Legal Ethics in Trumplandia

Warning: this post may be considered uncivil.

I was a public servant for 6 ½ years. I was an assistant in the Tennessee State Attorney General’s office beginning in mid-1977, and became Securities Commissioner in the Insurance Department in mid-1980. In that time I dealt with a number of interesting ethical issues, directly and indirectly. Where do we draw the line between defending the constitutionality of a questionable statute? Should we intervene in a specific case for public policy reasons? Should we defend a lawsuit against a state employee?

Particularly difficult questions arose when suits were filed alleging systematic violations of law or human rights. The Alcoholic Beverage Commission was being bribed into approving liquor licenses, for example. A worse case involved guards sexually assaulting juvenile detainees. I won’t discuss these cases even now, but I learned the importance of making decisions as a lawyer that kept my conscience clear.

It must be like this every half-hour nowadays for career Department of Justice lawyers. The ignorant policy decisions, the incompetent drafting, the table-pounding public statements on top of difficult questions of constitutional law and statutory interpretation must make for situations that are fascinating, difficult, and even funny in a bizarre way. I don’t have a problem with career lawyers defending the policies of this or any administration. I do question some of their arguments. For example, in the Muslim Ban cases they argued that public statements made as candidate and as President aren’t relevant, which seems ridiculous, but SCOTUS disagrees with me so I was wrong. Or something was wrong. But anyway, I know this must be exhilarating for those people, and I hope they are finding the pleasure that I can see from a distance in the kinds of issues they face.

That doesn’t apply to the Child Snatching Case. Or, as the normalizing media call it, the Child Separation Policy. The facts of the matter are not seriously disputed. As a matter of policy, every person deemed to have entered the US illegally is charged with a crime. That includes people lawfully seeking asylum. Their children are snatched from their arms and sent thousands of miles away. The parents are jailed. The kids are kept in cages before transfer, often to horrifying profit-making entities where care is minimal. Some of the kids are drugged without their consent or that of their parents. The government doesn’t know where the kids are or how to reunite them. Some of the parents were deported without their children. The policy of referring all immigrants for prosecution may have been dropped recently.

The policy was put into effect secretly, with no notice, in the Summer of 2017, and the government formally admitted it April 6, 2018. At least 2,000 thousand children were snatched. Here’s a short history from the New Yorker.

The ACLU filed suit February 26, 2018 on behalf of a Congolese woman who sought asylum for herself and her 7 year old daughter who were separated pursuant to the policy. DOJ lawyers entered an appearance March 23, and filed a motion to dismiss April 6. The ACLU filed an amended complaint, and then a request for a preliminary injunction. The DOJ lawyers objected. A hearing was held in June, and a preliminary injunction entered June 26. It became clear at that point that the Trump Administration couldn’t find kids, didn’t know which kid went with which parent, and didn’t have any way to find the parents who had been deported without their children.

Buzzfeed has done a good job reporting on this case. Here’s a report by Adolfo Flores on the July 7 hearing that clarified the sickening state of the records and the failure of the Trump Administration to protect the children. Here’s Zoe Tillman’s report on the status as of July 9. Apparently one family that was separated were US citizens.

This policy punishes parents, many of whom are innocent, without due process. All of the children are damaged, and they are all innocent of any wrong-doing. The punishment is cruel and unusual in the sense normal people use those words.

The policy, if this unplanned and undocumented perversion can be called a policy, was imposed by US Attorney General Jeff Sessions. He says it was designed to deter families from illegal entry, but that is an easily disproved lie. It couldn’t work if it wasn’t public. It couldn’t work if entry is legal, as in the case of those seeking asylum. And it could never work against the children. This people who designed and approved this policy are sadists. They’re just the latest version of US monsters, like the torturers, the liars who ginned up the Iraq War, and the armchair warriors who send out the bombers and cruise missiles as the mood or politics strikes them. We have no recourse against them. They are beyond the reach of law or conscience. They are beyond accountability.

The people who are carrying out this policy are the only people who could have ended it. They didn’t. They are complicit and each one bears a share of guilt.

