Introduction
This post is a work of independent journalism. It is written as an exercise of rights arising under the 1st, 9th, 10th, and 14th Amendments to the US Constitution. Any interference to the writing or publication of this post or any interference with the privacy and freedom of the author in response to the writing or publication of this post, by any private or public entity is both a civil and criminal violation of fundamental rights in US law, and also of universal and inalienable rights – as well as being a symptom of mental illness on the part of the people involved.
The goal is to examine the recent Supreme Court Ruling in Trump v. United States, decided July 1, 2024, from a legal ethics perspective.
The Systemic Legal Ethics Problem
At this point it is certainly well known that the USA has massive legal ethics problems in it’s legal systems. Notice the plural: systems. There are deeply entrenched legal ethics problems in federal law, in state law, and in local law. This is well established, and it creates massive social and economic problems for the USA, with consequences and side effects including things like loss of many freedoms, increased costs to solve serious social problems, and reduction in the perception of government legitimacy – and these problems in turn strongly influence seemingly unrelated problems like the gun violence problem (but that’s a topic for another day).
These are systemic legal ethics problems: they are problems embedded in the legal system, in how the laws are written, in how the laws are interpreted, in precedent, and in judicial or executive orders. We are not talking about misconduct such as over-billing on an individual level: systemic problems are aspects of a badly broken legal system, and potentially affect everybody, not just the clients of one legal firm or one particular lawyer. They are far more serious than just simple individual legal ethics problems – and do far more harm to society.
Any decent business school textbook on Risk Management and Insurance will have references to some of the studies that have documented the legal ethics problem in US law. Lots of people have read those textbooks and taken classes in those subjects where these issues are discussed at length so there is no point in replicating those discussions here in detail.
Some the highlights are worth repeating. For example, studies tell us that the cost of legal services in the USA (normalized as a fraction of GDP to let us make a fair comparison) exceed those of other developed nations by 2-3x. Similarly , studies also tell us that the cost of legal services as a fraction of GDP has gone up about 2-3x even in the USA since the 1950s.
It’s not just direct legal expenses that have gone up: insurance costs a lot more than it should in the USA as a result of the legal ethics problem, including both direct (the cost of insurance) and indirect costs (all the costs of things requir3ed to get the insurance, plus a wide variety of opportunity costs). This places US businesses at a competitive disadvantage compared to businesses in locations that don’t have a legal ethics problem.
It also reduces the spending power of consumers, due to the high portion of individual auto insurance that goes to liability, which also adversely affects US businesses as well as individuals.
Finally, as a fraction of GDP, the cost of legal services in the USA exceeds the military budget of many nations, and is likely to be a major factor in the cost of health care in the USA.
As a fraction of GDP, health care in the USA costs roughly ~18% of the US GDP, including both government and private spending. If we compare that to any other developed nation we’re looking at ~9% to ~11% of GDP, and the US military budget is ~3.5% of GDP, so the difference in health care spending between the USA and other developed nations is roughly twice the entire US military budget – a truly staggering amount of money.
All those people that love to talk about the cost of aircraft carriers and how much we could buy for one less aircraft carrier are ‘barking up the wrong tree’. They should be instead spending their time working on health care reform and legal ethics reform.
Note that we’re not saying that all the difference in health care spending between the USA and other nations is solely due to systemic legal ethics problems – but they are certainly part of the problem, and the systemic legal ethics problems also serve to block long overdue and much needed reform.
Note also that we’re not saying here that all lawyers are unethical. Though there are some sociopaths in every profession and every walk of life, including the profession of law, it is nevertheless true that many lawyers are ethical in their own affairs and decent human beings overall.
On the other hand, most lawyers are getting some benefit, even if only indirectly, from the systemic legal ethics problems. It remains to be seen whether those folks are doing enough to speak out against the legal ethics problems in the system, and/or doing enough in the form of public service to make up for the benefit they receive.
Unfortunately, it has become very clear over the years that the USA that the legal ethics problems are in part the fault of high court judges, including federal and state supreme court judges.
Part of the problem here may be that certain courts, like the US Supreme Court, maintain a list of lawyers that are allowed to speak before the court – perhaps none of those lawyers are willing to rock the legal ethics boat or risk their special status by pointing out the legal ethics problems that appear in cases before the US Supreme Court.
