In reaction to the news that former FBI Director James Comey will be teaching an ethics class at the College of William & Mary, the editors of the Wall Street Journal propose a course outline:
Week One case study: The FBI is investigating a presidential candidate for mishandling classified emails as Secretary of State. The director decides on his own to violate Justice Department rules and exonerate that candidate in a public statement to the media, letting an aide replace the legally potent phrase “grossly negligent†in a draft of his statement with “extremely careless†in the final version.
Students will examine when a public official can choose to ignore rules and standards of conduct for what he considers to be higher purposes. Required reading: Former Deputy Attorney General and federal Judge Laurence Silberman’s February 2017 speech to the Columbia Law School chapter of the Federalist Society.
Breakout session topic: Having exonerated that candidate, the FBI director intervenes in the campaign again only days before Election Day, saying new evidence has required him to reopen the email case. Two days before the polls open he says that the new evidence turned out to be nothing of consequence. Was the FBI director protecting the rule of law, or his own reputation?
Ethical guides Huma Abedin and Anthony Weiner will visit each breakout session to steer the discussions. (Thanks to the federal prison system for letting Mr. Weiner appear by video from Federal Medical Center Devens.)
Week Two: Amid the post-Enron political frenzy, a prosecutor indicts an investment banker not on bank-related charges but on obstruction of justice based on a snippet of an ambiguous email. The first trial ends in a hung jury but the prosecutor wins on the second try only to be overturned by an appellate court.
Students will explore the ethical demands of prosecutorial discretion. Guest lecturer: Frank Quattrone.
Week Three: FBI director Robert Mueller and the U.S. Attorney for the Southern District of New York are convinced that the man behind the 2001 anthrax mail attacks is a government virologist. They spend years pursuing him and destroying his reputation through the media, only to concede years later that they had fingered the wrong man.
Students will examine the ethics of trial-by-media and the risks to the fair administration of justice from prosecutors who ignore contrary evidence. Visiting scholars: Nicholas Kristof and Steven Jay Hatfill.
Week Four: A deputy attorney general handpicks a personal friend and godfather to one of his children, Patrick Fitzgerald, as a special counsel to investigate who leaked the name of CIA official Valerie Plame. Within days Mr. Fitzgerald learns that the leaker was Deputy Secretary of State Richard Armitage, a fact he then keeps secret for years.
Instead of closing the case, the deputy AG expands Mr. Fitzgerald’s mandate. After a three-year investigation that turns up nothing new, Mr. Fitzgerald indicts a White House aide for perjury to salvage something from the effort. Reporter Judith Miller, whom Mr. Fitzgerald sent to jail for 85 days to force her testimony that was crucial in convicting the White House official, later says she testified falsely after Mr. Fitzgerald withheld crucial information from her.
Students will consider the ethics of special counsels without effective supervision, and whether Mr. Fitzgerald showed loyalty to lasting values and the truth by keeping the name of the leaker secret from the public and President George W. Bush. Special guest (invited): Scooter Libby.
It’s like shooting fish in a barrel. I could propose any number more. Under what circumstances would a government official, appointed or hired, be ethically obligated to resign his or her position? Does it matter whether the official was appointed? If the standard for what is ethical is what can be proved in a court of law, would that produce a good and decent society? How much law enforcement would such a society require?
I am excited about the whole month on preserving critical evidence.
If half the stuff the WSJ alleges were true, this would be concerning. Wonder who owns the WSJ?
Steve
A form of the ad hominem fallacy known as the “genetic fallacy”. In refuting an argument one should address the matter of the argument rather than the source of the argument.
I believe the material of each of the claims is true. So, for example, in the “Week One Case Study” both of the sentences in the first paragraph are true. One may draw differing conclusions about the implications, the risks, etc. If you do not believe that
please present your evidence.
Basically, steve, I think you’re caviling.
I can’t wait for the secret memo that will explain this conspiracy in even more turgid and incoherent detail.
Meanwhile, in the real world, Trump is most likely in incredibly deep shit. Nothing like being exposed as a front for Russian mob money to really bolster your image as a deal-maker.
You might be right. That’s what the Mueller investigation is about and I continue to be content for it to work its way through. So far none of the revelations that have come out have exposed an underlying crime other than violations of the unenforced, probably unenforceable, and likely unconstitutional Logan Act. If we start enforcing the Logan Act all living former presidents along with most large company CEOs will be doing time.
