Civility and Strongly-Held Beliefs

Following news of Eastern District of Virginia Judge T.S. Ellis’ putting some pointed questions to Michael Dreeban, the prosecutor from Bob Mueller’s Special Counsel office prosecuting former Trump campaign manager Paul Manafort, a segment of the internet exploded in outrage at his disrespectful lack of civility.

“I don’t see what relation this indictment has with anything the special counsel is authorized to investigate,” he said, according to a transcript of the hourlong hearing on a defense motion to dismiss the charges. He added, “What we don’t want in this country is we don’t want anyone with unfettered power.”

Of course, this was a judge appointed by Reagan, so he must have been biased, as is assumed these days of all judges by dint of their patrons. That made his more explicit question all the more uncivil.

“You don’t really care about Mr. Manafort’s bank fraud,” Judge T. S. Ellis III said during a court hearing in Alexandria. “You really care about getting information that Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment or whatever.”

This doesn’t mean the judge thinks Manafort isn’t guilty. This by no means suggests that the judge will rule against the Special Counsel. Naive assumptions, that hang on every word and are promoted by pretend-experts on twitter, fuel ignorance and get people needlessly riled up. We’re still a long way from any decision, and challenges to the government in court often are no more than that.

One of the collateral issues raised by Judge Ellis’ comments was the perpetual call for “civility.” His challenges were called disrespectful, uncivil, by the unduly passionate, and the call for civility, in discourse in general and in the law in particular, has been an ongoing theme. Judge Robin Rosenberg of the Southern District of Florida, is engaged in a program to instill “civility” in young people called “Teen Discourse and Decisions — TD-Squared (TD²).”

For our part, in the judicial branch, federal judges in the Southern District of Florida over the past six months have brought into our courtrooms more than 500 high school and college students to give them exposure to, and experience with civil discourse and decision-making practices that are not only legal skills but critical life skills.

When federal judges have decided to use their time and courtrooms to teach “civil discourse and decision-making practices” to students, it’s a significant commitment. But what is it they’re teaching? They run a moot trial and use the students as jurors.

To prepare for the deliberations, the student jurors commit to ground rules for relating respectfully while working through the issues. However, they quickly learn that civility doesn’t mean the process is devoid of emotion. On the contrary, reason is powered by passions deeply felt but constructively channeled. Through this program and many life experiences as a judge, a lawyer and a mother, I have found that, even when emotions run high, young people have an innate sense of fair play. They understand, even when they fall short, that passion isn’t a license to be disrespectful to others.

These words sound nice, and for those who have become inured to strings of jargon that go nowhere, they may even seem almost cogent. But when a judge says “reason is powered by passions deeply felt but constructively channeled,” what’s one to make of it?

It is a frame of mind that sets the stage for listening, engaging, and accepting the strongly held beliefs of others – even when we passionately disagree with their ideas or believe they are wrong.

Is she saying that, even when we passionately disagree, we should nonetheless accept the strongly-held beliefs of others? Is that what civil discourse demands of us? Would it be uncivil of me to call Judge Rosenberg’s proposition nonsensical gibberish? She’s not talking about civility, but acquiescence. There’s nothing about civility that requires anyone to tolerate, no less accept, another person’s strongly-held beliefs as our own.

To the extent that “civility” means that we disagree politely, it’s a formalism that prevents us from calling “bullshit” when our adversary makes some irrational argument, whether fueled by undue passion or because they’re incapable of logical thought. Or maybe it’s the best argument they’ve got and they’re desperately hoping no one notices that it’s inane.

But there’s a huge gap between the tone-policing aspect of civility, the piece where we are scolded for our failure to suit the sensibilities of others despite the fact that they may be full of shit wrong and using more moderated language to express arguments. No lawyer calls his adversary an “asshole” in open court unless he desperately wants the judge to drop the hammer on him. It’s not tolerated, and shouldn’t be.

Judge Rosenberg’s argument may not be intended to suggest acquiescence to vapid beliefs, but rather to do the opposite, for the unduly passionate to chill out, listen and not let passion overcome reason. If her op-ed was speaking to the unduly passionate, then perhaps she was trying to speak their language to get them to tone down their fury and consider more rational thought.