Another part of the problem is the mechanism by which high court judges are selected often involves participation by Bar Associations, who as a matter of legal ethics should have no input into this process since they are in a position of conflict of interest with respect to who gets selected.
The fact that associations of legal professionals and individual in the profession can make campaign contributions to the politicians who select judges is also highly problematic from the perspective of getting judges who will demonstrate the ability to be ethical in the position they are selected for.
Unfortunately, whatever the ultimate cause or causes, it’s pretty easy to pick random key federal court rulings from textbooks on Constitutional Law, and find legal and governmental ethics problems in those rulings, or in the issue at hand, that were not addressed by the court in their handling of the case. The legal ethics problem often reminds me of the story “The Emperor’s New Clothes” – it often feels as though many US legal professionals believe they can simply pretend the problem doesn’t exist and it will somehow go away instead of getting worse.
Ethics
This brings us to the topic of ethics. The word can have different meanings in different contexts. Just to be clear, we’re not talking about something that is distinct from law. In fact, there are many situations in law where there are ethical obligations upon people – whether in government, outside government, or just members of the general public in special roles – that involve mandated behavior as a matter of law.
Examples include government officials, lawyers, executives of publicly held companies, real estate agents, accountants, some financial advisors, and any member of the public that is functioning as the executor of a will or estate (who does not, in general, need to be a lawyer, it could be your Uncle or your Aunt or your Cousin or a friend of the family: this sort of thing is common) or a member of a jury.
Similarly, many governments have formal legal requirements on their employees requiring ethics from government officials. Typically these rules require that ‘conflict of interest’ be avoided when there is any reasonable alternative – even the appearance of conflict of interest must be avoided when there is any reasonable alternative – and often people are required to stand aside from decision making when they have a conflict of interest.
The 9th and 10th Amendments
On a federal level, and also at lower levels of government, the dual rights to ethical government and ethical practice of law can be asserted under the 9th and 10th Amendments.
Why do these amendments exist, and what are these amendments for?
James Madison was a very clever guy. When the original Constitution was written, one objection posed was that it did not have a Bill of Rights. Another objection posed was that any specific Bill of Rights would necessarily be incomplete, essentially because human beings are imperfect – and that would inevitably lead to government violating all sorts of fundamental rights simply because they hadn’t been written down. To address these objections, he wrote a Bill of Rights – and he made it open ended.
Note that the Bill of Rights he wrote was never intended to apply only to the federal government: we know from his writing that he fully intended it to apply as well to state and local governments. Further, the Founding Fathers were well aware of the danger posed by private entities to freedom. They were very familiar with the example of the East India Company – a private entity which had it’s own army, it’s own warships, and was the de-facto government of India until fairly late in British history. As such, the Bill of Rights can also apply to private entities.
How did James Madison make the Bill of Rights open ended?
The answer is he provided for the protection of unspecified rights ‘retained by the people’ under the 9th Amendment, and unspecified rights ‘reserved to the people’ under the 10th Amendment. Any such rights asserted become part of the highest law of the land. There is no requirement for government involvement, such as a legislative process.
In other words, legislative officials write laws: but those laws are only valid to the extent that they do not infringe rights the public chooses to assert as being ‘retained by’ the public under the 9th Amendment, or ‘reserved to’ the public under the 10th Amendment.
This is nothing new: it’s been in the Bill of Rights since the beginning. Those who find the statements here surprising have holes in their education.
Dual Rights: Ethical Practice of Law and Ethical Government
Two of the most fundamental rights that can be asserted under the 9th and 10th Amendments are the right to ethical practice of law (an universal and inalienable right in any nation based on the rule of law) and the right to ethical government. These are in fact dual rights – it is seldom the case, if ever, that one right is violated without the other right also being violated.
It follows as a matter of basic logic that there can be no immunity or pardon for government officials for violating rights the public chooses to assert under the 9th and 10the Amendments, unless the public itself, directly, chooses to grant that immunity.
