a Senate Committee (and hearings are not legal proceeding) were not technically spoliation. Ethically, it is a distinction without a difference.

Continue reading →

Facebook Manipulation, Ben Rhodes And Hillary’s Tech Minion’s Missing Emails: Seeking A Path To Objective Analysis (PART 2 of 2)

/ Jack Marshall / 15 Comments

suspicion

In Part I I examined the considerations involved in assessing whether the Ben Rhodes affair, which I also discussed here, is factual and justifies dire conclusions about our government.

Part Two will attempt to objectively assess the two other news stories that seem to compel progressives, in full confirmation bias mode, to deny, ignore, or trivialize, and conservatives, also driven by bias, to take as proof that conspiracies are afoot. Those stories both come down to suspicion and trust:

  • The claims from former Facebook employees that they were directed to suppress news stories of interest to conservative readers from the social network’s “trending” news section, while pushing stories with positive implications for progressive readers.
  • The State Department’s revelation that it can’t locate Bryan Pagliano’s emails from the time he served as Secretary of State Hillary Clinton’s senior information technology staffer during her tenure there.

First, the Facebook charges. From the Gizmodo “scoop”:

“Several former Facebook “news curators,” as they were known internally, also told Gizmodo that they were instructed to artificially “inject” selected stories into the trending news module, even if they weren’t popular enough to warrant inclusion—or in some cases weren’t trending at all. The former curators, all of whom worked as contractors, also said they were directed not to include news about Facebook itself in the trending module.

In other words, Facebook’s news section operates like a traditional newsroom, reflecting the biases of its workers and the institutional imperatives of the corporation. Imposing human editorial values onto the lists of topics an algorithm spits out is by no means a bad thing—but it is in stark contrast to the company’s claims that the trending module simply lists “topics that have recently become popular on Facebook.”

And, like a typical newsroom, Facebook’s bias is heavily weighted to the left. The Senate has announced that it is investigating news manipulation at Facebook, though I can’t see on what theory.

Facebook unequivocally denied the charges, saying in part,

“Facebook does not allow or advise our reviewers to systematically discriminate against sources of any ideological origin and we’ve designed our tools to make that technically not feasible. At the same time, our reviewers’ actions are logged and reviewed, and violating our guidelines is a fireable offense.”

Leaving aside confirmation bias and eschewing the six reactions to such stories I listed in Part I (I don’t believe it, AHA! I knew it!, So what?, ARGHHHH! We’re doomed!, Good, So how did the Mets do today?), we’re left with a “he said/they said” controversy that is either a stalemate, with the default judgment having to go to the side that actually has the guts to reveal its name, or a case of “Who do you trust?”

Does this seem like something Facebook would do? Well, let’s see, Facebook already admitted that it had performed unwilling experiments on random users to see if it could manipulate their moods. Facebook was credibly accused of restricting users from access to 30,322 emails and email attachments sent and received by Hillary Clinton during her tenure as Secretary of State.  Last month, a report found evidence of  Facebook censorship on pro-Trump and negative Hillary news, and a Facebook employee’s question about whether Facebook should actively take measures to impede Donald Trump was discussed here.  Facebook founder and CEO Mark Zuckerberg is a big Democratic donor. Facebook’s fellow social media giant Twitter has been censoring some high-profile conservative users lately.

Gee, are there any reasons not to trust these people? Continue reading →

Ethics Bulletin! Hillary Apologizes! And It’s Pathetic!

/ Jack Marshall / 12 Comments
I just can't bear to put up another Hillary photo, and the graphics for "fake apologies" are all memes, so here's an adorable bull dog puppy.

I just can’t bear to put up another Hillary photo, and the graphics for “fake apologies” are all memes, so here’s an adorable bull dog puppy.

I really, really wanted to be through with Hillary Clinton today…this week…as long as possible. You’ve got to believe me!

Then comes this breathless announcement from ABC News: Hillary finally apologized!

Of course, when you have said repeatedly that there was nothing to apologize for, and you aren’t going to apologize, see no reason to apologize, because you did nothing wrong, and it was allowed, and lots of others had done similarly without anyone making a fuss, and the whole thing is nonsense, and made up by Fox News and Republicans, and then you apologize because you can’t stop the criticism and your advisors are saying “FOR THE LOVE OF GOD, HILLARY, THE MEDIA IS  BEGGING YOU TO APOLOGIZE AND MAYBE IF YOU GIVE THEM WHAT THEY WANT WE CAN BURY THIS!!!!,” what kind of apology is it?

