Bob Schwartz

Category: Government

To My Brothers and Sisters in the Law: Remember Professional Ethics in the Face of Tyranny

Some of my readers may be lawyers; certainly some colleagues, friends or members of their families are, so please pass this on if you would like. Many people involved in current immoral and unethical polices such as the forced separation of migrant children are also lawyers.

This is a brief chapter from On Tyranny: Twenty Lessons from the Twentieth Century (2017). Note that the Kindle edition of this essential book is only $3.99. It is the best and most conscientious $3.99 you can spend right now.


5. Remember Professional Ethics (emphases added)

When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient civil servants, and concentration camp directors seek businessmen interested in cheap labor.

Before the Second World War, a man named Hans Frank was Hitler’s personal lawyer. After Germany invaded Poland in 1939, Frank became the governor-general of occupied Poland, a German colony where millions of Jews and other Polish citizens were murdered. He once boasted that there were not enough trees to make the paper for posters that would be needed to announce all of the executions. Frank claimed that law was meant to serve the race, and so what seemed good for the race was therefore the law. With arguments like this, German lawyers could convince themselves that laws and rules were there to serve their projects of conquest and destruction, rather than to hinder them.

The man Hitler chose to oversee the annexation of Austria, Arthur Seyss-Inquart, was a lawyer who later ran the occupation of the Netherlands. Lawyers were vastly overrepresented among the commanders of the Einsatzgruppen, the special task forces who carried out the mass murder of Jews, Gypsies, Polish elites, communists, the handicapped, and others. German (and other) physicians took part in ghastly medical experiments in the concentration camps. Businessmen from I.G. Farben and other German firms exploited the labor of concentration camp inmates, Jews in ghettos, and prisoners of war. Civil servants, from ministers down to secretaries, oversaw and recorded it all.

If lawyers had followed the norm of no execution without trial, if doctors had accepted the rule of no surgery without consent, if businessmen had endorsed the prohibition of slavery, if bureaucrats had refused to handle paperwork involving murder, then the Nazi regime would have been much harder pressed to carry out the atrocities by which we remember it.

Professions can create forms of ethical conversation that are impossible between a lonely individual and a distant government. If members of professions think of themselves as groups with common interests, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power. Professional ethics must guide us precisely when we are told that the situation is exceptional. Then there is no such thing as “just following orders.” If members of the professions confuse their specific ethics with the emotions of the moment, however, they can find themselves saying and doing things that they might previously have thought unimaginable.

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The Very Small People Running America

The people running America are very small, starting with the president, and continuing down through his administration and his Republican supporters.

What does small mean?

Let us put it in terms these people will understand, since practically all of them claim to be faithful, most of them faithful Christians:

So God created mankind in his own image.
Genesis 1:27

That is, of course, aspirational. Not that people will be able to reach godlike heights of compassion and care. But that is the constant goal—interrupted by the shortfalls we are all subject to, being human as we are.

But maybe we’ve got it all wrong. Maybe God is petty and ignorant, uncaring and uncompassionate. In which case, those running America are being faithful, acting so small in the image of a very small God.

Or maybe they don’t understand the very first chapter of the Bible they embrace, or maybe they ignore it or skip it. Maybe they don’t understand, ignore or skip the entire Bible.

Anyway, these are very small people, faithful or just pretending to be. Way too small to be doing such a big job.

The U.S. lost track of 1,475 unaccompanied immigrant children it captured last year. Department of Health and Human Services says: “Not our legal responsibility.”

Everything you need to know about Trump and his administration is in this story (or in dozens of other stories). Not that public bureaucracies big and small don’t make mistakes, sometimes terrible ones. But that the appropriate and moral public servant response is to take responsibility, find out what went wrong, and work to fix it.

Instead, the response is either to blame someone else or to fall back on having no legal responsibility. No crime, no foul. We are going to be hearing a lot more of that in the months to come.

How in the world has Trump been able to assemble such an historically rotten administration? Leading by example?

