Monthly Archives: October 2016

Comey, Continued….

Yesterday, while editing an post that I intended to send out this morning. I inadvertently hit “publish” rather than “save,” so subscribers received an extra transmittal yesterday.

Sorry about that! But let’s continue that discussion….

I don’t know what the effect of Comey’s actions will be on the election; we still have 8 days, and given the magnitude of the criticism he has received, perhaps he will clarify or otherwise clean up his mess prior to election day. There is speculation that his action will generate more enthusiasm and higher turnout among Trump voters, but it is also possible that anger at what will seem to many Democrats a “dirty trick” will motivate Clinton voters.

My own concern is the potential effect on the down-ticket races. Who knows? We’re in uncharted waters here.

That said, let’s revisit the ethics of Comey’s action.

A letter in yesterday’s New York Times addressing that issue deserves broad readership. It was from Richard W. Painter, currently a professor at the University of Minnesota Law School, who formerly served as the chief White House ethics lawyer from 2005 to 2007, during George W. Bush’s administration.

Mr. Painter has filed a complaint against the F.B.I. with the Office of Special Counsel, which investigates Hatch Act violations.

The opening paragraphs of his letter explain the reasons for the rules that are in place–the rules Comey disregarded.

The F.B.I. is currently investigating the hacking of Americans’ computers by foreign governments. Russia is a prime suspect.

Imagine a possible connection between a candidate for president in the United States and the Russian computer hacking. Imagine the candidate has business dealings in Russia, and has publicly encouraged the Russians to hack the email of his opponent and her associates.

It would not be surprising for the F.B.I. to include this candidate and his campaign staff in its confidential investigation of Russian computer hacking.

But it would be highly improper, and an abuse of power, for the F.B.I. to conduct such an investigation in the public eye, particularly on the eve of the election. It would be an abuse of power for the director of the F.B.I., absent compelling circumstances, to notify members of Congress from the party opposing the candidate that the candidate or his associates were under investigation. It would be an abuse of power if F.B.I. agents went so far as to obtain a search warrant and raid the candidate’s office tower, hauling out boxes of documents and computers in front of television cameras.

The F.B.I.’s job is to investigate, not to influence the outcome of an election.

The letter deserves to be read in its entirety, but here is Painter’s conclusion.

Absent extraordinary circumstances that might justify it, a public communication about a pending F.B.I. investigation involving a candidate for public office that is made on the eve of an election is thus very likely to be a violation of the Hatch Act and a misuse of an official position. Serious questions also arise under lawyers’ professional conduct rules that require prosecutors to avoid excessive publicity and unnecessary statements that could cause public condemnation even of people who have been accused of a crime, not to mention people like Mrs. Clinton, who have never been charged with a crime.

This is no trivial matter. We cannot allow F.B.I. or Justice Department officials to unnecessarily publicize pending investigations concerning candidates of either party while an election is underway. That is an abuse of power. Allowing such a precedent to stand will invite more, and even worse, abuses of power in the future.

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The Original Sin

We can all list behaviors we consider sinful.

My list begins with self-righteousness, defined as moral smugness combined with a troubling lack of self-reflection and humility. Enormous harm is done by folks who are absolutely convinced that they are in possession of Truth, and that their actions–no matter how inconsistent with social or constitutional norms–are therefore justified. When self-righteous people are in positions of authority–whether they are Governors or FBI officials–their unshakable belief in their own moral superiority can undermine both liberty and democratic processes.

As Learned Hand famously put it, “The spirit of liberty is the spirit which is not too sure that it is right.”

Which brings me to FBI Director James Comey.

As two former Deputy Attorneys General wrote in Sunday’s Washington Post, the FBI

operates under long-standing and well-established traditions limiting disclosure of ongoing investigations to the public and even to Congress, especially in a way that might be seen as influencing an election. These traditions protect the integrity of the department and the public’s confidence in its mission to take care that the laws are faithfully and impartially executed. They reflect an institutional balancing of interests, delaying disclosure and public knowledge to avoid misuse of prosecutorial power by creating unfair innuendo to which an accused party cannot properly respond.

Decades ago, the department decided that in the 60-day period before an election, the balance should be struck against even returning indictments involving individuals running for office, as well as against the disclosure of any investigative steps. The reasoning was that, however important it might be for Justice to do its job, and however important it might be for the public to know what Justice knows, because such allegations could not be adjudicated, such actions or disclosures risked undermining the political process. A memorandum reflecting this choice has been issued every four years by multiple attorneys general for a very long time, including in 2016.

It is precisely this “balancing of interests” that self-righteous people cannot understand.

The modern world, to the consternation of many people, rarely gives us a bipolar choice between good and evil, black and white.  We live–like it or not–in perpetual shades of gray, a world where “on the one hand” competes with “on the other hand,” and ethical decision-making more often than not requires us to balance competing goods. Unfortunately, ambiguity is intolerable to people who live in a Manichean world where they are on the side of righteousness.

