September 23, 2018

Peter Strzok, bias, and the appearance of impropriety

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Whether or not Strzok is lying about his ability to be impartial (and I think he is), shouldn’t the appearance of impropriety be enough to end his farce?

I’ve watched bits and pieces of Peter Strzok’s appearance before the House. I’m disposed to dislike him, so I ran what he had to say through that filter. I didn’t like his self-servingly spotty memory and I didn’t like his wrapping himself in the flag when called to testify about facts that were easily within his purview. I also didn’t like how smug he was. I’m inclined to agree with those who say that this kind of smugness, rather than denoting a clear conscience, has a sociopathic edge.

Rather than comment on the whole hearing, though, I want to comment on a single issue, which is Strzok’s contention that, his texts notwithstanding, he was as impartial an investigator as one could find in the FBI. Let’s pretend that this is not a risible claim. Let’s pretend that one really can grossly insult Trump and Trump voters, and promise a lover that “we’ll stop” Trump, and still be sea-green incorruptible.

Even if Strzok is that amazing human being who is capable of rising above his prejudices, should that be the standard? I’d like to walk you through my history as a lawyer to explain the idea I’m trying to develop here.

When I graduated from law school in the mid-1980s, one of the hottest areas in litigation was “lender liability.” People who had defaulted on loans turned around and sued banks for being stupid enough to lend to them. The first case on which I worked out of law school involved apple growers north of San Francisco who claimed that Bank of America practically forced them to borrow money to expand their apple growing and processing operations and that the Bank should therefore have been accountable for their business failures. That is, not only should it have sucked up the unpaid debt, it should also have paid the apple growers millions in damages.

I never found the plaintiffs’ facts compelling but the reality in San Francisco has been, for a long time, that the bank always loses no matter the facts or law. To win, it would be helpful to find something other than the applicable facts or controlling law to argue before a judge who was, as a political matter, already predisposed to rule against you.

We thought we’d found a way to shake the plaintiffs’ case when we discovered (I don’t remember how) that one of the plaintiff’s attorneys, a married man, had a one-night stand with a legal assistant working for one of our (minor and mostly irrelevant) co-defendants. “Oh. My. God!” we cried to the judge. “It’s obvious, Your Honor, that he learned everything about the defense, putting us at a severe disadvantage. The best thing to do would be to dismiss the case, but the next best thing would be to dismiss him from the case.”

Both the attorney and the legal assistant swore up and down that they never discussed the case. I was then inclined (and still am) to believe that they were telling the truth. So was the judge.

Stymied in our effort to show actual harm, our fallback was “the appearance of impropriety.” Our authority was the then-recently published ABA Model Code of Professional Responsibility. Canon 9 stated that “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” Certain parts of the rationale for that Canon deserve repeating here:

EC 9-1: Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession.

EC 9-2: Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client. While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism. When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.

[snip]

EC 9-4: Because the very essence of the legal system is to provide procedures by which matters can be presented in an impartial manner so that they may be decided solely upon the merits, any statement or suggestion by a lawyer that he can or would attempt to circumvent those procedures is detrimental to the legal system and tends to undermine public confidence in it.

[snip]

EC 9-6: Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of his clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety. [Footnotes omitted.]

Unfortunately for our case, California hadn’t applied the ABA Code to its own rules of Professional Responsibility, so our argument went nowhere. We did manage to destroy opposing counsel’s marriage (although I suspect that, if he was sleeping around on his wife every time he went out of town on a case, that marriage wasn’t going to last long anyway), but the case ground on and on.

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I left the firm while the case was still being litigated, so I never did learn the outcome. I do know that the plaintiffs salvaged something, whether they won or lost, because I still see their apple products in my local grocery stores.

But back to that appearance of impropriety thing. This canon posits that there are certain jobs that are so integral to America’s structural integrity that actual wrongdoing is not required. The institution will be damaged even if an actor within the system merely looks as if he or she is doing something wrong — especially if that something wrong suggests a thumb on the scale of justice.

As a thought experiment, let me re-work the above quoted language a little bit to apply to Strzok and his FBI friends, all of whom have demonstrated that they have the power (even if they lack the will or the malice) to destroy individual lives and to make a good start on undermining a presidential election:

EC 9-1: Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal and criminal justice systems. A lawyer An FBI agent should promote public confidence in our system and in the legal profession criminal justice system.

EC 9-2: Public confidence in FBI agents and our criminal justice system law and lawyers may be eroded by irresponsible or improper conduct of an FBI agent. a lawyer. On occasion, ethical conduct of an FBI agent a lawyer may appear to laymen to be unethical. In order to avoid misunderstandings and hence to maintain confidence in our criminal justice system, an FBI agent a lawyer should fully and promptly inform his superiors and the American people his client of material developments in the matters being handled on behalf of the United States of America. for the client. While an FBI agent a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the FBI and the criminal justice system generally, legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism. When explicit ethical guidance does not exist, an FBI agent a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the FBI and the federal criminal justice system.legal system and the legal profession.

[snip]

EC 9-4: Because the very essence of the criminal justice system legal system is to provide procedures by which the American people can be assured that Due Process has been observed in both matters large and small, to protect the American people from a rogue agent or agencymatters can be presented in an impartial manner so that they may be decided solely upon the merits, any statement or suggestion by an FBI agent a lawyer that he can or would attempt to circumvent those procedures is detrimental to the federal criminal justice system legal system and tends to undermine public confidence in it.

[snip]

EC 9-6: Every FBI agent lawyer owes a solemn duty to uphold the integrity and honor of his profession; to encourage respect for the law and for the FBI, the FISA courts, and the FISA judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession back by the entire weight of the police state portion of the federal government, one dedicated to public service; to cooperate with his brother lawyers in supporting the organized bar through the devoting of his time, efforts, and financial support as his professional standing and ability reasonably permit; to conduct himself so as to reflect credit on the FBI legal profession and to inspire the confidence, respect, and trust of his superiors and subordinates, clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety. [Footnotes omitted.]

The above is a good standard for someone who, through his bureaucratic position, holds really quite extraordinary power over individuals and over the American body politic as a whole. Were that the standard, either explicitly or implicitly, we wouldn’t be engaging in silly hearings that see Strzok claim with a straight face disturbingly psychopathic smirk, that he could cheat on his wife, and send reams of text messages to his lover insulting the voters and a presidential candidate, and promising to undo an election — all while carrying out his job without bias. The facts of this case are heavy with the appearance of impropriety and, really, that should be the end of the inquiry.

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The camera often lies, but I find rather chilling this collection of still shots from Strzok’s testimony that’s been making the rounds. If someone took video of any of us and hunted for stills, I’m sure they’d find goofy faces, and bored faces, and ugly faces, but this collection is . . . well, creepy:

Peter Strzok

With that face, and that constant “I’m smarter than you” narcissistic smirk staring up at him for hours, no wonder Rep. Gohmert was moved to comment upon Strzok’s dishonesty in his marriage — something that might give one cause to extrapolate that if he lied about that, he might be willing to lie about other things as well:

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About Bookworm 856 Articles
Bookworm came late to conservativism but embraced it with passion. She's been blogging since 2004 about anything that captures her fancy -- and that's usually politics. Her blog's motto is "Conservatives deal with facts and reach conclusions; liberals have conclusions and sell them as facts."