The proof is demonstrated here using a technique known as ‘proof by contradiction’ that will be familiar to all educated persons. We start by assuming the oppose of the thing we’re going to prove, namely that the powers of immunity or pardon can be applied by government officials in cases involving the 9th and/or 10th Amendments. It follows as a matter of logic that government officials can violate any such rights that might be asserted, in the full confidence of knowing that their peers or superiors will be able to grant them immunity or pardon. But then there can be no rights retained by or reserved to the people, for rights can not exist if they can be violated with impunity by the government. Hence we have a contradiction: the highest law in the land – applicable to all levels of government – specifically states that such rights do exist.
Hence the original assumption – the assumption that powers of immunity or pardon can be applied to government officials by government officials in cases involving rights retained by or reserved to the people – is invalid. QED.
Note that there can be no legitimate precedent to the contrary. This is a simple, straight-forward application of logic to the Bill of Rights. It is as pure as law ever gets. If there was any precedent to the contrary, that precedent is an illegal one – and the authors violated their oaths to uphold the Bill of Rights in creating it.
As a matter of legal ethics, the public has the right to consider the Bill of Rights as the highest law in the land. Hence, to the extent that the issues stated here create any conflict with the pre-Bill of Right constitution, the Bill of Rights wins as a matter of legal ethics. Similarly, as the open-ended nature of the Bill of Rights is fundamental to our system of law, any amendment following the original Bill of Rights that would limit the application of the points made here is illegal unless the public – not just the government but also the public – chooses to allow that amendment to limit the unspecified rights retained by and reserved to the public.
Note that any contradiction in the law will always involve a legal ethics violation, and hence a violation of rights retained by and/or reserved to the people. Contradictions make the law harder to understand – and thus create an artificial demand for the services of legal professionals. As legal professionals are involved in judging cases, in prosecuting criminal cases, in defending members of the public, in bringing civil cases, in writing the law – whether as staff members or legislators, both of these groups include many professionals – and voting on the law, in signing the law (many executives are legal professionals), and in making campaign contributions to political entities, there is a clear conflict of interest with respect to contradiction in the law.
Further, as a matter of legal ethics, the wording of any matter touching on this has to be clear, for if it’s not clear that creates an artificial demand for the services of legal professionals.
Legal professionals who make statements or take actions that contradict what is stated here, when acting in their capacity as legal professionals (as opposed to merely speaking as private citizens), are guilty of unethical practice of law and violating their oaths to uphold the Bill of Rights. While Congress can pass no law abridging freedom of speech, the Bill of Rights is a higher legal authority than Congress: it can and does govern the speech of both lawyers and government officials.
As a matter of basic economics, when we have a relatively inelastic supply of legal professionals (in practice that’s always the case), anything that increases the demand for the services of legal professionals can be expected to increase the pay legal professionals receive for their services.
In large part, this principle of basic economics is the reason why US law is so often a disaster.
The rest of the developed world makes fun of the USA as being ‘The Land of the Lawsuit’ but this barely scratches the surface of the real problem.
In practice, the US legal systems (again: federal, state, local hence we have multiple legal systems in the US) are riddled with systemic legal ethics problems – and that is certainly a major factor in why US legal professionals receive far more money, on a per capita basis, as a fraction of GDP, then their counterparts in other nations. This has been the trend for a long time, but that trend does not need to continue, if the ‘sleeping giant’, the public and the press, choose to wake up and do something about the systemic legal ethics problem.
Let’s get back to the main topic.
The Ruling: An Ethics Assessment
The Supreme Court said:
Held: Under our constitutional structure of separated powers, the nature
of Presidential power entitles a former President to absolute immunity
from criminal prosecution for actions within his conclusive and preclu-
sive constitutional authority. And he is entitled to at least presump-
tive immunity from prosecution for all his official acts.
On it’s face, and as it is currently written, based on the principles of legal ethics discussed here, this is an illegal ruling just by this text alone – we don’t need to look any further (though reading the whole thing is worth doing). As shown above, there can be no immunity or pardon granted by any entity of government, in matters involving rights retained by the people under the 9th Amendment, and reserved to the people under the 10th Amendment.
In matters involving rights retained by or reserved to the people, the public can choose to protect or forgive, the government has no such authority.
As discussed above, as a legal ethics requirement on government, that has to be clearly stated. It can not be hidden away by a statement like ‘within his conclusive and preclusive constitutional authority’ – who knows that really means and what they really intended the limits to be? Sure they’ve tried to elaborate a bit on successive paragraphs, but there’s not a single sentence the refers to right retained/by reserved to the people and that’s a critical miss. Even if we assume that this exclusion was innocent and not motivated by the judge’s political sponsors, failing to clear and explicitly state the 9th/10th Amendment exception in the ruling is a legal ethics failure.
