DOJ seeks tighter grasp on state bar ethics probes

The Department of Justice (DOJ) is turning its focus to state bar associations in its quest to clamp down on the weaponization of the justice system. 

As DOJ lawyers face piling complaints, the government is seeking greater control over the ethics probes that can result in disciplinary actions including disbarment.  

It has prompted a firestorm of questions about the agency’s bid for a tighter grasp on the consequential investigations. 

“It is a DOJ power grab,” said Stephen Gillers, a legal ethics scholar at New York University School of Law. 

In a notice posted online in the Federal Register, the Justice Department proposed a new regulation that would let it intervene in state bars’ disciplinary investigations, including with the authority to review any allegations against DOJ lawyers first.  

It would amount to a request for state bar authorities to suspend their probes until Attorney General Pam Bondi completes her own, though DOJ itself could not force the state bars to halt their reviews. DOJ declined to comment on the matter Thursday.   

Such investigations can eventually lead to disbarment, but the process can take years to complete.    

The Justice Department casts the proposed rule as an extension of President Trump’s day-one directive to end perceived weaponization of the federal government.  

The notice suggests that “political activists” have used bar complaints and probes to target DOJ lawyers, and that state bars’ willingness to investigate those complaints are “troubling.” Trump’s “broad pronouncements” necessitate a review of how Bondi manages and disciplines DOJ lawyers, it says. 

“This unprecedented weaponization of the State bar complaint process risks chilling the zealous advocacy by Department attorneys on behalf of the United States, its agencies, and its officers,” read DOJ’s submitted overview of the proposed rule. “That chilling effect, in turn, would interfere with the broad statutory authority of the Attorney General to manage and supervise Department attorneys.” 

Since Trump’s return to the White House, several of his top Justice Department officials have faced such complaints from watchdog groups, including Bondi, Deputy Attorney General Todd Blanche and Emil Bove, the former No. 3 DOJ official who is now a federal appellate judge. Rank-and-file prosecutors have also faced complaints.  

Read the rest here.

Anti-Trump Legal Pundits Have Been Talking to Each Other (off the record)

As the Jan. 6 committee was working on its bombshell investigation into the Capitol riot and President Donald Trump’s efforts to overturn the last election, committee staffers took some time out of their seemingly 24-hour jobs one day in 2022 to brief a group of lawyers and legal pundits on a Zoom call.

The people on the call weren’t affiliated with the investigation or the government. But they would have been familiar to anyone who watches cable news. They were some of the country’s most well-known legal and political commentators, and they were there to get insights into the committee’s work and learn about what to look for at the hearings.

The group’s gathering was not a one-time event, but in fact an installment in an exclusive weekly digital salon, whose existence has not been previously reported, for prominent legal analysts and progressive and conservative anti-Trump lawyers and pundits. Every Friday, they meet on Zoom to hash out the latest twists and turns in the Trump legal saga — and intellectually stress-test the arguments facing Trump on his journey through the American legal system.

The meetings are off the record — a chance for the group’s members, many of whom are formally or loosely affiliated with different media outlets, to grapple with a seemingly endless array of novel legal issues before they hit the airwaves or take to print or digital outlets to weigh in with their thoughts. About a dozen or more people join any given call, though no one takes attendance. Some group members wouldn’t describe themselves with any partisan or ideological lean, but most are united by their dislike of Trump.

The group’s host is Norman Eisen, a senior Obama administration official, longtime Trump critic and CNN legal analyst, who has been convening the group since 2022 as Trump’s legal woes ramped up. Eisen was also a key member of the team of lawyers assembled by House Democrats to handle Trump’s first impeachment.

The regular attendees on Eisen’s call include Bill Kristol, the longtime conservative commentator, and Laurence Tribe, the famed liberal constitutional law professor. John Dean, who was White House counsel under Richard Nixon before pleading guilty to obstruction of justice in connection with Watergate, joins the calls, as does George Conway, a conservative lawyer and co-founder of the anti-Trump Lincoln Project. Andrew Weissmann, a longtime federal prosecutor who served as one of the senior prosecutors on Robert Mueller’s Trump-Russia investigation and is now a legal analyst for MSNBC, is another regular on the calls. Jeffrey Toobin, a pioneer in the field of cable news legal analysis, is also a member of the crew. The rest of the group includes recognizable names from the worlds of politics, law and media.

