A senior law professor at New York University Law, Professor Burt Neuborne, who is also the founding director of NYU's Brennan Center, and perhaps ironically a former national legal director of the American Civil Liberties Union, penned a Guest Essay ("There's a Good Chance Trump Will Be Found 'Willfully Blind'"), which is a fascinating example of falsification and post hoc fallacy: he aggressively advances with astonishing mistruths that President Trump is already guilty based solely on accusations, makes from that particular false assumption a false conclusion that the former president has limited legal remedies, and finally tries to sell the general reader on a legal theory that serves the plaintiff (the "government") in its case against the defendant: that President Trump will be found "willfully blind" by using false statements (questioning an election) to create an unlawful benefit (overturning it). 

Neuborne then proceeds to directly misrepresent both fact and law by arguing that because the 2020 election is obviously settled and without controversy, it therefore converts a normal and appropriate appeal into a crime that creates a "categorical exception" to protected speech. 

He includes in his use of precedent the 1949 case of Giboney v. Empire Storage and Ice Co., from which he quotes: "it rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute."  This is especially interesting because in Trump v. Biden, the violation of statute by the DNC is precisely what the Wisconsin chief justice pointed out as a core point of law in her dissent.  The court majority refused to consult relevant statute law that controls election procedure.

The professor's analysis of Global-Tech Appliances v. SEB is even more of a fascinating exercise in misrepresentation.  He states that "Justice Samuel Alito, writing for all but one justice, ruled that proof of willful blindness is the legal equivalent of proving guilty knowledge."  But how does one "prove" willful blindness?

According to the NYU law professor, that's easy: "[w]hen a defendant, like Mr. Trump, is on notice of the potential likelihood of an inconvenient fact (Mr. Biden's legitimate victory), and closes his eyes to overwhelming evidence of that fact, the 'willfully blind' defendant is just as guilty as if he actually knew the fact. There's an excellent chance that 12 jurors will find, beyond a reasonable doubt, that Mr. Trump hid from the truth by adopting willful blindness." 

The professor engages in obvious circular reasoning, as his argument's fundamental premises need as much proof as the conclusion.

But Neuborne does more than engage in logical error and partisan hyperbole: he deliberately confuses the public, who may be relying on his position as a law professor for their understanding.  Perhaps worst of all, he abuses that same position by misleading law students.  Without the rights of due process, presumption of innocence, cross-examination, and the right to face accusers, there is no law.  Legal defense is what makes the law work.  Legal rights are the absolute counter-party to legal complaints.  This is a concept and a principle in common law extending back centuries.  Unfortunately, much of our legal traditions are being undermined by the very law professors who teach common law in American law schools.

Neuborne's essay is a striking example of a deliberate, willful act to damage the integrity of public understanding.  In this regard, it could be viewed as an actionable violation of Bar Association rules of professional conduct against the public to whom a higher duty of professionalism is owed.

Neuborne surely knows this, but his partisan passions, combined with the institutional priorities of NYU and its Brennan Center — which is staffed almost exclusively by active DNC members and former Obama appointees — have apparently made him blind to the central professional standards of the law, which he is charged with upholding, both as a lawyer and as a law teacher, where objectivity remains law's highest principle.

None of these criticisms of a law professor's indulgence in partisan manipulation of legal standards should be surprising, as many of his colleagues at Yale, Chicago, Berkeley, Harvard, Columbia, NYU, and more are operating as effective consultants to the prosecution, but in so doing are deliberately poisoning the public domain with false statements in fact and law.

Matthew G. Andersson is the author of the upcoming book Legally Blind.  A former CEO, he has been featured in the Wall Street Journal, the Financial Times, the New York Times and by the National Academy of Sciences in law and economics.  He has testified before the U.S. Senate and is a graduate of the University of Chicago.  He studied with White House national security advisor W.W. Rostow at the LBJ School of Public Affairs.

Image: Jonathan71 via Wikimedia Commons, CC BY-SA 2.5.