An insincere apology. A desperate apology. A cynical, dishonest, Machiavellian apology, containing no contrition, humility, acknowledgement of wrongdoing, remorse or acceptance of consequences. In other words, not an apology at all. Just another tactic,

Is anyone really fooled by this? If you are, what’s the matter with you?

Even by fake apology standards, this was awful. Clinton said (my comments in Hillary Soul Black):

“I do think I could have and should have done a better job answering questions earlier.

You mean better as in not using one rationalization after another, lying , falsely claiming that the e-mails of the Secretary of State contained no classified information before you adopted the Clintonian “no e-mails marked as classified?” Or better as in doing a better job lying?

“I really didn’t perhaps appreciate the need to do that.

Because Clintons never appreciate the need to tell the truth unless they are about to be exposed. Because Hillary is only running for President—why would she appreciate the need to be transparent and honest to the public? Why, though, was the alternative to doing a better job answering questions sending out one smirking, talking-point programmed surrogate after another to say that the issue was a sham? Why didn’t she appreciate the need not to do that?

“What I had done was allowed, it was above board.

In other words, she still refuses to admit she did anything wrong! What’s she apologizing for?  And no, it was not above board, because it was a secret private server specifically designed to keep Clinton’s communications hidden when she wanted them to be. “Above board” means “in open sight; without tricks, concealment, or disguise.” Her handling of the e-mails  was the opposite of “above board” by definition. Continue reading →

Tales of The Corrupted: David Ignatius’s Hillary E-mail Scandal Whitewash

/ Jack Marshall / 9 Comments
This is how the world ends. The ethical world, anyway...

This is how the world ends. The ethical world, anyway…

I am charting the Clinton Corruption of the Democratic Party and how it spreads to other populations, like progressives, feminists, journalists and voters. I fear that a map of the projected progress will look like one of those scary plague or zombie computer progressions in scenes from movies like “Outbreak,” showing the entire nation turning blood red over a series of progressions beginning with a single carrier in Montana or someplace. “We have 72 hours, gentlemen, until the whole nation is infected!”

Still, there is hope. Last week I was struck by the sad cast of Clinton surrogates that her campaign trotted out to argue that it is ridiculous for anyone to think that a Secretary of State should be expected to follow her own department’s best practices, take proper steps to protect sensitive communications or tell the truth. The most raving was Howard Dean, who essentially adopted the Big Lie approach employed by James Carville. “Look,” Dean told “Meet the Press” host Chuck Todd last week, “this is, in fact, manufactured partly by a press that’s bored and partly by the Republicans….She can’t be blamed for this. So I look at this as the usual press frenzy, the pack journalism, and I think it’ll go away, because there’s no sense to it.” Dean should have also mentioned the bored FBI, the bored judges, and the hundreds of bored lawyers I have discussed the issue with in ethics seminars. If there is one of the latter group who agrees with Dean (who isn’t being paid by the Clintons), he or she hasn’t had the guts to say so out loud. Then Hillary sent a sacrificial lamb to Fox News, a poor ex-Bill Clinton State official named Ellen Tauscher who looked terrified…

Tauscher

….spoke in a shaky voice,  stumbled and stuttered and made no sense at all, teeing up junk like this…

TAUSCHER: Look, Secretary Clinton has former foreign service officers, civil servants. I did as undersecretary too, that make sure all of this information is protected. It is physically impossible to move things from the classified system to the unclassified system. We are only talking about the classified system, unclassified system. Everything on the classified system is where it belongs and there is no question about that. The Federal Records Act makes very clear that the person that transmits the information is responsible for the classified — classification of the information. And is it possible that Secretary Clinton was passed something by somebody and somebody and somebody? Yes. That would have been true if it had been on the state dot-gov e-mail system. But I mean, I think that we all understand that Hillary Clinton is held to a different standard. But let’s get it straight. Let’s be lawful and let’s be smart about this. We’re talking about unclassified e-mails. We’re not talking about classified e-mails, we’re talking about unclassified e-mails and they are clearly subject to what people interpret…. And there are differences between the State Department and the intelligence community right now.