Read the rest here.

For the benefit of anyone new to the blog, I am not the world's biggest fan of Donald Trump. That said, this is leaving a bad taste in my mouth. I'm not sure it's a flaming violation of journalistic ethics, where the boundaries can sometimes be a bit fuzzy. But if this doesn't cross that line, it strikes me as dancing uncomfortably close to it. 

Honor and Money or When a Deal Isn't Necessarily a Deal

It’s a deal. Or is it?

After apartment-hunting in Williamsburg, Brooklyn, for months this spring, Dr. Ronald Nath finally lucked out with a two-bedroom duplex at the top of a condominium, listed at $800,000.

A day after a crowded open house, Dr. Nath, a Massachusetts surgeon, offered $803,000 for the unit, which was to be a home for his son David, a television news producer. But because of its location and the outdoor spaces on both floors, the unit attracted more than a dozen offers, which prompted the seller to request higher bids.

For his “best and final” offer, which usually signals the end of the haggling process, Dr. Nath promised $912,000, which seemed to do the trick. The seller congratulated Dr. Nath and told him the unit was his; a contract was drawn up.

Not so fast. A few days later, like a kite in a gust of wind, the price soared again, to $995,000. Insulted by what he described as being “played,” Dr. Nath refused to raise his offer and ultimately lost the unit to a buyer who plunked down $1.1 million. “I was absolutely outraged,” he said. “When you give your word that a deal is done, you’re supposed to fulfill your agreement.”

A real estate deal, like any other business transaction, isn’t ironclad until signatures wind up on a contract, said Tom Le of the Corcoran Group, the seller’s broker, who defended his clients’ right to get the highest possible price for their unit, even if it left some raw feelings.

Read the rest here.

Unfortunately I have had some experiences of a similar nature. It's a long story but the executive summary is that back when I was on the parish council of the church that I was received into Orthodoxy through, money was tight. We were experiencing some real financial hardships and the decision was taken, albeit reluctantly to part with some land we had hoped to build a permanent church on.

Twice we entered negotiations with a certain individual, and twice that individual stiffed us and reneged on his word trying to drive the price down Of course he knew our backs were against the wall. In the latter case he did so after contracts had actually been signed. Because of the way real estate law works in California, and the fact that he had "accidentally forgot" to deposit the security deposit check into escrow we were left with no practical recourse other than to just accept the fact that we had been cheated.

It happens. Sadly not everyone in the world is on the up and up and some people are highly unethical.

FWIW here is my take on the ethics (which is not the law) on real estate and business negotiations in general.

An asking price is just that. Nothing is firm. Offers and asking prices can go up or down UNTIL everyone says "we have a deal" and shakes hands. After that, it is grossly unethical and dishonorable for either the buyer or seller to withdraw from that deal for anything other than the most extraordinary reasons. And in the case where one or another party does break their word without good cause, the other party should immediately withdraw their offer or consent to any deal and have no further dealings with them. By continuing to deal with someone who has demonstrated an  unscrupulous character you are enabling this sort of knavery.

I may be the last man on Earth who still holds to the view that a man's word is his bond, but that's my take on things. If I can't trust your word and a handshake then your signature isn't worth the paper it's written on. How can you trust anything they say about anything? A man who negotiates in bad faith is a liar. He can, and will, lie about any number of other things.

Such persons should be shunned both personally and professionally.

Wall Street Rolling Back Another Key Piece of Financial Reform

Wall Street lobbyists are awesome. I’m beginning to develop a begrudging respect not just for their body of work as a whole, but also for their sense of humor. They always go right to the edge of outrageous, and then wittily take one baby-step beyond it. And they did so again last night, with the passage of a new House bill (HR 2827), which rolls back a portion of Dodd-Frank designed to protect cities and towns from the next Jefferson County disaster.

