12 February 2020


So, yesterday, four career federal prosecutors resigned due to political interference with their sentencing recommendation for Roger Stone. Let's leave aside, for the moment, whether that interference itself implicates a breach by their lawyer-supervisors of the duty of professional independence (such as that in Rule 5.4, which on its face applies only to private practice) and indicates that those higher in the chain who attempted to overrule those prosecutors on political grounds should be subject to professional inquiry and possibly discipline. (Answer: Yes, even under the loophole-ridden rules, but not gonna happen… because the relevant state bar authorities have been thoroughly agency-captured and coopted.)

The contrast with the reprehensible and vindictive mistreatment of the Lt Cols Vindman is fascinating and disturbing. On the one hand, these prosecutors jumped before they were pushed. That they did so loudly — via public filing in short order — indicates that this was more about not having to follow foreseeable orders later that they did not believe they would be able to than it was about self-preservation. Of course, the probability that any of them will ever be able to get a highly paid position doing white-collar-crime defense has gone down considerably; with very rare exceptions, BigLaw doesn't like demonstrations of actual independence.1

On the other hand, Lt Col Alexander Vindman's live testimony (and brotherly silence) provided an example of professionalism to follow. There's a further between-the-lines contrast with that bloody statue of MacArthur at West Point, and the US Military Academy's continued wrongful worship of an officer who violated basic principles of officership on more than one occasion… such as opening fire on a First-Amendment-protected gathering of veterans seeking to present their grievances, thereby violating Posse Comitatus and ensnaring a few other later-prominent officers in his misconduct. <SARCASM> That's exactly what we want cadets to be learning from so we can better replicate Iran-Contra through the Department of the Army instead of the Department of the Navy. Looks like the Air Force and Space Force will just have to wait their turns. </SARCASM>

So I call on the Secretary of the Army to promote the Lt Cols Vindman if appropriate based solely upon their military record as established by performance reports written by superior military officers… and strongly consider appointing one or both of them to Permanent Professor faculty positions at West Point. Their presence might begin to repair some of the wounds caused by and enshrined in that statue — especially since MacArthur's primary justification was not maintenance of public order, or protection of Congress from actual insurrection, but ideological "anti-communism" reminiscent of the Palmer Raids and probably worse. (We don't even need to get into MacArthur's repeated misconduct and poor military judgment in Korea that led to his removal/resignation.) The parallel to the Vindmans' treatment by this administration bears careful consideration if you give a rat's nether regions about the rule of law (let alone supporting and defending the Constitution of the United States against all enemies, foreign and domestic).

This was less than seven days in February. But Jiggs is recently deceased.

  1. But for other confidentiality requirements, including attorney-client privilege, I'd be more specific.