As Olsen Johnson said in response to Gabby Johnson’s “authentic frontier gibberish” in “Blazing Saddles,” “Now who can argue with that?”

My impression was that no articulate, honest, credible Democrat was willing to defend Clinton, hence the campaign’s reliance desperate resume peddling hacks like Tauscher and principle-free madmen like Dean and Carville.

This week, it was more of the same. On “This Week With Martha Raddatz Pretending To Be George Stephanopoulos,” Hillary’s designated liar was a state senator I had never heard of who refused to answer Raddatz’s questions. My favorite exchange: Raddatz asked her about polls showing that a majority of the public believes that Hillary lies and isn’t trustworthy, and whether this wasn’t a serious concern for the campaign?

“Well, I certainly don’t feel that way!” the surrogate answered, with that frozen smile these people get when they have to stick to talking points and admit nothing.

Still, the Clinton Corruption Contagion (CCC) is spreading to the thoughtful and credible. The venerable Cokie Roberts, on the ABC roundtable today, has embraced the deceptive and misleading media spin that the only issue is whether the e-mail revelations ultimately costs Clinton significant support. No, that’s not the issue at all, at least not the one the news media should be concerned with. The issue is what Clinton did and what she said, and whether being incompetent, conflicted, reckless with sensitive communications and lying about it repeatedly, plus destroying evidence, disqualifies a former Secretary of State from being considered as a legitimate Presidential contender. Cokie Roberts’ analysis has now deteriorated into “Will Hillary’s lies and blame-shifting work?”

Hearing her talk like that is like watching Dana Wynter open her cold, inhuman eyes post-podding in “Invasion of the Body-Snatchers.”

Then there is David Ignatius, one of the Washington Post’s more trustworthy pundits, who authored an op-ed some CCC infected staffer headlined “The Hillary Clinton e-mail ‘scandal’ that isn’t.” Continue reading →

Translation: “OK, Lying And Denying Responsibility Haven’t Worked; Let’s Try Lying And Accepting SOME Responsibility.”

/ Jack Marshall / 17 Comments

Said Candidate Hillary Clinton at a campaign stop in Iowa:

“I know people have raised questions about my email use as secretary of state, and I understand why. I get it. (1) So here’s what I want the American people to know: My use of personal email was allowed by the State Department. (2) It clearly wasn’t the best choice. (3) I should’ve used two emails: one personal, one for work. I take responsibility for that decision, and I want to be as transparent as possible, which is why I turned over 55,000 pages (4), why I’ve turned over my server (5), why I’ve agreed to — in fact, been asking to — and have finally gotten a date to testify before a congressional committee in October. (6) I’m confident that this process will prove that I never sent, nor received, any email that was marked classified. (7).

Notes: Continue reading →

More E-Mail Deception From State: Does Anybody Care? Well, I Do. And You?

/ Jack Marshall / 16 Comments
Another day, another Hillary advisor, another scandal...

Another day, another Hillary advisor, another scandal…

The private server of Hillary Clinton isn’t the only intrigue going on the should make us wonder just how corrupt our leaders and aspiring leaders are. There has been a new development involving another set of emails that should cause public outrage and alarm…if the news media had the integrity to report on it.

In 2012, Gawker filed a Freedom of Information Act (FOIA) request asking the State Department to produce e-mails related to Deputy Assistant Secretary of State Philippe Reines (now a top Hillary Clinton adviser) and his contacts with  thirty-three listed media outlets. Reines was involved in an intemperate email exchange with Gawker journalist Michael Hastings in which he told Hastings to “fuck off;” naturally Gawker, being Gawker, wanted to dig up dirt on him.

[It’s a side issue, but any high ranking government official  that tells any journalist to “fuck off” should be forced to apologize and be punished or sacked.  This just one more example of the Obama Administration’s aversion to accountability and management competence.]

The U.S. State Department officially stated in 2013 that there were no such emails, reporting that “After a thorough search . . . no records responsive to your request were located.”

Last week, after a federal judge demanded a“court-ordered status report,” Justice Department lawyers, reporting on behalf of the State Department, announced that the previous statement was a teeny bit off. The State Department had found of “5.5 gigabytes of data containing 81,159 emails of varying length” sent or received by Reines, of which about 17,855, or 22%, were relevant to the initial FOIA request.

Wait…what?? Continue reading →