Jefferson County, Alabama was the most famous case – the city of Birmingham went bankrupt after being bribed and goaded into taking on billions of dollars of toxic swap deals – but in fact it was just one of hundreds of similar examples of localities being duped into suicidal financial deals by rapacious banks and financial companies. The Denver school system, for instance, got clobbered when it opted for an exotic swap deal pushed by J.P. Morgan Chase (the same villain in Jefferson County, incidentally) and then-school superintendent/future U.S. Senator Michael Bennet, that ended up costing the school system tens of millions of dollars. As was the case in Jefferson County, the only way out of the deal involved a massive termination fee that might have been even more destructive than the deal itself.

To deal with this problem, the Dodd-Frank Act among other things included a simple reform. It required the financial advisors of municipalities to do two things: register with the SEC, and accept a fiduciary duty to respect the best interests of the taxpayers they are advising.

Sounds simple, right? But Wall Street couldn’t have that. After all, if companies are required to have a fiduciary responsibility to cities and towns, how in the world can they screw cities and towns? The idea was a veritable axe-blow to the banks’ municipal advisory businesses.

Read the rest here.

Banks Rip Off Seniors

Senior citizens are used to getting good deals. Tell the truth: if you're aren't of AARP age, there have been times you wish you were -- when buying mass transit tickets, for example, or visiting America's national parks (one $10 fee gets you into any park, all year).  Plenty of restaurants and other retailers offer "senior days" and other deals.

But take checking accounts off the senior discount list. A new report by the Pew Center on the States warns(.pdf) that so-called senior checking accounts may not be a good deal at all. In fact, in some cases, senior accounts cost much more than a basic checking account.

At Bank of America, for instance, a senior account is far more expensive than a basic account. Here are the facts, from Bank of America's website.  The bank's “Advantage for Seniors” account costs $25 per month vs. a basic checking account fee of $14 per month. In both cases, consumers can earn a fee waiver, but here again, the senior account comes up short. Direct deposit of paychecks is one way, but that's often not available to seniors, Pew points out in its report. Basic checking users can also avoid fees by maintaining a $1,500 balance in their account; but seniors have to keep at least $5,000 in their account. Fall below $5,000 for even one day, and that's a $25 fee.

Read the rest here.

Banks are the enemy.

Florida bar: Illegal immigrant meets moral fitness test

An illegal immigrant seeking admission to the Florida bar has met its requirements to become a lawyer, the bar said in a filing this week to the Florida Supreme Court in a case being watched closely by both sides of the immigration debate.

Jose Godinez-Samperio is one of a few illegal immigrants in different states trying to get law licenses after passing the local bar’s two-pronged test: an exam and a moral character review.

Godinez-Samperio passed the exam portion of the test last year, and he was notified recently that nothing in his background would be considered “disqualifying” for the character portion. That notice was cited Monday in legal correspondence posted on the Florida court’s website.

Read the rest here.

A Disturbing Legal Trend

Public officials are increasingly refusing to uphold laws they disagree with, from presidential "signing statements" to refusal to defend laws in open open court that they are politically opposed to. This needs to stop. When you assume an office of public trust you don't have the right to decide which laws you will or will not obey. Nor if you are a lawyer on the public payroll, do you have the right to decide what laws you will defend in court. If I were a tax paying citizen of Illinois I would file an ethics complaint with the state bar association alleging failure to zealously defend the interests of their client.

If your conscience will not allow you to defend a law then you should either not have taken the job, or you should do the honorable thing and resign.

AP apologizes to fired World War II reporter

NEW YORK -- In World War II's final moments in Europe, Associated Press correspondent Edward Kennedy gave his news agency perhaps the biggest scoop in its history. He reported -- a full day ahead of the competition -- that the Germans had surrendered unconditionally at a former schoolhouse in Reims, France.

For this, he was publicly rebuked by the AP, and then quietly fired.

The problem: Kennedy had defied military censors to get the story out. British Prime Minister Winston Churchill and President Harry Truman had agreed to suppress news of the capitulation for a day, in order to allow Stalin to stage a second surrender ceremony in Berlin. Kennedy was also accused of breaking a pledge that he and 16 other journalists had made to keep the surrender a secret for a time, as a condition of being allowed to witness it firsthand.

