Category Archives: Law: Ethics

Astounding Recusal Order

Judge Robert Scola, Jr. (S.D. Fla) issued this Order of Recusal the day before yesterday. Must reading. Note the fourth and fifth paragraphs.

Spotted via “Immoral and barbaric” at SDFLA Blog.

Update: Lest there be doubt, I mean astounding in a good way. Although I do worry a little about the ability of other local judges to try the case in a manner that would be immune to a claim that their impartiality might reasonably be questioned. Maybe a change of venue is pending?

Posted in Law: Ethics | Leave a comment

Bad Claims is the New Trump Litigation Strategy

Post-Mueller, the Trump Family1 has embarked on a novel litigation strategy: bringing really bad claims. Making terrible legal arguments is nothing new for the Trumps, but generally they’ve made those arguments as defendants, often while defending very amateurish and inept attempts to overturn Obama-era regulations. And almost universally, those lost.

Now, however, we see the Trump Family is moving on to offense2, and it’s not pretty: Treasury is setting up to argue it can ignore a quite clear statute requiring the IRS send Congress tax returns. Attorney General Barr, to his shame (if he has any), claims he can dictate to Congressional committees the terms of his appearances. Trump Family companies are suing Democratic House Oversight Committee Chairman Elijah Cummings to block a subpoenas on his finances and suing Deutsche Bank and Capital One to prevent them from complying with subpoenas.

What all these cases have in common is that the legal theories on which they are based are tenuous to non-existent.

What gives? These could simply be Hail Mary passes by the guilty: try this because you have nothing better.  Or they could be plays to delay bad news, maybe even run out the clock until the next election with appeals. Or, worst of all, they could be a cynical calculation that some or all of them might find favor before an increasingly stacked judiciary, and a very pro-Trump Supreme Court.  Or, why not, it could be all of the above.

All of these are bad answers.


  1. I have decided that from now on I will use the Mafia term while blogging, rather than call it an Administration. []
  2. In the legal sense; in every other sense they’ve been there for quite some time. []
Posted in Law: Administrative Law, Law: Constitutional Law, Law: Ethics, Law: Everything Else, Law: The Supremes, The Scandals | Leave a comment

The Op-Ed

Everyone is talking about the NYT op-ed by the Trump appointee who sees him/herself as protecting the US from a clear and all-too-present danger in the Oval Office. I’m on the road, so I’m late to the party, but here in very summary form is my two cents, taking the op-ed as true for sake of discussion.

  1. Underminig the boss is often a moral problem, but it is only a constitional problem if you do it wrong. Manipulating the boss is different from just ignoring the boss. Playing bureaucratic games to get your way is probably a Washington passtime than is older than the White House. Flat out ignoring the boss’s orders is subversive of the constitutional order, a violation of a duty of loyalty to the boss, and arguably a violation of every appointee’s oath to preserve and protect the Constitution of the USA– a document that for better or much worse has made Trump the President in law as well as in name.
  2. What if the boss is morraly terrible? Ignoring the boss could be a very hard moral issue in extreeme cases. Some ends do justify some means. If the issue were the preservation of the Republic, or preservation of many lives, I think our author would have moral (but not legal) justification for the behavior. If the issues are, as we get the sense they are, ‘mere’ policy – stopping Trump doing things that are very very stupid but not existential dangers – then the moral justification for the illegality and personal disloyalty is much weaker. Quitting and saying why might be a better course.
  3. I am reminded of Daniel Drezner’s piece on whether you should work for Trump, and especially Elliot Cohen’s “I told conservatives to work for Trump. One talk with his team changed my mind”. The warning signs were there from the first.
  4. It’s hard to read the oped without speculating unkindly about the author’s motives. If your goal really were to subvert from within in the interst of the survival of the Republic, why would you advertise that until after the fact? That op-ed is not going to make the job easier. It might be justified if the goal were to bring down this President (and bring in Mike Pence – an improvement how exactly?), but there’s nothing in the four corners of the oped to support that view. Rather, it seems to me like an exercise in ass-covering, a marker that some weasel put down for the future so that after the whole con collapses he/she can disclaim the taint that–if there is any karma or justice–will follow everyone who was part of Operation FUBAR for the rest of their natural life and beyond.
  5. I’m also reminded of what the late great Charles L. Black, Jr. said about how he thought a government official should deal with the hypothetical ‘terroris with an A-bomb’ scenario. The scenario was and is deployed to test intuitions about whether torture could ever be justified–what people who say torture is never justified would do if they believed the terrorists’ claim to have put the ticking time bomb in a big city. Read the fuller account, but the takeaway is that if you decide conscience requires an illegal act, you have a moral duty to turn yourself in right afterwards and face the music, whether it’s prosccution or pardons and a medal.Our op-ed writer is not following that model.
  6. And finally,
Posted in Law: Constitutional Law, Law: Ethics, The Resistance | 3 Comments