That includes the lawyers who defended the case. Assuming a minimum degree of competence, I speculate that the DOJ lawyers in the ACLU case knew about the policy and had some idea of the scope of the damage by mid-March. They certainly knew about the policy and its purpose by the date of the public announcement, April 6, the day they filed the motion to dismiss. They then chose to continue to litigate rather than work to terminate of this inhuman policy and stop the damage, and failing that, to resign noisily, They had choices; hard choices to be sure because the policy was designed by their political boss, Jeff Sessions, but still choices.

The effect of their decision to continue litigating is that the life of the policy was prolonged for months and more children were snatched. Other workers were put in a position where they may have felt they had no choice but to enforce the policy. The government and its private contractors continued to abuse the parents and especially the children. The resources of charitable organizations and others working on this disaster were depleted. Surely the lawyers didn’t need the money or the job that badly.

They may still have a conscience. If so, I hope it eats at them all their lives. I hope they have to explain their actions to their children. I hope the memory of toddlers screaming for their moms and dads comes to them in the night and gives them sweats. It’s a fair price to pay for the damage they have done to thousands of children and their parents.

27 replies
  1. Frank Probst says:

    Fewer than 2/3 of the 100+ “tender age” children were reunited with family members prior to the judge’s deadline.  I doubt they’ll do much better with the several thousand more kids who are supposed to be reunited by the next deadline.  The President of the American Academy of Pediatrics (AAP), of which I am a member, has already called this child abuse.  I’m waiting for one of these kids to go into an ER or a hospital and for a formal ethics evaluation to be done on this.  I would outright refuse to discharge one of these kids back into the hands of the federal government.  This is just obscene.

    • cat herder says:

      Just a clarification here. “2/3” should be “2-3”. As in, “two or three have been reunited”. Not “two-thirds have been reunited”.

      • cat herder says:

        Just saw a Reuters claim that as of this morning just over half of the 103 have been returned. Last I’d heard yesterday the number was four.

  2. Eric says:

    All of this is unequivocally true and uniquely horrible and sad.

    At the same time, America is doing something it never does: looking inside the door of America’s system of incarceration and criminal justice for the very vulnerable and the poor.  What happens to a 17 year old poor person caught twice with drugs has nothing to do with common sense either.  Depending on what state and what prison he or she is in, they will face various kinds of cruelty, violence, coercion, torture, at the hands of careless, clueless, frequently sadistic people. They will be in a cage with a cement floor, or maybe not a cage, but a cave, 23 hours a day, alone, perhaps. Or a room the size of a basketball court with 700 others. If he tries to kill himself he’ll be placed in an entirely steel room, with no blanket, pillow or mattress, only a paper gown, for six months, fed through a straw.  If determined to be mentally ill, and relocated, she might be placed in such a narrow cage that she must stand upright, stark naked, shitting herself, until the papers are processed, too bad if its a 3 day weekend.

    And so forth and so on.  A reasonable person would be horrified if they saw it on the news.

    The intention was to vanish these children, their lives were so valueless to the government.  Many, many adults are also lost, every day.

    The children are completely innocent. Their young lives are being bent and crushed.  But pain hurts, no matter how old you are, or what you did.

    I wish Americans would keep the damn door open, pay attention to what is going on, and try to sort it out.

  3. earlofhuntingdon says:

    For example, in the Muslim Ban cases they argued that public statements made as candidate and as President aren’t relevant, which seems ridiculous, but SCOTUS disagrees with me so I was wrong.

    You’re not wrong.  You just don’t have a vested political interest in excusing a Republican president from the rule every good parent tries to teach their children: they are responsible for the natural and logical consequences of their behavior.

    Mr. Trump, however, took the Supremes at face value.  In an exclusive interview for the UK’s the Sun, excerpted by digby here, Donald lets loose several howlers. 

    Apart from lambasting Theresa May for thinking about a soft Brexit (when only a hard one would satisfy Vlad), and suggesting that the recently resigned Boris Johnson would make a good PM, the most pertinent ones are these:

    “Accused EU leaders of destroying its culture and identity by allowing in millions of migrants
    “Tore into London Mayor Sadiq Khan for not standing up to terrorists
    “Blamed Khan for spiralling crime in the capital”

    None of these is factually correct.  But we can ignore the president’s obvious, irrational, and vehement anti-immigrant bias because the Supreme Court tells us that his public statements have no legally recognizable bearing on his policies.  Bullshit.