Further, the beginning of the ruling will be the most commonly quoted section. Failure to mention the 9th/10th Amendment exception that derives ultimately from legal ethics considerations demonstrates contempt on the part of the court for legal ethics. With rulings like this it’s no wonder the USA has a massive systemic legal ethics problem – a failure of leadership-by-example.
Moving on, the President can not be entitled to presumptive immunity from prosecution for all his allegedly-official acts, for that implies immunity exists in cases involving the 9th or 10th Amendments, rights retained by the people, or rights reserved to the people – and hence is a violation of the Bill of Rights and the right to ethical practice of law.
As discussed above, the Bill of Rights supersedes the Pre-Bill of Rights Constitution when they come into conflict. Something may be stated in the Pre-Bill of Rights Constitution as a power of the President. But whatever is done in the guise of that power must not violate any rights the people choose to assert as being retained by them, or reserved to them – such as the right to ethical government, and the dual right to ethical practice of law.
The president does not, for example, get to appoint his buddies or family members to public office – that fails any possible test we could come up with for ethical conflict of interest. Similarly, the President (or for that matter, a Supreme Court Judge), does not get to have friends that are billionaires – and can not accept any gifts from such people, either on his own behalf, or as campaign contributions for his political party. High public office means giving up these friendships while a person holds the office.
There are sometimes tricky ethical situations, but the examples I’m going over here just involve really basic application of ethics to government jobs, something that should be very easy for anybody to follow.
Hence the immunity statement must be more narrowly construed – in other words, it needs to be written more clearly and precisely to show that the Supreme Court is not creating a ruling contrary to the requirements of legal ethics imposed by the oaths all the judges have sworn. The Supreme Court can not authorize the President to violate rights retained by the people, or reserved to the people – and can not grant him immunity in situations where he does just that.
In general, all matters involving immunity or pardon under authority of government involve conflict of interest when government officials are in a position of deciding what is appropriate – and thus the general rules under which government operates with respect to ethics should be subject to public vote on a line item basis. This also becomes a right protected by the 9th and 10th Amendments, as part of the dual rights to ethical practice of law and ethical government. When looking at this case, the Supreme Court should have realized this and pointed it out. Failing to see this is a failure of the Supreme Court to understand their ethical responsibilities.
Conclusion
Hence, we have shown that in it’s current form, this Supreme Court ruling is an illegal ruling on a legal ethics basis: the judges who voted in favor have violated have violated the Constitutional prerequisite of ‘good behavior’ that exists for their position as a legal ethics failure can not be characterized in any way, shape, or form as ‘good behavior’.
This Supreme Court ruling is equivalent to a statement that it is OK for government to break the law – and no such statement can legally be made by the Supreme Court. There are situations where government-granted immunity or pardon for a government official may well apply to laws passed by Congress, by the States, or by Local Government with no 9th or 10th Amendment rights in the mix: I’m not addressing that issue here. I’m looking at a much more narrow issue.
There are no situations where immunity or pardon for government official may be applied by government in matters involving rights retained by the people, or reserved to the people, and failure by any legal professional to recognize this is a legal ethics failure creating a presumption of that person’s lack of fitness to hold any position of public trust or responsibility or engage in the practice of law. Only the public can decide that the presumption is not in fact valid.
From a legal ethics perspective, the current ruling is incompetent and demonstrates the lack of fitness of the judges involved to hold any position of public trust or responsibility. Further, any previous acts by these people must be re-considered, as anybody who could fail in such a spectacular fashion on something that should be viewed as a basic and fundamental and simple legal ethics issue has to be assumed to not ever have been qualified to hold a position of public trust and responsibility.
All persons who have sworn oaths to uphold the law, or to preserve/protect/defend the Constitution, have an individual and personal responsibility to understand the truth that has been shown here, and act accordingly. As a right retained by the people under the 9th Amendment, reserved to the people under the 10th Amendment, no such person is allowed to just ‘follow orders’ – as if they were some kind of Nazi – and take actions contrary to this. This is of course true for 9th/10th Amendment rights in general.