Washington Post:

During a Senate committee hearing late last month, Steven Wagner, an official with the Department of Health and Human Services, testified that the federal agency had lost track of 1,475 children who had crossed the U.S.-Mexico border on their own (that is, unaccompanied by adults) and subsequently were placed with adult sponsors in the United States. As the Associated Press reported, the number was based on a survey of more than 7,000 children:

From October to December 2017, HHS called 7,635 children the agency had placed with sponsors, and found 6,075 of the children were still living with their sponsors, 28 had run away, five had been deported and 52 were living with someone else. The rest were missing, said Steven Wagner, acting assistant secretary at HHS.

Health and Human Services officials have argued it is not the department’s legal responsibility to find those children after they are released from the care of the Office of Refugee Resettlement, which falls under HHS‘s Administration for Children and Families. And some have pointed out that adult sponsors are sometimes relatives who already were living in the United States and who intentionally may not be responding to contact attempts by HHS.

Why Trump May Not Fire Department of Justice Officials (It’s Not Impeachment, a Constitutional Crisis or the Rule of Law)

It increasingly sounds like Trump is ready to rush in and try to stop the Mueller investigation:

A Rigged System – They [Department of Justice] don’t want to turn over Documents to Congress. What are they afraid of? Why so much redacting? Why such unequal “justice?” At some point I will have no choice but to use the powers granted to the Presidency and get involved!

Trump actually has no idea what the constitutional powers of the three branches of government are. He may not even know there are three co-equal and balanced branches of government. The only thing he knows is that he is THE PRESIDENT and that is the most powerful position in the world, EVER.

Trump’s firing people responsible for investigating him is wrong, is incident to a constitutional crisis, and breaches the fundamentals of the American rule of law. That won’t stop him. But this might:

If Trump proceeds with his improper intervention, every responsible lawyer currently working on his behalf, and every responsible lawyer being asked to represent him, should and may leave and run the other way. Because by continuing or taking on that work in the aftermath of such action by Trump, they are complicit—even if tangentially and collaterally—in supporting those actions. There is a case to be made that by continuing in those circumstances, lawyers are in breach of their oaths (lawyers are all sworn officers of the court) and of the rules of professional conduct.

All of which is not meaningful or comprehensible to Trump. But he might notice that there are fewer quality lawyers willing to touch his legal problems, and that number will get infinitely smaller if he carries out his threats.

“In the biographies of men and nations, success often arrives in a mask of failure.”

This isn’t about baseball, though the quote is from a baseball writer. Bill James is not just a superb writer; he is a thinker whose analysis of the game has changed baseball more than any other thinker has ever changed any game. You can look it up.

This is about optimism and hope. I was reading The New Bill James Historical Baseball Abstract (a 998-page volume whose title alone should tell you just how thoughtful Bill James is). He describes Robin Yount, who as of the time of publication James considered the Number 4 shortstop in baseball history:

Robin Yount (1974–1993, 2856 G, 251 1406 .285)

Robin Yount was a major league regular when he was 18 years old. We always wondered how good he would be, how much he would improve. In 1978, after Yount had been in the major leagues four years, he held out in the spring, mulling over whether he wanted to be a baseball player, or whether he really wanted to be a professional golfer.

When that happened, I wrote him off as a player who would never become a star. If he can’t even figure out whether he wants to be a baseball player or a golfer, I reasoned, he’s never going to be an outstanding player.

Yount was unhappy about suggestions that the Brewers would move him to the outfield. According to Dan Okrent in Nine Innings, “Yount didn’t merely reject the suggestion; he brooded about it, resented it, and lost himself in self-doubt. Members of the front office… saw Yount’s reaction as immature sulking.”

But as soon as he returned to baseball, Yount became a better player than he had been before; his career got traction from the moment he returned. What I didn’t see at the time was that Yount was in the process of making a commitment to baseball. Before he had his golf holiday, he was there every day, he was playing baseball every day, but on a certain level he wasn’t participating; he was wondering whether this was really the sport that he should be playing. What looked like indecision or sulking was really the process of making a decision.