Sixty-seven years later, the AP's top executive is apologizing for the way the company treated Kennedy.

"It was a terrible day for the AP. It was handled in the worst possible way," said president and CEO Tom Curley.

Kennedy, he said, "did everything just right."

Read the rest here.

New Ethics panel members named to probe Rep. Maxine Waters after recusals

A half-dozen members of the House Ethics Committee have recused themselves from the troubled investigation of Rep. Maxine Waters (D-Calif.) and been replaced by a new team, a sign that the stalled probe is set to restart.

Waters has faced scrutiny since 2009 over whether she improperly sought federal aid for OneUnited, a bank in which her husband had a financial stake. The Ethics panel has been riven by infighting, as Republican and Democratic members and aides accused each other of mishandling the investigation and Waters, who has maintained her innocence, has demanded the case be dismissed.

Last year, the committee hired veteran defense lawyer Billy Martin Jr. to conduct an outside review of the probe. In a letter Friday to Speaker John Boehner (R-Ohio), six committee members said Martin had found no evidence of any “actual bias or partiality” by the lawmakers, but they were voluntarily recusing themselves from the case anyway to “eliminate the possibility of questions being raised” and “move this matter forward.”

Waters’s office had not provided comment on the recusal as of this posting

Read the rest here.

For The Record

I will not knowingly patronize any retail business during the Christmas shopping season that is open on Thanksgiving and forcing its employees to work on that day.  Right now that list includes at least three major retailers, Wal-Mart, Toys R Us and Target.  Shame on them.

Enough with the greed already!

Netherlands: All Doctors Must be Complicit in Euthanasia Killing

I have been fighting the international campaign to legalize and normalize doctor-prescribed/administered death since 1993, and this much I know: Once euthanasia is let in the door, ultimately, enough is never, ever enough.

Par exemple: Euthanasia activists often assure that no doctor will be forced to participate in medicalized killing. But I have been warning that this right of conscience is really an expedient, intended to give false assurance while the euthanasia consciousness gestates and matures.

And now the very pro euthanasia Dutch Medical Association (KNMG) has stated that all doctors have a professional duty to be complicit in euthanasia–either by killing legally qualified patients directly who ask, or if they don’t want to do the deed personally, by referring suicidal patients to a death doctor who they know will kill.

Read the rest here.

A thought provoking essay on the death of Osama Bin Laden

The killing of Osama bin Laden has become a battlefield of its own, pitting effete, hand-wringing talking heads against square-jawed, decisive columnists.

Amongst the hand-wringers are old campaigners for moral equivalence. Celebrity human rights lawyer Geoffrey Robertson (yes, the one who wanted to jail the Pope) immediately declared that taking out OBL was a perversion of justice. "Justice means taking someone to court, finding them guilty upon evidence and sentencing them." he said. "This man has been subject to summary execution, and… it may well have been a cold-blooded assassination."

Predictably, radical warhorse Noam Chomsky argued that deaths of thousands in Iraq were far more evil than crimes for which OBL was allegedly responsible. “We might ask ourselves how we would be reacting if Iraqi commandos landed at George W. Bush’s compound, assassinated him, and dumped his body in the Atlantic.”

For such scruples and assertions of moral equivalence, the machismo team has nothing but scorn, beginning with President Obama, who thought it was one of the most satisfying moments of his presidency. "Anyone who would question that the perpetrator of mass murder on American soil didn't deserve what he got needs to have their head examined."

New York Times columnist Maureen Dowd was sounding a lot like a shotgun-toting frontier housewife in a TV Western than the über-liberal feminist she is. Her response to the news that the murderer of hundreds of New Yorkers was dead was stridently patriotic: “I want memory, and justice, and revenge… Morally and operationally, this was counterterrorism at its finest. We have nothing to apologize for.”

Read the rest here.

At BYU Honor Code is Taken Seriously

When the sophomore center Brandon Davies was dismissed from Brigham Young’s third-ranked basketball team on Tuesday for violating the university’s honor code, it dealt a hard blow to the championship aspirations of the Cougars. But it also highlighted one of the big differences between B.Y.U. and other universities involved in major college sports.

