31 January 2017

Unwisely Sticking My Head Above the Parapets

... primarily because there's live fire coming from every possible direction, including from inside the damned castle.

Once upon a time, I raised my right hand and said the following:

I, ____, having been appointed a Second Lieutenant in the United States Air Force, do solemnly affirm that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the office upon which I am about to enter.

The oath taken by attorneys is similar, in that there is no reference at all to loyalty to any individual, or to any set of policies excepting only supporting and defending the Constitution (including also the respective state constitutions, which is yet another reason that states should get out of the lawyer-regulation business... but that's for another time, and it's a "should").

Instead, certain elements are acting as if a vulture fund has successfully engaged in a hostile takeover of a firm that has no legal or moral obligation to consider what the military calls "collateral damage" and what economists refer to as "externalities." A word of warning, based on history: The vast majority of prosecutions for "war crimes" have arisen from ignoring various aspects of "collateral damage" doctrine in preference to "mission accomplishment"... all too often of a self-serving "mission." Similarly, a plurality (and possibly a majority) of successful corporate prosecutions under the rule of law have concerned attempts to ignore externalities... all too often in pursuit not of building the value of the corporation, but of corporate officers and directors. And, almost by definition, governments in the United States aren't supposed to be about personal benefit, but about public service; how that works out in practice is incredibly complex, but the inability of current federal officeholders to vote/declare themselves a raise is a big hint.

And so, in the Monday Night Massacre, a lawyer got fired for holding to her oath. The administration was legally entitled to fire Ms Yates; the wisdom of doing so is a separate issue, as are both the wisdom and right of Ms Yates to speak and act as she did. As a West Wing character noted concerning Bartlet doing the "right thing" and invoking the 25th Amendment during the horribly contrived kidnapping crisis, "A truly self-sacrificing act usually involves some sacrifice." And even just following orders may be that self-sacrificing act, if not now then in the future. Few people remember that the lawyer who did follow orders and fire Special Prosecutor Archibald Cox during the Watergate investigation was the individual whose later Supreme Court nomination led to the arch partisanship of all judicial nominations: Robert Bork, then the Solicitor General. (Ironically enough, the Solicitor General would no longer be at that place in the chain of command!).