Sunday, September 25, 2011

One More Time - Slowly

Some commenters here and lefty bloggers are in a dither about my post criticizing their own Chris Liebenthal for being less than forthcoming about his own past when discussing a current investigation of unknown persons for unknown behavior which may have something to do with political activity by Milwaukee County employees on County time or using County resources. Or not.

I don't often engage with other local bloggers (and am generally told that I should do less of it) because there are relatively few local bloggers on the left with the slightest interest in engaging in responsive and minimally courteous discourse. But I did start it and it could be that the point was too subtle. Or perhaps I failed to make my point clear so I'll try again.

First, I am not claiming that Mr. Liebenthal's conduct is the same as whatever is being investigated in the current John Doe proceeding in Milwaukee County. I am not claiming that they are similar because I can't compare them at all. I don't know who or what is being investigated in that proceeding - and neither does Chris Liebenthal, Emily Mills, Tom Foley or any one else who seems so eager to comment on it. Responding to my post, Mr. Liebenthal writes "Mr. Esenberg, we do know a lot more about Walkergate than you are indicating." If he does know more, I sure can't find it on his blog.

In fact, just about anyone who does know anything is under order of the court to keep their mouth shut. Given that there are a number of people out there who are quite loquacious on the subject, I must assume that they are complying with the law and, therefore, don't know a damn thing. A case in point is that this post by Ms. Mills which claims there to be a "seemingly shady deals between Gov. Scott Walker and his various friends/aides" and the the investigation is "circling ever closer" to Walker for whom it reeks. She then proceeds to offer absolutely no evidence for any of that.

Second, I am claiming that Mr. Liebenthal's conduct is not unlike what we do know actually happened and what seems to have prompted the investigation, e.g., the fact that Darlene Wink posted comments to the Journal Sentinel's website. It is not unlike the only specific things that Mr. Liebenthal has managed to refer to in a number of posts, e.g., a County official doing "noncounty work on county time." Everything else is what is known in the business world as a SWAG.

I do understand the natural desire to speculate on what might be going on. But in light of the nature of the limited information that is available, it seems to me that if Mr. Liebenthal wants to comment on the subject, he ought to be forthcoming about his own past. I say that only because he is the one who decided to write a "primer" on the subject in which he pulled a great deal of innuendo out of nothing more than stuff that looks alot like what he did and the fact that someone is investigating something.

Third and ironically Mr. Liebenthal himself seems to have recognized that he should say something. But what he said was not forthright. He acknowledges the complaints against him but then blows them off by saying only that the supporting documentation was "irresponsible." This implies that he was exonerated and that the whole thing is part of a narrative about Republican chicanery. The fact is that the complaints led to his suspension without pay for ten days. If you're going to mention it, tell the whole story.

Fourth, I did not claim that Liebenthal was "blogging" at work or misrepresent publicly available information about what he did. I noted that the District Attorney's office issued a statement that said he had engaged in "extensive blogging." I explained that later reports claimed that the Assistant District Attorney for Milwaukee County in charge of political corruption apparently did not know what "blogging" is and that Liebenthal had only been reading political blogs. These later reports - reading but not writing - seem to have been affirmed by the Mr. Liebenthal's superiors and apparently by the ADA himself. I linked to them - or at least to the ones that I found.

I agree that, depending on the question we are asking, the difference between reading a blog and posting a comment could be significant. But in this context and particularly when he himself brought it up, I think its close enough to warrant some mention.

Fifth, my point is not that Mr. Liebenthal did something "terrible." It is embarrassing, of course, because he has quite vocally complained that Scott Walker has slashed and burned County resources so as to impair the ability of beleaguered county employees to deliver essential services. Yet he seems to have had the time - a lot of time apparently - to do something other than attend to his job.

In fact, both now and back when the story broke, I wrote that it wasn't so terrible. In fact, I repeated in this post what I wrote before the District Attorney issued his statement. I did not think that the accusations against Mr. Liebenthal should have resulted in criminal charges whether or not he blogged at work. I thought then - I think now - that they were a personnel matter and were properly handled as such.

Let me even clearer. I don't think he should have resigned (as Wink did) and I am not even sure that he should have been suspended without pay. It actually seems a bit harsh to me. But, then again, I don't have the details. He must have done an awful lot of "reading" to get suspended for ten days.

But here's the thing. I don't know - and he doesn't know - that any of the people that he thinks are being investigated did anything worse. He doesn't know that the Governor did anything at all. When he knows something, then he can crow. But if he wants to engage in "where's there's smoke" reasoning, he ought to be complete in describing his own fire.

