Falling on the Reputational Grenade, Part II

The other day, I had the thought that, sometime in the next four years, we will likely see the first legal filing by a government lawyer that will include some AI-hallucinated citations. Leaving aside that this is already happening with private firms (including sizeable ones) and so it only seems a matter of time, we also are entering the realm of overconfident and underqualified tech bros ransacking their way through Washington. AI-generated legal briefs are exactly the sort of "optimization" I can imagine Musk and his DOGE youth pushing out onto the bureaucracy, with predictably farcical results.

Generally, courts have responded rather mercilessly to lawyers who've submitted AI-generated hallucinated cases. Their reputations are ruined, and the underlying case is permanently discredited. And that thought got me thinking -- what would happen if an enterprising government lawyer decided to sabotage their own case by deliberately inserting AI-hallucinations into it?

Imagine the birthright citizenship case -- already viewed as a legal non-starter, with the usual conservative guns-for-hire flailing about trying and failing to whip up an even halfway plausible mechanism for circumventing the constitution's clear text and history. In court, the DOJ files a brief citing some late 19th century caselaw that seems to endorse a narrower view of the citizenship clause than currently prevails ... but it turns out that the citations are all made up.

Such a move would detonate the Department's credibility. As a form of internal sabotage, it would be devastatingly effective -- but (in here's the rub) only if the public didn't know it was sabotage. If the ruse was revealed, the plan doesn't work (having one's own attorney deliberately sabotage your case is not the sort of thing held against the client). But if the public remains unaware, the attorney who made the "mistake" would have committed career suicide twice over -- first, in putting his name on a defense of whatever neo-fascist Trump policy is before the court, and then second being a public laughingstock by "defending" it via inept use of generative AI.

During the first Trump administration, I wrote about actors who were knowingly wrecking their reputation by working in the Oval Office on the (probably correct) theory that if they didn't do it, someone worse would. They knew that history would view them as a villain, and accepted that judgment in order to avert greater evil. The above example is a perhaps even more extreme case -- a sort of reputational suicide bomber. The attorney would sabotage some great evil, but at the cost of everyone for all time thinking of him as Trump's most incompetent lickspittle.

We saw recently a longtime DOJ attorney, Ed Sullivan, agree to file a motion to dismiss the Eric Adams indictment, reportedly to avert a complete and total purge of the Public Integrity Unit by one of Trump's cronies. The order to dismiss the Adams case had already led to widespread resignations over what was transparent quid-pro-quo corruption -- trading non-prosecution in exchange for Adams' cooperation in enforcing Trumpist immigration policies. Sullivan reportedly agreed to fall on the grenade so as to spare his colleagues; this has in turn generated a roaring debate over whether Sullivan was right to do so or should have forced Trump's lackey to fully reenact the Saturday Night Massacre. I don't here make any judgment on which side of that debate got things right. But we're going to see more difficult questions as those on the inside consider how to resist abuse and forestall catastrophe. And while we like to imagine that the "right" choice at least comes with the perk of being viewed heroically, the more interesting choices may be ones where it is precisely one's reputation that must be sacrificed in order to truly avert the greatest evil.

Can We Just Resist the Bauble for Once?

The Justice Department Inspector General completed its review into the FBI's counterintelligence investigation into links between the Trump campaign and Russia, and found no wrongdoing. If you're Attorney General Bill Barr, this is obviously The Wrong Answer, and by golly he's going to keep on creating new investigations until someone gives the Right One.

At which point, we all know what's going to happen, right? The newspaper headlines will blare "Justice Department: FBI Behaved Inappropriately in Trump-Russia Investigation." Trump will declare victory. The media will put on its sternest contemplation face as it ponders this new revelation. Nobody will have the guts to say it's an obvious concoction, and not worth any attention at all.

But -- futility aside -- I'll still issue my plea: Can we not? Given that we all know exactly what it is coming, why it's coming, and what it is -- can we just resist the shiny bauble? Just this once?

I know, we can't. But still ... please?

Palate-Cleansing Roundup

My Tablet article on Brooklyn Commons, and the follow up posted here, really pulled me away from a lot of my other reading -- including some planned posts. So here's a palate-cleansing roundup for your pleasure -- fewer entries than normal, but with more meat per bite.

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An interesting piece at Deadspin exploring why hijab-wearing fencer Ibtihaj Muhammad, rather than uncovered hurdler Dalilah Muhammad, became the "face" of Muslim women among American Olympians. At one level, I think it is absolutely fair to suggest that minority groups -- of all sorts -- tend to face greater barriers to inclusion the more they are differentiated from majoritarian norms (e.g., by wearing a hijab). On other, though, I think it is not improbable that there is a degree of exoticization going on here, where we recognize as "authentic" cultural enactments which play to our pre-existing stereotypes.