For rational people, civility is the club used to beat them into submission. Like the pervasive misunderstanding of ad hominem, civility does not demand that you be sweet to all who voice their positions. Respect is earned, not obligated. Illogical arguments become no more reasonable when voiced in dulcet tones. Civility doesn’t compel you to accept some boneheaded nonsense so as to avoid making its utterer feel validated.

Civility is a wonderful thing, if we could all deal with each other in a way that was polite and not needlessly mean or offensive. But given that offense is taken without regard to reason, facts or the validity of one’s positions, there is a strong likelihood that any dispute will be viewed as uncivil, not because you avoided calling your adversary an asshole, but because you had the temerity to disagree with someone’s strongly-held beliefs. And, well, tough shit.

As for Judge Ellis, of course the current Special Counsel prosecution of Manafort is all about getting Trump, and almost certainly exceeds his authority. If saying the obvious, but in a way that hurts your feelings, is uncivil and disrespectful to your strongly-held beliefs, then you’re a blind fool. Note, that’s not an ad hominem.

27 thoughts on “Civility and Strongly-Held Beliefs

  1. David

    As a non-lawyer, I am curious as to whether the same questions, in the same tone (or worse) would have been as effectively received by their target if they were said behind closed doors. Not for civility’s sake, but just as an acknowledgement of how they would be perceived and screamed about by us ignoramuses. Or does he just not care since it’s a lifetime appointment?

    1. SHG Post author

      So the judge should put on a show for public consumption and conceal what’s really going on?

      1. David

        You could argue that that is exactly what he did. I think if it wasn’t a show, he could have asked the same questions calmly but forcefully and gotten the same answers. But then, I’m not a lawyer so I can’t presume to even guess at his intentions or his desired outcome.

        1. SHG Post author

          It could be argued about anything, but the judge said what he thought he should say. You are imputing a motive other than it being exactly what it appears to be. This is what judges do. Take it at face value.

  2. Jake

    “As for Judge Ellis, of course the current Special Counsel prosecution of Manafort is all about getting Trump, and almost certainly exceeds his authority.”

    I wonder if I could impose upon you for a free enlightenment. I’ve been following this story and I can’t stop wondering why or how it could possibly matter that the discovery of this crime happened during the course of legally investigating a different crime.

    For instance, if I were to be pulled over for a traffic violation, and the officer came alongside the vehicle to issue me a citation and discovered me sitting in the front seat next to a backpack filled with cash and covered in the remnants of an exploded dye pack, I gotta imagine two things:

    A. I’m now being investigated for bank robbery.
    B. No judge, later on, is going to express his personal views about how the officer came to discover I was a suspect in a bank robbery.

    What am I missing?

    1. paleo

      “What am I missing?”

      The fact that Mueller is a Special Counsel (I guess that’s a proper name) put in place to investigate a specific crime? And that fact that apparently – if you believe the filing made by Manafort’s lawyers – Mueller has failed to find any evidence that Manafort engaged in anything approximating the crime that Mueller is investigating?

      Not trying to take sides here – I swear I’m not – but simply answering your question…….

      1. Jake

        Thanks for trying, but, and please imagine me saying this with the utmost civility and humility, I don’t feel as though you’ve answered my question. My point is/was – So what? Mueller went looking for one crime and found another. Is he supposed to pretend he didn’t find the other crime and say nothing? I doubt that would be legal, let alone ethical but, as most around here know, I am not a lawyer.

    2. Nemo

      IANAL, of course, but I’ll have a go at it.

      A. This case is being handled by a special prosecutor, not the ordinary cop-DA-plea bargain-sentencing system that you assume in your scenario.

      B. Your scenario is all wrong. Your hypothetical begins at the point of a traffic stop, rather than with the investigation beginning with your employer being suspected of an unrelated crime, so there was no random discovery by a cop, and nothing was in plain sight in the RL case.

      I could go on, trying to point out other flaws and provide a “better” example of my own, but not being an expert, the addition of errors own would more likely confuse than inform.