Many colleges have honor codes, but they typically focus on protecting academic integrity and discouraging behavior that harms others. The United States Military Academy’s Cadet Honor Code states that “a cadet will not lie, cheat, steal, or tolerate those who do.” Many universities follow that example.

At B.Y.U., owned and operated privately by the Church of Jesus Christ of Latter-day Saints, the honor code is separate from the academic honesty policy, and is more closely linked to the personal-behavior tenets of the Mormon church.

There are precise guidelines regarding grooming, clothing, chastity and language. There are restrictions against the use of tobacco, alcohol, tea and coffee. There are precise visitation rules for resident halls and off-campus housing. (“The use of the bathroom areas by members of the opposite sex is not appropriate unless emergency or civility dictates otherwise, and then only if the safety, privacy, and sensitivity of other residents are not jeopardized,” reads the off-campus housing policy.) Gambling and “involvement with pornographic, erotic, indecent, or offensive material” are forbidden. So is “homosexual behavior.”

The B.Y.U. Honor Code “aligns with the core principles and mission of the university, and certainly the sponsoring church,” Carri Jenkins, a university spokeswoman, said. It applies to all of the roughly 34,000 students, whether they are Mormon or not. More than 98 percent of them are.

In college sports, B.Y.U. has always played by some different rules. It declines to play games on Sundays, which forces schedulers of the coming N.C.A.A. basketball tournament, for example, to place the Cougars in specific brackets. Most B.Y.U. students are Mormon and interrupt their studies and athletic careers with two-year missions, which detractors say can give them an edge in maturity and size.

Read the rest here.

Pitcher Says No Thanks to $12 Million

The guaranteed contract is a fundamental principle of Major League Baseball, as much a part of the game as balls, strikes and outs. No matter how a player performs, or how his body holds up, he must be paid in full. Only in rare cases — an injury sustained off the field, gross personal misconduct — does a player forfeit his paycheck.

But the case of Gil Meche is rare for an entirely different reason. Meche, a 32-year-old right-handed pitcher, had a contract that called for a $12 million salary in 2011. Yet he will not report to Surprise, Ariz., with the rest of the Kansas City Royals for spring training next month. He will not have surgery to repair his chronically aching right shoulder. He will not pitch in relief, which involves a lighter workload.

Meche retired last week, which means he will not be paid at all.

“When I signed my contract, my main goal was to earn it,” Meche said this week by phone from Lafayette, La. “Once I started to realize I wasn’t earning my money, I felt bad. I was making a crazy amount of money for not even pitching. Honestly, I didn’t feel like I deserved it. I didn’t want to have those feelings again.”

Meche’s decision plays against type — the modern athlete out for every last dollar. There have been, over the years, athletes who took less money to play for one team over another, Cliff Lee being the latest when he agreed to pitch for the Philadelphia Phillies. And yes, Ryne Sandberg retired from the Chicago Cubs in 1994, forgoing nearly $16 million.

But there are very few parallels to what Meche did.

Read the rest here.

Wow. Just wow.

Can We Talk About Religion, Please?

The Issue

Last week the Vatican invited Anglicans who are, as The New York Times put it, “uncomfortable with female priests and openly gay bishops” to reunite with the Roman Catholic Church. If a secular institution, Wal-Mart or Microsoft, for example, made a similar offer — Tired of leadership positions being open to women and gay employees? Join us! — it would be slammed for appealing to bigotry. Some criticism was directed at the church, but it was faint. Are we right to speak softly when discussing a subject as sensitive as religion?

The Argument

Etiquette holds that religion, especially another person’s religion, should be treated with deference or, better still, silence by nonbelievers. Hence the familiar dinner-party injunction: don’t discuss religion or politics. Even at a table full of co-religionists, feelings can run high, and there is a reluctance to combine digestion with discord (particularly where knives are nearby). To the observant, a nonbeliever’s comments on church doctrine can feel less like a discussion of theology than a personal attack.

Yet despite the risk of provoking the ire of believers, we should discuss the actions of religious institutions as we would those of all others — courteously and vigorously. This is a mark of respect, an indication that we take such ideas seriously. To slip on the kid gloves is condescending, akin to the way you would treat children or the frail or cats.

