Real Politics And Bar Politics
The Baltimore Sun (and many other news outlets) carried this story last week
An Anne Arundel County judge has ordered Maryland officials to investigate a complaint against three lawyers accused of deleting emails while representing former presidential candidate Hillary Clinton, overruling objections from lawyers representing the state.
Circuit Court Judge Paul F. Harris Jr. ruled Monday after a short hearing in Annapolis that the Attorney Grievance Commission and Office of Bar Counsel Maryland Office of Bar Counsel must investigate attorneys David E. Kendall, Cheryl D. Mills and Heather Samuelson. All three are licensed to practice in Maryland and could face professional sanctions if the commission determines there are guilty of misconduct.
Ty Clevenger, a Texas attorney who lives in New York, filed the complaint, saying they deleted thousands of emails related to a private email server Clinton used during her time as Secretary of State. He argued they engaged in misconduct by destroying evidence.
Clevenger said he is writing a book on political corruption and called the Clinton email scandal a case study of politically affiliated attorneys receiving preferential treatment. Clevenger’s complaint seeks to have them disbarred in Maryland. He unsuccessfully filed a similar complaint with the Washington, D.C., bar.
Clevenger received media attention for his work in Texas, assisting in the indictment on fraud against of Texas Attorney General Ken Paxton, a Republican in office since 2015.
“My thesis is: If you are a politically prominent attorney, you are held to a different standard,” Clevenger said after the hearing. “I’ve seen this in Texas, California … I choose this case because I knew people would pay attention.”
Samuelson, Mills and Kendall all could not be reached for comment.
The commission is based in Annapolis, which puts any appeal of their decision before the Anne Arundel court.
The bar counsel decided not to investigate this case and has that discretion when they deem cases to be frivolous, Rhode told the judge.
Harris asked her to explain how the case was frivolous, but Rhode said she could not do so without releasing confidential information. Rhode and the attorney generals office declined to comment due to ongoing litigation.
Clevenger said it was the first time his Maryland complaint was labeled as frivolous. The bar counsel initially responded to Clevenger’s complaint by saying he has “no personal knowledge of the allegations presented in your correspondence, nor are you a personally aggrieved client or party possession material information that would assist this office in reviewing such allegations,” according to court documents.
The bar counsel dismissed Clevenger’s complaint, prompting him to ask a judge to force the bar counsel to investigate the allegations.
Leading up to Monday’s hearing the Maryland Attorney General’s Office filed a motion to dismiss the case, which was denied by Judge Ronald A. Silkworth. The judge ruled Clevenger had a right to request the investigation as Maryland law allows any person to file a bar grievance.
Clinton’s emails have been an ongoing story since her run for president against Donald Trump in the 2016 election.
Republicans have used the emails as a rallying cry. When it was discovered that 33,000 emails were deleted — which is the impetus for this bar grievance — Republicans pointed to it as proof that Clinton was abusing her power while secretary of state.
The FBI ultimately opened an investigation into Clinton’s use of the private server. During the investigation, Clinton pointed to the use of personal email by Secretary of State Colin Powell as a precedent. But the comparison wasn’t exact — Clinton maintained a private server in her home, Powell did not, according to media reports.
Democrats have railed against the investigation against Clinton, calling it politically motivated and unfair.
During the investigation, Clinton said she didn’t knowingly send or receive classified information on the private server. The FBI ultimately ruled that while Clinton did receive and send classified information, she didn’t knowingly do so.
Former FBI director James Comey released a statement on July 5, 2016 saying Clinton’s administration was careless but the email usage didn’t rise to pursuing charges.
I have a number of thoughts here.
First, I am far from certain that a circuit court judge has the authority to order the Bar Counsel to investigate any particular complaint. I think that is a dangerous precedent.
Second, Clevenger is correct that who you are, as opposed to what you did, is a highly consequential factor in bar discipline.
Try prosecuting a well-placed partner at a prominent firm for billing irregularities and see how it goes if you need to be convinced of this fact.
Third, bar discipline is an ill-suited vehicle to address the conduct of prominent political figures across the political spectrum.
Do the names Jay Bybee, John Yoo, David Addington, Monica Goodling (slap on the wrist in Virginia) et al ring a bell?
Efforts to initiate a bar investigation against Eric Holder over the Fast & Furious contempt went nowhere.
And how is that complaint to the D.C. Bar against KellyAnne Conway going?
Wouldn’t it be nice if all bar proceedings – including dismissal letters – were made public?
Then, the supposedly-protected public would be better able to judge whether the systems that regulate attorneys are legitimate and free from inappropriate influences.
(Mike Frisch)