    • posaune says:

      Thanks for that link, Earl.   My mother worked for Robert Jackson in Nuremberg.  She had great personal respect for Jackson and Maxwell Fyfe.  She rarely talked about her work during my childhood/adulthood, except toward the end of her life when she became quite reflective about her experience.   I can’t begin to imagine how fully devastated she would be today to see migrants in detention camps and the children stolen, incarcerated and traumatized by this administration.   A nation with such great shame would be overwhelming to her.

  4. Ed Walker says:

    I reread the Altstoetter case when I was preparing this post. I think it should be required reading for every DOJ lawyer. The decision is here, starting at p. 954.

    It’s a really long .pdf. The Court finds that the Nazi legal system was a sham, and that the people who ran it were sadists. See, for example, the findings about the defendant Oeschey beginning at 1190. Altstoetter was convicted of being a member of the SS. He would not have been tried if he hadn’t also been a lawyer. This is from the decision starting at 1176, copied from the wikipedia entry on Josef Altstotter:


    … was a member of the SS at the time of the pogroms in November 1938, “Crystal Week,” in which the IMT found the SS to have had an important part. Surely whether or not he took a part in such activities or approved of them, he must have known of that part which was played by an organization of which he was an officer. As a lawyer he knew that in October of 1940 the SS was placed beyond reach of the law. As a lawyer he certainly knew that by the thirteenth amendment to the citizenship law the Jews were turned over to the police and so finally deprived of the scanty legal protection they had theretofore had. He also knew, for it was part of the same law, of the sinister provisions for the confiscation of property upon death of the Jewish owners, by the police. …

    Conceding that the defendant did not know of the ultimate mass murders in the concentration camps and by the Einsatzgruppen, he knew the policies of the SS and, in part, its crimes. Nevertheless he accepted its insignia, its rank, its honors, and its contacts with the high figures of the Nazi regime. These were of no small significance in Nazi Germany. For that price he gave his name as a soldier and a jurist of note and so helped to cloak the shameful deeds of that organization from the eyes of the German people.[2]</blockquote>

    • earlofhuntingdon says:

      I’m pretty sure we debated here the applicability of that case to the Bush administration lawyers.  John Yoo would have been the shining example.

      His confidence, his arrogance that he was propounding good law rather than paving the road to hell would have been all too familiar to the defendants in the Altstoetter case.

      Mr. Kavanaugh is, in contrast, less obviously striving for acceptance because he comes from a mainline branch of the establishment Yoo sought to join.  He is less given to exposing himself, but just as authoritarian and conservative.

  5. posaune says:

    Wow. Thank you so much for citing this and providing the link — I really appreciate this. It breaks my heart to think of all those DOJ and crony folks who have lost their souls — the list is SO long: Ed Meese, Yoo, Bybee, and now this bunch. It is so hard to believe the corruption is so wide and deep. So eager to destroy a government.

  6. Trip says:

    Trump’s America First, in my opinion (although not well-read like others on the subject), is a form of internal colonialism. The US imperialistic drive to conquer and take over other lands seems to have been satiated (at least for now) by a brokered international deal, breaking the globe up into segments for ownership by different authoritarian governments and the oligarchs thereof. Now the goal is to conquer, constrict, control and disenfranchise those within the given borders, with the exception of the highest economic elite and politically powerful/connected. The brutality of wars and nation building has come home to roost.  It starts with the sadistic treatment of ‘outsiders’, racial and ethnic minorities, but will progress to all within. And it has started already with frightening loss of civil rights and protections.

    A couple of examples outside of the horrendous treatment of asylum seekers (immigrants) not given due process or the right to redress, beyond the obvious racial bias:

    “The majority opinion today holds that police can shoot and kill a non-fleeing suspect who is already gravely wounded even when there is no immediate threat to the officers or the public. ”

    Fliers may have a tough time recovering damages for invasive screenings at U.S. airport security checkpoints, after a federal appeals court on Wednesday said screeners are immune from claims under a federal law governing assaults, false arrests and other abuses.

