"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, November 19, 2016

On the necessity of blind trusts for assets of elected and appointed public officials - and their family members

There are a lot of discussions in the media that the current president elect Donald J Trump should put his assets in a blind trust for the duration of his presidency, to be overseen by an independent overseer, such as this one.

First of all, a question, if this is all about government transparency and honesty and nothing about politics of the source arguing that government transparency and honesty - had Hillary Clinton been elected, would she be as vigorously required, by the press and non-profits seeking government transparency, to sever all ties with her Foundation and transfer management of the Foundation to an independent overseer, out of the hands of her family members?

This blog is dedicated to ensure government transparency and honesty, and exposure and, possibly, eradication of conflicts of interest in the government, and for me, the idea of blind trust for this particular president elect - and for all other public officials - is an excellent idea in terms of eliminating even a potential for the conflict of interest.

And, I am glad that somebody finally came up with that idea and is vigorously promoting it - albeit in application to just one public official, the current president elect.

Of course, putting the assets of a public official in a "blind trust" raises some legal issues, one of which is, for example, the issue of potential co-ownership by family members.

Should family members of a public official be required to put their assets into blind trusts with independent overseers over those blind trusts, to eliminate potential for conflicts of interest?

As much as I tried to get even financial reports, for example, of New York State judges - who are required by law to file such reports every half a year - I was not only consistently stonewalled, but my FOIL requests were reported to the particular judges who were the subjects of the FOIL requests, and one of them felt so irate about my "nosing" FOIL requests that he sanctioned me for them, and my law license and livelihood was pulled because of those sanctions - without a hearing, because it was too risky for New York State government to allow such a hearing.

Talking about blind trusts - in New York, instead, the public is required to blindly trust that judges have integrity, without seeing even their filed and supposedly open-to-the-public financial reports.

And, in New York, and in other states of the United States, and in the United States House and Senate, and in federal courts, up to the U.S. Supreme Court, there are no requirements, as far as I know, for public officials or their relatives to put their assets into any "blind trusts" - although it would have been a superb idea.

And I do not see the media in a frenzy to impose those "blind trusts" upon all public officials.

It is a good idea to ask the president elect - and his relatives - to do such a thing voluntarily, although, I am sure, the president elect will refuse to do that because no other public official is required to do that, and there is no reason to discriminate against the president elect.

But it is a good idea to at least voice such a concern in public.

And then to push for a federal legislature requiring "blind trusts" of ALL elected or appointed public officials, state or federal, and prohibiting family members of all public officials to work as lobbyists for the legislatures that can bring benefits to those same public officials.

For example, in New York, there is no prohibition for members of New York Legislature who are licensed attorneys to (1) sponsor and votes for legislation pertaining to court practice or practice of law; or (2) privately practice law in addition to their job as a Senator or House Representative.

Imagine if Donald Trump continued to run his businesses themselves while being a president.

Well, if his children are running his businesses, but communicating with their father, there is no way of ascertaining that it is not, in fact, Mr. President who would be running the Trump empire after the inauguration, and that is a big concern.

But, those same concerns have been present for decades for state Governors, Senators, Representatives, prosecutors and judges - with, once again, no media frenzy over it whatsoever.

I do not see any bills for "blind trusts" being even offered by the federal or state legislatures - for the obvious reasons that they will hurt the income of too many families of high-standing public officials with connections.

There are many scandals pertaining to such conflicts of interest reported in the press, but no general conclusions are drawn, and no push is made for general "blind trusts" on assets of public officials or their family members or ban on lobbying by family members in legislatures that can provide benefits to certain public officials.

Here are at least some of those reported scandals.

Missouri Senator Roy Blunt, who was recently chosen for a "leadership role" of the Republican party in the U.S. Senate, has, reportedly, his spouse and adult children lobbying for the U.S. Congress where Senator Blunt is legislating.

So, will the "family business" be eliminated any time soon for Senator Blunt? Not really - he was re-elected, and the candidate who exposed the "family business", was not elected, possibly, not enough money for the campaign to get out the message.

A blind trust for Senator Blunt and his children and a prohibition on lobbying for his family?

California Democratic Senator Dianne Feinstein "for at least 15 years, ... has appeared to support government contracts that push federal funds toward companies co-owned or governed by her powerful, billionaire husband, Richard C. Blum."   Of course, Richard C. Blum and Dianne Feinstein denied any wrongdoing claiming that the Senator's husband uses his connections only for the good of his beloved California university.

But, Trump and his children can claim the same, can't they?

A "blind trust" for Senator Feinstein and her husband Richard C. Blum?  Does anyone really believes this is going to happen?

How about family interests of the current Secretary of State John Kerry whose multi-millionaire wife owns the Heintz conglomerate of corporations? The conflict of interest has been reported since at least 2007, but John Kerry or his wife were never required to put their assets into a "blind trust".

In fact, reportedly, it is "legal" for congressmen and women to sponsor bills benefiting them and their families financially, and 73 federal legislators has used that loophole so far - according to a press report of 4 years ago!

Blind trusts for all of the Kerry family?  Does anyone believe that is going to happen?

Imagine the probability of introduction of a bill for such a "blind trust" for all public officials, appointed or elected, local, state or federal - the federal legislators who run for election specifically to enrich themselves and their families through connections, lobbying and sponsoring "the right bills" will not shoot themselves in the foot, will they?

Conflicts of interest of U.S. Supreme Court justices were also widely reported - disqualifying and irreconcilable conflicts of interest.

Reportedly, sons of U.S. Supreme Court justices Scalia (now deceased) and Alito (still in office) work or worked at the time of the report in 2014, at a law firm that bragged that the law firm has 30% of appeals to the U.S. Supreme Court heard (as opposed to 0.1% on the average - 70 cases out of 8000 petitions).

Should employers of relatives of U.S. Supreme Court justices put their assets and operations under the scrutiny of "independent overseers"?

Looks like a good idea - considering how much business is derived from employing a relative of a U.S. Supreme Court justice.

Actually, the U.S. Supreme Court set a "recusal policy" reportedly back in 1992 by which no recusal is required if a relative of a U.S. Supreme Court justice "simply works" for a law firm appearing before the court in a case (there are 9, now 8 of justices, remember, so the consider the probability of that "working for a law firm" for a relative in a country with 240 million people and hundreds of thousands of lawyers and law firms).

Conflicts of interest regarding Judge Alito's brother, Judge Kagan's brother and Judge Breyer's son were also reported, as well as conflicts of interest with Scalia's wife, Thomas's wife and Ginsburg herself.

Yet, we see no legislative bills attempting to police conflicts of interest in federal courts and in the U.S. Supreme Court - on the opposite, the bill that the U.S. Congress did introduce, blocks complaints against judges for any misconduct in office, leaving only one avenue for victims of judicial misconduct - appeal, while the majority of civil rights appeals in federal courts in the United States are rubber-stamped "affirmed" by non-precedential summary orders without proper review of the issues.

So, no bills to control rampant conflicts of interest in federal and state legislatures and judiciary.

And, had such bills been introduced, even for show, they would have died very quickly.

So, the "blind trust" idea (with an "independent overseer") is a very, very good idea, is long overdue, and it is great that the media has vigorously put this idea on the public agenda - even if only in application to one public official.

But, it should be equally applied to all elected and appointed public officials.

That will be great, right and fair.

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