This is often true. What Watergate was about was not the corruption of government, as most people thought, but rather, the establishment of new and higher standards of ethical conduct. Almost all scandals, I think, result not from the invention of new evils, but from the imposition of new ethical standards. Same thing with Yount; he wasn’t backing away from baseball; he was just putting the bit in his teeth, accepting new responsibilities. In the biographies of men and nations, success often arrives in a mask of failure. (emphasis added)

Lesson for Trump Attorneys: The Lawyers of Watergate

“The Nixon White House initially dismissed the break-in as a “third-rate burglary,” but after a year of increasingly persistent media coverage, Congress initiated multiple investigations that exposed the involvement of more than 20 of the most powerful lawyers in the United States.”

This was going to open with a list of lawyers who are representing Trump and Trump-related enterprises—including the White House. But that list changes too fast; Trump’s chief attorney in the Mueller investigation, John Dowd, resigned just this week.

Whoever they are or will be, they have one thing in common. They are working for a client who almost certainly has engaged in unethical, if not illegal, practices—before and during his political life, including his presidency. A client who has asked others, including his attorneys, to help fix or cover-up those practices when they were in danger of coming to light. A client who is vindictive, willful, self-absorbed, not very smart, and possibly psychologically unstable. A client who will not listen to them.

All of which brings us to Nixon and the lawyers of Watergate. One difference between Nixon and Trump is that Nixon was smart, a lawyer himself and a long-time national politician who understood how government works. Nixon was also a patriot, and, at least at some point in his life, a brave man, having served with distinction in World War II.

Unfortunately, Nixon, like Trump, found himself engaged in practices that he eventually needed to hide. He enlisted a gang of henchmen to help him—and many of those men were lawyers. When they truth came out, many of those lawyers were no longer allowed to be lawyers (including Nixon), and Nixon was no longer president.

If you wonder why lawyers are leaving Trump right and left, the following suggests one of the reasons.

ABA Journal, June 2012

The Lawyers of Watergate: How a ‘3rd-Rate Burglary’ Provoked New Standards for Lawyer Ethics

The Nixon White House initially dismissed the break-in as a “third-rate burglary,” but after a year of increasingly persistent media coverage, Congress initiated multiple investigations that exposed the involvement of more than 20 of the most powerful lawyers in the United States.

At the top of the list was Nixon, the 37th president of the United States, who resigned on Aug. 8, 1974, as Congress was gearing up to conduct impeachment proceedings.

But the list also included two U.S. attorneys general, two White House counsels, an assistant attorney general and a chairman of the U.S. Securities and Exchange Commission.

John D. Ehrlichman
Disbarred in Washington State.

John W. Dean III
Disbarred in Virginia.

Spiro T. Agnew
Disbarred in Maryland.

Charles W. Colson
Disbarred in Virginia and the District of Columbia, license suspended in Massachusetts.

Herbert W. Kalmbach
Law license in California was suspended, but reinstated in 1977.

Richard G. Kleindienst
Law license in District of Columbia suspended for a month, and censured by Arizona disciplinary authorities.

Egil “Bud” Krogh Jr
Disbarred in 1975 by the Washington Supreme Court, but petition for reinstatement was granted in 1980.

Gordon Liddy
Disbarred in New York.

Robert C. Mardian
Law licenses suspended in California and by the U.S. Supreme Court, but later reinstated.

John N. Mitchell
Disbarred in New York and from the U.S. Supreme Court Bar.

Richard M. Nixon
Disbarred in New York.

Harry L. Sears
Law license suspended in New Jersey for three years.

Donald H. Segretti
Law license suspended in California for two years.

Bradford Cook
Nebraska law license was suspended for three years.

Trump and the Battle of Universes: Crisis on This Earth

It is painful to be reducing the future of America to a simplistic metaphor—or to a comic book concept. But here goes.

For Trump, reality is Trump. Trump Earth. Trump World. Trump Universe. Nothing else exists.

For everybody else, reality is everything else. Not-Trump Earth. Not-Trump World. Not-Trump Universe.

It is really that simple. A little practically complicated because Trump is president. But conceptually, just that simple.

The battle has already started and is likely to get worse before it gets better. For examples, see the various series in the comic book world, such as Crisis on Infinite Earths. Not pretty, with lots of collateral damage. The good news is that in the long run, the good guys and good gals win. We hope.