      All told, there are better places to ask questions about how the legal system works than here. The pros have better things to do with their time than spoon-feed us groundlings the basics, so if SHG posts something about law that conflicts with your opinions, take it for granted that whichever one was damaged was based on ignorance, and do the homework yourself. Don’t ask anyone here to tutor you on why your opinion was wrong, unless you’re willing to pay by the hour.

      On a related note, SHG, your post on reform DAs kicked one of my opinions square in the chops. Discovering that I had strayed from my principles sucked hot rocks. Thanks, sir. I needed that, and appreciate it.

      1. Jake

        OK, I’ll bite, since SHG is allowing other IANAL to respond.

        “A. This case is being handled by a special prosecutor, not the ordinary cop-DA-plea bargain-sentencing system that you assume in your scenario.”

        So what? Assume I accept that my scenario has no bearing on this matter. In fact, let’s pretend it was not Mueller who discovered his crimes at all, but instead, an administrative assistant at Mr. Manafort’s accountant’s office did. What should that person do?

        1. SHG Post author

          I leave you alone and this is what you do to my post, Jake? These are fairly basic issues, but you aren’t asking questions but trying to set up an argument so you can battle your point. This is the sort of non-lawyer silliness that belongs on reddit, not here.

          1. Jake

            Normally, you’d be right, but I’m really trying to understand. It may be basic for you, but many in the public, including me, don’t understand what’s going on.

            I think most understand the limits on a prosecutor’s authority during an illegal search, but that’s not what happened in this case. I’ve honestly done a bunch of research and the answer I keep finding is there is no limitation on prosecuting a crime based on evidence found serendipitously while investigating a different crime.

            1. SHG Post author

              Sigh. Short answers because you’re my bud.

              1. Mueller is not a “prosecutor,” but a Special Prosecutor. He posses very limited authority, set forth in his mandate. To make a slightly inapt analogy, think of a state prosecutor who indicts a deft in a state court for a federal offense. Can’t be done, not because it isn’t a crime or that he didn’t stumble across it legitimately, but because it falls outside his authority.

              It’s that simple. Mueller can hand it off to the US Attorney for the district, but he can’t prosecute beyond his mandate.

              2. It could be prosecutorial misconduct if the motivation for the prosecution was not to prosecute, per se, but to use prosecution in order to coerce cooperation against another person. This goes hand in hand with number one, since Mueller didn’t hand this over to the US Atty, which is what he would have done had he sincerely sought to see “justice” done for Manafort’s alleged crime, despite it’s being outside his mandate, but kept it so that he could coerce Manafort.

              This happens pretty often, but usually within the same case as opposed to what’s happening here, so it’s easier to bullshit his way around it.

              This said, we’re still a ways off from Judge Ellis tossing the case. Don’t get too crazy yet.

            2. Jake

              Thank you! I like to think, at least, the inanity of my questions has changed qualitatively and quantitatively since I started coming around here.

            3. SHG Post author

              One third of the comments on this post (as of this writing) are yours, Jake. None of them illuminate anything. All make people stupider. All deal with a tangential issue. SJ doesn’t exist to for the sake of improving your level of inanity. Are you catching my drift at all, Jake? You maxed out my tolerance today.

      2. SHG Post author

        Thanks, N. You and Paleo are correct, as far as it goes. Jake struggles with grasping that Mueller has limited authority not because the explanation you guys gave was unclear, but because he chooses not to understand. As we say, I can explain it to you, but I can’t understand it for you. Jake’s choice is he prefers to be dense and argue dumb stuff.

        1. Jake

          “Jake struggles with grasping that Mueller has limited authority” – No, I do not. My question is to the degree of that limitation AND to whether or not the government is similarly constrained if evidence of a crime unrelated to the special prosecutor’s investigation is discovered.

          I’ve read ORDER NO. 3915-2017, 28 CFR 600.4, and the Manafort/Gates indictment. And frankly, on the face of it, Manafort’s defense is a desperate stalling strategy.

