Situational Ethics: Allegations Facing Anti-Trump Figures Dampen Demands For Disbarments

After the 2020 election, activists launched scorched earth campaigns against conservative figures that included calls for the disbarment or delicensing of Trump lawyers, doctors, and even U.S. senators. Hundreds of righteous lawyers and professionals signed petitions and letters, insisting that they cannot stand idly by in the face of professional misconduct. Those outraged voices however have become muted as Trump critics themselves have faced ethical challenges. In today’s political environment, actions often seem unethical only if they are unpopular. Consider the controversies surrounding anti-Trump figures former Yale Professor Bandy Lee and Clinton lawyer Marc Elias – and how the righteous have become reticent in the face of allegedly unethical practices.

BANDY LEE

The calls to strip professional licenses have extended not just to Trump officials and lawyers but his former doctors. Democrats declared that positive public accounts of Trump’s mental or physical health by physicians like former White House physician Dr. Ronny Jackson and Dr. Sean Conley were unethical.  Conway outraged many liberals by downplaying dire accounts of Trump’s Covid-19 condition and was denounced as “unethical, dishonest and disgraceful” and activists demands “consequences” for his conduct from the medical boards.

That is not the response of another doctor much in the news. For four years, Dr. Bandy Lee, a former professor with the School of Medicine and Yale Law School, made bizarre and unprofessional statements about the mental fitness of not just Trump but his supporters. A favorite expert of MSNBC, Lee declared Trump mentally unfit and dangerous. I was one of the first to call out Lee for violating the “Goldwater Rule” – an ethical rule barring the diagnosis of public figures without personal evaluative sessions or basis. Nevertheless, Painter, Norm Eisen, George Conway, and others ignored the ethical issue and used Lee’s diagnosis to declare Trump mentally unfit.

Major networks and newspapers could not get enough as Lee who was critical to maintain the narrative that Trump had to be removed under the 25th Amendment as mentally ill. However, she did not stop there (including declaring Trump worse than Hitler). She also declared Trump supporters as mentally ill. Lee warned about Trump effectively brainwashing people and that figures like Alan Dershowitz were warped by a “shared psychosis” including sexual delusions like Dershowitz stating that he had a “perfect sex life.” That led to a complaint from Dershowitz to the Yale faculty who spent four years without publicly denouncing Lee. It was not Lee’s outrageous statements about Trump but her statement about Dershowitz that appeared to motivate the Yale faculty to act. Department head Dr. John Krystal told Lee that she had “breached psychiatric ethics by ‘diagnosing’” Dershowitz from afar and said that her “recklessness of your comments creates the appearance that they are self-serving in relation to your personal political beliefs and other possible personal aspirations.”

However, figures like Painter have dismissed not just the basis for termination but allegations of unethical conduct. Painter admits “Nuclear war did not come, so our worst fears never came to be,” but insists that the problem is the Goldwater Rule, not Lee. Despite being one of Lee’s most vocal critics, I have raised concerns over Lee’s termination but, unlike Painter, I believe that she has acted unethically. Yet, even Yale seems unconcerned with the years of Trump declarations as opposed to the one directed at Dershowitz. Likewise, many who have joined calls for delicensings in the press are now in not-so-righteous silence.

MARC ELIAS

One of the loudest voices calling for disbarments has been former Clinton lawyer (and Perkins Coie partner) Marc Elias who called for disbarments for “saying and doing so many things to undermine our democracy.” The irony has not been lost on many since, after inauguration, Elias fought to not only undue elections but has created a new group to launch election challenges and litigation. However, the thousands of lawyers called for the disbarment of various Republican lawyers (as well as the disbarment of Republican senators) are conspicuously silent on calling for an ethics review of Elias’ past conduct.

Elias, who was sanctioned last year by a court (with other Perkins lawyers), is accused of playing a key role in false statements made to the media and to Congress about the Steele dossier. It was not until after the election that the media pressed the campaign on clear evidence that Clinton funded the dossier. (It was later disclosed the Obama was briefed on an alleged effort by Clinton to manufacture a Russian collusion conspiracy against Trump). Journalists confronted Elias and others that the Clinton campaign hid the payments to Fusion as a “legal fees” among the $5.6 million paid to the law firm.

New York Times reporter Ken Vogel said that Elias had “vigorously” denied involvement in the anti-Trump dossier. When Vogel tried to report the story, he said, Elias “pushed back vigorously, saying ‘You (or your sources) are wrong.’” Times reporter Maggie Haberman likewise wrote: “Folks involved in funding this lied about it, and with sanctimony, for a year.” Even when Clinton campaign chairman John Podesta was questioned by Congress on the matter, he denied any contractual agreement with Fusion GPS. Sitting beside him was Elias, who reportedly said nothing to correct the false information given to Congress. The question is whether Elias sought to get his client to correct the record and disclose the contract. Elias was known to be the legal counsel for the campaign. Thus, if Podesta denied any such contract or funding, Elias’ presence (and silence) would have added support to the false claim.

Clinton and her campaign finally admitted that the dossier was a campaign-funded document that was pushed by Steele and others to the media.

None of the thousands of debarment devotees have called for Elias to be investigated, let alone disbarred, for his alleged role in lying to the public and Congress. While many have cited Trump lawyers for “spreading false information” in public, Elias’ alleged role in the false denials on the Steele dossier has not warranted even a segment on MSNBC or CNN.  Under the same standard applied to Republican counsel, shouldn’t Elias face the same demands for an investigations and explanations? He very well could have an explanation, but few in the media seem inclined to demand one.

Instead, Elias has created a new group, Democracy Docket, to get funding to challenge elections. While Perkins is noted on some filings, it is not clear if Elias is awarding contracts to the firm or whether the firm is doing such work for the Democratic party pro bono. Recently, Lincoln Project was under fire after founding partners were accused of profiteering by giving business to their own firms.  (Elias’ group failed to respond to an inquiry as to whether his own firm receives such funding).

Call it situational ethics.  Lee and Elias are not unethical because they are not unpopular. Their alleged misconduct was needed to fulfill narratives against Trump who remains a type of overriding ethical imperative. There will be no petitions with thousands of signatures for board reviews. No dramatic denunciations of conduct unbefitting a profession. Just silence when the situation demands it.

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