That leads to my sixth - and probably most important - point which I fear I did not make clear. Mr. Liebenthal and his supporters claimed in the past - and claim now - that he was disserved by a rush to judgment. As one of the commenters to my post rather crudely puts it, they became "tumescent" without having the facts. Whether or not that's so (in some cases, the conservative bloggers were merely reporting what the DA's office said), there is a worthwhile point to be preserved. One ought to be careful - and decent - in discussing unproven allegations about others. One would have hoped that Chris Liebenthal's experience taught him the virtue of temperance.

But here he is, excuse the phrase, quite "tumescent" about what he can't possibly know. He implies the Governor's involvement in whatever is being investigated by calling it "Walkergate." He pronounces the Governor "tainted" and the matter "sordid." He says that something he can't even describe is "big, very big." (In fact, so eager is Mr. Liebenthal to accuse his political opponents of wrongdoing that he suggests there is scandal in Robin Vos being in Madison on a day that the legislature was not in session. Because ... what? We wouldn't want our lawmakers to be working on legislation, meeting with other public officials or, like, actually doing their homework?)


There may turn out to be a Walkergate. But even if there does, all of this schadenfreude won't be vindicated. The fact remains that Mr. Liebenthal doesn't know that the Governor or anyone close to the Governor - or anyone at all for that matter - is guilty of serious misconduct. He only wishes it to be so just as he believes that others wrongly wished for him to be fired or carted away.

Finally, there is a suggestion in some of the comments that "everyone does it" and Mr. Liebenthal just got caught because of the actions of the CRG. He didn't do what they thought but it put him under the microscope and who among us can survive that and come out unscathed? I don't know if that's what happened here but it's a observation worth pausing over. Increasingly, we fight our political wars by trying to destroy people we disagree with. It is a rare campaign in which opposition researchers can't find some flaw in the past of the other candidate and we aren't very good at keeping a sense of perspective about these things.

I'm not sure that Chris Liebenthal has much standing to complain about this. He blogs nasty as illustrated by the fact that his reaction to an assault on a state legislator is to speculate on whether the legislator did something wrong.

But it's still worth keeping in mind.

Finally, two points of personal privilege. Those with a life can go elsewhere. Mr. Liebenthal says - oh wait, Esenberg used his Marquette address in a filing to court on behalf of a client and that must be wrong. It certainly would have been contrary to the Dean's policy. It is the preference of Marquette Law School that faculty members not publicly identify as associated with the University when representing clients and that they use an alternative address. (That is not the case with respect to commenting on matters of public policy. Quite the opposite, actually.)

But here Mr. Liebenthal once again fails to make the basic inquiries that he insists upon from others. To the best of my recollection, I never filed a document in any court that used my Marquette address. To the contrary, I specifically instructed my co-counsel that this address never be used. The incident Mr. Liebenthal refers to arose when the clerk's office used my MULS address - which it had for other purposes - in a mailing to counsel instead of the address which we had used on our pleadings. When the clerk's office typed in my name, the MULS address came up. One phone call fixed the problem.

A commenter wants to know if I ever did anything at Marquette similar to what Mr. Liebentha admitted to doing at Milwaukee County, directing my attention to MU's Authorized Use Policy which, I have to admit, I don't recall having seen before. The short answer is I don't think so.

He fails to understand that the traditional responsibility of faculty - teaching, scholarship and service - is quite broad so that it is difficult to say that much of anything is outside the scope of organizational purposes. As much as the commenter might not understand, commenting on matters of public policy was something that I was expressly expected to do at MULS. There is a difference between "political" in that sense and "political" in the sense of organized political activity that would, for example, be subject to the campaign finance laws or IRS limitations on nonprofits. I don't really do that type of thing.

Having said that, I'm sure that I used my MULS e-mail account - although perhaps not my computer or office - for purposes other than work. I may have even used it for ordering my wife flowers. People have used it as a way for people to get in touch with me on a variety of things. I don't have fixed work hours and, at least until the past few months, much of a fixed work place. In fact, the MU AUP recognizes that such things will happen and makes clear that it is a privilege to be tolerated and not a right of employees and other users.

But Mr. Liebenthal didn't get in trouble for sending e-mails from his work account. There seems to have been a bit more going on there.

More fundamentally, I'm not the one that is speculating about grave wrongdoing by others when the only thing that I know for sure is something that I myself have done. When I blog about someone's use of their work e-mail address, I'll be sure to make a note of it.