There has been an eruption of anger over Comey’s decision to make public the discovery of emails found on devices used by then-Congressman Anthony Weiner and his wife, Huma  Abedin, a close aide to Hillary Clinton. The criticism–much of it from Republicans within the FBI– has been harsh: not only was the disclosure inconsistent with Department of Justice traditions, not only did Comey ignore his boss, the Attorney General, who told him to abide by departmental regulations, but he admitted he didn’t know whether the emails were significant, or mostly copies of messages the Department had previously reviewed. He hadn’t seen them.

Partisans, noting that Comey is a Republican, have accused him of political motivations. Perhaps, but my reading is different. The way in which he announced the FBI’s original conclusion not to recommend charging Clinton (a result entirely unsurprising to most lawyers) provided a clue. During that press conference–itself a violation of normal procedures–he coupled the FBI’s finding that no laws had been broken with a highly offensive, unnecessary and self-serving lecture about “carelessness.”

Comey has defended his decision to inform Congress of the existence of additional emails  with reasoning that reeks of self-righteousness and an unseemly focus on his own reputation–consequences to the integrity of the FBI and the Presidential campaign be damned.

As the former Attorneys General concluded,

Justice allows neither for self-aggrandizing crusaders on high horses nor for passive bureaucrats wielding rubber stamps from the shadows. It demands both humility and responsibility.

Ironically, unless I miss my guess, Comey’s utter lack of such humility has now destroyed the reputation that meant more to him than the consequences of his decision for the nation. His incredible arrogance has also probably ended his career. But in the age-old tradition of the self-righteous, he will undoubtedly consider himself a martyr.

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The Price of Justice

The fact that politicians seem to get away with incredibly slanderous and libelous comments has been a particular annoyance during this election campaign. Granted, it’s hard to match the invective of Donald Trump, but if we’re honest, we have to admit that he has simply normalized and amplified the growing nastiness of too much of American politics and culture.

Seen any Senate ads lately?

Of course, candidates know what they are getting into, and I suppose they can slug it out (although it does make you wonder how many nice, qualified people who would do a good job simply decline to get down and dirty), but other objects of vitriol and unsubstantiated accusations are rarely in a position to fight back.

Think about the women (I believe the number is currently 12) who summoned their courage and shared their “Trump experiences” following disclosure of the appalling “pussy tape.” They probably anticipated his rage and bluster and denial, but those reactions have been accompanied by threats of lawsuits. Trump is clearly someone who issues empty and even ludicrous threats (see: letter to the New York Times), but he has also been involved in literally thousands of actual lawsuits, and not always as a defendant. In fact, as Ed Brayton reports, 

The New York Times reports that the American Bar Association prepared a report calling Donald Trump a libel bully for his decades-long use of defamation suits to stifle criticism of him, but they chickened out on releasing it because — drumroll, please — he might sue them.

The New York Times can take care of itself, but if the threat of litigation can chill and intimidate the ABA, think of the effect on even the most blameless and resolute accuser. If you lack the financial wherewithal to mount an adequate defense to a lawsuit, no matter how unfounded, the person pursuing that lawsuit starts out with a grossly unfair advantage. Even a loss is a win, when the real goal is to inflict damage.

This problem goes well beyond the antics of the spoiled brat running for President, and it isn’t simply relevant to libel cases. Ask any lawyer who has defended  or sued on behalf of a “little guy” against a large corporation represented by a major law firm. For that matter, ask the twenty-year-old stuck in the Marion County Jail awaiting trial on a relatively minor charge, who doesn’t have money to post bail and is represented by an overworked public defender because he can’t afford private counsel.

In far too many situations–not all, but too many–justice is something only the affluent can hope for.

Americans talk a lot about the obvious problems with our justice system: (1) inexcusable delays in the federal courts because there aren’t enough judges (thanks to Mitch McConnell and the GOP lawmakers who simply refuse to fill judicial vacancies so long as Obama is nominating the candidates for those positions), (2) unarmed people getting killed because police departments’ training programs–especially in smaller communities– are spotty at best and nonexistent at worst, (3) hundreds of thousands of people–mostly black– suffering mass incarceration and lifelong stigma thanks to a Drug War that we now know had little to do with controlling drugs and lots to do with continuing Jim Crow practices (I urge everyone reading this to watch Netflix’ documentary, “13th.” It gives chapter and verse.)

There’s much more.

The good news is that there finally seems to be a bipartisan recognition of at least some of these problems and even some evidence of a willingness to address them.

Bottom line: your chances of achieving justice–whether that’s redress of a wrong done to you, or the fair and timely resolution of a charge against you–shouldn’t depend upon  who is in office or what’s in your wallet.

The American justice system needs to be fixed, sooner rather than later.

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Girls’ (And Supportive Boys’) Night Out

A couple of days ago, I got an email from Periods for Politicians (formerly Periods for Pence), announcing a pre-election rally focused on women’s issues in Indiana. The aim is to highlight all of the measures that caused harm to Hoosier women during the last four years–years that, not at all coincidentally, coincided with Mike Pence’s term as Governor.

