Category Archives: Law: Ethics

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

Did AG Eric Holder Commit Perjury? Whose Head Should Roll?

David Kravitz’s Wired article, How Obama Officials Cried ‘Terrorism’ to Cover Up a Paperwork Error begins like this:

After seven years of litigation, two trips to a federal appeals court and $3.8 million worth of lawyer time, the public has finally learned why a wheelchair-bound Stanford University scholar was cuffed, detained and denied a flight from San Francisco to Hawaii: FBI human error.

FBI agent Kevin Kelley was investigating Muslims in the San Francisco Bay Area in 2004 when he checked the wrong box on a terrorism form, erroneously placing Rahinah Ibrahim on the no-fly list.

What happened next was the real shame. Instead of admitting to the error, high-ranking President Barack Obama administration officials spent years covering it up. Attorney General Eric Holder, Director of National Intelligence James Clapper, and a litany of other government officials claimed repeatedly that disclosing the reason Ibrahim was detained, or even acknowledging that she’d been placed on a watch list, would cause serious damage to the U.S. national security. Again and again they asserted the so-called “state secrets privilege” to block the 48-year-old woman’s lawsuit, which sought only to clear her name.

The article includes a link to Attorney General Eric Holder’s declaration in Ibrahim v. DHS. It’s pretty awful — even worse than the article makes it sound. Here are the last two paragraphs (emphasis added):

16. On September 23, 2009, I announced a new Executive Branch policy governing the assertion and defense of the state secrets privilege in litigation. Under this policy, the Department of Justice will defend an assertion of the state secrets privilege in litigation, and seek dismissal of a claim on that basis, only when necessary to protect against the risk of significant hann to national security. See Exhibit 1 (State Secrets Policy),§ l(A). The policy provides further that an application of a privilege assertion must be narrowly tailored and that dismissal be sought pursuant to the privilege assertion only when necessary to prevent significant harm to national security. !d. § 1(B). Moreover, “[t]he Department will not defend an invocation of the privilege in order to: (i) conceal violations of the law, inefficiency, or administrative error; (ii) prevent embarrassment to a person, organization, or agency of the United States Government; (iii) restrain competition; or (iv) prevent or delay the release of information the release of which would not reasonably be expected to cause significant harm to national security.” !d. § 1(C). The policy also establishes detailed procedures for review of a proposed assertion of the state secrets privilege in a particular case. !d. § 2. Those procedures require submissions by the relevant Government departments or agencies specifying “(i) the nature of the information that must be protected from unauthorized disclosure; (ii) the significant harm to national security that disclosure can reasonably be expected to cause; [and] (iii) the reason why unauthorized disclosure is reasonably likely to cause such harm.” ld § 2(A). Based on my personal consideration of the matter, I have determined that the requirements for an assertion and defense of the state secrets privilege have been met in this case in accord with the September 2009 State Secrets Policy.

I declare under penalty of perjury that the foregoing is true and correct.

I think someone should lose their job over this. Perhaps that someone is the person who misinformed the Attorney General as to the facts of the case, perhaps not. In any event, Attorney General Eric Holder owes us all an explanation as to why that someone is not him.

Posted in 9/11 & Aftermath, Law: Ethics, Law: Right to Travel | 6 Comments

Legal Proceedings So Weird We Need Hunter Thompson to Cover Them

The first story, about proceedings in District Court in Tampa, FL was pretty weird and blackly funny, as lawyers scrambled to disassociate themselves with the proceedings in Porn trolling case thrown out for “attempted fraud on the court”.

Now Ars Technica ups the ante with the Minnesota sequel, Man charges porn trolling firm Prenda Law with identity theft: Says firm listed him as the CEO of a shell corporation without permission.

Hunter Thompson could really have done something with this material.

Posted in Law: Copyright and DMCA, Law: Ethics | Leave a comment