    In a 2-1 vote, the 3rd U.S. Circuit Court of Appeals in Philadelphia said Transportation Security Administration (TSA) screeners are shielded by government sovereign immunity from liability under the Federal Tort Claims Act because they do not function as “investigative or law enforcement officers.”

    If you can treat the most vulnerable within our walls (babies and children, non-citizens), with such disregard, with less care and documentation than an animal shelter, there are NO evil deeds you’d be unwilling to commit in the protection of power.  On another level we also see this with the GOP and the obvious McCarthy-like approach to the FBI agent, Strzok.  It is a ‘sin’ and considered action against the state to be politically opposed to the power structure. Wait for it to soon be legislated. Anti-Trumpism will be the new communism. And Trump has sanctioned attacks on minorities, hate-crimes, which have increased since his administration. The GOP has its formal and informal henchmen. For now, the cult feels safe, but after other ethnic groups, women, and different races have been brutalized, they will be the next in line for conquering.




    • earlofhuntingdon says:

      The dissent in the Sixth Circuit case you cite, from three days ago, has the much better argument.

      Shooting and killing an already seriously wounded man, lying alone and prone in an open field, fifteen feet away, with other officers already en route, was a separate, excessive use of force.  There were no civilians or others nearby.  Given that he was prostrate and had already been shot several times, that the man still possessed a knife did not make him a continuing threat to the officer that justified his killing without a further overt act on his part.

      He had earlier been a severe threat, which is why the police had first used their weapons.  But the legitimate first use of deadly force does not justify its continued use when the threat to the officer or others no longer continues.

      The majority disagreed with that reasonable, humane position and overruled a similar one from the lower court, and extended to the officer’s final round of shooting the qualified immunity that clearly applied to his initial shooting. 

      I wonder if that was one reason the court applied the legend to its opinion: Not Recommended for Full-Text Publication.

      • earlofhuntingdon says:

        The court seemed to think that once an officer had assessed that a present danger to life and limb existed, it continues until the threat is extinguished, shot dead. 

        It is hard to imagine a less threatening perp than the one here, shot several times, fifteen feet away in an open field, lying prostrate, albeit with a knife in hand or nearby.  No one else nearby. 

        The officer, with gun in hand and a full clip, with help en route, could easily have avoided a knife threat, had it existed.  Even that would have excused another round of bullets.  In effect, though, this officer fired again because the perp was still moving.  That dances with murder.

        The court’s reasoning is akin to saying that once an officer is excited, and draws and fires his weapon, the officer is excused from having to reassess the threat until the perp is dead.  It gives local LEOs carte blanche, and excuses their departments and cities from financial accountability.  It enables more of the same behavior. Whoopee.

        It would be easy to make analogous arguments in other contexts.  Sexual assault, for example.  Once a man becomes excited and is actively engaged in intimate conduct, it would be unfair for the woman to just say, No. 

        That approximates the earlier rule in rape cases.  It’s the sort of reasoning we object to in traditional Islamic countries because it is archaic and misogynistic, and excuses the male from minimal self-responsibility.  But it never seems to die its deserved death.

    • Trent says:

      Another one of the treasured contributors/commenters from the FDL Plamegate days.  Glad to see so many of them (and a whole bunch of new ones) here continuing to enrich.


  7. TheraP says:

    People who excuse or participate in heinous, sadistic methods for ‘carrying out the law’ deserve every possible public rebuke and censure, including prosecution for “following orders” which are beyond common decency because they – possibly for a lifetime – interfere with parental bonds and therefore positive human development.

    I taught young children (3rd and 4th grade) for 8+ years, then trained as a therapist. Ethics was front and foremost in my mind when I had the care of young children and later adult patients.When I was in private practice, caring for several women who were victims of childhood sexual abuse, I had what a friend called “a therapist’s nightmare”. 

    A child came knocking at my door.  She’d run away from home.  She told me she was escaping abuse.  Could I save her?  In my dream, I ran through the alternatives, considering my liability and the needs of the child for protection and safety.