“Governor Pence’s policies have done untold damage to Indiana, and this trend cannot continue if Indiana is to remain a healthy place for families and women,” said Sue Magina, Periods for Politicians (P4P) founder. “Pence was not alone in his decision making. Many state politicians supported his policies and their disastrous effects on all women living in Indiana, regardless of political affiliation. We need to revisit these policies and determine together how we can make progress moving forward.” Sue Magina is an anonymous woman resident of Indiana who goes by that fake name for reasons of personal safety.

The rally will be held at 5:30 p.m. on November 2d at the Indiana Statehouse.

If you attend–and if at all possible, I hope you will–here are some of the things you will hear about:

  • · HEA 1337, called the “most restrictive anti-abortion law in the country.”
  • · Continued attempts to defund Planned Parenthood, which provides essential health care to thousands of low-income Indiana women.
  • · RFRA, the Religious Freedom Restoration Act (“protecting” discrimination ostensibly based upon religion.)
  • · The undermining and effective removal of Glena Ritz as School Superintendent, and the diversion of monies meant for public schools to the Governor’s pet voucher program favoring parochial, religious education.

National and local speakers will discuss these and other issues.

Speakers include: Jennifer Weiss-Wolf, named one of the nation’s “badass menstrual activists” by Bustle, and the “architect of the U.S. policy campaign to squash the tampon tax” by Newsweek; Dana Marlowe, founder of the national organization, Support the Girls; Cheryl Laux, local activist from Indiana Moral Mondays; a representative from Planned Parenthood; local singer/songwriter Jen Edds, and more.

The night will close with the first ever public appearance by Sue Magina, who created the brilliant “Periods for Pence” grassroots campaign.

In case you missed hearing about it (despite the fact that the campaign has been featured in the New York Times, NPR, CNN, Yahoo, USA Today, Chicago Tribune, and the Washington Post, among others), Periods for Pence was a response to Indiana’s restrictive and ridiculous abortion law, which the Governor said he “signed with a prayer.”

Among other things, that law required women to “cremate or inter” aborted or miscarried fetuses. Since fertilized eggs can be expelled during every menstrual period without the woman even knowing, the campaign urged women to call or tweet the Governor’s office to inform His Piety of the monthly “visit.”

My favorite tweet: @periodsforpence. Started my cycle today. When will you be by to check my used pads for HB1337 compliance so I know to be home?

The campaign brought national attention to–and censure of– our retrograde Governor and legislature. It became Periods for Politicians when he joined Trump’s ticket.

Women planning to attend the November 2d rally are encouraged to bring sealed menstrual hygiene products and bras for distribution to homeless women and girls throughout Indiana.

Men attendees are encouraged to bring socially responsible attitudes.

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A Civic Help-Wanted Ad

For those unfamiliar with the term, copy editors are the people hired by newspapers and magazines to make the copy “clear, correct, concise, comprehensible, and consistent.”  According to the Free Dictionary, copy editors should ensure that a story “says what it means, and means what it says.”

Typically, copy editing involves correcting spelling, punctuation, grammar, terminology, jargon, and semantics.

A number of us who inexplicably continue to subscribe to the Indianapolis Star have remarked on the increased number of spelling and grammar errors that have escaped a copy editor’s notice over the past couple of years. (As a former High School English teacher, these errors affect me like nails on a blackboard.)

However annoying the obvious reduction in, or absence of, copy editing, that problem pales in importance beside the much more consequential reduction in the reporting of actual news,and especially the absence of government oversight. Coverage of City Hall and the Statehouse are virtually non-existent; the absence of reporters with institutional memory, investigative instincts and the time to do more than superficial reports on such issues as do surface leaves citizens without any reliable way to evaluate the performance of our government officials and agencies.

The most recent example (and by no means the worst) has been the coverage of Secretary of State Connie Lawson’s attribution of mistakes found on multiple voter registration forms to fraud, ostensibly by an organization focused upon registering African-American voters.

I have no idea whether Lawson’s claims are well-founded or politically motivated.(She was, after all, a co-sponsor of Indiana’s Voter ID law, which aimed to solve a nonexistent problem.) What’s worse, however, is the fact that until the third or fourth story about the controversy, I had no idea what she was alleging. The articles were so badly written that I couldn’t make heads or tails of what the issue was–nor could several friends who’d also read it. And when a follow-up story did clarify the nature of the controversy, it was presented as “she said”/”he said.” There was no indication that reporters had made any effort to independently assess the validity of the competing assertions.

If you are wondering what triggered this particular post, it was the Star’s recent announcement that it is once again trimming its editorial staff (i.e. reporters), and moving what is left of its pitifully inadequate copyediting out-of-state. (I wonder how an out-of-state copy editor would make the Lawson story, which depends upon a basic understanding of Indiana law and practice “clear, correct, concise, comprehensible, and consistent.”)

Ever since Gannett acquired the Star, the quality–and more importantly, the scope– of its reporting has declined. The paper was never a shining beacon of journalism, but it did employ actual reporters, it did cover state and local government, it did report on something other than sports, entertainment and the opening of new bars.

If there’s an entrepreneur out there who wants to find a currently unserved market, Indianapolis could really use a credible newspaper. (Online is fine.)

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