June 9, 2017, at The Hill

By John R. Lott, Jr.

When it comes to issues such as sanctuary cities, it is impossible to avoid controversy. When President Donald Trump appoints anyone to help oversee the issue, it will be controversial, especially if the appointment promises to be very effective one.

Milwaukee County Sheriff David Clarke is scheduled to serve as an assistant secretary at the Department of Homeland Security. He will be working at the Office of Partnership and Engagement, which coordinates outreach to state and local governments. 

Clarke’s understanding of domestic law enforcement issues makes him the perfect candidate. He joins President Trump in opposing sanctuary cities and in supporting the creation of a wall on the U.S-Mexican border.

Not surprisingly, the long knives are out for Sheriff Clarke. 

Even in the Trump administration, some are not happy with the choice. National Economic Council Director Gary Cohn and Deputy National Security Advisor for Strategy Dina Powell are reportedly fighting hard to delay and reverse Clarke’s appointment before it becomes official.

Their argument?

A CNN report that Sheriff Clarke supposedly plagiarized portions of his master's thesis on homeland security.

CNN focused on 23 short segments of his nearly 40,000-word thesis. Eighteen are mere sentence fragments; five are full sentences. CNN cites the supposedly standard definition of plagiarism: “If a passage is quoted verbatim, it must be set off with quotation marks . . . The length of the phrase does not matter. . . . even if only a few words are involved.”

But what Sheriff Clarke did was not dishonest. He footnoted each of these segments, citing the correct sources right on the same page.

Steven Brill, the founder of Court TV and a lecturer at the Yale English department, in 2007 told the Yale Daily News: “Plagiarism is when you steal someone’s words and you don’t attribute it to that person.” He went on to address the case of Ian Ayres, a professor at the Yale Law School, who copied large chunks of writing — even more than a couple of paragraphs at a time. “I don’t think it quite rises to that, because he is attributing what he’s saying to the person [in the endnotes]. His intent could not have been terribly guilty, because he provided neon signs … for anyone to figure out what he’d done.”

Ayres does list his sources in endnotes at the back of the book, though the sources are not directly linked to copied passages and the relevant source were sometimes at the end of a list. This hardly qualifies as “neon signs.”

By contrast, Clarke’s thesis footnoted on the same page each questionable sentence. It was sloppy of Clarke to copy five separate sentences in their entirety, but he did not commit plagiarism. His actions do not approach Ayres’ wholesale and less transparent copying of large sections.

In copying from the writing of the New York Times' David Leonhardt, Leonhardt was concerned that "many readers will surely assume that Ayres witnessed some events" himself. In fact, Leonhardt witnessed them. Leonhardt has clear grievances here, and has argued that many readers will make this assumption.

Clarke does not steal other people's experiences or take credit for their work. Nor are the sentences in question central to Clarke's arguments.

Perhaps the most famous book on plagiarism is Thomas Mallon's “Stolen Words: Forays into the Origins and Ravages of Plagiarism.” The New York Times called it, "The definitive book on the subject." Mallon told the Weekly Standard, "Constant paraphrasing without at least semi-regular attribution constitutes a form of plagiarism." But even if one views Clarke’s writing as containing “constant paraphrasing,” he attributes the sources he used in each and every case.

A number of Harvard law professors have faced plagiarism accusations. But in each and every case, then Dean Elena Kagan, now Supreme Court Justice, found that no rules had been broken. 

• Professor Alan Dershowitz was accused of copying verbatim 22 of the 52 endnotes in his book. At the end of the book, Dershowitz merely mentioned the book that he copied from.
• Professor Laurence Tribe copied many passages almost word-for-word from another scholar’s work. He escaped blame because he had hired a first-year law student to ghostwrite the book for him. The student took the blame.
• Professor Charles Ogletree used six consecutive paragraphs from another book. But it was decided that the mistake did not result from “deliberate wrongdoing.”

None of these academics suffered any lasting ramifications for their copying. But there ought to have been consequences.

Beyond a shadow of a doubt, Clarke did not dishonestly take someone else’s work. If there ever were “neon signs” pointing to the sources of the paraphrasing, Sheriff David Clarke had them.