          Mueller’s authorization says:

          “(b) The Special Counsel is authorized to conduct the investigation confirmed by then-FBI
          Director James 8. Corney in testimony before the House Permanent Select Committee on
          Intelligence on March 20, 2017, including:
          (i) any links and/or coordination between the Russian government and individuals
          associated with the campaign of President Donald Trump…”

          Manafort has been indicted for laundering millions of dollars earned while acting as an unregistered foreign agent for Russia.

          My question was whether or not the Government could follow up on evidence of unrelated crimes discovered during a special investigation with limited authority. As it turns out, on rereading CFR 600.4, section B, the answer to my question is a simple yes.

          1. SHG Post author

            I’m going to have to start trashing your comments if you persist like this, Jake. Much as I like you, it’s getting to be too much work to undo the stupid, and it’s really not my job to go through every dumbass error that you make and gloss over.

            Your initial question was what were you missing. That was explained to you. Now you’re trying to move the goal post to your end game, arguing why Judge Ellis is wrong. This is why people find you perpetual disingenuous, Jake. You do this all the time, poorly, but all the time.

            The question was raised by Judge Ellis, not decided. You asked why he asked. You’ve been told why.

            Now take a look at the comments. You’ve gone off on a tangent, wasted my space, been dishonest about it, written some incredibly stupid crap, and are still arguing. Jake, nobody, but nobody ever comes to you for your legal thoughts. There’s a reason. Now either control your impulses or it’s off to reddit.

  3. paleo

    I didn’t read every printed word related to this because, honestly, I’m bored with all the screeching. That said, I did see where the judge asked why the case wasn’t being handled by the regular US Attorney rather than the Special Counsel. And then proceeded to give his opinion as to the answer to that question.

    So it wasn’t so much “this crime doesn’t count because you discovered it” as “I question whether or not this prosecution is within your mandate”. Which seems a reasonable question to me.

    1. paleo

      This was intended as a response to Jake, but I neglected to hit the reply button.

      I’ll grouse at myself about it so our host doesn’t have to waste any of his weekend doing so…….

    2. Jake

      Judge Ellis’ comments came during a hearing where Manafort’s defense was petitioning the court to dismiss because, they argue, Mueller’s investigation has overstepped its mandate. Judge Ellis did not rule (yet) because he wants to see an unredacted version of Mueller’s authorization.

      I’m sure somebody in the world cares to know what the Honorable Judge Ellis’ opinion is regarding how the DOJ decides to staff their cases but that’s not why it’s public expression is newsworthy.

  4. Anonymous Coward

    I don’t see anything uncivil in the quotes from Judge Ellis. He didn’t use foul language, or personal attacks, he just bluntly stated something his interpretation of the matter in a way that touched off TDS.
    Also this quote ” I have found that, even when emotions run high, young people have an innate sense of fair play. They understand, even when they fall short, that passion isn’t a license to be disrespectful to others.” to be a massive load of bovine excrement, as evidenced by numerous stories on SJ and the actions of David Hogg and his love of both authoritarian cosplay and ad hominem attacks.

    1. SHG Post author

      That’s the point, that the call for civility isn’t about civility at all, but about not saying anything that might hurt someone feelings or lower their self-esteem, even if completely true and entirely warranted. Judge Ellis wasn’t at all uncivil.

  5. Justin

    I wonder if Mueller’s willingness to initially charge Rick Hates — Manafort’s presumptive partner in crime — and subsequently drop almost all of the major charges against him when he agreed to cooperate, had something to do with the judge’s words.

    My concern is people will take the judge’s words as a bit of FOX News opining and not a legitimate critique of Mueller’s investigation.

    1. SHG Post author

      Non-lawyers, academics and the unduly passionate have always had a fascination with those few high profile cases that come across their radar, imputing special meaning to ordinary proceedings because they don’t know any better. There are three ways to address this dilemma: keep it secret, have judges change the way they handle proceedings to put on a show for public consumption or educate the public. The last would be best, but people not only don’t want to learn, but affirmatively avoid gaining understanding (see Jake).

  6. B. McLeod

    I’m not seeing it as an issue of “civility” at all. The court had questions about the substantive basis of the case, and asked them. Nothing to see here.

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