I originally thought that Mr. Comey was just trying to protect the FBI’s reputation but it really looks as though the FBI has become very politicized. The AG is typically any administration’s hatchet man but what we’re learning about Justice and the FBI is really excessive.
Trump almost surely obstructed justice, though there’s no way he gets impeached for that. But if he really was just a figurehead for Russian money, he’s going to destroy the Republican party unless they get rid of him. So far, they’ve been able to play dumb about everything Trump related. This election might change that.
As far as the politicization of the FBI goes…basically, some agents had a very low opinion of Trump and thought him a rapist/idiot/possible lunatic. Virtually everybody outside of the base thinks the same. You can’t make people who aren’t paid hacks be stunned that two college educated humans had impolite things to say about this guy. It’s just not very meaningful in and of itself. Given that the FBI denied having an investigation before the election I suspect that there is probably nothing other than justified mockery of Trump. Anyways, going after the personal lives of FBI agents is basically a last-ditch ad hominem effort to stop this investigation.
I’ve always assumed that Trump had corrupt business dealings in his past but honestly have been surprised they haven’t uncovered more by now. Is there something I’ve missed that you guys see coming down the pike or are you just assuming it’s there but hasn’t been leaked yet?
He had to be getting money from somewhere, basically. And this dossier that the GOP is convinced was written by Hillary Clinton in order to help her win the election by not being released is about, according to the testimony, Trump’s dealings in Russia, and how shady they are. Personally, I find it hard to believe that a document that is full of pure fiction would be the topic of 24/7 criticism intended to disqualify it from being evaluated. It doesn’t compute. If it’s false, let it be exposed. If it’s true, then it doesn’t matter how it came about.
Methinks Modulo is getting desperate.
So basically you are making assumptions.
As far as I’m concerned nothing about any of this computes. If they had real evidence then why pad the dossier with false stuff with shady sourcing?
Y’all got that wascally wabbit. Just throw him into the briar patch. Yeah, that’ll teach him good.
I am still waiting for the perp walks promised by @FamousFictionWriter, and now, his acolytes are foretelling of the Hated One’s doom.
This is a riot. Keep it up, but I need more popcorn.
I don’t really have time to go through all o the mischaracterizations, but just look at a couple.
“The FBI is investigating a presidential candidate for mishandling classified emails as Secretary of State.”
And they leave out that at the end, they really only found one or two classified emails. People just haven’t been prosecuted for accidentally sending one or two classified emails by mistake.
” and exonerate that candidate in a public statement to the media”
Well, no. He did not exonerate her. He said she was careless, then noted no one had ever been prosecuted under these circumstances for similar errors. Remember that they are questioning his ethics. Well lets question the ethics and integrity of the WSJ. Show me the cases, even one case, where we prosecuted someone for mishandling by mistake so few emails. That case doesn’t exist. He followed precedent. Now, apparently the WSJ and you think that is an ethical breach somehow, but I think that is just your bias coming out.
Steve
Just read a summary of the Cliven Bundy trial to know the department of justice has serious ethics issues that reflects poorly on its former leaders.
Steve,
“And they leave out that at the end, they really only found one or two classified emails. ”
It wasn’t just one or two emails.
As for the lack of prosecution, I think you’re correct. However, her case is unique because practically no one else except a cabinet officer could get away with setting up a system like what she did.
I’m told by legal types that if a jury asks a judge for clarification on the meaning of gross negligence they are frequently told it’s “extreme carelessness.”
And speaking of bias, steve conveniently omitted that Comeys letter drafting preceded the interview with HRC, and that he was rather compliant with “investigation” vs “matter” and Strzoks (Strzok!!) editing of the originally drafted gross negligence. Not to mention HRC was not under oath and others in the HRC circle were granted immunity. Shorter: the investigation was a sham.
Perhaps more important for Comey, under oath he said he did not make his decision until after the HRC interview. But he was drafting a memo beforehand. Well, you know, never procrastinate…..(snicker)
“It wasn’t just one or two emails.”