In +972 Magazine, Assaf David argues that Israel is simply another Middle Eastern nation struggling to find its way in the wake of the colonial withdrawal from the region. None of Israel's problems -- from its identification with a particular religious and social group to the chafing of minority members of the state, to its ongoing struggles with sub- and super-national identities like religion, ethnicity, and community, to border disputes brought upon by indifferent colonial line-drawers and chaotic independence -- is particularly novel in the Middle East. And indeed, with a largely Mizrahi Jewish identity, Israel's own cultural heartbeat is at this point more Middle Eastern than Ashkenazi-European (via).

DOJ and Army Corps of Engineers announce a moratorium on pipeline building protested by the Standing Rock Sioux Tribe. More importantly, they look to be launching a more formal consultation process with tribal governments regarding how (either through current or new legislation) to better involve tribes in the planning and review process of infrastructural projects that touch or affect tribal lands or treaty rights.

Post-Contemporary Roundup

Yesterday, I had my first Ph.D subfield exam (in contemporary political theory). It was a delightful smorgasbord of Rawls, Walzer, Rorty, Anderson, and Landesmore; thus (hopefully) proving I am a smart young man who knows things about contemporary political theory.

As one can imagine, this has been taking up much of my time (well beyond the six hours I spent taking the actual test). But now it's over, and I can enjoy my ... one week before the Fall Term begins! Anyway, here are some links that have been cluttering my browser over the past few days.

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Glenn Beck has some surprisingly thoughtful and introspective remarks on Black Lives Matter. Good for him.

MEMRI says there has been a recent streak of articles in the Saudi press urging its readers to renounce and reject anti-Semitism. Sea change, or drop in the bucket? Who knows.

"For Israel, It’s No Jew Left Behind — Unless You’re Ethiopian".

Jeremy Corbyn must find it baffling how his friends mysterious keep on saying things to Jews like "F**k him, they should cut his throat."

Department of Justice to phase out the use of private prisons. Good news, though my suspicion (possibly unfounded) is that most private prison contracts are with the states, not the federal government.

DOJ No Longer Will Defend DOMA

This just out from the DOJ:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court. Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment. While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated. In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the President has instructed the Department not to defend the statute in such cases. I fully concur with the President’s determination.

I think this makes sense. It is exceptionally difficult to justify declining heightened scrutiny to gays and lesbians; as my Comment points out, the lack of constitutional protection for GLBT persons is more attributable to the badly inconsistent use of "political power" as an operative element in the Court's tiered-scrutiny jurisprudence than anything that can be truly characterized as a "legal" reason (the DOJ announcement also buttresses my larger claim that the constitutional status of gay legal claims will rise in tandem with their increased political and social clout -- the DOJ explicitly notes both legal and political advances by gay rights forces as part of the reason for its reversal). Where there is explicit precedent -- however bogus -- that anti-gay classifications receive rational basis review, it makes sense to defend the law on that axis. Where that precedent is absent and we are reviewing the law of the legal land untainted, the clearly correct position is that these laws are subject to heightened scrutiny, and cannot survive it.

Monday Evening Roundup

Forgive me, I've been busy.

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A host of leftist luminaries, including Noam Chomsky, have lent their imprimatur to a book which, among other things, effectively denies the 1994 Rwanda genocide. Well, let nobody accuse folks of singling out the Jews anymore, at least.

The internal IDF probe of the Gaza flotilla incident (distinct from the independent Terkel commission) has found mistakes in the operation, but fully sanctioned the use of force by the commandos. One of its observations was that there aren't really that many ways to stop a ship from going someplace without boarding it, and there aren't that many ways to board a ship whose crew is violently resisting without yourself using some violence.

Whoever wrote the screenplay for this World War II thing I keep seeing on the History Channel needs to find a new profession. I mean, sheesh.

It's not nice to kick folks while they're down, but Matt Yglesias I think is appropriately harsh to journalists just now discovering that John McCain is 95% hack. He didn't really change, you just weren't paying attention.

Switzerland refuses to extradite Roman Polanski, bowing to an international outcry that punishing a convicted child rapist is a gross injustice when the rapist is friends with important to people.

Adam Serwer has a good post on the Justice Department dropping voter intimidation charges against the New Black Panther Party.

The NAACP is considering a resolution condemning racism in the Tea Party movement.