The passionate intensity unleashed by religious matters is evinced in responses to The Ethicist, my other column for The Times Magazine. When I take up a secular question that provokes broad disagreement, I typically receive a few hundred responses by e-mail that begin: “Dear Sir, I am appalled…” When I write about religion, I cause a tidal wave. The week I rebuked an Orthodox Jewish real estate agent whose beliefs forbade his shaking the hand of a female client, I stopped counting after receiving 4,000 ferocious messages, lambasting not only my argument but my character, my appearance and my parentage: it was speculated that dogs played a part.

My political beliefs, my ideas about social justice, are as deeply held as my critics’ religious beliefs, but I don’t ask them to treat me with reverence, only civility. They should not expect me to walk on tiptoe. It is not as if religious institutions occupy a precarious perch in American life. It is not the proclaimed Christian but the nonbeliever who is unelectable to high office in this era when politicians of every party and denomination make a public display of their faith.

Some of my most indignant critics have declared religious practice a matter of free association: what people do voluntarily among themselves is nobody else’s business. But children raised in a particular faith did not choose it. And sometimes one spouse is pushed into a pew by the other. Even when membership is truly volitional, once a group reaches a certain size and acquires power and influence in the larger community, to treat it like four people getting together in someone’s rec room to play bridge is disingenuous. Its actions are still subject to moral scrutiny, whether the group is the Boy Scouts or Nascar or the Roman Catholic Church.

Read the rest here

An interesting and thoughtful piece from someone who desperately wants to break the social conventions against attacking other people's religious beliefs. My position on the subject is essentially libertarian. You are free to criticize to your heart's content. Just as I and others of religious belief are free to practice our religions and to respond to said criticism. The rights of all involved end at the tip of the other's nose. Which is to say your rights end when they materially interfere with someone else's.

That said, social conventions exist for a reason. And those who contemplate breaking them should do so with great caution. The same principal by which you claim the right to flaunt convention and offend people, gives the more polite element the right to snub you or exclude you from their society in various ways. To some it means little if they are thought of as rude or boorish. But most people would prefer to avoid that kind of label as it carries a certain stigma even in our rather sad modern world.

Hospital to 'kill' sick woman?

An ill woman in Houston could die within days because a hospital ethics committee has voted to take her off life support – this despite the fact the 54-year-old is not in a coma, is not brain dead and wants to go on living, her family says.

On April 30, Andrea Clark is scheduled to be on the receiving end of a Texas law that allows a hospital ethics committee to terminate care with 10 days' notice, giving the patient's family that length of time to find a different facility.

"They just say, 'Well she's miserable.' Well, to me that's a quality of life decision that is up to her and her family," Lanore Dixon told KHOU-TV. "That is not a medical decision."

Dixon recently protested at the St. Luke's Hospital on behalf of Clark, her sister, who has been hospitalized there since November.

In January, Clark underwent open-heart surgery and later developed bleeding on the brain. A ventilator, which the committee voted to remove Sunday, helps her breathe.

Talking about the Texas law, Dixon told KHOU: ""If their ethics committee makes a decision, it doesn't matter what the patient wants. It doesn't even apparently matter what the patient's condition is, because our sister is not in a coma; she's not brain dead."

Clark's family says though she cannot speak, they are able to communicate with her by moving her lips and blinking her eyes.

Columnist and attorney Wesley J. Smith, who wrote extensively on the Terri Schiavo case in Florida, chimed in on his blog:

"Note that the treatment is apparently being removed because it works, not because it doesn't – which means, in effect, that the hospital ethics committee has declared the patient's life to be futile."

Noting that the family wants Clark to live, Smith noted, "It is as if Michael Schiavo and the Schindlers wanted Terri's care continued but the hospital said no."

Smith described the Texas law as allowing "private decision-making that will result in death without even the right to a public hearing, to cross examine witnesses or a formal appeal."

Some have charged the law is meant to benefit insurance companies who want hospitals to get critical patients "off the books."

According to the TV station report, Clark's family is doing all it can to find another facility that will treat Andrea.

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