The law treats wrongful acts differently, depending on why they are wrong.
Suppose you speed through a stop sign and hit another car on the driver’s side. The driver is killed.
Mr. Trump purposely shoots somebody dead on Fifth Avenue.
In both cases, a human being died. In both cases, the act was wrong and probably would have been wrong without a death. It’s wrong to bust through a stop sign and it’s wrong to discharge a weapon in the direction of another person — regardless whether the misconduct kills.
When the ink had just barely dried on my law license, the civil rights law firm that employed me broke up. The five named partners became five different solo practices, but they did not go anywhere. The place we had was too ideal, a big old house that was ultra swank in its time located just a block from the courthouse. Everybody had their own room. There was a kitchen on the first floor, restrooms on both floors, and the attic had been finished out and rented to other lawyers.
The two “associates” had graduated in the same class. I was going to go job hunting, having just lost an election for Justice of the Peace and facing some debt from that piled on top of student loans. The other associate, Vivian Mahlab, had taken me to raise some time ago.
We were in a wills and estates class where she taught me to do some long division because it was necessary to figuring estate taxes. I had never learned the multiplication tables, either, but I had a hack for that. I added in my head. She also showed me, with arithmetic, that buying a house would be cheaper than continuing to rent. I had a real estate course in law school, so I knew what PITI was, but I had never put numbers to it because the idea that I could buy a house seemed so outlandish when I had a negative net worth and I did not come from that class of people who routinely buy real estate.
She wanted to hang out a shingle in Austin. So did most graduates of the University of Texas School of Law. Therefore, competition in the Austin legal community was fierce. I was doing trial law, which meant I would go weeks without bringing in a dime and then it would rain money. Vivian knew that, but she did primarily office practice and her income was steady enough she thought she could carry me in skinny months. It was an offer I could not refuse, so we became Russell & Mahlab — my name going first because I had just spent a bunch of money to raise my name identification.
We were the first law firm to advertise and for a long time there were just two firms doing it. The Bar filed ethics complaints against all of us, which I was not sweating because the Supreme Court had just decided a case pulling professional advertising under the protection of the First Amendment. As a loss leader, we advertised dirt cheap consultations.
A fellow came in with a business plan wanting to know if it was legal. It was many pages and, on first reading, I could not figure out where the money was coming from. There was no question that a sum went in the front end and a greater sum came out the back end. But how? He had the last appointment of the day, so I asked him to come back the next day. My plan was to straighten out all the verbal curves by building a flow chart.
The next day, I had bad news for him. Following the money had convinced me it was the most complicated pyramid scheme I had ever seen. I told him I thought the business plan violated both state and federal law but I did not use the term “pyramid scheme” until it was clear he was offended by my advice and wanted to argue with me. Using the words then put his hostility into overdrive.
It was clear there would be no more legal business from him or anybody who asked his advice. If I had any doubt he was extremely dissatisfied with my service, it was erased when he stopped payment on his check.
Back to the stop sign. Running through a stop sign is malum prohibitum, wrong because the law says so.
Shooting somebody is malum in se, wrong because it’s wrong and the law simply declares the fact of it.
What about deceptive business practices? Say, a pyramid scheme? Stealing, like purposeful killing, is clearly malum in se. It’s wrong to steal, everybody knows it, and it should not require a law to declare stealing is wrong.
What about appropriating government power or money for personal advantage? Say, for example, if Franklin Roosevelt were on the phone with Winston Churchill.
“Winnie, I hear that Hitler intends to use France as a jumping off place to invade you. I have proposed a program to Congress called Lend-Lease that would allow me to sell you weapons on credit.”
“Thank you, Franklin. This is our time of need, and I could sure use those tanks we talked about.”
“We can do that, but I need a favor from you. I need you to dig up some dirt on a fellow named Wendell Willkie…”
If you are an elected public servant, do you need a law to tell you it’s wrong to use public money to benefit your political campaign?
Few analysts believe that to be an impeachable “high crime and misdemeanor,” the conduct must be against the law. It is pretty clear that the Founders contemplated impeachment for what the military calls “conduct unbecoming.” The Constitution (with impeachment) was ratified in 1788.
The first federal penal code passed in 1790. However, some crimes are recognized in the Constitution: treason, piracy, counterfeiting, bribery, and offenses “against the law of nations.” This last recognition should give pause to those who do not like U.S. courts enforcing treaties, let alone conduct jus cogens. The impeachment provision specifies:
Treason, Bribery, or other high Crimes and Misdemeanors
It’s my opinion that the Founders contemplated impeachment for offenses mala in se or conduct unbecoming a POTUS. The conduct Congress is investigating involving political use of of military aid to Ukraine is both.
I did hear about that fellow who did not like my evaluation of his business plan one more time. It was over a year later and I had become a Municipal Court Judge in Austin. I picked up the newspaper with my morning coffee and read that the man who fired me over poor advice had been indicted for conducting a pyramid scheme.
He would be needing a criminal defense lawyer because he did not like a legal opinion from a civil lawyer. If I had any way of knowing who he would hire, I would have a piece of advice for him or her:
Get the fee out front.
—
Previously published on medium
*******************************
***
If you believe in the work we are doing here at The Good Men Project and want to join our calls on a regular basis, please join us as a Premium Member, today.
All Premium Members get to view The Good Men Project with NO ADS.
Need more info? A complete list of benefits is here.
Talk to you soon.
*************************
Photo credit: Unsplash