Quick Eats Roundup

The law school threw a dinner party downtown for us 2Ls, to celebrate us reaching the midway (if you know Hyde Park, you'll laugh at the pun) of our law school career. The dinner felt rushed though: arrive, 10 minutes later seated and eating, courses come out rapid fire, speech by Professor Masur, buses arrive, we go home. It was impressive.

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The bullet-proof tailor of Bogota. This is really, really cool. Involves a reporter getting shot in the gut.

Egyptian journalist union punishes two members for contacts with Israel. One of the writers is "editor in chief of the state-run weekly Democratiya, or Democracy", the title of which I find unbelievably ironic.

Anti-Semitic acts soared in France last year.

Radical rabbi blames gays for natural disasters, warns against eliminating DADT. For the record, Israel has let gays and lesbians serve openly for over 25 years (and it's still kicking!).

Appeals court reverses trial court decision which had thrown out genocide charges against Sudanese President Bashir; Kevin Jon Heller defends the reversal against critics.

Sen. Blanche Lincoln (D-AR) wants it all ways: the joy of controlling the legislative agenda, and the joy of attacking mythical "liberal extremists" for controlling the legislative agenda.

Justice Department issues a recruitment call for mentally retarded lawyers. Sarah Palin is presumably thrilled.

Taking Sides

Rep. Peter King (R-NY) is angry at Attorney General Eric Holder for daring to do his job and investigate potential violations of the law:

"It's bullsh*t. It's disgraceful. You wonder which side they're on," the Long Island Republican told Politico Tuesday.

There are two sides to this conflict. One side is defending democracy, liberty, and rule of law, and the other side is trying to destroy it. And I am quite sure where Attorney General Holder and Rep. King line up, respectively.

DOJ Opens Investigation into CIA Interrogations

A. Bout. Time.

Stevens Prosecutors to be Investigated

The Federal judge who presided over ex-Sen. Ted Stevens (R-AK) trial has set aside the verdict and will pursue contempt charges against the prosecution team.

“In nearly 25 years on the bench, I have never seen anything approaching the mishandling and misconduct that I have seen in this case,” Sullivan said. “Again and again, both before and during the trial in this case, the government was caught making false representations and not meeting its discovery obligations.”

No objection from my end. It was clear from the start that this prosecution team was the gang that couldn't shoot straight, and I'm as pissed as anyone given that it cost the United States the conviction of a man who I remain convinced is guilty of corruption. The only thing I find unfortunate is that I doubt this precedent will extend to cases of prosecutorial misconduct in situations where the defendant is not politically well-connected. Ted Stevens deserves justice and a fair trial just as much as any other accused criminal, but I worry the upshot of this move will not be to increase fairness but persuade DOJ attorneys to focus their shenanigans on defendants who don't have the pull to fight back.

Stevens Is Out of the Fire

Citing major prosecutorial misconduct by the Justice Department attorneys who led the case, the Obama administration has announced it is dropping all charges against former Senator Ted Stevens (R-AK) and will not seek a new trial. Unfortunately, this is hardly surprising given the rather relaxed standards of competence the Justice Department enjoyed over the last eight years.

Gov. Sarah Palin (R-AK), of course, couldn't stop talking out of both sides of her mouth even if one was glued shut, released a statement bemoaning Stevens' treatment and the "frightening" misconduct he was forced to endure. "It is unfortunate that, as a result of the questionable proceedings which led to Senator Stevens' conviction days before the election, Alaskans lost an esteemed statesman on Capitol Hill. His presence is missed." Of course, after his conviction she was singing a different tune, criticizing him for failing to resign his seat and saying "Even if elected on Tuesday, Senator Stevens should step aside to allow a special election to give Alaskans a real choice of who will serve them in Congress."

ZOMG

Whoa! Turns out that Bradley Schlozman is a massive, racist prick. Surely, that wasn't the precise reason why known when he was selected to lead the DOJ's civil rights division.

Kagan and Johnsen to DC

Elena Kagan, one of the hottest young stars in the legal profession, will be leaving her position as Dean of Harvard Law School in order to become Barack Obama's Solicitor General, where she will be the first permanent female appointee to that position. Congratulations! Joining her in DC will be Dawn Johnsen as head of the Office of Legal Counsel. Johnsen was a part of the Clinton administration, and also was the former legal director for NARAL. She currently teaches at the University of Indiana-Bloomington Law School.

Congratulations to both!

