The Structural Legal Rot Runs Deep

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June 5, 2022

With the likelihood of a Republican tsunami at the midterms, some are already spinning wish lists of structural changes they hope will begin to take shape. Without wishing to rain on their — or your — parade, I’d like to point out how deep by now the structural rot goes. It’s beyond the collapse of academia and K-12 education, the evisceration of our military, government waste, the dysfunction of our health system, and the one-sidedness of media coverage. It goes to the very heart of our legal system.

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This week Peter Navarro was charged by a D.C. grand jury for contempt of Congress for refusing to cooperate with the House Select Committee, a purely partisan confection of Nancy Pelosi in violation of all the traditional House rules, and a clear propaganda operation. (Mark Meadows and Dan Scavino, Jr. cooperated to some extent and were spared. The committee also referred them for prosecution, but the department of Justice declined to prosecute them.)

The charge against Navarro is a misdemeanor process crime but with significant possible consequences. 

Instead of following the normal procedure in such cases of notifying the person charged and allowing them to report for processing, the FBI affected to humiliate him, arrested him as he was boarding a plane and publicly handcuffing him and placing him in leg irons.

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Powerline reminds us how Attorney General Eric Holder was treated when Congress held him in contempt:

“And, of course, you remember when the FBI arrested Holder and put him in leg irons on the same charge that is being brought against Navarro. No, wait… Navarro told the court today that he would represent himself rather than hiring a lawyer. But the biggest problem he faces is not the absence of counsel, it is the fact that his case will go before a jury of D.C. Democrats.”

It’s not just the Department of Justice that’s corrupted, it’s big law firms as well. Let me explain.

The leaking of the Alito draft memo in which a majority (in draft form) overturned Roe v. Wade was shocking, a breach of the confidentiality rules on court deliberations, a sound policy that has existed as long as memory. Chief Justice John Roberts has initiated an investigation, and initially there was considerable discussion of the consequences to the leaker. The NY Post is one example of the debate on the legality of the leak. No clear criminal law seemed to cover it, and the most likely crimes it was suggested would be false statements to a federal investigator or hacking if that’s how it is determined the leak occurred:

George Washington University law professor Jonathan Turley called the leak “such a serious and malicious act that it could warrant prosecution” but said he was “leery of stretching the criminal code” to build a case.

“I believe that the strongest case for prosecution would likely be… for false statements to a federal investigator,” he said.

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It’s concerning the document that belongs to the Supreme Court was placed in the hands of someone else without authorization. 

“I am assuming investigators are likely to speak to most of the relatively small group of people with access to the draft opinion, including the culprit. If [the probe] later finds incriminating evidence, a denial on first contact can be used as the basis for a charge.”

Alito’s draft was distributed to all of his fellow justices, whose clerks sign pledges of confidentiality as part of their one-year jobs, The Associated Press said.

About 70 people might ordinarily have seen Alito’s draft, AP said.

UCLA law professor Adam Winkler said that although leaking the draft “would not violate any law in and of itself,” the way it was obtained may have been illegal.

“It could have been hacked,” he said. 

“If that’s how it came out, that is a federal crime.”

Of course, if a crime did occur it would have to be prosecuted by the Department of Justice and heard in a D.C. court. Probably before a judge who wouldn’t find it reason to strike from the jury panel officers of Planned Parenthood or NARAL and the partner of the leaker.

The next line of argument respecting the punishment for the leaker, is that if it was a law clerk, his/her career is finished. Not so fast, the Washington Free Beacon cautions.

The paper contacted partners and staff at six of D.C.’s top law firms known for regularly hiring Supreme Court clerks. Every single one declined to condemn the breach or to say whether they would hire the leaker.

The steely silence approach to the unprecedented leak highlights growing tension in elite law firms between their white-collar pedigree and increasing left-wing staff. While top firms must maintain their prestige and credibility with the courts and their corporate clients, they’re increasingly populated by a new class of young, left-wing lawyers who view those very entities as harmful and oppressive, The strain is driving a new dynamic in which woke lawyers are given a free hand to set DEI [Diversity Equity Inclusion] policies or take on progressive causes pro bono, while the firm’s high-dollar commercial work goes on unabated.

Several firm offices are hosting drag queen bingo, one partner told the Beacon. Another former lawyer at one of those firms said “leftist attorneys are seizing perches on diversity and governance committees, where they can influence DEI programming and leftwing pro bono work with support from aligned partners.”

The more hiring decisions are based on DEI instead of demonstrated competence and character, the more left wing the firms will become.

And, don’t count on corporate clients to put a brake on this. In fact, many are supporting and encouraging it.  “Corporations in particular screen firms based on diversity and ideological considerations, such as whether they’ve represented Trump businesses or the former president himself.”

Of course, with all this pro bono work, to my knowledge, not a single such firm has represented the January 6 defendants rotting for months in D.C. jails in obvious violation of their civil rights. You’d think those regarded as “officers of the court” would consider standing up for fair treatment according to the law would do so.

These firms do, however, provide big donations to Democrats — about “$61 million to Democrats and left-wing causes during the Trump era, compared with just $11 million for Republicans.”

It will be a lot longer and harder to turn the country around than you might otherwise imagine.

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