Dixi.

26 comments:

Kevin said...

Rick, I don't think this is honestly going to make a hill of beans with these guys.

Foley just hates you because you're the right-wing prof at his law school. (He get his license back finally by the way or he still suspended?)

Liebenthal has convinced himself that "WalkerGate" is all about him, and frankly should see a shrink about it.

Most of the other guys are just trapped in as you said, a case of schadenfraude so big, they seem to forget that no one's been charged with anything beyond giving too much in campaign contributions.

And Foust frankly, is a troll and
a moron.

There, I probably just took off all the heat of you and put it on me, since I've intentionally angered the whole lot of them.

Dad29 said...

Kevin, they all know the First Rule of Propaganda: keep repeating ANY lie and it becomes 'the truth.' The bigger the lie, the better, too!!!

clemster said...

This site is one of the first I followed when I tried to make some sense of all of the craziness in Madison this year. Mr Esenberg, I applaud you on the sane and balanced approach you take in your commentary, and truthfully, I have not seen you make personal attacks. Your opponents do not give you the same courtesy, however. Over the weekend I had some exchanges on the site Blogging Blue, and my detractors went immediately on the attack, not even rebutting me per se, more like raining obscenities upon me. How do people expect rational discussion when that occurs? I am convinced that most liberals really do not see how they are perceived in the normal world. I believe they surround themselves with people who only see things in one dimension, and like Pres. Nixon, are never told when they step over the line. No wonder they react with so much alarm when their sheltered little world is threatened.

gnarlytrombone said...

I am not claiming that Mr. Liebenthal's conduct is the same as whatever is being investigated.
....
[I]f he wants to engage in "where's there's smoke" reasoning, he ought to be complete in describing his own fire.


Hmm. That doesn't quite square, does it? This is either disingenuousness or sloppy writing. Or perhaps Perfesser Esenberg has discovered a new branch of chemistry.

Mr. Liebenthal and his supporters claimed in the past - and claim now - that he was disserved by a rush to judgment

No, he was victimized by wingnut lies and phony evidence.

grumps said...

I'm still working on the part of the post that claims Vos was "doing his homework" at the saloon when an idiot spilled a beer on him.

Methinks, Shark, you doth protest a bit too much. Again, I ask you to draw a distinction between reading blogs in the workplace, as Liebenthal did, and actively working on behalf of a campaign as Wink admits. There is a higher standard that you seem to be wiling to ignore.

Will you be providing an equivalent smoke-screen for the WRTL bribery investigation?

Anonymous said...

Clemster you could not be more right about the level of rhetoric you get from the left. "Raining obscenities" is their default position.

Liebenthal was suspended for 2 weeks without pay yet he did nothing wrong.

Liebenthal has an unhealthy obsession with the Governor yet the left lines up in support of him while decrying anything to the right of socialist behavior.

Stick with the Shark.

gnarlytrombone said...

Liebenthal was suspended for 2 weeks without pay yet he did nothing wrong

He did something a hundred thousand office workers in the state do every day, including many of your fellow-travelling public servants. The only reason he was singled out is because of the public attention generated from CRG making more serious but phony allegations with doctored evidence.

Anonymous said...

"I don't often engage with other local bloggers (and am generally told that I should do less of it) because there are relatively few local bloggers on the left with the slightest interest in engaging in responsive and minimally courteous discourse."

Professor, seriously? I offer you Kevin's "courteous" reply as evidence.

A classic case of confirmation bias on your part, sir (as well as Dad29 and anony 10:33 a.m.). Look carefully in your own backyard before you start pointing fingers. Sheesh!

John Foust said...

Did my post disappear?

George mitchell said...

Oh no. Don't tell me r missing a Foust post?

John Foust said...

You seemed the most enlightened at the moment in your post where you admit it would be difficult for anyone to emerge unscathed from the microscope of public scrutiny. The rest is downhill.

For someone who doesn't like character assassination and idle speculation beyond the facts in evidence, you seem gleeful jumping on Liebenthal. "A lot of time apparently... There seems to have been a bit more going on there." Really? Like what? What that the County and the DA couldn't find? In honor of this, I'll point out your Standard Contradictory Disclaimer™: But, then again, I don't have the details. He must have done an awful lot of "reading" to get suspended for ten days.