Obama Calls the ACORN Bluff

So John McCain has been crying wolf over ACORN registration fraud? Fine, says Obama, let's appoint a special prosecutor to take a look at it, along with all other allegations of voter fraud or voter suppression. The McCain campaign's response? Strident opposition, of course. It's an "absurd" attempt to "criminalize political discourse". But, the spokesman continued,

Rest assured that, despite these threats, the McCain-Palin campaign will continue to address the serious issue of voter registration fraud by ACORN and other partisan groups, and compliance by states with the Help America Vote Act's requirement of matching new voter registrations with state data bases to prevent voter fraud.

Yes -- having qualified professionals actually take a look at your allegations would be a threat when your claims are completely bogus.

Meanwhile, it is worth stressing again what this ACORN business is all about. ACORN's objective is to register as many new voters as possibly (or, depending on your level of cynicism, as many new liberal voters as possible -- it actually doesn't matter for purpose of our analysis). It pays some of its employees by the amount of registrations they collect, and some of those employees collected fraudulent registrations -- either by registering the same person multiple times, or by simply putting down false names. ACORN is legally bound, however, to turn in every registration card that it receives -- a good thing if you think they're just a left-wing front group, as it means they can't sort through the cards and chuck out all the Republicans.

But if ACORN's goal is get new (liberal) voters out there, registration fraud doesn't help them. Federal ID is required for first time voters, so even if Micky Mouse is on the rolls, he's not going to show up at the polling place, ID in hand, and cast a ballot. There is, in fact, virtually no evidence that registration fraud spills over to voter fraud. The fraud here is being committed on ACORN, who has to pay its employees for bogus registrations that don't actually help their cause.

The AG with a Thousand Lives

Former Attorney General Alberto Gonzales mis-handled classified data (shades of Sandy Berger?), according to a just-released DoJ report. In classic Gonzales fashion, he reported that

he did not remember whether he took home notes regarding the government's most sensitive national security programs and did not know they contained classified information despite notations on the papers that they were "eyes only -- top secret," according to a report released this morning.

The Justice Department's inspector general concluded that Gonzales had improperly handled materials about the government's most sensitive national security programs, carrying the notes home in an unlocked briefcase for an "indeterminate" period of time. Gonzales failed to keep them in a safe at his Northern Virginia home because he "could not remember the combination," according to the report.

And, also in classic Gonzales fashion, the upshot of this ordeal will be....nada:

Improper handling of classified material can result in criminal charges, but prosecutors in the department's National Security Division declined to bring a case after reviewing the allegations and consulting with senior career officials at Justice, according to the report and lawyers involved in the case.

Is this guy made of teflon or what?

Civil Rights Roundup: 07/31/08

Your daily dose of civil rights and related news

The Bush administration proposal to force hospitals and clinics to exempt employees who don't want to dispense birth control is gearing up to be a huge fight.

A report by the anti-immigrant Center for Immigration Studies credits the drop in illegal immigration population to stepped up enforcement.

The WaPo urges that Texas hold off on executing a Mexican citizen until Congress has time to address the international treaty concerns that made his case controversial in the first place.

ICE has released more information about its can't miss self-deportation program.

A Colorado man has been arrested for killing a transgender woman. Look for the trans-panic defense coming soon.

The Boston Globe has an editorial urging Congress to dig deeper into what went wrong with the Bush administration's Justice Department.

Should we make the right to vote explicit in the constitution?

CNN quoting Steve Sailer in the "Black in America" series (for any other proposition other than "there are still White racists around") may not have been the wisest choice.

Activists protesting public housing demolitions in New Orleans are being held on criminal charges, including (originally) terrorism. That charge has been dropped, others are still pending.

The 11th Circuit holds that, notwithstanding its anti-discrimination rules, the University of Florida must recognize a fraternity that requires its members to be Christian.

Florida Hispanics continue to protest racial profiling in their communities.

Anti-affirmative action proposals are on the ballot in Colorado, Arizona, and Nebraska.

The Deseret News reports on a election reform hearing (the very one that made yesterday's roundup late, as it happens) that got good reviews from voter advocates and civil rights groups.

The SCLC: New Orleans is "one of the most racist communities in this country."

Finally, condolences to the family of Sammy Davis, Jr., who just died. DUH! He died in 1990. I don't know why it came up in my search of daily news sources. Bizarre. Way to make me look like expose me as a moron, Google News.