It was 7 that were marked as classified IIRC, but these were mostly either stuff about the “secret” drone attacks in Pakistan, that we all knew about anyway, or stuff that was made public soon after the emails were sent. All of the cases I know of where we prosecuted were when someone deliberately gave away classified information or they were sloppy with an entire computer or hundreds of classified documents. That was not the case here, so COmey was completely consistent with what we have done in the past. The WSJ declares this unethical. Dave says this is an ad hominem, and ordinarily I would agree, but in this case when you are attacking a prosecutor for doing what every other prosecutor has done, you need to look for reasons.
Steve
they were sloppy with an entire computer or hundreds of classified documents. That was not the case here,
How is that not the case here? She ignored all advice about the security risks, and sent emails to POTUS while she was in Russia from an unsecured device (which is the real reason she was never going to be prosecuted.)
Not to mention….the 7 emails you reference were among those voluntarily turned over. How likely is it that the 33,000 she destroyed didn’t contain a lot more sensitive stuff?
Steve,
There were hundreds of emails. Only two had classification markings. However, the lack of markings does not magically make the information unclassified (contrary to what Clinton’s surrogates kept claiming).
As for the drone strikes, her emails regarded pre-strike approvals against specific targets. Pre-strike.
Yes, the existence of the drone strike program was widely known and yes, once a strike occurred, details about it were leaked. However, as far as I’m aware details of impending strikes were never leaked and impending strikes is what Clinton’s emails were all about.
You can try to gloss over it all you want, but communicating about impending military operations over unsecured and likely compromised channels is bad. I say likely compromised because Clinton’s email server had no security certificate for the first several months she was in office which included a trip to China. But hey, all the hard drives were long destroyed and we know the Chinese are incompetent at cyber operations and there’s no proof of anything, so we can safely ignore all that, right?
I was involved in conventional drone strikes against enemy targets in Iraq and Afghanistan (which were far different legally and politically and operated at a much lower classification level from the drone strikes Clinton approved), and I’m quite certain that if I sent the details of what we were planning over my personal email I would, at a minimum, be fired, lose all access to classified info (which, as an intel guy is worse than getting fired – it’s the equivalent of being disbarred or having your medical license revoked) and an article 15. A court-martial isn’t out of the question.
Clinton lost an election. Her aides all got immunity. No one was punished for anything.
“Different spanks for different ranks” is a phrase going back decades. Yes, I agree Comey was right in not prosecuting Clinton, but let’s not kid ourselves that her circumstances and the cost she paid for her willful mistakes would be anywhere near equivalent to what would happen to a “regular” person who did the same thing.
The problem with communicating quickly the pre-strike email goes back to when Powell was SOS. Private email was used since it was faster. No time for a courier and when the SOS is traveling, hard to get to a secure server. The day after the drone strike was done, so these don’t seem like national security risks.
As to the hundreds, what I have read is that somewhere in the hundred range had bits of stuff that would have been considered classified. People familiar with this stuff, say that is common among the political set. There were more where it might have been considered so, but then it is also acknowledged by most that we over classify stuff.
Which gets back to what I said earlier. When I have read through the cases that got prosecuted, people either deliberately gave away classified info, or there were very large amounts of stuff clearly marked as classified that was put at risk. Come was consistent with past actions.
Steve
“The problem with communicating quickly the pre-strike email goes back to when Powell was SOS. Private email was used since it was faster.”
No, Powell used private email because the State Department didn’t have a unified email system that was able to connect to the internet. Building a new system was one of Powell’s initiatives to give the State Department the ability to communicate better internally, but also with other agencies and foreign contacts. The system was built during Powell’s tenure and it is basically the system that exists today and it’s the one that Clinton had access to.
“No time for a courier and when the SOS is traveling, hard to get to a secure server. ”
This is the 21st Century Steve. As a lowly analyst for a reserve unit, I had access to encrypted satellite telephones and a variety of encrypted line-of-site and satellite-based comm links. The idea that the most important cabinet official in the US government did not have any other option besides an unsecured, unclassified, non-governmental email system is laughably absurd.
These retroactive rationalizations are dumb and factually wrong, but they also contradict what Clinton herself said. She told us, multiple times, that she did it for personal convenience. Not because it was faster; not because there weren’t other options; not because the SoS didn’t have any secure communications. She simply didn’t want to carry two unclassified devices – one personal and one for work – like tens of thousands of other government employees and high-level officials do.
“The day after the drone strike was done, so these don’t seem like national security risks.”
In what world is potentially exposing an impending military operation – for no legitimate reason – not a national security risk? Serious question.