Trump Lawyer Ethics Update

Further to my post noting that Trump’s personal lawyer Marc E. Kasowitz appeared to be giving legal advice in a jurisdiction where he was not admitted to practice, I now learn that the Campaign for Accountability has filed a bar complaint against Kasowitz in DC; someone else filed a similar complaint in New York, where Kasowitz is admitted.

The Above the Law blog says “it’s unlikely this ends with Marc Kasowitz getting in ethical trouble” but I don’t see why not.  I can see why this wouldn’t necessarily be a big violation, all things considered, so I would be shocked to see a major sanction like a suspension, but I’d also be somewhat surprised if there wasn’t at least a wrist slap somewhere.

Posted in Law: Ethics, Trump | 2 Comments

Trump’s Lawyer is not a Member of the DC Bar?

NYT reports on Trump’s personal lawyer Marc E. Kasowitz giving what looks like awfully convenient (for him and for Trump) legal advice to White House staffers that they don’t need to lawyer up. As the NYT explains:

He told aides gathered in one meeting who had asked whether it was time to hire private lawyers that it was not yet necessary, according to another person with direct knowledge.

Such conversations between a private lawyer for the president and the government employees who work for his client are highly unusual, according to veterans of previous administrations.

Previous administrations tried to coordinate the activities of private lawyers before letting them interact with aides. Jane Sherburne, a White House special counsel who managed ethics issues during Mr. Clinton’s first term, said Mr. Kendall was not allowed to meet with White House staff members until “we had gone through a whole exercise of having conversations with employees ourselves, talking to them about whether they wanted to retain their own counsel and telling them they didn’t have to talk to Kendall.”

Under ethics rules, Mr. Kasowitz cannot interview any official who has hired a lawyer without that lawyer’s permission, meaning it would be in his interest if administration aides did not hire their own lawyers, experts said. “It is probably easier for him to represent Trump if he doesn’t have to deal with a bunch of other lawyers,” Ms. Sherburne said, adding that she believed it was inappropriate for Mr. Kasowitz to discourage aides from hiring their own counsel.

Richard Painter, the White House ethics lawyer under President George W. Bush who now teaches at the University of Minnesota’s law school, said that in a worst-case scenario, a staff member might listen to Mr. Kasowitz’s advice and “end up thrown under the bus.”

What the NYT don’t mention, however, is that Kasowitz does not appear to be a member of the DC Bar. At least according to Kasowitz’s homepage at his law firm, Kasowitz is only admitted in New York. I don’t think that is any obstacle to advising the President on matters of federal law, but it might be an issue on advising the staff as to whether they need representation?

Posted in Law: Ethics, Trump | Leave a comment

John Oliver Explains the Clinton e-Mail ‘Scandal’ (Updated)

…and as a bonus explains the Clinton Foundation controversy too.

This will undoubtedly enrage certain people.

Update (10/2/16): What the FBI Files Reveal About Hillary Clinton’s Email Server

Posted in 2016 Election, Law: Ethics | 2 Comments