    Thankfully, I woke up!  It had been a nightmare!

    But so tuned to Ethics was I, am I, that even asleep, even in peril for my own safety, my conscience is active – there have been other occasions, other dreams.

    That people would simply grab crying babies or toddlers, ignoring their screams and the powerful impact of a child’s cries (on our neurons!) is, for me, a horrifying development in this nation.  It’s on a par with the introduction of torture being excused, carried out, never prosecuted.

    We have a ‘resident – with a need to humiliate other national leaders of democratic nations, while lauding those who are demagogues like himself.  We have politicians afraid to speak out against bullying and sadism.  The nation is in grave danger.  I am old.  I may not live to see sea creatures and land creatures unable to breathe, worse flooding and fires, American children without adequate food, shelter, healthcare or education and wealthy people, behind castle walls with bazookas loaded just in case.

    Mother Nature weeps.  My heart is broken.  It’s time to mobilize.  Or it will be too late.

    Thanks for the post.

  8. Ed Walker says:

    The Guardian has a status report this morning: 57 reunited.

    The officials said 46 of the children were not eligible to be reunited with their parents; a dozen parents had already been deported and were being contacted by the administration. Nine were in custody of the US marshals service for other offenses. One of the children deemed ineligible was identified Tuesday as perhaps being a US citizen, along with their parent who officials have been unable to locate for over a year. Officials declined to provide more information on that case Thursday.

    In 22 other cases, adults posed safety concerns, they said. Officials said 11 adults had serious criminal histories including child cruelty, murder or human smuggling. Seven were not determined to be a parent, one had a false birth certificate, one had allegedly abused the child. Another planned to house the child with an adult charged with sexually abusing a child.

    • earlofhuntingdon says:

      Curious definition of “eligible”.  Includes parents already deported and those psychologically unfit, a state that might well have been created owing to months of government maltreatment.

      Similar Orwellian language used to define everyone over fifteen as a valid target in a war zone.  It reduces the number of people killed that fit the normal definitions of civilian or collateral damage.

  9. Bob Conyers says:

    I’m curious to what extent there’s a legally mandated paper trail behind DOJ decisions, what kind of preservation of these documents is required, and when and how do they ever become available.

    I realize FOIA comes into play, as does the discovery process if there is a lawsuit, and some future administration may decide to release documents just for the sake of the public interest, but I’m pretty much otherwise in the dark how these things play out.

  10. Ernie says:

    What really angers me about the treatment of these children, is that irreversible damage has been done to them. And there’s nothing we can do to change that.

  11. Tim Schreier says:

    God Bless you for this piece!!!  The Trump Administration is enabling and participating in vile atrocities globally, nationally and locally.  They are choosing to actively participate in assaults on the Poor (or the “easy targets”).  They choose to vilify them. To make them a perceived enemy.  They are ripping just the notion of “Access to Opportunity” away from them.  Now they have chosen to weaponize their most cherished, their Children.

    I do not give a Rats Ass if Sarah Saunders Huckabee can eat in Peace.  I really do not care if Neilsen or Miller can walk the streets without shame.  I want to see them made uncomfortable in places they seek comfort.  Restaurants, Country Clubs, Summer Homes, Vacation Spots… We, the empathic, must stand up to these vile Humans who choose to advance Hate. Their values are valueless. Their agenda is that of self-entitlement and self-interest. They serve none but themselves. If these vile urchins are whining about “Eating in Peace”, I say “Cry us a Blizzard, Snowflake”.

  12. Thomasa says:

    The ACLU lawyer who was on Democracy Now earlier in the week reported that the judge hearing their case, clearly doubtful that the govt could meet the court’s deadline, asked plaintiff’s council what remedy they might request. The court said they needed to come up with something by Thursday or Friday.

    I dispair to name a remedy. Who will make it stick? For example if Sessions was found in contempt? I did not hear the outcome. Wait. Perhaps I did. The government redefined the children not reunited as ineligible. Slime so thick one can hardly crawl through it. Where are the Ghostbusters when we really need them?!

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