The thread running through all of this is that you think Liebenthal didn't disclose enough about his own incident. You think he needs to do this whenever he engages in speculation or he mentions that Wink was writing posts boosting her boss Walker. (Did we ever discover who was running ScottForGuv.com?) Liebenthal's details were reported in the papers and rehashed on blogs. He has some recurring obligation to reveal even more?

Please note I used "tumescent" once in reference to the state of arousal of BadgerBloggers (not Liebenthal's supporters) who ever so much wanted to believe that Liebenthal was writing political blog posts on County time. I think you purposefully repeated it in your previous post. If you knew the DA's use of "blogging" was ambiguous, and you knew the later clarification showed Liebenthal hadn't written posts, why did you use the former statement at all? Why do you again hoist the phrase "criminal charges whether or not he blogged at work" here?

In my comment on your other post, I stated that I understood that faculty enjoy greater academic freedom, say, their departmental secretary. I take your word that your job description includes commenting on public policy. Have I ever questioned that?

You work at the discretion of a private university. The Marquette AUP says faculty are not supposed to be using MU resources for personal bits and private gain. The plain language says you may do so "on rare occasions" and at "an absolute minimum" and "limited to breaks or lunch periods" but you seem rather casually unconcerned about using it in a variety of personal ways. That's some fancy lawyering to convert that to "a privilege to be tolerated" for ordering flowers online, or, to reframe it in your own words, gathering information for political purposes.

Mazo Jeff said...

Best Wishes on your new venture, Professor. I have a question. My understanding is the FBI is investigating this so called "Walkergate". I understand that this relates to a possible violation of Wisconsin Campaign law! What jurisdiction does the FBI have in enforcing a State law?

Rick Esenberg said...

Foust, really, no one cares.

Anonymous said...

"Foust, really, no one cares."

Is this the type of argument that one would use in a court of law or in a spirited classroom debate, dear Professor?

Why not enlighten us, please, as to how his post required your (curt) response.


--David

John Foust said...

I am The Commenter Who Must Not Be Named.

George Mitchell said...

Rick's original point remains: no one who knows what actually is going on with the investigation is talking. And, Rick correctly notes the irony in Capper drawing conclusions after having to cool his heels for a couple weeks for not doing his job. John Chisholm is responsible for the allocation of many public resources in this investigation. Eventually we will understand whether it was time and money well spent.

John Foust said...

No, George, the Professor would like Capper to wear a scarlet 'R' (for web 'r'eader) or some sort of sandwich board to forever disclose the nature of his disciplinary action, before he ever comments on Walker again. I look forward to the Professor's suggested language for this warning, as it would serve as good boilerplate for all such disclosures in the future.

Rick Esenberg said...

M. Jeff

My understanding is that they were simply assisting a state investigation but we'll know when we know.

Anonymous said...

George Mitchell--Just because Capper had to supposedly "cool his jets" because of his ALLEGED misconduct does NOT mean he should shut his trap, lest he appear hypocritical. That is the purpose of bloggers, to bring forth information and speculate on that information, regardless if he/she engaged in certain "misbehaviors" they are commenting about. We, the readers, can decide whether or not that information is of sound logic or mere nonsense.

George Mitchell said...

Anon 5:04: You refer to Capper's misconduct as "alleged." Have I missed something? Does he...or you...claim no misconduct occurred?

Anonymous said...

George--Gnarlytrombone already covered it.

George Mitchell said...

So he accepted a 10-day suspension for something everyone does everyday?

Really? Does Capper claim that?

(I don't read gnarly's comments so I missed this lame excuse.)

Anonymous said...

George--(I don't read gnarly's comments so I missed this lame excuse.)

Be obtuse on your time, get back to work!


"So he accepted a 10-day suspension for something everyone does everyday?"

OMG, seriously? People are beating a dead horse. Capper got in trouble. The debate is whether his conduct warranted a bigger consequence AND whether he has any credibility to blog on that same conduct that he received "punishment" for.

Sorry, but what he is reporting has a MUCH BIGGER impact on the lives of Wisconsinites. Just because there is a "stain" on his record does not mean he cannot be right or be accurate in the analysis.

Anonymous said...

http://media.jsonline.com/documents/liebenthal_suspension.pdf

The first point in that letter, THAT CHRIS SIGNED, was that the charges were well founded.

So a memo to Rusty Trombone about the "doctored evidence" slur -- either provide a source or retract it. I know you're too gutless to do either, you scumbag.

Anonymous said...

Anony 3:41 p.m., your link is broken. Try again!

Anonymous said...

Figures that Rusty Trombone is too chickenshit to back up his doctored evidence claim.