Normalizing Corruption: “Kushner Cos. filed false NYC housing paperwork”

Associated Press:

Kushner Cos. filed false NYC housing paperwork

NEW YORK (AP) — When the Kushner Cos. bought three apartment buildings in a gentrifying neighborhood of Queens in 2015, most of the tenants were protected by special rules that prevent developers from pushing them out, raising rents and turning a tidy profit.

But that’s exactly what the company then run by Jared Kushner did, and with remarkable speed. Two years later, it sold all three buildings for $60 million, nearly 50 percent more than it paid.

Now a clue has emerged as to how President Donald Trump’s son-in-law’s firm was able to move so fast: The Kushner Cos. routinely filed false paperwork with the city declaring it had zero rent-regulated tenants in dozens of buildings it owned across the city when, in fact, it had hundreds.

While none of the documents during a three-year period when Kushner was CEO bore his personal signature, they provide a window into the ethics of the business empire he ran before he went on to become one of the most trusted advisers to the president of the United States.

“It’s bare-faced greed,” said Aaron Carr, founder of Housing Rights Initiative, a tenants’ rights watchdog that compiled the work permit application documents and shared them with The Associated Press. “The fact that the company was falsifying all these applications with the government shows a sordid attempt to avert accountability and get a rapid return on its investment.”

Set aside the specifics of this particular corrupt practice. Ignore the fact that Jared Kushner’s father Charlie, founder of Kushner Cos., once pled guilty to 18 counts of illegal campaign contributions, tax evasion, and witness tampering, and served fourteen months in federal prison. Ignore the business, legal, political and personal practices of Donald Trump, Jared’s father-in-law and boss, and President of the United States.

Focus on this. When corruption is practiced within the context and four walls of a corrupt enterprise, corruption is normal. The only things wrong are any words or actions that brings any of those corrupt practices to light or causes an unfavorable light to shine on them. Everything else is okay, because within those four walls, corruption is normal.

Corruption is not normal. In business. In government. In politics. In the White House. It is as clear as ever that some people don’t know that, don’t believe that, and never will.

China Should Inspire More American Media Eye-Rolling

More media eye-rolling is needed in America. China, another country with cult of personality leadership and canned party-line presentations, shows us the way.

New York Times:

SHANGHAI — It was the eye roll seen across China.

As the annual meeting of the country’s legislature stretched into its second week, the event’s canned political pageantry and obsequious (and often scripted) media questions seemingly proved too much for one journalist on Tuesday.

With a fellow reporter’s fawning question to a Chinese official pushing past the 30-second mark, Liang Xiangyi, of the financial news site Yicai, began scoffing to herself. Then she turned to scrutinize the questioner in disbelief.

Looking her up and down, Ms. Liang rolled her eyes with such concentrated disgust, it seemed only natural that her entire head followed her eyes backward as she looked away in revulsion.

Captured by China’s national news broadcaster, CCTV, the moment spread quickly across Chinese social media….

On Chinese social media, GIFs and other online riffs inspired by Ms. Liang’s epic eye roll quickly proliferated, and by evening they were being deleted by government censors. Ms. Liang’s name became the most-censored term on Weibo, the microblogging platform. On Taobao, the freewheeling online marketplace, vendors began selling T-shirts and cellphone cases bearing her image.

Update: Why Trump Wanted to Be “David Dennison” in the Hush Money Agreement with Stormy Daniels (Hint: It Has to Do with Her Breasts)

Update: Following this post, I realized that “DD” are also the initials of Dirk Diggler. Diggler, the main character in the movie Boogie Nights (1997), is a well-endowed male porn star based on the famous porn actor John Holmes. So is the choice of “David Dennison” about a porn star’s breasts or about a porn star’s penis? Or both?

In the non-disclosure agreement signed by Stormy Daniels to keep quiet about her relationship with Trump, he used the name David Dennison. The signature line—which according to her new lawsuit he didn’t sign—doesn’t even have that fake name. All it says is “DD”.

Why David Dennison? The initials tell it all.

Stormy Daniels bra size, reported in the multiple sites that keep track of such things, is 34DD. This is Trump’s juvenile little joke. Get it? If you’re not laughing, that’s because nothing Trump does—including his attempted jokes—is a laughing matter. Just, as he would tweet, SAD!

David Dennison and Stormy Daniels