Gonzo News

Okay, now that I've finished celebrating (for now, anyway) the departure of el terrible himself from the Attorney General's office, the next question to consider is: Why? Or rather, why now? Nobody can seem to figure it out. Dan Markel and the folks at Slate take stabs at it (with varying degrees of seriousness), but as the Washington Post's analysis noted, the facial appearance is that this is the absolute worst time Gonzalez could have left. He'd seemed to have extracted the maximum possible damage from the administration, and leaving now just insures that his sins remain in the public eye even longer. Unless it was that Gonzalez finally remembered he had a duty to the country to leave before he did anymore to destroy the DoJ's integrity (snicker), it's really rather inexplicable.

Unless....Both Henry Farrell and Kevin Drum (well, his wife) noticed something odd about Gonzalez's departure. Specifically, that it came during a vacation break for The Daily Show.

Could it really be....nah.

Update: I should add that by calling Gonzalez "el terrible", I mean absolutely no disrespect to Erik Morales, a fine man whose own recent retirement should be celebrated because of his great performances across his boxing career (Gonzalez could be rather pugilistic himself at times--but his "great performances" were rather few and usually unintentional).

The Sick Man of Washington

You know, it's weird. Back in the early days of the administration, John Ashcroft was kind of the poster-boy for the really scary excesses of the Bush regime. Theoconservative ex-Senator from Missouri who lost his re-election to a dead guy? He did some pretty weird things as Attorney General, and was the front from some of President Bush's earliest travesties, like the USA PATRIOT act.

But after his resignation and as time passed, new information began to emerge. Despite the rep, and despite the public image, it turns out Ashcroft was one of the chief internal critics of Bush's radical expansion of executive powers in the wake of 9/11. And so in that vein, we get an interesting story from CNN, about how the Bush Administration tried to get Ashcroft to sign off on a domestic spying program while he was hospitalized recovering from gall bladder surgery. Former Deputy Attorney General James Comey described the events:

In his testimony Tuesday, Comey recounted Ashcroft's wife calling a Justice Department official that night informing her [White House Chief of Staff Andrew] Card and [then White House Counsel Alberto] Gonzales were on their way to see Ashcroft. She had banned all outside phone calls and visitors, Comey said.

He immediately headed to the hospital and soon after he got there, the White House officials entered. He said Ashcroft, who had been weak from gall bladder surgery, "very strongly expressed himself" regarding his objections to a classified program, but added that his views didn't matter because he was, temporarily, not the attorney general.

Comey said Card and Gonzales then left the hospital room without acknowledging him.

"I was very upset. I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general because they had been transferred to me. I thought he had conducted himself -- and I said to the attorney general -- in a way that demonstrated a strength that I had never seen before, but still I thought it was improper," Comey told the committee.
[...]
Comey said the program was reauthorized the next day without a Justice Department signature, and he then prepared a letter of resignation. However, he said he did not hand that letter in because the Justice Department's chief of staff asked him to delay it until Ashcroft could also resign.

This was in March of 2004, Ashcroft resigned that November, and Comey followed suit in March of 2005.

Certainly a classy move by Gonzalez and Card, no?

The Price is Wrong

A complaint filed by the National Association of Muslim-American Women alleges that the "Jewish lobby"

have provided misleading and highly politicized information, and testimonies to US law enforcement agencies, and also the US Congress that was, and is aimed at creating a political, legal, social, and financial environment that is hostile to Muslims and Arab Americans, and that causes Muslim and Arab-Americans to suffer discrimination, persecution, and the deprivation and denial of Constitutional rights, and equal protection under the law.

To be clear, the "Jewish lobby" is not my addition, the complaint specifically refers to its targets by that moniker.

It's not a very professional complaint (at the bottom, it wrongly misspells Rep. Deborah Pryce's name as "Price"), and as Eugene Volokh notes, with the exception of one fleeting reference to perjury, there is nothing in the complaint that would be within the Justice Department's jurisdiction to investigate anyway. I'm doubtful that the Jewish community really has a formal "enemies list", for example, and even if certain organizations have people they deem to be hostile to their interests, that's perfectly in their rights. Furthermore, while I think certain neo-conservatives come off as anti-Islamic, citing a column attacking Islamists doesn't prove the case.

The entire thing would be worth but a fleeting mention if not for the fact that it's author is also on the board of CAIR, the Council on American-Islamic Relations, one of the largest and most influential Islamic organizations in the US. This doesn't really say anything about CAIR or its official positions, any more than Dennis Prager's bloviations are representative of the US Holocaust Memorial Council. Still, it would be nice if the CAIR disassociated itself from this move, which is yet another manifestation of the classic "Jews control the media" slander whose revival act is getting very tiresome.

UPDATE: Volokh issues a correction. The writer is not currently on the board of the CAIR, although she used to be. So the CAIR really doesn't have to do any distancing at all.